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Ohio Legal Ethics Narrative
v. law firms and associations
- Primary Ohio References: Ohio Rule 5.5; Gov Bar R I 9, VI-VII, IX, XI; ORC 4705.01, 4705.07, 4705.99
- Background References: ABA Model Rule 5.5
Ohio Rule 5.5, which in divisions (a) and (b) is identical to the Model Rule, thereafter differs in a number of respects.
The changes in division (c) are as follows: After "lawyer" in the first line, the words "who is" have been added; after "jurisdiction" in the first line, the following phrase has been added: "is in good standing in the jurisdiction in which the lawyer is admitted,"; after "and" in the second line, the words "not disbarred or suspended from practice in any jurisdiction," have been deleted and the words "regularly practices law" inserted; and, in the last line of the opening paragraph, the word "that" has been deleted and "if one or more of the following apply:" has been added.
In each of the first three subdivisions of (c)
((c)(1), (2), and (3)), the subdivision starts with the newly added
words "the services" and the words "in or"
after "are" have been stricken.
In subdivision (c)(4), the beginning words "are not within paragraphs (c)(2) or (c)(3) and" have been deleted and the following words have been substituted: "the lawyer engages in negotiations, investigations, or other nonlitigation activities that".
In division (d), the following changes have been made: the words "and in good standing" have been added after "admitted" in the first line, and the phrase ", and not disbarred or suspended from practice in any jurisdiction," has been deleted; in the last line "that" has been replaced by "in either of the following circumstances:".
(d)(1), the beginning words "are provided to the lawyer's
employer or its organizational affiliates and are not services"
have been deleted and the following has been substituted in their
place: "the lawyer is registered in compliance with Gov. Bar
R. VI, Section 3 and is providing services to the employer or its
organizational affiliates". After "for which", the
words "the forum requires" have been deleted and the
following has been substituted in their place: "the permission
of a tribunal to appear". Finally, "admission" has
been deleted after pro hac vice and "is not required"
has been substituted in its place.
In subdivision (d)(2), the first word "are" has been deleted and "the lawyer is providing" substituted in its place; and "federal law or other law of this jurisdiction." has been replaced with "federal or Ohio law."
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 5.5(a): DR 3-101.
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 5.5(b): None.
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 5.5(c): None.
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 5.5(d): None.
- Primary Ohio References: Ohio Rule 5.5(a) & (b); Gov Bar R I, VI-VII; ORC 4705.01, 4705.07(A)
- Background References: ABA Model Rule 5.5(a) & (b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 3.9-3.13, 3.22, 3.33, 3.35
- Commentary: ABA/BNA §§ 21:8001, :8201; ALI/LGL § 4; Wolfram § 15.1
Introduction: The area of unauthorized practice of law is multifaceted. The most obvious culprit -- a layperson practicing law or holding himself out as a lawyer -- is not covered by the Rules at all (nor was it by the Code), but rather by statutory provisions, see ORC 4705.01, 4705.07, and by Gov Bar R VII 2(A). The layperson- unauthorized-practice cases are discussed in section 5.5:210.
Ohio Rule 5.5 addresses lawyer conduct constituting unauthorized practice and a lawyer's assisting others in doing so. Thus, under Rule 5.5(a), a lawyer cannot "practice law in a jurisdiction in violation of the regulation of the legal profession in the jurisdiction, see section 5.5:220, or assist another in doing so. "Another" in this context includes both laypersons and lawyers not authorized to practice in Ohio. See section 5.5:240. Nor can a lawyer not admitted in Ohio
an office or other systematic and continuous presence in this
jurisdiction for the practice of law [unless authorized by these
rules or other law]; [or]
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
Rule 5.5(b)(1) & (2) (virtually identical language of which was added as a part of the ABA 2002 amendments to the Model Rule). See section 5.5:300 below.
The remainder of Rule 5.5 is devoted to specific situations in which a lawyer admitted elsewhere can practice in Ohio either on a temporary or continuous basis. In slightly different language, these multijurisdictional practice provisions were also added by the ABA to MR 5.5 as part of the 2002 amendments; the Ohio provisions will be discussed below in sections 5.5:400-:500. The provisions of MR 5.5 are discussed in Thomas Spahn, Multijurisdictional Practice, Experience, Winter 2008, at 42.
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 §§ 3.9-3.13, 3.22, 3.29-3.31 (1996).
Nonlawyer practice of law - In general: The core concern behind prohibitions against the unauthorized practice of law by nonlawyers is that those individuals will not be qualified to render legal services. Ohio Rule 5.5 cmt. . This concern was clearly evident in the Ohio Supreme Court's decision in Akron Bar Ass'n v. Frank, 88 Ohio St.3d 152, 724 N.E.2d 399 (2000), where the Court stated as follows:
What is clear from the document respondent has filed before us is that respondent has no idea of judicial procedure, no concept of how to present facts, and is unable to interpret case law. Respondent presents unsupported conclusions, takes words and phrases out of context, and liberally uses legal jargon without understanding its meaning. Respondent is a living example of why we require character and fitness reviews, examinations of legal ability, and continuing education of those who are permitted to give legal advice and appear in our courts. Respondent is hereby ordered to discontinue any and all activities that constitute the practice of law.
88 Ohio St.3d at 153-54, 724 N.E.2d at 401. Accord Disciplinary Counsel v. Kafele, 108 Ohio St.3d 283, 2006 Ohio 904, 843 N.E.2d 169 (Frank's "living example" quote used; respondent's "misguided attempts" to prepare legal documents on behalf of a limited liability company "illustrate why the practice of law must be strictly limited to licensed attorneys," id. at ¶ 19).
A secondary concern is that nonlawyers are not regulated like lawyers and hence clients will not receive the protections that lawyer regulation and discipline afford.
As noted above, Rule 5.5 deals with lawyer conduct; with respect to nonlawyers, statutory provisions provide for the punishment of nonlawyers who engage in the unauthorized practice of law. See ORC 4705.01 (prohibiting the unauthorized practice of law); ORC 4705.07(A) (prohibiting one "not licensed to practice law in this state" from (1) holding him or herself out as an attorney or (2) as authorized to practice law or (3) from committing any act prohibited by the Supreme Court as the unauthorized practice of law); and ORC 4705.99(A) (setting the fine for violations of ORC 4705.07(A)(1) or (2)). Accord Gov Bar R VII 2(A). Moreover, the Ohio Constitution "confers on this court original jurisdiction over all matters related to the practice of law, including allegations of laypersons practicing law without a license"; this authority permits the Court "to enjoin the unauthorized practice of law before federal courts in this state," as well as state courts, "'except to the limited extent necessary for the enforcement of the federal objectives.'" Cleveland Bar Ass'n v. Baron, 106 Ohio St.3d 259, 2005 Ohio 4790, 834 N.E.2d 343, at para. 6 (preparing legal documents for filing in bankruptcy court; inner quotation from Sperry v. Fla. ex rel. Fla. Bar Ass'n, 373 U.S. 379, 402 (1963)). See also 1 Restatement (Third) of the Law Governing Lawyers § 4 (2000) (unauthorized practice by nonlawyers).
The body directly responsible for hearing complaints against nonlawyers concerning the unauthorized practice of law is the Board of Commissioners on the Unauthorized Practice of Law. Gov Bar R VII 2. (Complaints against lawyers for unauthorized practice or assisting in the unauthorized practice of law remain under the jurisdiction of the Board of Commissioners on Grievances and Discipline.) Pursuant to Gov Bar R VII 16, the Supreme Court adopted Final Regulations for the Board on the Unauthorized Practice of Law, effective June 1, 2006. See 109 Ohio St.3d xix-xxviii. Included in the Regulations are provisions for the issuance of UPL Advisory Opinions. See UPL Reg 300. The first such opinion issued since the regulations were promulgated is UPL 2008-1 (Feb. 7, 2008), dealing with lawyer and nonlawyer representation of labor organizations in collective bargaining and labor-grievance arbitration. See generally Eugene P. Whetzel, Advisory Opinions Provide Guidance, Ohio Law., May/June 2008, at 26. Effective November 1, 2007, the Supreme Court also approved the addition of Gov Bar R VII 5b. It permits parties with matters pending before the Board to submit a proposed resolution in the form of a settlement agreement or consent decree.
In all UPL cases the allegations of unauthorized practice of law by an individual or entity "must be supported by either an admission or specific evidence of an act constituting the infraction." Cleveland Bar Ass'n v. CompManagement, Inc., 111 Ohio St.3d 444, 2006 Ohio 6108, 857 N.E.2d 95, at para. 26 (emphasis by the Court). Accord syllabus one.
The nonlawyer-practice-of-law cases come in all sizes and shapes, from garden-variety attempts to do so by individuals to those involving legislative action bestowing this power in limited circumstances on nonlawyers. In exploring these cases, three questions need to be asked: (1) Who is a nonlawyer? (2) What is the practice of law? (3) When is the practice of law unauthorized?
Who is a nonlawyer: The answer to the first question is relatively straightforward; a nonlawyer is a person or entity not licensed to practice law. Inasmuch as only individuals may be so licensed, attempts by entities such as corporations to engage in the practice are by definition attempts by nonlawyers. Only licensed lawyers on active status are authorized to practice; thus, unauthorized-practice concerns can be implicated as well by lawyers who are suspended or on inactive or retired status. The cases dealing with such lawyers are discussed in section 5.5:220. The layperson and entity cases are treated in this section.
A nonlawyer case involving considerable chutzpa on the part of the respondent is Disciplinary Counsel v. Robson, 116 Ohio St.3d 318, 2007 Ohio 6460, 878 N.E.2d 1042. Robson graduated from law school but never passed the bar. Nevertheless, he held himself out to the law firm that hired him as licensed to practice by fabricating fictitious attorney-registration numbers for Ohio and North Carolina. While so employed, he engaged in the unauthorized practice by holding himself out as an attorney to clients, by advising a client on corporate structuring strategies, and by representing another client’s interests in settlement negotiations. When the law firm discovered respondent’s fraud, it fired him. Since this fraud outweighed mitigating factors, a $1,000 fine was imposed in addition to the injunction against acting as a lawyer. As part of the parties’ stipulation, respondent “has agreed never to reapply for admission to the Ohio bar. Our order enjoining the filing of such an application will ensure that he does not.” Id. at para. 38.
What is the practice of law: With respect to the second question, "[t]he definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons." Ohio Rule 5.5 cmt. . See also ABA, Annotated Model Rules of Professional Conduct 459 (6th ed. 2007) (commentary) (states often reluctant to adopt comprehensive definition; "[n]evertheless, each jurisdiction has identified, whether in decisional law, statutes, or court rules, certain activities that constitute the practice of law." The Ohio jurisprudence on the subject follows.
Perhaps the most often cited definition is that found in the Ohio Supreme Court's seminal decision in Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 (1934) (syllabus one):
The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law.
In addition to Dworken, another commonly cited definition of the practice of law provides:
It is clear that a licensed attorney in the practice of law generally engages in three principal types of professional activity. These types are legal advice and instructions to clients to inform them of their rights and obligations; preparation for clients of documents and papers requiring knowledge of legal principles which is not possessed by an ordinary layman; and appearance for clients before public tribunals, which possess the power and authority to determine rights of life, liberty and property according to law, in order to assist in the proper interpretation and enforcement of law.
Special Master Comm'rs v. McCahan, 83 Ohio Law Abs. 1, 11, 167 N.E.2d 541, 550 (C.P. Stark 1960). Accord Sharon Village Ltd. v. Licking County Bd. of Revision, 78 Ohio St.3d 479, 481, 678 N.E.2d 932, 934 (1997) (quoting the three McCahan categories with approval).
Consistent with this test, "one who purports to negotiate legal claims on behalf of another and advises persons of their legal rights and the terms and conditions of settlement engages in the practice of law." Cleveland Bar Ass'n v. Henley, 95 Ohio St.3d 91, 92, 766 N.E.2d 130, 131 (2002). Accord Cincinnati Bar Ass'n v. Cromwell, 82 Ohio St.3d 255, 695 N.E.2d 243 (1998).
Two other important cases bearing on the meaning of the practice of law in the administrative context are Cleveland Bar Ass'n v. CompManagement, Inc., 104 Ohio St.3d 168, 2004 Ohio 6506, 818 N.E.2d 1181, ("CompManagement I") and Cleveland Bar Ass'n v. CompManagment, Inc., 111 Ohio St.3d 444, 2006 Ohio 6108, 857 N.E.2d 95 ("CompManagment II"), discussed this section infra at "Lay representation before administrative tribunals."
Whether an activity constitutes the practice of law also depends on the recipient of the service. Gov Bar R VII 2(A) defines the unauthorized practice of law as "the rendering of legal services for another by any person not admitted to practice in Ohio . . . ." (emphasis added). In Board of Comm'rs on Grievances & Discipline Op. 88-018, 1988 Ohio Griev. Discip. LEXIS 1, at *1 (Aug. 12, 1988), the Board determined that "because a legal research and writing service for other lawyers does not involve representing or advising clients, it should not be considered the practice of law." The Ohio Board of Commissioners on the Unauthorized Practice of Law held that holding oneself out as a lawyer when not entitled to do so technically is not the practice of law because it does not involve representing others. Office of Disciplinary Counsel v. Brown, 61 Ohio Misc.2d 792, 584 N.E.2d 1391 (Bd. of Comm'rs on Unauthorized Practice of Law 1992). Such conduct, however, is still subject to legal sanction under ORC 4705.07.
Further, the fact that the layperson "'received no renumeration for his actions is irrelevant' to the determination of whether he engaged in the unauthorized practice." Cleveland Bar Ass'n v. Henley, 95 Ohio St.3d 91, 92, 766 N.E.2d 130, 131 (2002) (quoting Geauga County Bar Ass'n v. Canfield, 92 Ohio St.3d 15, 16, 748 N.E.2d 23, 24 (2001)).
