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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Ohio Legal Ethics Narrative

VIII Maintaining the integrity of the profession

8.5 RULE 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW

8.5:100 Comparative Analysis of Ohio Rule

8.5:101 Model Rule Comparison

Ohio Rule 8.5 is substantively identical to the Model Rule; the only differences are the substitution of "Ohio" for "this jurisdiction" each time those words appear in division (a).

8.5:102 Model Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.5: None.

8.5:200 Disciplinary Authority

  • Primary Ohio References: Ohio Rule 8.5(a), Gov Bar R V 11(F)
  • Background References: ABA Model Rule 8.5(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 10.39
  • Commentary: ABA/BNA § 101:2003, ALI-LGL § 5, Wolfram § 3.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 10.39 (1996).

"A lawyer admitted to practice in Ohio is subject to the disciplinary authority of Ohio, regardless of where the lawyer's conduct occurs." Ohio Rule 8.5(a). This was the "longstanding law" pre-Rules as well. Rule 8.5 cmt. [1]. See, e.g., Office of Disciplinary Counsel v. Scuro, 36 Ohio St.3d 205, 522 N.E.2d 572 (1988) (Ohio lawyer disciplined in Ohio for engaging in unauthorized practice of law in Texas). Lawyers admitted to practice pro hac vice in a tribunal in Ohio also are subject to the state's disciplinary authority. See generally Royal Indem. Co. v. J. C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986). In Cincinnati Bar Ass’n v. Mullaney, 119 Ohio St.3d 412, 2008 Ohio 4541, 894 N.E.2d 1210, the Court sanctioned a Kentucky lawyer admitted in various Ohio courts pro hac vice by enjoining him from practicing in Ohio, pro hac vice or otherwise, for two years.

As a related matter, Ohio imposes reciprocal discipline on Ohio lawyers disciplined for ethical misconduct by another jurisdiction. Gov Bar R V 11(F). Note that "another jurisdiction" includes a federal court, or federal department or agency. See Disciplinary Counsel v. Jewett, 103 Ohio St.3d 74, 2004 Ohio 4440, 814 N.E.2d 40 (tax court); Office of Disciplinary Counsel v. Harp, 101 Ohio St. 3d 1241, 2004 Ohio 1210, 805 N.E.2d 98 (bankruptcy court); Office of Disciplinary Counsel v. Porter, 97 Ohio St.3d 1221, 2002 Ohio 6774, 779 N.E.2d 1043 (district court); Disciplinary Counsel v. Knuth, 119 Ohio St.3d 1201, 2008 Ohio 3810, 891 N.E.2d 343 (U.S. Patent & Trademark Office); Disciplinary Counsel v. Gettman, 112 Ohio St.3d 1211, 2007 Ohio 138, 860 N.E.2d 106 (Department of Justice, Executive Office for Immigration Review).

Within thirty days of the issuance of the disciplinary order by another jurisdiction, the Ohio-licensed lawyer is to give notice of that fact to Disciplinary Counsel and the Clerk of the Ohio Supreme Court. Gov Bar R V 11(F)(1). Failure to do so may lead to a penalty enhancement. Gov Bar R V 11(F)(6). This notification then triggers the issuance of a show-cause order by the Court. Gov Bar R V 11(F)(2). Thirty days after the notice issued pursuant to V 11(F)(2), Ohio will impose identical or comparable discipline (see, e.g., Gettman supra ("public censure" by federal office; "public reprimand" imposed), unless the lawyer can show by clear and convincing evidence either that the original tribunal lacked jurisdiction or was compromised by fraud, Gov Bar R V 11(F)(4)(a)(i); or that the misconduct in question warrants substantially different discipline in Ohio. Gov Bar R V 11(F)(4)(a)(ii). Without such proof, a final disciplinary order from another jurisdiction conclusively establishes the misconduct in Ohio reciprocal-discipline cases. Gov Bar R V 11(F)(5). See Office of Disciplinary Counsel v. Hine, 80 Ohio St.3d 448, 687 N.E.2d 420 (1997) (applying V 11(F)(4)(a)(ii) standard). Further, the sanction imposed by the other jurisdiction is treated as presumptively correct. Gov Bar R V 11(F)(2)(b). This is so even if the sanction imposed in the other jurisdiction is one not available under the Ohio sanction scheme. Jewett supra (three-year suspension (unavailable in Ohio) by U.S. Tax Court likewise imposed on respondent in Ohio). See Disciplinary Counsel v. Witt, 106 Ohio St.3d 1210, 2005 Ohio 4981, 834 N.E.2d 818 (lawyer suspended in Connecticut until payment of Client Security Fund fee; Ohio suspends until respondent reinstated in Connecticut).

