Once again the First Amendment, as it applies to lawyers, is under attack. The First Amendment! The one that says speech is protected from being abridged by the government. That one. Here it is, in case you forgot:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
14th Amendment. Bla bla. Equal protection. Applies to the states. Yet, here we are again, a government body is telling lawyers that they cannot speak freely. Did anyone in Ohio read Bates v. State Bar of Arizona? We’re not talking about misleading language (which is a violation of any false advertising law), but handing out a brochure or pamphlet with your contact information, or having a Q&A after a CLE. Roy Ginsberg goes through the insanity of the recent opinion on Direct In-person Solicitation of Prospective Clients at Seminars issued by The Supreme Court of Ohio, Board of Professional Conduct: Is Ohio Gagging Lawyers Speaking at Seminars? Some highlights on passing out a brochure with information:
Ohio officials decided that lawyers may distribute information only at “displays near the exit.” But they cannot “personally distribute the materials.” The officials reasoned that, when available at an exit, attendees “have the option either to stop or to simply walk away.” Apparently, it is not ethical for you to walk down the aisle and hand your information to an attendee who asks for it. Instead, you can only have an unmanned booth at the exits.
What about a Q&A?
What about situations where attendees have questions for the presenting lawyer after the seminar is over? How are lawyers supposed to handle that? According to the Ohio opinion, the lawyer can’t answer; it’s unethical.
Well, the good news is, less marketing collateral for us to create, and the lawyers can just skip the whole networking thing and run to catch the next plane out of town. Problem solved. I just don’t get it. Do the bar associations actually think that we consumers are all so stupid and uneducated that we don’t understand that a brochure is just a piece of paper with information on it, and that we can throw them away if we don’t want them? And that by asking a question we have not retained a person as our personal attorney? Or do they not trust the lawyers that they are licensing on how to act like a professional in a business setting? How draconian, paternalistic, and demeaning. What this decision will do is constrain business. Lawyers will not take the time to present at a conference or event if there is no benefit (meet new referral sources, influences, and (gasp) potential clients). Constraining a business from operating and practicing as a business only hurts consumers by limiting the information that is available for a consumer to make an informed decision. The good news: the opinion isn’t binding. There is time. I hope that those practicing law in Ohio rise up on this one. Just like Texas backed down on their asinine rule of non-attorney titles (Dammit. We’re a BUSINESS, Texas Center for Legal Ethics, not just a profession and update). No matter how you slice it, this is just really embarrassing.
Texas Bar Assoc revised Ethics Opinion 642 permitting non-lawyers to hold titles of office, principal or director. #stillembarrassing
— Ann Lee Gibson (@annleegibson) September 26, 2015
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