When is the practice of law unauthorized: Applying these basic definitions, some cases are relatively easy. Nonlawyer representation of another by appearing on the other's behalf in a court action, whether civil or criminal in nature, obviously is the unauthorized practice of law. Cleveland Bar Ass'n v. Para-Legals, Inc., 106 Ohio St.3d 455, 2005 Ohio 5519, 835 N.E.2d 1240 (attempting to represent out-of-state corporation in court through "sham authority" of power of attorney; also advertised "We Are Not Attorneys; We Just Do All of the Work!" Id. at paras. 5, 8); Columbus Bar Ass'n v. Purnell, 94 Ohio St.3d 126, 760 N.E.2d 817 (2002) (entry of appearance, without supervision of attorney, by paralegal on behalf of minor in personal-injury matter); Office of Disciplinary Counsel v. Stuber, 63 Ohio Misc.2d 23, 616 N.E.2d 998 (Bd. of Comm'rs on Unauthorized Practice of Law 1993) (nonlawyer representation of others in civil cases); Cleveland Bar Ass'n v. Smith, 62 Ohio Misc.2d 776, 610 N.E.2d 671 (Bd. of Comm'rs on Unauthorized Practice of Law 1993) (nonlawyer representation of others in criminal cases); Cf. Akron Bar Ass'n v. Coombs, 85 Ohio St.3d 391, 709 N.E.2d 108 (1999) (respondent charged with violation of various disciplinary rules (but not with unauthorized practice) based on his representation of a client in several legal matters (including appearance in a criminal matter) prior to his admission to the Ohio bar. Respondent argued below that he had not engaged in the unauthorized practice of law; in affirming the Board's finding of violations as charged, the Court went out of its way to note that "[c]ontrary to respondent's assertions at the hearing," the practice of law encompasses activities such as those engaged in by respondent. Id. at 392, 709 N.E.2d at 109).
Nor is there any doubt that the filing of pleadings and other papers in a court of law by a nonlawyer is the unauthorized practice of law. E.g., Toledo Bar Ass’n v. Joelson, 114 Ohio St.3d 425, 2007 Ohio 4272, 872 N.E.2d 1207; Cleveland Bar Ass'n v. Washington, 107 Ohio St.3d 90, 2005 Ohio 5978, 836 N.E.2d 1212; Disciplinary Counsel v. Givens, 106 Ohio St.3d 144, 2005 Ohio 4104, 832 N.E.2d 1200.
Also constituting the unauthorized practice of law is a nonlawyer’s provision of legal advice, consultation on legal matters, or drafting of legal documents, whether intended for use in court or otherwise. E.g., Ohio State Bar Ass’n v. Newburn, 119 Ohio St.3d 96, 2008 Ohio 3823, 892 N.E.2d 431 (preparation of documents granting reciprocal easements to two of his clients by nonlawyer professional surveyor); Ohio State Bar Ass’n v. Martin, 118 Ohio St.3d 119, 2008 Ohio 1809, 886 N.E.2d 1809 (advising others on their legal rights and giving aid in the preparation and completion of legal documents and forms); Cleveland Bar Ass'n v. Boyd, 112 Ohio St.3d 331, 2006 Ohio 6590, 859 N.E.2d 930 (providing legal advice and preparing legal documents for filing in court); Ohio State Bar Ass'n v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio St.3d 107, 2006 Ohio 6511, 858 N.E.2d 372 (drafting or writing contract or other legal instrument for another, intended to create legally binding relationship between employer and union, constitutes unauthorized practice of law, even if contract copied from form book or was previously prepared by a lawyer); Cincinnati Bar Ass'n v. Bailey, 110 Ohio St.3d 223, 2006 Ohio 4360, 852 N.E.2d 1180 (providing legal advice and preparing legal documents for those seeking relief from drivers' license suspensions from Bureau of Motor Vehicles); Ohio State Bar Ass'n v. Allen, 107 Ohio St.3d 180, 2005 Ohio 6185, 837 N.E.2d 762 (unlicensed preparation of legal documents and legal counseling constituted unauthorized practice of law); Dayton Bar Ass'n v. Addison, 107 Ohio St.3d 153, 2005 Ohio 6044, 837 N.E.2d 367 (nonlawyer prepared dozens of estate-planning documents for "clients" over seven-year period); Columbus Bar Ass’n v. Verne, 99 Ohio St.3d 50, 2003 Ohio 2463, 788 N.E.2d 1064 (CPA’s drafting of documents creating business entity); Columbus Bar Ass'n v. Smith, 96 Ohio St.3d 156, 2002 Ohio 3607, 772 N.E.2d 637 (preparing documents and giving advice for filing them to customers seeking to retain driving privileges and appealing driver's license suspensions constituted unauthorized practice of law). Medina County Bar Ass'n v. Flickinger, 95 Ohio St.3d 498, 2002 Ohio 2483, 769 N.E.2d 822 (preparing warranty deed and holding herself out as an attorney licensed in Ohio constituted unauthorized practice of law by respondent); Columbus Bar Ass'n v. Purnell, 94 Ohio St.3d 126, 127, 760 N.E.2d 817, 818 (2002) ("A paralegal who, without the supervision of an attorney, advises [, files papers in court,] and represents a client in a personal injury matter is engaged in the unauthorized practice of law."); Geauga County Bar Ass'n v. Canfield, 92 Ohio St.3d 15, 748 N.E.2d 23 (2001) (former attorney who had resigned from practice of law but who prepared land-installment contract and notarized the contract with the legend "commission has no expiration date," which can be used only by an attorney admitted to practice, engaged in unauthorized practice of law); Cleveland Bar Ass'n v. Slavin, 62 Ohio Misc.2d 570, 608 N.E.2d 870 (Bd. of Comm'rs on Unauthorized Practice of Law 1993) (preparation of legal documents and provision of legal advice and consultation with respect to leasing of real property by law school graduate who had not passed Ohio or any other bar); Akron Bar Ass'n v. Singleton, 60 Ohio Misc.2d 19, 573 N.E.2d 1249 (Bd. of Comm'rs on Unauthorized Practice of Law 1990) (syllabus) (sale of "dissolution kit" by nonattorney, combined with preparation of petition for dissolution of marriage, separation agreement, decree of dissolution, visitation order, and child support forms for filing in court, and issuance of advice and counseling of Ohio residents concerning the laws of Ohio on divorce and dissolution of marriage).
Other examples of the unauthorized practice of law by nonlawyers include:
Representation of clients by foreign corporation and its nonlawyer/sole shareholder in securities arbitration and mediation proceedings. Disciplinary Counsel v. Alexcole, Inc., 105 Ohio St.3d 52, 2004 Ohio 6901, 822 N.E.2d 348.
"[R]epresentation by a nonattorney who advises, counsels, or negotiates on behalf of an individual or business in the attempt to resolve a collection claim between debtors and creditors." Ohio St. Bar Ass'n v. Kolodner, 103 Ohio St.3d 504, 2004 Ohio 5581, 817 N.E.2d 25, at ¶ 15.
"Contracts in which collection agencies are allowed to prosecute claims before a court of justice on behalf of creditors are generally unenforceable since they authorize a collection agency to practice law. The collection agency practices law by interposing itself as an intermediary between a licensed attorney and a client. In effect, the collection agency becomes the client of the attorney when it is not. This creates an absence of the attorney-client relationship that diverts the interest of the attorney from the entity whose real interests are at stake in the proceedings, thereby giving rise to a possible conflict of interest." Med Controls, Inc. v. Hopkins, 61 Ohio App.3d 497, 499, 573 N.E.2d 154, 155 (Cuyahoga 1989) (citations omitted).
Permissible law-related conduct by nonlawyers: It is clear that nonlawyers may play some role in support of individuals involved in court actions, estate planning, commercial transactions, and the like. The problem is one of drawing the line.
From a review of the major Ohio Supreme Court cases on this topic (discussed more fully this section infra at "Lay employee assistance in the practice of law"), two variables seem most important. The first goes to the skills necessary to do the task. To the extent the work is ministerial or, although more advanced, is something a person could do without legal training, doing such work by nonlawyers would be permissible. When the issue turns on advising a client or sharing information with them, problems arise when the nonlawyer moves from sharing general information or information from the public record to providing legal information or advice specific to the individual represented. See Office of Disciplinary Counsel v. Palmer, 115 Ohio Misc.2d 70, 761 N.E.3d 716 (Bd. of Comm'rs on Unauthorized Practice of Law 2001) (nonlawyer's website that dispensed general legal information and replied to inquiries with general responses not rising to the level of legal advice was not practice of law). Additional factors come into play when a nonlawyer represents a client before administrative tribunals. See discussion in this section infra at "Lay representation before administrative tribunals."
In a number of decisions, the Ohio Supreme Court has tried to spell out in more detail the distinction between the unauthorized practice of law and the permissible performance of law-related activities by nonlawyers. In the most recent case of this type, Ohio State Bar Ass'n v. Burdzinski, Brinkman, Czanzasty & Landwehr, Inc., 112 Ohio St.3d 107, 2006 Ohio 6511, 858 N.E.2d 372, in addition to finding that drafting legal documents does constitute the unauthorized practice of law, the Court spelled out three areas that did not constitute the unauthorized practice of law in the context presented. Thus, although respondents gathered information indicating why employees may want a union and developed strategies to respond to that information,
[g]athering information, even on a matter that may come before a court of law, is not the practice of law. The strategies developed appear to be business-oriented, such as how to communicate with employees. Strategic planning of this nature is not the practice of law.
Id. at para. 16. Also, while advising a client how to comply with a regulatory scheme would normally be the practice of law, it was not in this case, where the "NLRB has already performed that function." Following the strict NLRB guidelines, without analysis or interpretation, is permitted; "[p]resenting prepackaged legal advice of this nature is not the practice of law." Id. at para. 18. Finally, the respondents negotiated on behalf of their customers. While negotiation can be the practice of law,
[r]espondents here are not negotiating the settlement of a legal dispute, nor are they negotiating a business or real-estate contract in which all elements of the contract are negotiable. Rather, there is a clearly defined scope of allowable subjects for negotiation. Because of the close federal regulation and the limited subjects for negotiation,
respondent's conducting of negotiations on behalf of their clients during the collective-bargaining process is not the practice of law. Id. at para. 20.
In Dayton Bar Ass'n v. Lender's Serv., Inc., 40 Ohio St.3d 96, 532 N.E.2d 120 (1988), the Ohio Supreme Court addressed the question of the extent to which nonlawyers could perform title searches and report on the results without being guilty of the unauthorized practice of law. The Court drew a distinction between conducting a title search, which can be performed by nonlawyers, and examining or rendering opinions on titles, which cannot. The former practice is permissible because it simply involves a search of the public record and reporting what was found without expressing any opinion as to its legal significance. It is the expression of opinion of the legal significance of what was found that converts the activity into the practice of law. The Court went on to conclude:
The mere use of legal terms of art as headings on a title abstract or similar form does not, standing alone, operate as an expression of an opinion by the title searcher as to the legal effect of entries made under such headings, and thus does not constitute the practice of law.
Id. at 96, 532 N.E.2d at 120 (syllabus).
Similarly, in Gustafson v. V.C. Taylor & Sons, Inc., 138 Ohio St. 392, 35 N.E.2d 435 (1941) (cited with approval in Lender's Service), the Court adopted the "simple instrument" doctrine in approving the filling in of preprinted real estate purchase contracts by real-estate brokers. As the Court presented the question:
[D]oes the filling of these printed blank forms require the exercise of legal skill, or does it constitute merely the clerical service of recording the stated agreement of the parties to the transaction?
The Court concluded that
the supplying of simple, factual material such as the date, the price, the name of the purchaser, the location of the property, the date of giving possession and the duration of the offer requires ordinary intelligence rather than the skill peculiar to one trained and experienced in the law.
Id. at 397, 35 N.E.2d at 437. Compare Columbus Bar Ass'n v. Verne, 99 Ohio St.3d 50, 2003 Ohio 2463, 788 N.E.2d 1064 (CPA drafted articles of organization of limited liability company, using forms from Secretary of State's office. "For a layperson to draft documents creating a business entity on another's behalf is unquestionably the unauthorized practice of law. . . . This undertaking is hardly the clerical service that respondent insists he performed and that is permissible under [Gustafson]. To the contrary, respondent's advice about which business structure they should choose is just what Gustafson determined to be the unlicensed practice of law." Id. at paras. 4-5.) Accord Dayton Bar Ass’n v. Stewart, 116 Ohio St.3d 289, 2007 Ohio 6461, 878 N.E.2d 628; Miami County Bar Ass'n v. Wyandt & Silvers, Inc., 107 Ohio St.3d 259, 2005 Ohio 6430, 838 N.E.2d 655.
Indeed, the Court has held that the preparation of legal documents, even though copied from a form book, is the unauthorized practice of law. "[T]he fact is that respondent completed those forms not for himself, but for the benefit of another." Geauga County Bar Ass'n v. Canfield, 92 Ohio St.3d 15, 15, 748 N.E.2d 23, 24 (2001) (land-installment contract for sale of real estate). Accord, with respect to employment contracts and collective-bargaining agreements, Ohio State Bar Ass'n v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio St.3d 107, 2006 Ohio 6511, 858 N.E.2d 372, at para. 23 ("The drafting or writing of a contract or other legal instrument on behalf of another is the practice of law, even if the contract is copied from a form book or contract previously prepared by a lawyer."). Of these cases, Canfield, involving as it did a real-estate contract, comes perilously close to reaching a result opposite to that reached in Gustafson on very similar facts, including that the contract was, as in Canfield and Burdzinski, prepared "on behalf of another." Perhaps the distinction is that Gustafson involved the purely mechanical, "clerical" process of filling in the date, price, and name of the purchaser, etc., but it would have been helpful if the Canfield Court had provided some basis for distinguishing Gustafson, which was not even cited.