With respect to the imposition of "identical or comparable" discipline, compare Disciplinary Counsel v. Glover, 116 Ohio St.3d 1202, 2007, 116 Ohio St.3d 2007 Ohio 6031, 876 N.E.2d 576 (no showing that different discipline warranted; respondent disbarred and "unconditionally excluded" from admission to practice in Delaware; permanent disbarment imposed in Ohio), and Office of Disciplinary Counsel v. Meenen, 88 Ohio St.3d 268, 725 N.E.2d 626 (2000) (same; "'New Jersey disbarment is final.' Therefore, respondent is disbarred from the practice of law in Ohio." Id. (citation omitted)), with Office of Disciplinary Counsel v. Smith, 93 Ohio St. 3d 1221, 757 N.E. 2d 373 (2001) (respondent "disbarred" in Missouri; comparable sanction in Ohio is indefinite suspension; "he will not be reinstated to the practice of law in Ohio until such time as he is reinstated to the practice of law in the State of Missouri."  Id. at 1223, 757 N.E.2d at 373), and Office of Disciplinary Counsel v. Bustamante, 78 Ohio St.3d 74, 676 N.E.2d 516 (1997) (imposing "indefinite suspension" rather than "disbarment" as Florida had done because Ohio indefinite suspension was sanction most comparable to Florida disbarment). Note, however, that in a more recent case in which Florida had disbarred respondent, Ohio likewise imposed disbarment.  Disciplinary Counsel v. Kreiling, 105 Ohio St.3d 1201, 2005 Ohio 389, 822 N.E.2d 368. Unless the meaning of "disbarment" in Florida has changed since the Bustamonte case, Kreiling and Bustamonte seem incompatible. (While the Ohio Supreme Court in Kreiling refers in its opinion to "permanent disbarment" by the Florida Supreme Court, the disposition stated in 864 So.2d 401 is one word: "Disbarred.") See section 0.2:240 at "Special disciplinary provisions - Reciprocal discipline."

The other side of the coin is also reflected in Rule 8.5(a):

A lawyer not admitted in Ohio is also subject to the disciplinary authority of Ohio if the lawyer provides or offers to provide any legal services in Ohio. A lawyer may be subject to the disciplinary authority of both Ohio and another jurisdiction for the same conduct.

(Emphasis added.) As stated in Comment [1], this "[e]xtension of the disciplinary authority of Ohio to other lawyers who provide or offer legal services in Ohio is for the protection of the citizens of Ohio." Rule 8.5 cmt. [1]. The comment notes that the reciprocal enforcement of disciplinary rulings under Gov Bar R V 11, as discussed in the prior paragraph, "will further advance the purposes of this rule."

The scope of the Rule is somewhat uncertain. As stated, it proclaims disciplinary jurisdiction over any lawyer who "provides or offers to provide legal services in Ohio." Ohio Rule 8.5(a). As to the actual provision of services, when are they provided "in" the state? Does this include not only the provision of legal services conducted physically in the state, but also the provision of legal services in Ohio via the mails, telephone and the internet? For example, if a non-Ohio lawyer represents an Ohio client on an Ohio matter solely by phone, e-mail, and/or regular mail, is this providing legal services in the state? What if the out-of-state lawyer (who is licensed in State X) sends a letter from State X to an Ohio recipient on behalf of a State-X client. Does this constitute providing legal services in Ohio?

With respect to "offers" to provide legal services in the state, the Rule is ambiguous in another way. Is the focus here on making "offers" in the state? Does any solicitation of business made within the state render the lawyer subject to Ohio's disciplinary authority regardless of where the services are to be rendered? If so, is the mere accessibility of a firm web site to those within Ohio an implicit offer to provide services? Or is the focus not the place of the offer, but rather on the nature of the services offered? Perhaps the Rule applies wherever a lawyer offers to provide services as long as those services are to be provided in part in Ohio.

It would seem that guidance as to these questions under Rule 8.5(a) is provided by Rule 8.5(b)(2) – Ohio's Rules will be applied if Ohio is where the "conduct occurred" and where the "predominant effect" of that conduct is. If the predominant effect is in a jurisdiction other than where the conduct occurred, the jurisdiction of predominant effect (or that in which the lawyer reasonably believes the predominant effect will occur) is controlling. See further discussion in section 8.5:300 below. For a pre-rule case in which there would have been no uncertainty had Rule 8.5 been applicable, inasmuch as the conduct both occurred in Ohio and had its predominant effect there, (and also was directly related to matters pending before Ohio tribunals, see Rule 8.5(b)(1)), see Cincinnati Bar Ass’n v. Mullaney, 119 Ohio St.3d 412, 2008 Ohio 4541, 894 N.E.2d 1210 (sanctioning non-Ohio lawyer defending clients before Ohio courts pro hac vice in foreclosure actions involving Ohio properties).

