Rule 1.0. TERMINOLOGY

As used in these rules:

(a)

“Belief” or “believes” denotes that the person involved actually supposed

the fact in question to be true. A person’s belief may be inferred from circumstances.

(b)

“Confirmed in writing,” when used in reference to the informed consent of a

person, denotes informed consent that is given in writing by the person or a writing that a

lawyer promptly transmits to the person confirming an oral informed consent. See division

(f) for the definition of “informed consent.” If it is not feasible to obtain or transmit the

writing at the time the person gives informed consent, then the lawyer must obtain or

transmit it within a reasonable time thereafter.

(c)

“Firm” or “law firm” denotes a lawyer or lawyers in a law partnership,

professional corporation, sole proprietorship, or other association authorized to practice

law; or lawyers employed in a private or public legal aid or public defender organization,

a legal services organization, or the legal department of a corporation or other

organization.

(d)

“Fraud” or “fraudulent” denotes conduct that has an intent to deceive and is

either of the following:

(1)

an actual or implied misrepresentation of a material fact that is made

either with knowledge of its falsity or with such utter disregard and recklessness

about its falsity that knowledge may be inferred;

(2)

a knowing concealment of a material fact where there is a duty to

disclose the material fact.

(e)

“Illegal” denotes criminal conduct or a violation of an applicable statute or

administrative regulation.

(f)

“Informed consent” denotes the agreement by a person to a proposed

course of conduct after the lawyer has communicated adequate information and

explanation about the material risks of and reasonably available alternatives to the

proposed course of conduct.

(g)

“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in

question. A person’s knowledge may be inferred from circumstances.

d consent” denotes the agreement by a person to a proposed

course of conduct after the lawyer has communicated adequate information and

explanation about the material risks of and reasonably available alternatives to the

proposed course of conduct.

(g)

“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in

question. A person’s knowledge may be inferred from circumstances.

(h)

“Partner” denotes a member of a partnership, a shareholder in a law firm

organized as a professional corporation, or a member of an association authorized to

practice law.

(i)

“Reasonable” or “reasonably” when used in relation to conduct by a lawyer

denotes the conduct of a reasonably prudent and competent lawyer.

(j)

“Reasonable belief” or “reasonably believes” when used in reference to a

lawyer denotes that the lawyer believes the matter in question and that the circumstances

are such that the belief is reasonable.

(k)

“Reasonably should know” when used in reference to a lawyer denotes that

a lawyer of reasonable prudence and competence would ascertain the matter in question.

(l)

“Screened” denotes the isolation of a lawyer from any participation in a

matter through the timely imposition of procedures within a firm that are reasonably

adequate under the circumstances to protect information that the isolated lawyer is

obligated to protect under these rules or other law.

(m)

“Substantial” when used in reference to degree or extent denotes a matter

of real importance or great consequence.

(n)

“Substantially related matter” denotes one that involves the same

transaction or legal dispute or one in which there is a substantial risk that confidential

factual information that would normally have been obtained in the prior representation of

a client would materially advance the position of another client in a subsequent matter.

es a matter

of real importance or great consequence.

(n)

“Substantially related matter” denotes one that involves the same

transaction or legal dispute or one in which there is a substantial risk that confidential

factual information that would normally have been obtained in the prior representation of

a client would materially advance the position of another client in a subsequent matter.

(o)

“Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding,

or a legislative body, administrative agency, or other body acting in an adjudicative

capacity. A legislative body, administrative agency, or other body acts in an adjudicative

capacity when a neutral official, after the presentation of evidence or legal argument by a

party or parties, will render a binding legal judgment directly affecting a party’s interests

in a particular matter.

(p) “Writing” or “written” denotes a tangible or electronic record of a communication

or representation, including handwriting, typewriting, printing, photostating, photography,

audio or videorecording, and electronic communications. A “signed” writing includes an

electronic sound, symbol, or process attached to or logically associated with a writing and

executed or adopted by a person with the intent to sign the writing.

Comment

Confirmed in Writing

[1]

If it is not feasible to obtain or transmit a written confirmation at the time the client

gives informed consent, then the lawyer must obtain or transmit it within a reasonable time

thereafter. If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on

that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

ed in Writing

[1]

If it is not feasible to obtain or transmit a written confirmation at the time the client

gives informed consent, then the lawyer must obtain or transmit it within a reasonable time

thereafter. If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on

that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

[2]

Whether two or more lawyers constitute a firm within division (c) can depend on

the specific facts. For example, a lawyer in an of-counsel relationship with a law firm will be

treated as part of that firm. On the other hand, two practitioners who share office space and

occasionally consult or assist each other ordinarily would not be regarded as constituting a firm

for purposes of fee division in Rule 1.5(e). The terms of any agreement between associated

lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual

access to information concerning the clients they serve. Furthermore, it is relevant in doubtful

cases to consider the underlying purpose of the rule that is involved.