In Green v. Huntington National Bank, 4 Ohio St.2d 78, 212 N.E.2d 585 (1965), the Court dealt with the provision of estate-planning advice by a bank or trust company. The Court found this service to be the giving of legal advice and thus the unauthorized practice of law, at least to the extent that the bank provided specific legal information regarding the specific facts of the particular person's estate intended to maximize the legal benefits for the estate upon death. The Court appeared to distinguish this service from the giving of more general advice and from taking legal action in the administering of an estate already established. This distinction was reaffirmed by the Supreme Court in Trumbull County Bar Ass'n v. Hanna, 80 Ohio St.3d 58, 684 N.E.2d 329 (1997), which found that it is the unauthorized practice of law for a nonlawyer to advise a client to employ an inter vivos trust for estate planning purposes, arrange for the drafting of the trust documents, and oversee their execution. See also Stark County Bar Ass'n v. Beaman, 60 Ohio Misc.2d 17, 574 N.E.2d 599 (Bd. of Comm'rs on Unauthorized Practice of Law 1990) (holding that nonattorney who explains tax and estate law to clients, advises clients about their situation, and drafts legal documents to carry out their will is engaged in the unauthorized practice of law).
In Akron Bar Association v. Miller, 80 Ohio St.3d 6, 684 N.E.2d 288 (1997), the Ohio Supreme Court applied this standard to nonlawyers providing services pertaining to living trusts. While acknowledging that merely gathering information to be used to prepare legal documents might not be the practice of law, when the nonlawyer becomes involved in providing individual advice about the suitability of living trusts, answering related legal questions, and drafting legal documents, the activity clearly goes too far. Nor does the self-serving declaration at the end of the form stating that "[n]o legal counsel, legal advice, or tax advice has been offered by the agent" change the analysis. Id. at 8, 684 N.E.2d at 291.
Another "living trust" case is Cleveland Bar Ass'n v. Sharp Estate Servs., Inc., 107 Ohio St.3d 219, 2005 Ohio 6267, 837 N.E.2d 1183. Both the finding of unauthorized practice (nonlawyers advising customers of legal consequences) and the finding that respondents' use of so-called "review attorneys" (who did not review) failed to insulate them from a violation are not surprising. (For other disciplinary cases involving "review attorneys," who were found to have violated OH DR 3-101(A) by assisting some of these same nonlawyers in unauthorized practice, see the Wheatley and Kathman decisions, discussed below in section 5.5:240 at "Participation in a joint venture or other relationship with a nonlawyer.") The big news in Sharp involved the sanctions imposed; that aspect is discussed in the next subsection.
Ohio State Bar Ass’n v. Martin, 118 Ohio St.3d 119, 2008 Ohio 1809, 886 N.E.2d 827, involved issues of franchisee-franchisor unauthorized practice arising out of a document-preparation-service operation. The individual franchisees conceded that they engaged in the unauthorized practice by providing advice to their customers on the customers’ legal rights and by assisting in the preparation of documents and forms to be submitted to courts. The current franchisee also conceded that it had engaged in the unauthorized practice by giving email advice to one of the franchisees’ customers and by advising the franchisees how to advise their customers regarding probate forms. The interesting issue in Martin, however, involved the culpability of the former franchisor (which in 2005 had sold its assets, including the Martin franchise agreement, to the current franchisor). The theory of liability adopted by the Board was one of apparent agency, a theory that the Court examined and rejected on the facts before it. As the Court explained, the focus under apparent agency or apparent authority is on the alleged principal:
Under an apparent-authority analysis, an agent’s authority is determined by the acts of the principal rather than by the acts of the agent. The principal is responsible for the agent’s acts only when the principal has clothed the agent with apparent authority and not when the agent’s own conduct has created the apparent authority.
Id. at para. 41. Since in the case at bar the former franchisor had taken pains to inform the franchisees that they could not practice law without a license to do so, that they should post signs in their store informing the public that they were not licensed, that the franchisees should not select forms for customers or tell them how to complete the forms, that giving advice and selecting forms would be construed as unauthorized practice, and that legal questions should be referred by the franchisees to the former franchisor’s supervising attorney or a lawyer of the customer’s choice. Given this factual record,
there is no evidence that [the former franchisor] represented to the [franchisees] or their customers that the [franchisees] were authorized to commit any of the acts that constituted the unauthorized practice of law in the [two] matters [at issue]. Accordingly we cannot impute the [franchisees’] unauthorized practice of law in these matters to [the former franchisor].
Id. at para. 44.
Sanctions for nonlawyer unauthorized practice: For many years the typical result in a case finding that a layperson had engaged in the unauthorized practice of law was a prohibitory injunction commanding the violator not to do it again. Costs could also be imposed. In 2003, Gov Bar R VII 19(D) was amended by the Supreme Court, expressly confirming its authority to impose a civil penalty "not to exceed ten thousand dollars per offense." VII 19(D)(1)(c). See also VII 8(B). Since that time (and even with respect to conduct occurring before the amendment -- see the discussion of Sharp and Bailey infra), the imposition of civil penalties in addition to the traditional injunction has become more common and can be expected to continue. See, e.g., Ohio State Bar Ass'n v. Allen, 107 Ohio St.3d 180, 2005 Ohio 6185, 837 N.E.2d 762; Dayton Bar Ass'n v. Addison, 107 Ohio St.3d 153, 2005 Ohio 6044, 837 N.E.2d 367 ($40,000 and $10,000 fines imposed, respectively). Compare Ohio State Bar Ass'n v. Chiofalo, 112 Ohio St.3d 113, 2006 Ohio 6512, 858 N.E.2d 378 (adopting Board recommendation of no civil penalty, Court noted that respondent had committed only one offense and had cooperated in investigation, two of the factors set forth in Gov Bar R VII 8(B)(1) & (2) as relevant to determination of whether civil penalty should be imposed).
The sanctions imposed in the Sharp case, 107 Ohio St.3d 219, 2005 Ohio 6267, 837 N.E.2d 1183, were, to say the least, substantial -- over one million dollars in civil penalties (computed by multiplying the 468 plans known to have been sold in Ohio by an average price per plan of $2,195). In addition, a permanent injunction was issued, precluding respondents from selling or marketing living trusts in Ohio. With respect to the UPL Board's order that respondents disclose the names of their Ohio customers, which had not been complied with, the Court ordered that the disclosure be made within seven days of issuance of the Court's order. "Beginning on the eighth day after the order, a fine of $25,000 per day will be imposed until all Ohio clients have been disclosed." Id. at para. 14. The Court obviously thought strong measures were necessary in dealing with these "trust-mill operations," pursuant to which respondents had "willfully defrauded their customers." Id. at para. 15.
In imposing the monetary fine, the Court brushed aside the respondent's argument that imposition of the monetary fine was unconstitutional, since the case had been filed before the amendment to the Rules for the Government of the Bar expressly allowing the imposition of monetary penalties. As the Court saw it, "[n]othing in the Ohio Constitution prohibited this court from imposing monetary penalties prior to the adoption of former Gov. Bar R. VII(8)(D)." Id. at para. 16. Accord Cincinnati Bar Ass'n v. Bailey, 110 Ohio St.3d 223, 2006 Ohio 4360, 852 N.E.2d 1180 (rejecting respondent's argument that Gov Bar R penalty provisions could not constitutionally be applied retroactively to conduct occurring prior to amendment; Sharp followed).
The "landmark" Sharp decision, authored by Justice Pfiefer for a unanimous Court, is discussed in Michael Hughes, A Million Reasons to Avoid the Unauthorized Practice of Law, Clev. B.J., Jan. 2006, at 30 (noting that it was "the largest fine ever imposed by the Ohio Supreme Court and, it is believed, the largest fine ever imposed in a UPL case in the United States.").
The “jailhouse lawyer”: Because of federal constitutional overtones (arising from Johnson v. Avery, 393 U.S. 483 (1969)), the jailhouse lawyer unauthorized practice cases are sui generis. The Ohio Supreme Court dealt with these issues for the first time in Disciplinary Counsel v. Cotton, 115 Ohio St.3d 113, 2007 Ohio 4481, 873 N.E.2d 1240, which produced a 3-1 (concurring in judgment only)-3 set of four opinions (there were two dissenting opinions) resulting in dismissal of the charges against respondent, who assisted other inmates by preparing and signing pleadings, doing legal research, and providing legal advice. Under the U.S. Constitution, the state cannot preclude such assistance (other than that regarding signing pleadings) unless it provides inmates a “reasonable alternative” to jailhouse lawyers, which alternative provides inmates with meaningful access to the courts. The plurality and the dissents reached different conclusions about whether the London Correctional facility’s law library and related accoutrements rose to the level of a “reasonable alternative.” The plurality, of course, thought it did not; the concurring justice, Justice Lanzinger, found no need to resolve that issue; she asserted that the concerns of protection of the public, courts, and profession that are at the core of UPL matters are not predominant inside a prison’s walls:
[W]ithin the prison universe, where the availability of licensed attorneys is generally nonexistent, the UPL Board’s interest in regulating the legal profession is overridden by the need for prison inmates to have help in obtaining access to the courts.
Id. at para. 25. Justice Lundberg Stratton’s dissent, in contrast, argued that
[i]nmates deserve the same protection from untrained, unqualified persons who act as lawyers dispensing legal advice that we afford to the public.
Id. at para. 50. Fascinating case.
Lay representation before administrative tribunals: The Supreme Court has provided the latest judicial word on nonlawyer representation before administrative agencies in Cleveland Bar Ass'n v. CompManagement, Inc., 104 Ohio St.3d 168, 2004 Ohio 6506, 818 N.E.2d 1181 (CompManagement I), and Cleveland Bar Ass'n v. CompManagement, Inc., 111 Ohio St.3d 444, 2006 Ohio 6108, 857 N.E.2d 95 (CompManagement II) (reaffirming CompManagement I and applying it to facts developed after remand).
In CompManagement I the Court held that
[n]onlawyers who appear and practice in a representative capacity before the Industrial Commission and the Bureau of Workers' Compensation in conformity to Industrial Commission Resolution No. R04-1-01 are not engaged in the unauthorized practice of law.
104 Ohio St.3d at 169, 818 N.E.2d at 1181 (syllabus). (Resolution No. R04-1-01 in subpart (A) permits, by third-party administrators, union representatives, or employees, (1) investigation of facts regarding a claim and reports regarding the facts, (2) assistance in administration of a claim and filing claims and appeals, (3) attendance at hearings before the Industrial Commission for various purposes, (4) submission of records, (5) filing protests, (6) preparing reports for employers regarding risks, and (7) advising employees or injured workers to seek legal representation. The Resolution, in subpart (B), does not permit a nonlawyer to ((1) engage in examination or cross-examination, (2) cite, file, or interpret law, (3) give legal interpretation regarding testimony, evidence, etc., (4) file a brief or other pleading "beyond the forms actually provided by the Commission or the Bureau, (5) opine on evidence, credibility, etc., (6) give legal advice to claimants and employers, (7) give legal opinions or cite case law or statutes to injured workers and employers, or (8) charge a fee for stand-alone representation at hearing without providing other services.)
The Court held that activities permitted under Resolution No. R04-1-01(A) did not constitute the unauthorized practice of law. In doing so, after noting the state's estimation that "nonlawyers represent at least one party in approximately 95 percent of the hearings held each year and that 'in almost half of all Industrial Commission hearings . . ., the employer's only representative is an actuary,'" id. at para. 37, the Court rejected the recommendation of the Board of Commissioners on the Unauthorized Practice of Law. In the Court's words, the Board’s recommendation "would purge the workers' compensation system of nonlawyer representatives." Id. at para. 38.
Against this background, the Court found that
while this court unquestionably has the power to prohibit lay representation before an administrative agency, it is not always necessary or desirable for the court to exercise that power to its full extent. The power to regulate includes the authority to grant as well as the authority to deny, and in certain limited settings, the public interest is better served by authorizing laypersons to engage in conduct that otherwise might be viewed as the practice of law.
Because the "public interest factors" that the board declined to consider are so prevalent in this case, a more sophisticated approach to resolving the present inquiry is required than simply ascertaining whether respondents' conduct falls within some abstract or generalized definition of the practice of law. Of course, Gov. Bar R. VII is built on the premise that limiting the practice of law to licensed attorneys is generally necessary to protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation. But not all representation requires the level of training and experience that only attorneys can provide, and in certain situations, the protective interest is outweighed by other important considerations.
Id. at ¶¶ 39-40.
In reaching this conclusion, Justice Resnick quoted extensively (paras. 41-44) from Justice Gibson's opinion, concurring in part and dissenting in part, in In re Unauthorized Practice of Law in Cuyahoga County, 175 Ohio St. 149, 154-55, 192 N.E.2d 54, 58-59 (1963), and (paras. 45-53), from Henize v. Giles, 22 Ohio St.3d 213, 216-17, 218-20, 490 N.E.2d 585, 588, 589, 590 (1986) (approving certain lay representation in unemployment-compensation setting).
In CompManagement II, the Court elaborated on its holding in CompManagement I rejecting the charge that third-party administrator CompManagement ("CMI") had engaged in the unauthorized practice of law by assisting employers with claims before the Industrial Commission or the Bureau of Worker's Compensation. The Court reiterated the rule that a layperson generally may not take legal action on behalf of a corporation before a court or administrative agency. When, however, this "protective interest [is] outweighed by other important considerations" (quoting CompManagement I) of public policy, limited lay representation within circumscribed limits can be permitted. (111 Ohio St.3d 444, at para. 23, citing Pearlman, CompManagement I, and Heinze). Consistent with this reasoning, the Court stated that it would consider the allegations in this case "under a more fluid approach, which allows third-party administrators to offer general claims of assistance as long as that assistance does not involve legal analysis skill, citation, or interpretation." 111 Ohio St.3d 444, at para. 49.