While not related to lawyer disciplinary regulation, the comments point out that this new extension of the Court's disciplinary authority to out-of-state lawyers who provide, or offer to provide, service in Ohio may have an impact on whether those lawyers are subjecting themselves by their conduct to personal jurisdiction in Ohio civil actions. Ohio Rule 8.5 cmt. [1].

The subject of Comment [1A] is the granting of pro hac vice status and the revocation thereof. Granting pro hac vice status is a matter within the discretion of the court. See discussion at sections 5.5:420 and 8.1:240. Revocation of such status is a part of the tribunal's "inherent power to regulate the practice before the tribunal and protect the integrity of its proceedings." Rule 8.5 cmt. [1A]. Finally,

[r]evocation of pro hac vice status and disciplinary proceedings are separate methods of addressing lawyer misconduct, and a lawyer may be subject to disciplinary proceedings for the same conduct that led to the revocation of pro hac vice status.

Id. (The ABA Model Rule Comparison to Rule 8.5 states that Comment [1A] has been added to reflect Ohio case law concerning pro hac vice status, citing Royal Indemnity Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986).) Note that revocation can also be effected through disciplinary proceedings, as in the Mullaney case, discussed this section supra, where the respondent was enjoined from pro hac vice, practice in Ohio for two years.

8.5:300 Choice of Law

  • Primary Ohio References: Ohio Rule 8.5(b)
  • Background References: ABA Model Rule 8.5(b)
  • Commentary: ABA/BNA § 101:2101, ALI-LGL § 5, Wolfram § 2.6.1

With respect to choice-of-law principles, Ohio Rule 8.5(b) provides that

(1) as to conduct in connection with a matter pending before a tribunal, the rules of professional conduct in the jurisdiction where the tribunal sits shall be applied, "unless the rules of the tribunal ["including its choice of law rule," Rule 8.5 cmt. [4]] provide otherwise."

(2) as to all other conduct ("including conduct in anticipation of a proceeding not yet pending before a tribunal," Rule 8.5 cmt. [4]), the rules of professional conduct in the jurisdiction where the conduct occurred shall be applied, unless the predominant effect of the conduct is in a different jurisdiction, in which case the rules of professional conduct of that different jurisdiction shall be applied. (Comment [4] notes that with regard to conduct in anticipation of a proceeding likely to be before a tribunal, "the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction." Rule 8.5 cmt. [4].) Moreover, as stated in Rule 8.5(b), "[a] lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur."

Comment [3] states that this "reasonable belief" provision provides "protection from discipline for lawyers who act reasonably in the face of uncertainty." Rule 8.5 cmt. [3]. See also Rule 8.5 cmt. [5].

In cases where "two admitting jurisdictions" proceed against a lawyer for the same conduct, Comment [6] urges that the jurisdictions "should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules." Rule 8.5 cmt. [6]. Two thoughts with respect to Comment [6]: First, the reference to "two admitting jurisdictions" seems overly restrictive, given that Rule 8.5(a) expressly allows the exercise of disciplinary authority over lawyers engaging in conduct in jurisdictions where they are not admitted. See ABA, Annotated Model Rules of Professional Conduct 604 (6th ed. 2007) (commentary) (as amended in 2002, MR 8.5 "provides that any jurisdiction may sanction a lawyer who commits misconduct in that jurisdiction, even if the lawyer is not licensed there."). Second, the spectre of inconsistent rules being applied would seem to be considerably reduced by the provision in Rule 8.5(b) insulating from discipline any lawyer who conforms to the rules of a jurisdiction that the lawyer "reasonably believes" will be the jurisdiction of predominant effect.  See generally Thomas Spahn, Which State’s Ethics Rules Apply to Lawyers’ Conduct Outside Their Home State?, Experience, Spring 2008, at 45.

One BCGD opinion that touches on choice-of-law issues is Bd. of Comm'rs on Grievances & Discipline Op. 2004-11, 2004 Ohio Griev. Discip. LEXIS 9 (Oct. 8, 2004), in which the Board opined (1) that Ohio lawyers serving as "of counsel" to an out-of-state law firm may do so provided the "relationship does not violate the disciplinary rules or laws of the other state" and (2) that out-of-state lawyers can serve as "of counsel" to an Ohio firm, provided the "relationship complies with the disciplinary rules and laws of Ohio." Id. at *1 (syllabus).