[3]

With respect to the law department of an organization, there is ordinarily no

question that the members of the department constitute a firm within the meaning of the Ohio

Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client.

For example, it may not be clear whether the law department of a corporation represents a

subsidiary or an affiliated corporation, as well as the corporation by which the members of the

department are directly employed. A similar question can arise concerning an unincorporated

association and its local affiliates.

[4]

Similar questions can also arise with respect to lawyers in legal aid and legal

services organizations. Depending upon the structure of the organization, the entire organization

or different components of it may constitute a firm or firms for purposes of these rules.

nt are directly employed. A similar question can arise concerning an unincorporated

association and its local affiliates.

[4]

Similar questions can also arise with respect to lawyers in legal aid and legal

services organizations. Depending upon the structure of the organization, the entire organization

or different components of it may constitute a firm or firms for purposes of these rules.

[4A]

Government agencies are not included in the definition of “firm” because there are

significant differences between a government agency and a group of lawyers associated to serve

nongovernmental clients. Of course, all lawyers who practice law in a government agency are

subject to these rules. Moreover, some of these rules expressly impose upon lawyers associated

in a government agency the same or analogous duties to those required of lawyers associated in a

firm. See Rules 3.6(d), 3.7(c), 5.1(c), and 5.3. Identifying the governmental client of a lawyer in

a government agency is beyond the scope of these rules.

Fraud

[5]

The terms “fraud” or “fraudulent” incorporate the primary elements of common

law fraud. The terms do not include negligent misrepresentation or negligent failure to apprise

another of relevant information. For purposes of these rules, it is not necessary that anyone has

suffered damages or relied on the misrepresentation or failure to inform. Under division (d)(2),

the duty to disclose a material fact may arise under these rules or other Ohio law.

Informed Consent

n

law fraud. The terms do not include negligent misrepresentation or negligent failure to apprise

another of relevant information. For purposes of these rules, it is not necessary that anyone has

suffered damages or relied on the misrepresentation or failure to inform. Under division (d)(2),

the duty to disclose a material fact may arise under these rules or other Ohio law.

Informed Consent

[6]

Many of the Ohio Rules of Professional Conduct require the lawyer to obtain the

informed consent of a client or other person (e.g., a former client or, under certain circumstances,

a prospective client) before accepting or continuing representation or pursuing a course of conduct.

See, e.g., Rules 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary

according to the rule involved and the circumstances giving rise to the need to obtain informed

consent. The lawyer must make reasonable efforts to ensure that the client or other person

possesses information reasonably adequate to make an informed decision. Ordinarily, this will

require communication that includes a disclosure of the facts and circumstances giving rise to the

situation, any explanation reasonably necessary to inform the client or other person of the material

advantages and disadvantages of the proposed course of conduct and a discussion of the client’s

or other person’s options and alternatives. In some circumstances it may be appropriate for a

lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not

inform a client or other person of facts or implications already known to the client or other person;

nevertheless, a lawyer who does not personally inform the client or other person assumes the risk

that the client or other person is inadequately informed and the consent is invalid

propriate for a

lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not

inform a client or other person of facts or implications already known to the client or other person;

nevertheless, a lawyer who does not personally inform the client or other person assumes the risk

that the client or other person is inadequately informed and the consent is invalid. In determining

whether the information and explanation provided are reasonably adequate, relevant factors

include whether the client or other person is experienced in legal matters generally and in making

decisions of the type involved, and whether the client or other person is independently represented

by other counsel in giving the consent. Normally, such persons need less information and

explanation than others, and generally a client or other person who is independently represented

by other counsel in giving the consent should be assumed to have given informed consent.

[7]

Obtaining informed consent will usually require an affirmative response by the

client or other person. In general, a lawyer may not assume consent from a client’s or other

person’s silence. Consent may be inferred, however, from the conduct of a client or other person

who has reasonably adequate information about the matter. A number of rules require that a

person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of

“writing” and “confirmed in writing,” see divisions (p) and (b). Other rules require that a client’s

consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a

definition of “signed,” see division (p).

Screened

[8]

This definition applies to situations where screening of a personally disqualified

lawyer is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12, or

1.18.

ons (p) and (b). Other rules require that a client’s

consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a

definition of “signed,” see division (p).