In reviewing each of the UPL Board's specific findings regarding unauthorized practice, the Court ruled as follows:
preparation, signing, and filing of documents. The Board found that this activity was expressly allowed by R04-1-01; the Court adopted the finding of the Board.
negotiation of settlements. The Board found that this activity constituted the unauthorized practice of law; in reversing, the Court held that CMI could suggest a settlement amount based on actuarial data, so long it makes no legal determinations in doing so. Id. at para. 62. Accord syllabus two.
examination of witnesses. The Court found that the record did not support the Board's finding that CMI had violated § (B)(1) of the Resolution by direct or indirect examination or cross-examination of witnesses. See syllabus three ("a third-party administrator who has not asked a question of the witness has not conducted an ‘examination’ of the witness . . . .")
other acts in the hearing room. In this category, the Board found unauthorized practice of law in six actions by CMI. The Court rejected each of these findings:
recommendations regarding appeals and other legal action. Record failed to show that "CMI . . . committed the unauthorized practice of law by evaluating legal options, such as appeal, and giving advice relating to those options." Id. at para. 110.
evaluation, advice, or recommendation on retaining counsel. "Section (A)(9) [of the Resolution] specifically allows a third-party administrator to advise an employer to seek legal counsel, and there is no evidence in the record that any CMI representative ever did anything but this specific act." Id. at para. 114.
- Stating employee concerns. Not the practice of law. No independent legal determinations made by CMI as to what issues to raise. Id. at para. 73. Accord syllabus three.
- Preparing and making arguments. While a third-party administrator may not make legal arguments, CMI merely presented the employer's concerns, which does not constitute the practice of law. "[M]erely pointing to facts in the record without attempting to persuade that those facts have a particular implication or legal significance is not 'argument.'" Id. at para. 77.
- Determining legal significance of facts. The Court found that the record did not contain specific evidence in support of the Board finding that CMI did so. "The record in this case reveals that CMI representations do not make determinations as to the legal significance of any facts in the file. Instead, they merely decide which facts are relevant to the list of employer’s concerns." Id. at para. 88.
- Commenting on evidence. Again, no evidence to support Board finding that CMI did so. See id. at paras. 89-92.
- Summations of evidence and closing statements. Restating employer's concerns, pointing to facts in file, or requesting final outcome desired by employer is not the practice of law; no evidence that CMI did otherwise. See id. at paras. 93-95.
- Counseling clients. While "counseling of a witness prior to entering the hearing room likely crosses the line into the practice of law," no specific instance of such conduct supported by the record. Id. at para. 99. As with other alleged violations, generalized evidence insufficient.
Lay representation before administrative tribunals - Reconciling past precedent: In CompManagement I the Court attempted to clarify the quagmire created by the four prior Supreme Court cases dealing with lay representation before the Industrial Commission. All four found the activity at issue to be the practice of law and precluded it: Cincinnati Bar Ass'n v. Estep, 74 Ohio St.3d 172, 657 N.E.2d 499 (1995) (contingent-fee representation of workers' compensation claimant); In re Unauthorized Practice of Law, 175 Ohio St. 149, 192 N.E.2d 54 (1963) (same); State ex rel. Nicodemus v. Indus. Comm'n, 5 Ohio St.3d 58, 448 N.E.2d 1360 (1983) (advising clients of legal ramifications of commission orders); Goodman v. Beall, 130 Ohio St. 427, 200 N.E. 470 (1936) (preparation of court record).
Each of these cases involved conduct "clearly beyond any acceptable bounds of lay representation," but included some general statements about appearances and practice before the commission that have generated confusion, 104 Ohio St.3d 168, 818 N.E.2d 1181, at para. 55, as has the language in Henize "mistakenly conclud[ing] that our past decisions in the workers' compensation area 'have held that representatives of parties must be licensed attorneys.'" Id. at ¶ 56.
But the plain truth is that this court has never held that only lawyers may practice in a representative capacity before the Industrial Commission. Nor has the court ever concluded that nonlawyers are unauthorized to provide the kind of representative services in the workers' compensation setting that the court in Henize authorized them to provide in the unemployment context.
In summary, the Court found that the four prior cases "do not prohibit lay representation before the Industrial Commission but instead mark the outer boundries of permissible lay conduct." Moreover, and significantly, "the thicket created by our ambivalent use of the term 'practice of law' can be avoided by simply recognizing that in certain cases there are multiple interests to consider in determining whether a particular legal activity is acceptably performed by nonlawyers. In this way, we can freely assume that all representative conduct at the administrative level falls within the broad definition of the practice of law, yet still authorize lay representatives to perform certain functions in the administrative setting when the public interest so demands." Id. at ¶ 69.
The majority's analysis is to be contrasted with the dogmatic view espoused in the dissent, where Justice Pfiefer states, "I believe that the practice of law is the practice of law. . . ." Id. at ¶ 73.
The prior case most like CompManagement I in approach is Henize v. Giles, 22 Ohio St.3d 213, 490 N.E.2d 585 (1986), in which the Court determined that nonlawyer representation of the parties in an action for unemployment benefits before the Ohio Bureau of Employment Services and the Unemployment Compensation Board of Review did not constitute the unauthorized practice of law. In reaching this determination, the Court characterized the role of the lay participants as limited. They helped assure that "appropriate personnel records, staff, and other documents" were present at the hearing and they "[served] as an adjunct to the claimant or employer in the sharing of their respective versions of the circumstances attendant to the claim," which was permissible, but they did not "render legal advice" or "[provide] interpretations of board orders," which would be the unauthorized practice of law. Id. at 217, 490 N.E.2d at 588. In drawing this distinction, however, the Court clearly acknowledged that it was moved, at least in part, by pragmatic factors. It quoted a 1940 Minnesota case that observed:
"[I]t is the duty of this court so to regulate the practice of law and to restrain such practice by laymen in a common-sense way in order to protect primarily the interest of the public and not to hamper and burden such interest with impractical technical restraints no matter how well supported such restraint may be from the standpoint of pure logic."
Id. at 218, 490 N.E.2d at 589 (quoting Cowern v. Nelson, 207 Minn. 642, 647, 290 N.W. 795, 797 (1940)).
The Court then articulated several reasons for allowing lay practice in this setting. It stressed the special nature of the proceeding, a primarily fact-finding hearing conducted by an actively participating referee rather than a neutral judge. The Court noted that legal argument usually was not necessary in such proceedings and concluded that "attorneys are simply not required." Henize, 22 Ohio St.3d at 217, 490 N.E.2d at 588. If anything, the Court observed, the presence of attorneys might be a negative, turning the hearing into an adversarial and protracted proceeding. Further, given the limited monetary stakes involved in the proceedings and the fact that regulations restricted allowable attorney fees, lawyer participation was unlikely. Thus, barring nonattorney representatives might impair meaningful access to the system for the parties by precluding their receiving any representation as a practical matter. The Court also recognized and deferred to the executive branch's desire to allow lay representation. Finally, the Court was influenced by the fact that the practice had been going on without apparent harm to the public since the inception of the program in 1936 and by the common use of similar practices in other states.
Ohio Supreme Court decisions coming down on the other side of the issue include Cleveland Bar Ass'n v. Woodman, 98 Ohio St.3d 436, 2003 Ohio 1634, 786 N.E.2d 865 (nonlawyer respondents, trustees of nonprofit corporation, found to have engaged in unauthorized practice of law by filing with PUCO nine separate complaints, challenging Ohio Bell's telephone service rates on behalf of numerous federal and state agencies and officials, as well as Ohio municipalities, without the consent of the "complaining" parties), and Sharon Village and its progeny, discussed in the following paragraphs.
In 1997, in Sharon Village Ltd. v. Licking County Bd. of Revision, 78 Ohio St.3d 479, 678 N.E.2d 932 (1997), the Ohio Supreme Court resolved a major split in the lower courts and found that the actions of nonlawyer representatives in property-tax-reduction proceedings before a county board of revision constituted the practice of law. In reaching this conclusion, the Court stressed both the procedures employed in proceedings before such a board and the potential consequences of actions taken in the proceedings. On the procedural side, the Court highlighted the quasi-judicial nature of the proceedings, which provide for such things as the filing of a complaint, giving of notice, taking of evidence, filing of briefs, keeping of a record, and certification of a transcript for appeal. In order to invoke the jurisdiction of the board of revision, the taxpayer or his lawyer agent must file a verified complaint in accordance with ORC 5715.13; the failure to do so will result in dismissal of the action. In terms of consequences, the Court noted that procedural errors could lead to the loss of the right to seek a property reevaluation for up to three years; failure to present evidence before the board would bar its consideration on appeal; and by initiating a proceeding, the property owner runs the risk that the property will be valued more highly than at present, leading to a tax increase. Given these procedural complexities and the interests at stake, the Court decided that such actions should be handled by attorneys. Accord Worthington City School Dist. Bd. of Educ. v. Franklin County Bd. of Revision, 85 Ohio St.3d 156, 707 N.E.2d 499 (1999) (following Sharon Village in holding that nonlawyer corporate and school-board officers who prepared, signed, and filed complaints and counter-complaints regarding real-property assessments were engaged in the unauthorized practice of law, but finding that in one of the cases on appeal the signing and review by the nonlawyer tax manager for the corporation, of a complaint prepared and filed by one of the corporation's attorneys, did not violate the requirements of Sharon Village; the tax manager did not engage in the practice of law by signing and reviewing the complaint prepared and filed by a lawyer).
A further gloss was put on the issue in Bd. of Educ. v. Hamilton County Bd. of Revision, 91 Ohio St.3d 308, 744 N.E.2d 751 (2001). In this case, a nonlawyer corporate officer drafted the complaint and verified the factual allegations it contained. He then sent it to the corporation's attorney to review and file. The attorney did so. Given these facts, the Court found no violation of the Sharon Village rule, which held that a nonattorney who both prepares and files a complaint has engaged in the practice of law. Here, the lawyer's signing and filing of the complaint was sufficient to protect the conduct of the nonlawyer from constituting the unauthorized practice of law.
In State ex rel. Cooker Restaurant Corp. v. Montgomery County Bd. of Elections, 80 Ohio St.3d 302, 306, 686 N.E.2d 238, 242 (1997), the Court restated the Sharon Village factors and applied them to county board of election proceedings involving statutory protests of local liquor option petitions. In finding that the preparing and filing of such protests constitutes the practice of law, the Court summarized the factors it relied on in Sharon Village, where
we relied on several factors, including that (1) the board of revision is a quasi-judicial body, (2) in order to invoke its jurisdiction, it is necessary to file a verified complaint, (3) the board must give notice to property owners and boards of education when a complaint is filed by other parties, and (4) preparation and filing of the complaint contained statutorily defined jurisdictional requirements that, if not properly met, barred the rights of owners to contest their valuations.
Attempts by entities to practice of law through their nonlawyer constituents: There are a number of decisions dealing with efforts by corporations or other entities, through their nonlawyer officers, trustees, or other constituents, to engage in conduct that constitutes the practice of law. These efforts have been generally rebuffed pursuant to the "corporate representation rule," which permits entity representation only by licensed attorneys. (There are a few narrow exceptions; they are discussed in the subsection immediately following: "Constitutionality of legislation empowering nonlawyers to practice law in certain limited circumstances.") It is settled that business corporations and other such entities are prohibited from practicing law, which is a privilege granted to individuals, not entities. (Obviously, a law firm, whether a partnership or other entity, practices law, but it does so through its licensed individual attorneys who are authorized to practice in the jurisdiction. See, e.g., ORC 1785.02.)
Ohio decisions reflecting these views include both cases in which the constituent/entity is attempting to represent the entity's interests, such as
Disciplinary Counsel v. Givens, 106 Ohio St.3d 144, 2005 Ohio 4104, 832 N.E.2d 1200, at para. 7 ("a nonlawyer may not practice law in defense of a [here, nonprofit] corporate entity merely because he holds some official corporate position"); Office of Disciplinary Counsel v. Shrode, 95 Ohio St.3d 137, 2002 Ohio 1759, 766 N.E.2d 597 (nonlawyer filing pleadings on behalf of corporation as statutory agent); Cincinnati Bar Ass'n v. Clapp & Affiliates Fin. Servs., Inc., 94 Ohio St.3d 509, 764 N.E.2d 1003 (2002) (court filings by nonlawyer on behalf of corporation of which he was sole shareholder and CEO constituted practice of law); Williams v. Global Constr. Co., 26 Ohio App.3d 119, 498 N.E.2d 500 (Franklin 1985) (nonattorney trustee cannot represent trust in court). Cf. Office of Disciplinary Counsel v. Lawlor, 92 Ohio St.3d 406, 750 N.E.2d 1107 (2001) (inactive, suspended lawyer who was corporation's president engaged in unauthorized practice when he filed pleading on corporation's behalf),
and cases in which the constituent/entity is attempting to represent the interests of others, such as
Disciplinary Counsel v. Alexcole, Inc., 105 Ohio St.3d 52, 2004 Ohio 6901, 822 N.E.2d 348 (representation of "clients" in securities arbitration and mediation proceedings; "a corporation cannot lawfully engage in the practice of law, and it cannot lawfully engage in the practice of law through its officers who are not licensed to practice law." Id. at para. 8); Toledo Bar Ass'n v. Chelsea Title Agency, 100 Ohio St.3d 356, 2003 Ohio 6453, 800 N.E.2d 29 (title company preparing deeds for its title customers was engaged in unauthorized practice of law); Cleveland Bar Ass'n v. Woodman, 98 Ohio St.3d 436, 2003 Ohio 1634, 786 N.E.2d 865 (nonlawyer trustees of nonprofit corporation filing complaints with PUCO on behalf of others were engaged in unauthorized practice of law); Green v. Huntington Nat'l Bank, 4 Ohio St.2d 78, 212 N.E.2d 585 (1965), discussed supra at "The unauthorized practice of law by laypersons."
For cases involving representation of clients of the entity by entity lawyer/employees, see section 5.5:240, at "Lawyer employees of corporation serving clients of company."
Efforts by the General Assembly to permit nonlawyers, including representatives of entities, to make court appearances and the Court's recognition of a "narrow exception" to the "corporate representation rule" are explored in the next subsection.
Constitutionality of legislation empowering nonlawyers to practice law in certain limited circumstances: From time to time, the Ohio legislature has passed laws purporting to authorize nonlawyers to practice law, at least in limited respects. Until recently, these efforts have met with little success.
