Ethics Counsel on www.OKbar.org

ORPC Changes at a Glance (Part 3)

By Gina Hendryx, OBA Ethics Counsel

This is the third and final installment highlighting changes coming to the Oklahoma Rules of Professional Conduct. On Jan.1, 2008, amendments to the Oklahoma Rules of Professional Conduct as approved by the Oklahoma Supreme Court will become effective. These changes may be viewed at www.okbar.org/members/EthicsCounsel/RulesProfessionalConduct.aspx. In the August and October editions of the Oklahoma Bar Journal, several of the modifications to the Oklahoma Rules of Professional Conduct were summarized. The following includes guidance with conflicts when assisting a pro bono legal service and changes to the advertising rules.

Rule 6.5 Nonprofit and Court-Annexed Limited Legal Services Programs

Rule 6.5 is a new rule and as such there was no previous Oklahoma version. This rule recognizes that lawyers may provide short term, limited legal services on behalf of a nonprofit or court-annexed program where there is no expectation that the lawyer will provide continuing legal services. Examples include hotline advice, pro se counseling and advice-only clinics. A lawyer who provides such short-term representation must obtain the client’s informed consent to the limited scope representation. Because of the nature of the consultation, lawyers providing such services may not be able to check for conflicts of interest. Therefore, paragraph (a) requires compliance with Rules 1.7 (Conflict of Interest) and 1.9(a)(Conflict with Former Client) only if the lawyer knows that the representation presents a conflict of interest for the lawyer. The American Bar Association adopted Model Rule 6.5 in 2002 due to concerns that strict interpretation of conflict rules “may be deterring lawyer from serving as volunteers in programs [providing] short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program.” 1

Rule 7.1 Communication Concerning a Lawyer’s Services

Rule 7.1 states that a “lawyer shall not make a false or misleading communication about the lawyer’s services.” It goes on to define false and misleading statements that create “unjustified expectations” and/or imply “achieving results” that have been removed from the body of the rule and moved to Comments [3] where these concepts are better defined.

Rule 7.2 Advertising

This rule has had significant changes including the addition of “electronic communication” as a form of regulated advertising. Paragraph (b) clarifies the exception to the reciprocal referral rule in that a lawyer is permitted to refer clients to another lawyer or non-lawyer professional pursuant to a reciprocal referral agreement in that if the agreement is not exclusive, the client is informed of the existence and nature of the agreement, and the lawyer does not pay anything solely for the referral.

Rule 7.2 no longer requires that copies of advertising or communications be kept for three years. Communications made pursuant to this rule must include the name and office address of at least one lawyer or law firm responsible for its content. Direct mail solicitation no longer needs to carry the “report to the OBA” language.

Rule 7.3 Direct Contact With Prospective Clients

Language was added to paragraph (a) that prohibits the in-person contact of prospective clients to include “real-time” electronic contact. Paragraph (c) proscribes that every communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside of the envelope and at the beginning and ending of any recorded or electronic communication.

Rule 7.4 Communication of Fields of Practice and Certification

Rule 7.5 Firm Names and Letterheads

These rules remain basically unchanged. Rule 7.4 permits lawyers to communicate the fact that the lawyer does or does not practice in particular fields of law. However, there are narrow exceptions to the rule that a lawyer shall not state or imply that the lawyer is certified as a specialist in a particular field of law. Comment [1] to Rule 7.5 recognizes that lawyers or law firms may be designated by a distinctive Web site address or comparable professional designation. Use of trade names for law practices is acceptable as long as the name is not misleading.

Rule 8.5 Disciplinary Authority; Choice of Law

A lawyer admitted to practice in Oklahoma is subject to the disciplinary authority of this jurisdiction regardless of where the lawyer’s conduct occurs. The newly adopted language also subjects a lawyer not admitted in Oklahoma to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. The rule additions also incorporate a Choice of Law provision.

The changes to the Oklahoma Rules of Professional Conduct become effective on Jan. 1. If you have any questions as to the applicability of any rule to your specific practice, please contact Gina Hendryx, ethics counsel for the OBA, at ginah@okbar.org or (405) 416-7083.

1. ABA Legislative History on Model Rules of Professional Conduct.

Originally published in the Oklahoma Bar Journal -- Dec.8, 2007 -- Vol. 78; No.34.