Screened

[8]

This definition applies to situations where screening of a personally disqualified

lawyer is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12, or

1.18.

[9]

The purpose of screening is to assure the affected parties that confidential

information known by the personally disqualified lawyer remains protected. The personally

disqualified lawyer should acknowledge the obligation not to communicate with any of the other

lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working

on the matter should be informed that the screening is in place and that they may not communicate

with the personally disqualified lawyer with respect to the matter. Additional screening measures

that are appropriate for the particular matter will depend on the circumstances. To implement,

reinforce, and remind all affected lawyers of the presence of the screening, it may be appropriate

for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid

any communication with other firm personnel and any contact with any firm files or other

information, including information in electronic form, relating to the matter, written notice and

instructions to all other firm personnel forbidding any communication with the screened lawyer

relating to the matter, denial of access by the screened lawyer to firm files or other information,

including information in electronic form, relating to the matter, and periodic reminders of the

screen to the screened lawyer and all other firm personnel.

[10]

In order to be effective, screening measures must be implemented as soon as

practical after a lawyer or law firm knows or reasonably should know that there is a need for

screening.

creened lawyer to firm files or other information,

including information in electronic form, relating to the matter, and periodic reminders of the

screen to the screened lawyer and all other firm personnel.

[10]

In order to be effective, screening measures must be implemented as soon as

practical after a lawyer or law firm knows or reasonably should know that there is a need for

screening.

Substantial and “Substantially Related Matter”

[11]

The definition of “substantial” does not extend to “substantially” as used in Rules

1.9, 1.10, 1.11, 1.12, 1.16, 1.18, and 7.4. The definition of “substantially related matter” is taken

from Rule 1.9, Comment [3] and defines the term for purposes of Rules 1.9, 1.10, and 1.18.

“Personally and substantially,” as used in Rule 1.11, originated in 18 U.S.C. Sec. 207. Rule 1.12,

Comment [1] defines “personally and substantially” for former adjudicative officers.

Comparison to former Ohio Code of Professional Responsibility

Rule 1.0 replaces and expands significantly on the Definition portion of the Code of

Professional Responsibility. Rule 1.0 defines fourteen terms that are not defined in the Code and

alters the Code definitions of “law firm” and “tribunal.”

Comparison to ABA Model Rules of Professional Conduct

Rule 1.0 contains four substantive changes to the Model Rule terminology and revisions to

the corresponding comments.

The definition in Model Rule 1.0(c) of “firm” and “law firm” is rewritten to expressly

include legal aid and public defender offices. Comments [2] and [3] have been altered, and

Comment [4A] has been added. Comment [2] is revised to address the status of of-counsel lawyers

and practitioners who share office space. Comment [3] is amended to eliminate the reference to

government lawyers. The rationale for this deletion and application of the Ohio Rules of

Professional Conduct to lawyers in government practice are addressed in a new Comment [4A].

have been altered, and

Comment [4A] has been added. Comment [2] is revised to address the status of of-counsel lawyers

and practitioners who share office space. Comment [3] is amended to eliminate the reference to

government lawyers. The rationale for this deletion and application of the Ohio Rules of

Professional Conduct to lawyers in government practice are addressed in a new Comment [4A].

The Model Rule 1.0(d) definition of “fraud” or “fraudulent” is amended to replace the

phrase “under the substantive or procedural law of the applicable jurisdiction” with the elements

of fraud that have been established by Ohio law. See e.g., Domo v. Stouffer (1989), 64 Ohio

App.3d 43, 51 and Ohio Jury Instructions, Sec. 307.03. Comment [5] is revised accordingly.

Added to Rule 1.0 is a definition of “illegal” in division (e). This definition clarifies that

rules referring to “illegal or fraudulent conduct,” including Rules 1.2(d), 1.6(b)(3), 1.16(b)(2),

4.1(b), and 8.4(c), apply to statutory and regulatory prohibitions that are not classified as crimes.

Model Rule 1.0(l), which defines “substantial,” is relettered as Rule 1.0(m) and revised to

incorporate a definition from Ohio case law. See State v. Self (1996), 112 Ohio App.3d 688, 693.

The new definition of “substantially related” is taken from Rule 1.9, Comment [3]. A new

Comment [11] is added to state that the definition of “substantial” does not extend to the term

“substantially,” as used in various rules, and to reference specific definitions in Rules 1.9, 1.11,

and 1.12.

I. CLIENT-LAWYER RELATIONSHIP