The Supreme Court opinion in Cleveland Bar Ass'n v. Picklo, 96 Ohio St.3d 195, 2002 Ohio 3995, 772 N.E.2d 1187, is representative. In Picklo, the respondent was charged with the unauthorized practice of law in filing forcible entry and detainer complaints and appearing in housing court on behalf of property owners in these cases. Respondent's defense to the charge was that pursuant to ORC 1923.01(C)(2) a "landlord" could invoke the court's jurisdiction in such cases, and "landlord" was broadly defined to include the agent of the owner or lessor. See also ORC 5321.01(B), to similar effect. The Court agreed with the Board of Commissioners on the Unauthorized Practice of Law that these statutes were unconstitutional invasions of the Supreme Court's original and exclusive jurisdiction to define the practice of law.
While intermediate appellate decisions can be cited to the same effect (e.g., Alliance Group, Inc. v. Rosenfield, 115 Ohio App.3d 380, 685 N.E.2d 570 (Hamilton 1996) (Painter, J.) (holding ORC 1925.17, which permits nonlawyer officer or employee of corporation to file and present claim or defense in small-claims court, unconstitutional)), these decisions are no longer good law in light of Cleveland Bar Ass'n v. Pearlman, 106 Ohio St.3d 136, 2005 Ohio 4107, 832 N.E.2d 1193. In Pearlman, the Supreme Court abrogated Alliance and other such cases and held that the ORC 1925.17 provisions allowing corporate officers or employees to represent the corporation in small claims court are constitutional, so long as (as expressly provided in the statute) "the individual does not engage in cross-examination, argument, or other acts of advocacy." Id. at syllabus. Given the identical language in ORC 1925.18, which permits representation of county departments of human services by nonlawyer employees of the department, provided they do not engage in cross-examination, etc., the earlier cases holding ORC 1925.18 unconstitutional, such as Washington County Dep't of Human Servs. v. Rutter, 100 Ohio App. 3d 32, 651 N.E.2d 1360 (Washington 1995), are almost certainly overruled as well.
In finding the ORC 1925.17 provisions constitutional, Pearlman "recognize[d] an exception, albeit a narrow one, to the general rule that corporations may be represented only by licensed attorneys." 106 Ohio St.3d 136, 832 N.E.2d 1193, at para. 26. In doing so, Justice Lanzinger relied heavily on the Court's opinion in CompManagement I allowing limited nonlawyer representation in workers' compensation cases. See Pearlman at paras. 9-15, noting, inter alia, that in CompManagement I "we explained that an uncompromising approach to unauthorized-practice-of-law cases may not always be appropriate." Id. at para. 10. Emphasizing the informality of small-claims proceeding (no jury, small jurisdictional monetary limits, Rules of Evidence and Civil Procedure inapplicable, id. at para. 15) and the limitations built into the statute against cross-examination, argument, and other acts of advocacy (id. at paras. 19, 23), the Court concluded:
Rather than view R.C. 1925.17 as intruding on our authority to regulate the practice of law or our rule-making power, we see it as a mere clarification, stating that corporations may use small claims courts as individuals may, i.e., without attorneys, so long as their representatives do not otherwise act as advocates.
Id. at ¶ 24.
A similar result was reached in the more recent case of Dayton Supply & Tool Co. v. Montgomery County Bd. of Revision, 111 Ohio St.3d 367, 2006 Ohio 5852, 856 N.E.2d 926. The Court in Dayton Supply held that a nonlawyer corporate officer is not engaged in the unauthorized practice by preparing and filing a complaint on behalf of the corporation with a board of revision or by presenting the claimed value of the property before the board, so long as the officer does not make legal arguments, examine witnesses, or undertake other conduct that can be performed only by a lawyer. Id. at syllabus. In so deciding, the Court concluded that ORC 5715.19, a statutory provision that had been held unconstitutional in Bd. of Educ. v. Franklin County Bd. of Revision, 2002 Ohio 1256, 2002 Ohio App. LEXIS 1228 (Franklin Mar. 19, 2002), and in C.R. Truman, L.P. v. Cuyahoga County Bd. of Revision, No. 76713, 2000 Ohio App. LEXIS 3388 (Cuyahoga July 27, 2000), could be read in a constitutional manner, subject to the limitations imposed on the officer's conduct by the Dayton Supply opinion. Thus, where no legal issues are presented (the Court specifically notes that often the only issue before the BOR is the nonlegal issue of the fair market value of the real estate) and the matter does not involve the examination of witnesses or any other task that can be performed only by an attorney, then the 5715.19 grant to the corporate officer to file valuation complaints on behalf of the corporation does not cross the line into the unauthorized practice of law.
This same analysis served to distinguish the Court's prior Sharon Village decision:
Sharon Village is distinguishable from the instant case to the extent that Sharon Village involved a third-party agent and envisioned a courtlike hearing before the BOR that involved witnesses and resolution of legal issues, while the case at bar involves a corporate officer and does not involve consideration of any legal issue.
Id. at para. 25. This reasoning also limited the Court's prior decision in Worthington City School Dist. v. Franklin County Bd. of Revision, 85 Ohio St.3d 156, 707 N.E.2d 499 (1999), that a corporate officer is always prohibited from filing a BOR complaint.
The Dayton Supply Court continued to acknowledge the general rule that corporations may be represented only by licensed attorneys, but, having found a "narrow exception" to this rule in Pearlman (where "no special legal skill is needed" in small-claims court), it found the same exception appropriate on public-interest grounds in the case at bar, even though "preparing and filing a complaint and participating in BOR proceedings on behalf of another fall within the broad definition of the practice of law." Dayton Supply at para. 30. The Court made clear, however, that the exception was far from open-ended:
`Yet consistent with our public-interest exception cases, we temper our holding with the admonition that a corporation must hire an attorney if any of the proceedings before the BOR, including the preparation and filing of the complaint, involve more than the factual issue of the value of the property, and issues exist or arise that require an attorney to resolve.
Id. at para. 31.
Interestingly, neither the Pearlman nor the Dayton Supply majorities even cited Picklo; it seems to have pretty much disappeared from the judicial radar screen (other than in the dissent in each case). Moreover, the reliance by Pearlman on ORC 1925.17's withholding from the nonlawyer the right to conduct cross-examination, argument, or other acts of advocacy, and the comparable gloss used in Dayton Supply, will be highly relevant to any subsequent litigation involving the General Assembly's extension of the practice of law to nonlawyers in certain proceedings. (The same strictures in Industrial Comm'n Resolution R04-1-01 were important to the similar result in CompManagement I and II; see discussion supra at "Lay representation before administrative tribunals.")
See also Office of Disciplinary Counsel v. Molnar, 57 Ohio Misc.2d 39, 567 N.E.2d 1355 (Bd. of Comm'rs on the Unauthorized Practice of Law (1990), which, although not raising constitutionality concerns, is instructive. At issue in Molnar was nonlawyer respondent's representation of "clients" before the State Liquor Control Commission, an agency governed by the procedures set forth in ORC 119.13. That section provides in certain instances for representation "by an attorney or such other representative as is lawfully permitted to practice before the agency in question," but "at a hearing at which a record is taken which may be the basis for an appeal to court," representation is limited to attorneys. Since a record is taken at liquor control commission proceedings and they may be appealed, Molnar was found to have engaged in the unauthorized practice of law.
In sum, the Supreme Court has now allowed, pursuant to or consistent with limited statutory grant, nonlawyer representation before administrative bodies in CompManagement I and II (workers' compensation) and Henize (unemployment compensation), and before small-claims courts and boards of revision by officers or employees of corporations. Pearlman; Dayton Supply. The refusal to allow such representation by the landlord's authorized agent in housing-court cases (Picklo) seems out of step with these decisions, but perhaps can be explained by the apparent absence of the limitations on cross-examination, argument, and the like in the statutes held unconstitutional in Picklo, in contrast to the presence or deemed presence of such limitations in the other most recent Supreme Court unauthorized-practice-of-law decisions, CompManagement I and II, Dayton Supply, and Pearlman.
The right of self-representation: The well-recognized exception to the general rule against the practice of law by laypersons is that a nonlawyer has the right of self-representation. See generally 1 Restatement (Third) of the Law Governing Lawyers § 4 cmt. d (2000) (right recognized in "[e]very jurisdiction"). As stated in Gov Bar R VII 2(A), unauthorized practice is "the rendering of legal services for another" by a person not admitted in Ohio or not having active status under Rule VI (emphasis added). This exception is consistent with those opinions holding that the unauthorized practice of law involves the "rendering of legal services for others." Office of Disciplinary Counsel v. Brown, 61 Ohio Misc.2d 792, 794, 584 N.E.2d 1391, 1392 (Bd. of Comm'rs on Unauthorized Practice of Law 1992). Arguments that the United States Constitution's guarantees of freedom of speech, freedom of association, due process, or the Sixth Amendment right to the assistance of counsel create a right to representation by unlicensed persons, beyond the right to self-representation, have been rejected by the Ohio courts. See, e.g., State v. Studer, No. CA91-06-101, 1991 Ohio App. LEXIS 5622 (Butler Nov. 25, 1991).
Even if a close personal relationship, such as that of husband and wife, exists between the party and the nonlawyer representative, legal representation by the nonlawyer is impermissible. Palmer v. Bates, No. L94-138, 1994 Ohio App. LEXIS 3085 (Lucas July 15, 1994).
Another recurring attempt to evade the unauthorized-practice rules involves a nonlawyer who claims the ability to act pro se because he or she has a power of attorney from the assignor. The Ohio Supreme Court put this ploy to rest in Office of Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155, 724 N.E.2d 402 (2000). In Coleman, the Court exposed the "sophistry" of such an argument, noting that historically persons holding a power of attorney cannot appear in court, that any such argument would render meaningless the supervisory control granted by the Ohio Constitution to the Supreme Court over control of the practice of law, and that any such attempted use of a power of attorney violates the laws of Ohio [citing Dworkin]. As a result,
[w]hen a person not admitted to the bar attempts to represent another in court on the basis of a power of attorney asserting pro se rights, he is in violation of this statute [ORC 4705.01]. A private contract cannot be used to circumvent a statutory prohibition based on public policy.
Id. at 158, 724 N.E.2d at 404. Accord Cuyahoga County Bar Ass'n v. Spurlock, 96 Ohio St.3d 18, 2002 Ohio 2580, 770 N.E.2d 568 (reliance on power of attorney in filing habeas corpus petition as next friend). In Fravel v. Stark County Bd. of Revision, 88 Ohio St.3d 574, 728 N.E.2d 393 (2000), the Court relied on Coleman to find that the filing of a tax-valuation complaint before a county board of revision by a relative holding a power of attorney from the taxpayer constitutes the unauthorized practice of law.
Neither can the self-representation exception be used by a suspended lawyer to acquire partial assignments of the claims of others and then to pursue those claims pro se. Toledo Bar Ass'n v. Ishler, 44 Ohio St.2d 204, 339 N.E.2d 828 (1975). Nor can a suspended lawyer file court documents that purport to be pro se papers of his client. Nor Columbus Bar Ass'n v. Elsass, 86 Ohio St.3d 195, 713 N.E.2d 421 (1999) (such conduct violates OH DR 3-101(B)). Further, the self-representation exception is limited to natural persons; see discussion of unsuccessful efforts by business corporations and other entities to practice law in this section supra at "Attempts by entities to practice law."
Lay employee assistance in the practice of law: Rule 5.5 cmt.  recognizes that the Rule "does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work." Under these circumstances, the work of the nonlawyer is not an end in itself, but only a preliminary product for which the lawyer is ultimately responsible. As such, the nonlawyer is not engaged in the unauthorized practice of law, and the lawyer therefore is not assisting in the unauthorized practice of law. See, under the former OHCPR, Cmty. Mut. Ins. Co. v. Tracy, 73 Ohio St.3d 371, 653 N.E.2d 220 (1995). But when these lines were crossed, the disciplinary rule was violated. See Columbus Bar Ass'n v. Thomas, 109 Ohio St.3d 89, 2006 Ohio 1930, 846 N.E.2d 31 (respondent paralegal took it upon himself to sign and file documents in court without his lawyer/employer's permission or review; violation found even through employee mistakenly thought he had lawyer's permission to act during latter's illness).
In using lay employees, special care must be taken to ensure that they are properly supervised (Ohio Rule 5.3; see section 5.3:300) and that they protect client confidences, secrets, and property (Ohio Rules 1.6 and 1.15; see sections 1.6:220 and 1.15:200).
Even though use of lay employees is appropriate, there are restrictions on what the lay employee may do. For example, with one limited exception for supervised law-student practice (Gov Bar R II), lay employees cannot appear in court for a client or before a tribunal where lawyer representation is required. Cleveland Bar Ass'n Op. 95, at 2 (Sept. 5, 1973) (citing ABA opinion indicating that nonlawyer employees may not "appear in formal proceedings which are a part of the judicial process" or "counsel clients about law matters"); see also Cleveland Bar Ass'n Op. 142 (June 21, 1979). Of course, as reflected in Rule 5.5(c)(2), lawyers licensed to practice law in other states may, with leave of court, make such appearances in Ohio courts. See section 5.5:420.
Outside the courtroom setting, the permissibility of delegating tasks to a nonlawyer depends on the extent of the delegation and the degree to which the lawyer maintains supervisory control over the nonlawyer employee. When the delegation goes too far and/or the supervision is inadequate, the lawyer can be found to have assisted in the unauthorized practice of law in violation of Rule 5.5(a). See discussion at section 5.5:240.
