It’s no secret that I’m not a fan of asking for permission before doing something. Why would I give someone else the power to tell me that I can’t do that thing? Unless that thing is clearly out-of-bounds, I’d much rather just make the call myself, and then argue about it later if anyone has a problem with my decision.
Unfortunately, a lot of lawyers prefer the deliberate approach. This is why we have attorney advertising ethics committees and their opinions. And as I’ve pointed out before, these ethics opinions are often a problem: deaf to the First Amendment, conservative to a fault, they far too often hew to a line far beyond any responsible (or constitutional) regulation of attorney speech.
To whit, our latest entrant in the ethics opinion Hall of Shame: an opinion out of the Buckeye State which finds that attorneys giving seminars to the public cannot engage in dialogue with people who come up to them after the seminar asking legal questions. These poor muted devils are limited to “advis[ing] that person to contact the office to make an appointment or to seek legal counsel of his or her choice.”
That is, to put it charitably, absolutely bonkers.
To the extent states can prohibit direct solicitation of clients, that regulatory authority is limited to in-person (or the technological equivalent of in-person) solicitation. This rule – first articulated in a case involving an ambulance-chasing attorney from, yes, Ohio – has parameters well-defined by no less than four Supreme Court cases (Ohralik, Primus, Shapero, Went For It).
It should hardly bear mentioning that any permissible limitations on lawyers soliciting business are limited to solicitation itself. If the potential client starts the conversation – whether by calling your office or asking a question after a seminar you’ve just given – it’s not solicitation. End of story.
Unless you sit on the Supreme Court of Ohio Board of Professional Conduct, and issue an asinine, blatantly unconstitutional ethics opinion that muzzles attorneys and denies consumers access to legal information even when they are affirmatively asking for it.
This is madness – and a reminder of the ever-present perils of asking for permission.
h/t Brian Faughnan