Other opinions that addressed the permissibility of nonlawyer employee activities under the Code generally have approved the conduct in question. For example, nonlawyer employees of a Child Support Enforcement Agency could perform client intake and initial interviews and fill in information on pre-printed legal forms, as long as the work was approved by an attorney and the employees refrained from giving legal advice. Bd. of Comm'rs on Grievances & Discipline Op. 90-10, 1990 Ohio Griev. Discip. LEXIS 17 (June 15, 1990). They could call debtors as part of a lawyer's collection practice to attempt to arrange payment by the debtor, provided the lawyer took full responsibility in advising the client and in handling any litigation that might ensue. Cleveland Bar Ass'n Op. 95 (Sept. 5, 1973). Nonlawyer law clerks could even do legal research for attorneys. Cleveland Bar Ass'n Op. 89 (Sept. 5, 1973) (permitting lawyer to employ law student, through student-operated research organization, to do legal research).
To the extent nonlawyer employees deal with the public directly, special precautions may be necessary to assure that others are not misled into believing that the nonlawyer employee is a lawyer. See Cleveland Bar Ass'n Op. 95, at 3 (Sept. 5, 1973) (warning that if nonlawyer employee contacts debtors about collection of debt, care must be taken so that debtor is "not misled into believing that the layman is a lawyer" but then continuing: "Although a layman employed by a legal firm must take care not to hold himself out as an attorney, there appears to be no ethical reason requiring the layman to make an affirmative representation that he is not an attorney [when contacting a debtor about a collection matter], at least if he or she initiates the conversation with a debtor by saying that he is calling on behalf of the particular attorney responsible for the matter."). A nonlawyer employee of a law firm can sign letters using the law firm's letterhead without engaging in the unauthorized practice of law, as long as the nonlawyer status is clearly identified. Bd. of Comm'rs on Grievances & Discipline Op. 89-11, 1989 Ohio Griev. Discip. LEXIS 18 (Apr. 14, 1989). But cf. Cleveland Bar Ass'n Op. 95 (Sept. 5, 1973) (letters going out under firm name should be signed by attorneys rather than lay employees). Opinion was divided over whether the names of nonlawyer employees could be listed on a law firm's letterhead and business cards, as long as their nonlawyer status was clearly noted. Compare Cleveland Bar Ass'n Op. 89-1 (Aug. 25, 1989) (allowing this practice but suggesting that should it occur, lawyer's duty to ensure nonlawyers do not engage in practice of law is heightened), with Bd. of Comm'rs on Grievances & Discipline Op. 89-16, 1989 Ohio Griev. Discip. LEXIS 23 (June 16, 1989) (allowing business cards but finding inclusion on letterhead to violate OH DR 2-102(A)(4)).
For a helpful summary of unauthorized practice issues, see Allen Asbury, Changing Landscape of the Unauthorized Practice of Law in Ohio, Clev. B.J., Feb. 2006, at 14.
As relevant here, lawyers not authorized to practice can fall in any one of three categories -- Ohio lawyers not authorized to practice in Ohio; Ohio lawyers not authorized to practice in another jurisdiction; and lawyers admitted elsewhere who are not authorized to practice in Ohio. The first category is discussed here. The second and third categories will be discussed in section 5.5:230.
By definition, an Ohio lawyer is one who is admitted to the bar in Ohio. To render such a lawyer's practice of law authorized, however, the lawyer must not only be admitted but also have active status under Gov Bar R VI. Thus, an admitted Ohio lawyer who has been suspended, or who has taken inactive or retired status or has resigned, is not authorized to practice.
Ohio attorneys suspended from practice: An attorney who continues to practice while his license is under suspension is engaged in the unauthorized practice of law. E.g., under the OHCPR, Disciplinary Counsel v. Higgins, 117 Ohio St.3d 473, 2008 Ohio 1509, 884 N.E.2d 1070; Cleveland Bar Ass’n v. Rubino, 115 Ohio St.3d 199, 2007 Ohio 4797, 874 N.E.2d 519; Cincinnati Bar Ass'n v. Rothermel, 112 Ohio St.3d 443, 2007 Ohio 258, 860 N.E.2d 754; Disciplinary Counsel v. Frazier, 110 Ohio St.3d 288, 2006 Ohio 4481, 853 N.E.2d 295. See Disciplinary Counsel v. Henderson, 108 Ohio St.3d 447, 2006 Ohio 1336, 844 N.E.2d 348 (continuing to practice in defiance of suspension order; for some reason, violation of former OH DR 3-101(B) not charged).
Such conduct often violated not only former OH DR 3-101(B), now Rule 5.5, but also the applicable Rule for the Government of the Bar, Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076 (violation of 3-101(B) and what is now Gov Bar R VI 5(C) (prohibiting practice while summarily suspended for failing to register)), and/or the terms of the lawyer's suspension from practice, Office of Disciplinary Counsel v. Mbakpuo, 98 Ohio St.3d 177, 2002 Ohio 7087, 781 N.E.2d 208. This conduct was often found to violate OH DR 1-102(A)(5) and (6) as well. E.g., Disciplinary Counsel v. Lord, 114 Ohio St.3d 466, 2007 Ohio 4260, 873 N.E.2d 273 (entering appearance and filing motions while under attorney-registration suspension); Toledo Bar Ass'n v. Crandall, 98 Ohio St.3d 444, 2003 Ohio 1637, 786 N.E.2d 872 (continuing to practice while suspended for failure to fulfill CLE obligations).
Practicing law in violation of an indefinite suspension order also violates Gov Bar R V 8(E) (setting forth duties of disbarred or suspended attorney). Columbus Bar Ass'n v. Moushey, 104 Ohio St.3d 427, 2004 Ohio 6897, 819 N.E.2d 1112 (violation of DR 3-101(B) not charged).
"Absent any mitigating factors, the normal penalty for . . . continuing to practice while under suspension is disbarment." Henderson, 108 Ohio St.3d 447, 2006 Ohio 1336, 844 N.E.2d 348, at para. 15; Disciplinary Counsel v. Watson, 107 Ohio St.3d 182, 2005 Ohio 6178, 837 N.E.2d 764 (numerous instances of continuing in practice while suspended; coupled with prior violations, respondent’s misconduct established a "recidivision of a dimension rarely seen," id. at para. 42).
With Henderson and Watson, compare Columbus Bar Ass’n v. Winkfield, 107 Ohio St.3d 360, 2006 Ohio 6, 839 N.E.2d 924 (significant mental-health mitigating factors; indefinite suspension imposed); Office of Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 729 N.E.2d 1167 (2000) (practicing while under suspension; indefinite suspension only, based on respondent's bipolar disorder, which contributed to his misconduct). In a case decided only one month after Zingarelli, the Supreme Court approved an indefinite suspension where there were no mitigating factors -- indeed, the suspended lawyer misrepresented to the court before which he was appearing that he had been reinstated. Columbus Bar Ass'n v. Connors, 89 Ohio St.3d 370, 731 N.E.2d 1127 (2000). (Adding to the unusual nature of the Connors case was the fact that, as in Henderson, cited above, DR 3-101(B) was neither charged nor cited.) Accord Disciplinary Counsel v. Higgins, 117 Ohio St.3d 473, 2008 Ohio 1509, 884 N.E.2d 1070 (no mitigating factors; indefinite suspension only, even though respondent also failed to cooperate in the investigation in violation of Gov Bar R V 4(G)).
Where the suspension is for noncompliance with CLE obligations, there is authority indicating that indefinite suspension, rather than disbarment, is appropriate, even when coupled with failure to cooperate with the investigation of the misconduct. Crandall, 98 Ohio St.3d 444, 2003 Ohio 1637, 786 N.E.2d 872; Akron Bar Ass'n v. Barron, 85 Ohio St.3d 167, 707 N.E.2d 850 (1999). In Office of Disciplinary Counsel v. DeLong, 98 Ohio St.3d 470, 2003 Ohio 1743, 786 N.E.2d 1280, the respondent continued to practice as general counsel for a corporation after being suspended for CLE noncompliance. Despite this and his misrepresentation, for more than nine years, to the client of his status as an attorney in good standing, the Court nevertheless approved an 18-month suspension. Mitigating factors included respondent's receipt of a Bronze Star for military service in Vietnam.
In Board of Commissioners on Grievances & Discipline Op. 90-06, 1990 Ohio Griev. Discip. LEXIS 13, at *4 (Apr. 20, 1990), the Board opined that a suspended lawyer could work as a nonlawyer paralegal or in a similar position under the supervision of a practicing lawyer, if the suspended lawyer does not practice law and the employing lawyer is responsible for the suspended lawyer's work, so long as the conduct is not restricted "by the specific language of the Supreme Court's Order of Suspension." This position is similar to that espoused by the Ohio State Bar Association, which found that, unless the reason for the suspension involved gross abuse of the law, serial fraud, embezzlement, or other extreme misconduct, a law office could employ a suspended lawyer "for the purpose of doing research, writing briefs and memorandums of law, specifically for members of the law firm and for maintaining the law library, provided that in no event does the suspended lawyer come in contact with clients or court attaches [personnel], or give legal advice to clients of the law firm." Ohio State Bar Ass'n Informal Op. 78-9, at 2-3 (Nov. 15, 1978). If the suspended lawyer were allowed to go beyond these restrictions, the employing lawyer would be subject to sanctions for aiding the unauthorized practice of law. See Cincinnati Bar Ass'n v. Fehler-Schultz, 64 Ohio St.3d 452, 597 N.E.2d 79 (1992), discussed in section 5.5:230.
Because of amendments to the Rules for the Government of the Bar in 1999, Opinion 90-6 is now listed as "Not Current." It is, however, difficult to discern any real substantive difference between the 1999 amendments and Opinion 90-6. Under Gov Bar R V 8(G) as amended in 1999, if a lawyer hired a suspended attorney they both had to register with the Office of Disciplinary Counsel on a form that included statements affirming that the suspended attorney would not perform work constituting the practice of law and that the employing lawyer would supervise and be responsible for the suspended attorney's work. The bottom line, apart from the additional paperwork required, appears to be that a suspended lawyer under the 1999 GBR could be employed by an Ohio lawyer authorized to practice, as was the case under Opinion 90-6.
Pursuant to a further amendment to Gov Bar R V 8(G) effective September 1, 2008, more detailed obligations are now in place. First, the new provisions deal with employment of a disqualified as well as a suspended attorney. A disqualified attorney is one who has been disbarred or who has resigned with discipline pending. Id. at 8(H). Second, such former attorneys can have no direct client contact (other than as an observer) or be involved with client funds or property. Gov Bar R V 8(G)(1). Third, a disqualified attorney cannot enter into an employment relationship with his or her former firm. Fourth, the onus of reporting the relationship is now placed on the employing firm. Id. at 8(G)(3). Fifth, if the disqualified or suspended attorney will perform work on any client matter, the employing attorney/law firm must inform the client in writing. Id. at 8(G)(6).
In a case of first impression (so far as we are aware), the Court in Columbus Bar Ass'n v. Dugan, 113 Ohio St.3d 370, 2007 Ohio 2077, 865 N.E.2d 895, invoked the 1999 version of Gov Bar V 8(G)(1) in finding that respondent had transgressed the ethics rules by failing to register the employment of a suspended lawyer as a paralegal. Because respondent was unaware of his V 8(G)(1) obligation, he received only a public reprimand.
Should an attorney under suspension engage in the representation of a criminal defendant, ineffective-assistance-of-counsel concerns may be raised, depending on the rationale for the suspension and the stage of the proceeding at which the representation occurs. See State v. Allen, 121 Ohio App.3d 666, 700 N.E.2d 682 (Cuyahoga 1997).
Ohio attorneys on inactive or retired status: Practice by a member of the bar who has taken "inactive" or "retired" status also constitutes the unauthorized practice of law. Gov Bar R VI 2, 6(A)(1) & (D). See Cincinnati Bar Ass’n v. Rose, 114 Ohio St.3d 177, 2007 Ohio 3606, 870 N.E.2d 1168 (inactive); Office of Disciplinary Counsel v. Lawlor, 92 Ohio St.3d 406, 750 N.E.2d 1107 (2001) (inactive); Ohio State Bar Ass'n Informal Op. 06-01 (Feb. 16, 2006) (retired). Until recently, these lawyers were prohibited from "render[ing] any legal service for an attorney granted active status." Former Gov Bar R VI 2-3(A). Strangely, unlike Opinion 90-06 with respect to suspended attorneys, the Board opined that inactive and retired attorneys were precluded by this language from working as paralegals or law clerks. Bd. of Comm'rs on Grievances & Discipline Op. 92-4, 1992 Ohio Griev. Discip. LEXIS 17 (Feb. 14, 1992). Amendments to former sections 2 and 3(A) of Gov Bar R VI, deleting the language quoted above and thereby allowing an inactive or retired lawyer to be employed by an active attorney (for example, as a paralegal) so long as the employment does not constitute the practice of law, were adopted by the Supreme Court, effective June 1, 2002. With considerably greater justification than with respect to Opinion 90-6, Opinion 92-4 has likewise been labeled "Not Current."
The provisions on retirement in Gov Bar R VI 3 have now been incorporated in a new section, VI 6, which deals with both retirement and resignation from the practice of law. A lawyer who resigns from the practice is of course likewise not authorized to practice. Gov Bar R VI 6(A)(1). Section 6 became effective on September 1, 2007. These amendments are discussed in more detail in section 0.2:240 at "Special disciplinary provisions - Retirement or resignation from the practice of law."
One other status can result in an Ohio lawyer not being authorized to practice in Ohio, and that is the lawyer who is unregistered. Under Gov Bar R VI 1, an Ohio lawyer must obtain and keep current a Certificate of Registration to practice. Failure to do so will lead to summary suspension under Gov Bar R VI 5. Continued practice while under summary suspension constitutes the unauthorized practice of law. Such conduct violated former OH DR 3-101(B), Office of Disciplinary Counsel v. Gettys, 90 Ohio St.3d 250, 737 N.E.2d 29 (2000) (practicing while not registered), and violates Gov Bar R VI as well. Toledo Bar Ass'n v. Doyle, 68 Ohio St.3d 24, 623 N.E.2d 37 (1993). Pursuant to amendments effective September 1, 2007, attorneys on inactive status are exempt from the biennial registration requirement. See Gov Bar R VI 2(B).
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 § 3.32 (1996).
In addition to the Ohio lawyer not authorized to practice in Ohio, there are two other circumstances that fall under the Rule 5.5(a) prohibition against a lawyer practicing "in violation of the regulation of the legal profession in that jurisdiction"; they are mirror images of one another. The first involves a lawyer from another jurisdiction practicing in Ohio without proper Ohio credentials. The second deals with Ohio lawyers who practice in another jurisdiction where they are not admitted. Both types of conduct are now expressly recognized in Ohio Rule 8.5(a) as subjecting the lawyer to the disciplinary authority of Ohio. And, as the same Rule recognizes, "[a] lawyer may be subject to the disciplinary authority of both Ohio and another jurisdiction for the same conduct."
The Ohio cases in the first category are few. In addition to Office of Disciplinary Counsel v. Doan, 77 Ohio St.3d 236, 673 N.E.2d 1272 (1997) (Kentucky counsel working as in-house counsel for Ohio corporation), which is more appropriately treated in section 5.5:510, we found four: Ohio State Bar Ass’n v. Jackel, 118 Ohio St.3d 186, 2008 Ohio 1981, 887 N.E.2d 340; Office of Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003 Ohio 2568, 789 N.E.2d 210; Cleveland Bar Ass'n v. Moore, 87 Ohio St.3d 583, 722 N.E.2d 514 (2000); and Cleveland Bar Ass'n v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998).
The Jackel case involved an Indiana lawyer who had moved to Ohio from Indiana in 2002 and who continued to perform estate-planning services for Indiana residents prior to the time she passed the Ohio bar in 2004. She stipulated to a violation of DR 3-101(B). Note, however, that under the Rules, the respondent in Jackel would have at least an argument that her services for Indiana clients falls within the safe harbor of Rule 5.5(c)(4), inasmuch as the Indiana residency of the clients she was serving provides a basis for contending that the services were “reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” (See Rule 5.5 cmt. : among the factors listed as evidencing a reasonable relationship is that the lawyer’s client “may be a resident in … the jurisdiction in which the lawyer is admitted.” See section 5.5:440.) The weak link here is that the safe harbor exists for providing legal services on a “temporary” basis. There is no indication that Jackel’s work on behalf of Indiana clients was temporary. Even here, however, the comments provide a glimmer of hope. Comment  states that there is no single test for determining whether the services are on a “temporary basis,” and goes on to say that “[s]ervices may be ‘temporary’ even though the lawyer provides services in this jurisdiction on a recurring basis . . . .” Rule 5.5 cmt. . See section 5.5:400.
In Brown, the respondent was a disbarred New York lawyer who in 1992 had previously been found to have engaged in the unauthorized practice of law in Ohio. Undetered by the earlier decision and a criminal conviction on 44 felony counts related to his previous unauthorized practice, Brown in 2000 was again charged with and was found to have engaged in the unauthorized practice of law, in that he
actively participated in depositions and pretrial conferences, provided legal advice and counsel to clients, and directly communicated with opposing counsel on issues of discovery, legal strategy, and settlement.
Id. at ¶ 11 (applying the Dworken test of what constitutes the practice of law). The vehicle used to support this conclusion was not former OH DR 3-101(B), but rather Gov Bar R VII 2(A) (rendering legal services for another in Ohio although not admitted in Ohio).
The third case is Cleveland Bar Ass'n v. Moore, 87 Ohio St.3d 583, 722 N.E.2d 514 (2000), which involved a lawyer licensed in Pennsylvania who shared office space with Ohio lawyers in Ohio. While there, he was listed as an attorney in both the white and yellow pages and acted as counsel for clients in personal-injury matters. Although he did not file documents with or appear before any Ohio court, he entered into contingent-fee contracts with the clients, and negotiated and prepared documents for settlements with adverse parties and their insurance companies. As it did in Misch (see below), the Supreme Court rejected respondent's arguments that his activities were akin to those of a paralegal, because he did not operate under the supervision and control of the lawyers in whose offices he worked. Respondent's conduct was found to constitute the unauthorized practice of law in Ohio and he was enjoined from such further practice.
The fourth is Cleveland Bar Ass'n v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998). Misch, an Illinois lawyer not admitted in Ohio, was hired as a "consultant" by an Ohio law firm and used the offices of the Ohio firm. He provided advice to businesses in financial distress; in the course of doing so, he negotiated terms, and drafted buy-sell agreements, a notice of appeal to the BTA, and applications for financing, without review by an admitted Ohio lawyer. While respondent sought to characterize his activities as "ones which might be performed by a business consultant, a business broker, or a paralegal," id. at 260, 695 N.E.2d at 247, and thus permissible, the Court stressed that he did more than determine the best financial structure for an ongoing business and did so without appropriate lawyer supervision. Because the responsibilities exercised "were far greater than that of a legal assistant who is delegated the task of drafting routine documents under the supervision of a lawyer," id., and because his advice also involved consideration of Ohio and federal solvency law, respondent’s activity constituted the practice of law. Once again, the vehicle used by the Court in reaching this conclusion was Gov Bar R VII 2(A).
With the possible exception of Jackel, where, as noted above, the respondent might have an argument under the Rule 5.5(C)(4) safe harbor, each of these cases can fairly be said to have involved conduct constituting "the practice of law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction," i.e., in violation of Gov Bar R VII 2(A), and therefore would violate Ohio Rule 5.5(a).
An Ohio attorney who practices law in another jurisdiction, without compliance with that jurisdiction's legal professional regulations, also violates Ohio Rule 5.5(a). Such a lawyer, in the language of division (a), is practicing "in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction." See, under the comparable Code rule (OH DR 3-101(B)), Ohio State Bar Ass’n v. Good, 114 Ohio St.3d 204, 2007 Ohio 3602, 871 N.E.2d 542 (six incidents of unauthorized practice in Florida by Ohio lawyer; consent-to-discipline six-month suspension imposed); Disciplinary Counsel v. Frazier, 110 Ohio St.3d 288, 2006 Ohio 4484, 853 N.E.2d 295 (respondent attempted to appear on behalf of client in Michigan matter, where he was not licensed to practice; lawyer disbarred for this and many other violations); Office of Disciplinary Counsel v. Meros, 83 Ohio St.3d 222, 699 N.E.2d 458 (1998) (attorney suspended for, inter alia, involvement in federal court action in West Virginia, where he was not licensed to practice and where he failed to file motion for admission pro hac vice); Office of Disciplinary Counsel v. Chavers, 80 Ohio St.3d 441, 687 N.E.2d 415 (1997) (suspended Ohio attorney's continuing to practice in federal bankruptcy court, despite being suspended there as well, violated DR 3-101(B)); Office of Disciplinary Counsel v. Scuro, 36 Ohio St.3d 205, 522 N.E.2d 572 (1988) (suspending Ohio attorney who repeatedly represented clients in United States District Court for Western District of Texas without passing federal bar examination, as required for practice in that court; six-month suspension imposed, despite Board recommendation for public reprimand only and even though respondent already had been punished by Texas federal district court). Maintaining an office for the practice of law in a foreign jurisdiction in which the lawyer was not licensed to practice also violated the disciplinary rule, unless the foreign jurisdiction approved the practice. Ohio State Bar Ass'n Informal Op. 74-7 (Mar. 22, 1974) (Ohio lawyer, not licensed in California, maintained office in San Francisco to facilitate handling of cases there on behalf of Ohio residents; unless approved by State Bar of California, maintenance of such office in lawyer's name was "ethically improper").
If permitted by the other state, however, an Ohio attorney can take a deposition in a state where the Ohio attorney is not licensed to practice. Bd. of Comm'rs on Grievances & Discipline Op. 2002-4, 2002 Ohio Griev. Discip. LEXIS 8 (June 14, 2002).
Ohio Rule 5.5(a) also mandates that a lawyer "shall not . . . assist another in" practicing "law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction."
As the comments make clear, this "does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3." Ohio Rule 5.5 cmt. . Moreover,
[a] lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed in government agencies. Lawyers may also assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of the jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
Rule 5.5 cmt. . See section 5.5:210 at "Lay employee assistance in the practice of law."
This aspect of Rule 5.5(a) is substantively identical to the prohibition in former OH DR 3-101(A) against "aiding a non-lawyer" in unauthorized practice. The discussion below reviews the case law decided under the OHCPR provision.
There are a number of ways in which a lawyer can be seen as assisting in the unauthorized practice of law. Two concerns predominate.
The first focuses on whether the lawyer has stated or implied that a nonlawyer employee is acting as a lawyer in the representation. Such conduct impermissibly assists in the unauthorized practice of law. Columbus Bar Ass'n v. Culbreath, 88 Ohio St.3d 271, 725 N.E.2d 629 (2000) (lawyer referred to nonlawyer as "my partner" during closing argument of criminal case in which lawyer permitted nonlawyer to make opening statement and examine witnesses during trial); Office of Disciplinary Counsel v. Willis, 96 Ohio St.3d 142, 2002 Ohio 3614, 772 N.E.2d 625 (lawyer permitted employee disbarred by state of New York to act as if he were licensed during depositions, pre-trial conference, and in meeting with lawyer's clients); Cleveland Bar Ass'n v. Reed, 94 Ohio St.3d 139, 761 N.E.2d 9 (2002) (respondent leased office space in Ohio to Pennsylvania attorney (Moore) not admitted in Ohio, listed Moore on his letterhead and placed yellow pages ads that created impression that Moore was attorney associated with respondent). Where the lawyer knows that the client misunderstands the nonlawyer's status, the lawyer should correct the misunderstanding. Cf. Portage County Bar Ass'n v. Mitchell, 101 Ohio St.3d 1, 2003 Ohio 6449, 800 N.E.2d 1106 (client under impression that respondent's convicted-felon nonlawyer employee, who among other things signed contract with client on behalf of "firm," was lawyer associated with respondent; respondent failed to disclose employee's true status until confronted with facts by client).
The second concern focuses on the tasks the nonlawyer is performing. A lawyer can delegate tasks to a nonlawyer employee, as long as adequate supervision is provided. Ohio Rule 5.5 cmt. . For a case where the rule was violated because supervision was inadequate, see Columbus Bar Ass'n v. Gaba, 98 Ohio St.3d 351, 2003 Ohio 1012, 785 N.E.2d 437 (failure to adequately supervise nonlawyer employees who on various occasions gave legal advice, provided estimates of legal fees, and left impression that clients were speaking with licensed attorney). At times, the degree of delegation may be such as to constitute assisting the unauthorized practice of law. A lawyer cannot completely delegate the operation of his practice to a nonlawyer. See Stark County Bar Ass'n v. George, 45 Ohio St.2d 267, 268, 344 N.E.2d 132, 132 (1976) (disbarment of lawyer who, among other violations, went out of state for an extended period of time and "left his office in the care, custody and control of his brother, a non-lawyer, who had been instructed by respondent to receive clients, prepare work sheets, accept fees and costs, and refer clients to other lawyers and split fees."). But conduct that extreme was not required before a violation of former OH DR 3-101(A) was found. Allowing a nonlawyer employee to engage in extensive counseling of the client on legal matters and to engage in extensive dealings with others on the client's behalf violated this provision as well. Cincinnati Bar Ass'n v. Fehler-Schultz, 64 Ohio St.3d 452, 597 N.E.2d 79 (1992). Accord Disciplinary Counsel v. Maley, 119 Ohio St.3d 217, 2008 Ohio 3923, 893 N.E.2d 180, where “[r]espondent granted broad authority to the secretary to deal with and work directly for clients.… [and] either knew or should have known that she was taking money from clients and performing legal work for them.” Id. at para. 14. Further, some tasks are so intimately tied to the practice of law that they can be provided only by a lawyer, regardless of the degree of supervision provided. See Bd. of Commr's on Grievances & Discipline Op. 2002-4, 2002 Ohio Griev. Discip. LEXIS 8 (June 14, 2002) (improper under OH DR 3-101(A) to delegate taking of deposition to paralegal; attorney who instructs paralegal to take deposition, prepares questions for paralegal to use, supervises paralegal in taking of deposition, or instructs paralegal to represent deponent at deposition is assisting in unauthorized practice of law).
There are instances in which excessive delegation comes about because the lawyer is suffering from an illness that disables the lawyer from handling his practice. That excuse, however, does not legitimize the conduct; it still is assisting in the unauthorized practice of law. See Columbus Bar Ass'n v. Watson, 106 Ohio St.3d 298, 2005 Ohio 4983, 834 N.E.2d 809 (bedridden respondent relied on paralegal to help him manage law practice during his illness, but paralegal overstepped his authority in filing and signing documents; DR 3-101(A) violated (as admitted by respondent); given extenuating circumstances, sanction was stayed six-month suspension).
Inadequate supervision of out-of-state attorney not admitted in Ohio: In Office of Disciplinary Counsel v. Pavlick, 89 Ohio St.3d 458, 732 N.E.2d 985 (2000), the Supreme Court publicly reprimanded a principal in a Cleveland law firm who, as the partner most responsible for supervising and monitoring an out-of-state attorney/"consultant" not admitted in Ohio, negligently failed to do so, even though he knew the attorney was not admitted in Ohio. (The out-of-state attorney in question was the lawyer who was the subject of the Supreme Court's opinion in Cleveland Bar Ass'n v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998), discussed in section 5.5:240 above.) The parties stipulated that to the extent respondent authorized Misch to use firm resources, created in correspondence a confusion as to Misch's status, and failed to inform firm clients that Misch was not an Ohio lawyer, respondent bore some of the responsibility for Misch's misconduct.
In deciding that respondent Pavlick violated OH DR 3-101(A) as stipulated, a unanimous Court left no doubt that the language of the rule ("[a] lawyer shall not aid a non-lawyer in the unauthorized practice of law' (emphasis added)," 89 Ohio St.3d at 460-61, 732 N.E.2d at 987) "prohibits Ohio attorneys from aiding either laypersons or attorneys unlicensed in Ohio in the unauthorized practice of law." Id. at 461, 732 N.E.2d at 987-88 (emphasis by the Court). The Court further noted that this reading of OH DR 3-101(A) is consistent with the definition of "unauthorized practice of law" set forth in the Rules for the Government of the Bar. See Gov Bar R VII 2(A). See also Gov Bar R VI 3(D). The Court then, as it did in Misch, reviewed the various avenues through which an out-of-state attorney can properly practice in Ohio. 89 Ohio St.3d at 462-64, 732 N.E.2d at 988-90. See sections 5.5:400-:500.
Lawyer employees of corporation serving clients of company: The general rule has long been that a lawyer who, as an employee of a general corporation, provided legal services to clients was involved in aiding the unauthorized practice of law, because general (nonlegal) corporations are precluded from practicing law. There is a recognized exception, however, when the corporation has a direct or primary interest in the matter. This exception was applied in Cincinnati Bar Ass'n v. Allstate Ins. Co., No. UPL 02-02 (Bd. of Comm'rs on Unauthorized Practice of Law Oct. 1, 2003), review denied, 100 Ohio St.3d 1514, 2003 Ohio 6460, 800 N.E.2d 33, in which the Board ruled that lawyer employees of insurance companies may represent the employer's insureds with respect to policies issued by the company. Although older BCGD opinions (e.g., Bd. of Comm'rs on Grievances & Discipline Op. 95-14, 1995 Ohio Griev. Discip. LEXIS 1 (Dec. 1, 1995)), condemning "in house" law firms made up of lawyer employees practicing within an insurance company under a firm name comprised of one or more of the lawyers, may or may not still be good law, the straightforward representation of insureds by insurance company staff attorneys was blessed by the UPL Board in Allstate. The Board there dismissed the complaint lodged by the Cincinnati Bar Association, which had charged that Allstate was engaged in the unauthorized practice of law by utilizing this employee-representation practice. The essence of the Board's opinion is found in Conclusions of Law 3 and 4:
3. A corporation cannot lawfully engage in the practice of law, and it cannot do so indirectly through employment of qualified lawyers. Judd v. City Trust & Savings Bank (1937), 133 Ohio St. 81, 12 N.E.2d 288; Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650. Both the Judd and Dworken opinion [sic] recognize, however, that corporate attorneys are permitted to work on matters where the corporation has a direct or primary interest. Dworken, 129 Ohio St. at 23, 193 N.E. at 651 (offering opinions and advice for the benefit of others, are acts falling within the practice of law, and may not be performed by corporations except wherein they have a direct or primary interest); Judd, 133 Ohio St. at 92-93, 12 N.E.2d at 293 (so long as the corporation's activities are confined to performing services beneficial to itself in the prosecution of their [sic] approved business, the necessary appurtenant benefits of a legal complexion to other persons does not make such pursuit unlawful). As a related matter, both Dworken and Judd reviewed and upheld lower court injunctions that were limited to proscribing in house legal counsel activity where the corporation had no direct or primary interest in the legal dispute.
4. The Board finds that the situation presented in this record and based on the factual stipulations of the parties falls within the exception found in Dworken and Judd where the corporation has a direct interest in the outcome of litigation. Indeed, as noted above, the parties stipulated that "[s]taff counsel employed by Allstate to represent Allstate insureds are protecting Allstate's direct and primary pecuniary interest in the outcome of litigation in which Allstate's insureds are involved." [citation to stipulation omitted.] Based on the stipulations and arguments of counsel, the Board concludes that relator has failed to establish that respondent has engaged in the unauthorized practice of law.
Slip op. at 4-5 (bracketed material added). This conclusion is consistent with prior Ohio authority. See Strother v. Ohio Cas. Ins. Co., 5 Ohio Supp. 362, 28 Ohio L. Abs. 550(C.P. Hamilton 1939), aff'd without opinion; see Dowling v. Ins. Co. of N.A., No. 32527 (Ohio App. Cuyahoga Nov. 16, 1973) ("An insurance company can use house counsel to handle the defense of a case [on behalf of an insured under the policy], if the insurance company has a direct pecuniary interest in the outcome of the lawsuit." Id. at 4 (citing Strother)). This is the rule in the great majority of U.S. jurisdictions. See Jan A. Saurman, How to Succeed as Staff Counsel - Issues in Ohio, The Brief (ABA Tort Trial & Practice Section), Spring 2004, at 28, 31 (noting that 19 of 21 jurisdictions addressing the issue have approved the practice).
See also discussion of Allstate at section 5.4:300. For discussion of attempts by entities and their nonlawyer constituents to represent the entity or third parties, see section 5.5:210, at "Attempts by entities to practice law through their nonlawyer constituents."
Participation in a joint venture or other relationship with a nonlawyer: Problems may also arise from a lawyer's direct provision of legal services if the services are offered as part of a joint venture with a nonlawyer. Lawyer-nonlawyer joint ventures can raise a host of ethical issues depending upon the exact nature of the relationship. Problems that arise include, in addition to aiding in the unauthorized practice of law, improper solicitation and referrals (Rules 7.2(b), (d), 7.3(a)-(d); see sections 7.2:400, :600 & 7.3:200-:400), creation of a partnership with a nonlawyer (Rule 5.4(b); see section 5.4:300), improper fee sharing (Rule 5.4(a); see section 5.4:200), conflict of interest (e.g., Rule 1.7; see sections 1.7:200-:500), and third-party influence concerns (Rules 1.8(f) and 5.4(c) & (d); see sections 1.8:710-:720 and 5.4:400-:500).
See also Rule 5.7 (responsibilities regarding law-related businesses).
For example, the Ohio State Bar Association concluded that if an Ohio attorney entered into an arrangement in which a nonlawyer financial planner secures clients, acquires the basic information from the clients necessary for the preparation of a revocable living trust, and then sends the clients to the attorney to complete the trust, the arrangement would involve the lawyer in assisting in the unauthorized practice of law. Ohio State Bar Ass'n Informal Op. 90-2, at 2 (July 13, 1990) (the plan "would constitute a marketing of your legal services by the financial planner, and allowing him to do so would be aiding in the unauthorized practice of law"). The Cincinnati Bar Association reached the same conclusion on similar facts, although there, in addition, the insurance company marketing the living trusts also arranged for a document service to create master document provisions pertaining to living trusts, and the lawyer, in deciding on the optimal trust configuration for the client, was required to choose living trust provisions from among those approved by the insurance company. Cincinnati Bar Ass'n Op. 92-93-01 (n.d.).
Numerous disciplinary cases decided by the Ohio Supreme Court confirm the result in these ethics opinions. Thus, in Cleveland Bar Ass'n v. Nosan, 108 Ohio St.3d 99, 2006 Ohio 163, 840 N.E.2d 1073, respondent associated with a company offering consumer-debt consolidation and relief services. The company provided respondent with an office and support staff; although respondent seldom met with his "clients," he "allowed nonattorneys in his office to counsel clients about how to protect their legal interests through bankruptcy or some other financial plan." Id. at para. 16. This arrangement violated former OH DR 3-101(A) (as well as 3-102(A) and 3-103).
In Cincinnati Bar Ass'n v. Kathman, 92 Ohio St.3d 92, 748 N.E.2d 1091 (2001), the Court concluded that an Ohio attorney, engaged as a "review attorney" by an Ohio corporation engaged in marketing living trusts prepared by a Nevada corporation, violated OH DR 3-101(A):
[W]e have not clearly defined whether an attorney, licensed to practice law in the state of Ohio, aids in the unauthorized practice of law when he or she assists nonattorneys to market or sell living trusts. We hold that an attorney violates DR 3-101(A) when the attorney assists a nonattorney, as respondent assisted the nonattorneys, in the marketing and selling of living trusts.
Id. at 96, 748 N.E.2d at 1095 (six-month suspension imposed). Accord Cincinnati Bar Ass’n v. Mullaney, 119 Ohio St.3d 412, 2008 Ohio 4541, 894 N.E.2d 1210 (by doing business with company in foreclosure-avoidance business – representing the company’s customers in court while company’s agents continued to negotiate with lenders – respondents “facilitated nonlawyers’ negotiations with the creditors of debtors facing foreclosure,” id. at para. 20); Ohio State Bar Ass’n v. Jackel, 118 Ohio St.3d 186, 2008 Ohio 1981, 887 N.E.2d 340 (performing estate-planning services for clients sent to her by direct mail marketing company with whom she was associated; two year suspension); Disicplinary Counsel v. Wheatley, 107 Ohio St.3d 224, 2005 Ohio 6266, 837 N.E.2d 1188; Columbus Bar Ass'n v. Moreland, 97 Ohio St.3d 492, 2002 Ohio 6726, 780 N.E.2d 579 (respondent given public reprimand, based on presence of significant mitigating factors). In a case involving similar conduct, the Court shed further light on why such an arrangement violated OH DR 3-101(A). Columbus Bar Ass'n v. Fishman, 98 Ohio St.3d 172, 2002 Ohio 7086, 781 N.E.2d 204. In answer to respondent's contention that his supervision over lay representatives of the marketing corporation (AHC), with which the lawyer had entered into an agreement to market living trusts to elderly customers, was sufficient to avoid violation of OH DR 3-101(A), the Supreme Court had this to say:
[I]t is not enough for an attorney to look over the shoulders of nonattorneys in a process through which clients are advised about and accede to a living trust. In that situation, the reviewing attorney enters the relationship too late -- the nonattorney has already processed information for the client about his or her affairs and has generated a legal solution of which the client is already convinced. [citing Kathman]. Compound this scenario with the fact that the nonattorney has a financial stake in the legal solution, and there can be no real confidence in the attorney. The attorney's status as the client's personal, yet objective advocate has been sacrificed for the sake of the sale.
It is manifest from the evidence in this case that AHC representatives not only explained legal principles relative to wills and trusts, they also manipulated those principles in directing prospective clients to choose living trusts. Such client consultation is, at its most elemental, the practice of law. [citation omitted]. Respondent therefore unquestionably also aided nonattorneys in the unauthorized practice of law.
Id. at ¶¶ 14-15 (emphasis by the Court; more severe sanction (one-year suspension) than that imposed in either Kathman or Moreland, because, inter alia, "respondent remains oblivious to the full significance of his unprofessional conduct." Id. at ¶ 20).
The rule of the Kathman line of cases has been applied where the relationship or affiliation of the lawyer with the purveyor of living trusts was apparently that of an employee, as opposed to a joint venturer. Thus, in Cincinnati Bar Ass'n v. Heisler, 113 Ohio St.3d 447, 2007 Ohio 2338, 866 N.E.2d 490, the respondent, who "worked for" two such companies and was paid a salary, was found to have aided the unauthorized practice of law in violation of former 3-101(A) "by helping [the companies] sell the preparation of living-trust agreements and associated documents to customers . . . ." Id. at para. 16. Another case decided the same day, Disciplinary Counsel v. Kramer, 113 Ohio St.3d 455, 2007 Ohio 2340, 866 N.E.2d 498, involved a respondent who was first an employee of the living-trust corporation and then went into private practice, where the bulk of his clients came from referrals from the corporation. With respect to the 3-101(A) violation, the Court focused on his acceptance in private practice of referrals from employees of the company, who had already convinced the client to purchase a living trust. Quoting from Kathman, the Supreme Court stressed that the
"nonattorney has already given legal advice to the client regarding the client's legal matters . . . . By the time the attorney enters the transaction, the unauthorized practice of law has already occurred and anything the attorney does thereafter aids the prohibited conduct."
Id. at para. 22 (ellipsis added).
Similarly, in Ohio State Bar Ass'n Informal Op. 88-3 (Feb. 3, 1988), the OSBA warned a lawyer that agreeing to draft wills in response to referrals from a nonlawyer organization that gives presentations on estate planning, collects detailed information from participants, and counsels some of those individuals on a personal basis could, depending on the facts, involve the lawyer in aiding the unauthorized practice of law.
The problem also has arisen with respect to the joint offering of divorce mediation services by a lawyer and psychologist. Whether such an association involves the unauthorized practice of law depends on the exact nature of the services rendered by the psychologist. Ohio State Bar Ass'n Informal Op. 82-2 (Aug. 3, 1982). But see ABA Section on Dispute Resolution, Resolution on Mediation and the Unauthorized Practice of Law 1 (Feb. 2, 2002) (providing mediation service does not constitute practice of law). See generally 1 Sarah R. Cole, Nancy H. Rogers & Craig A. McEwen, Mediation - Law, Policy, Practice § 10:05 (2d ed. 2001 & Supp. 2007-08) (discussing unauthorized practice of law problems that arise in nonlawyer and out-of-state lawyer provision of mediation services).
Ultimately, the permissibility of lawyer involvement in a law-related business with a nonlawyer becomes a judgment call. Lawyer ownership with a nonlawyer of an ancillary business that provides law-related services is not per se impermissible, but it can stray across the line if the services provided are deemed the practice of law. In this regard, it must be recognized that certain conduct permissibly carried out by a nonlawyer can become the practice of law when carried out by an attorney. This issue was addressed in Cincinnati Bar Ass'n Op. 94-95-01 (n.d.). As the opinion drafters noted, conducting a title search without rendering an opinion on the legal significance of the findings is not the practice of law when conducted by a nonlawyer. In contrast, if the conduct is carried out by a lawyer, it may be considered the practice of law, if the client is likely to rely on the fact that the individual performing the service is a lawyer. This distinction becomes important to the extent the lawyer is performing the service in connection with nonlawyers. If the conduct is treated as the practice of law, then improper fee splitting with a nonlawyer (OH DR 3-102(A); see section 5.4:200), or improper practice with a nonlawyer (OH DR 3-103, 5-107(C); see section 5.4:300) might be involved, as well as the lawyer being seen as supporting the unauthorized practice of law. To avoid these violations, the organization offering the service must make clear that the individual offering the service is not doing so in a legal capacity. As the Cincinnati Bar Association suggested:
To prevent this reliance, the lawyer must ensure that the corporation makes it clear to the ultimate users that the title searches are merely mechanical, that they reflect no legal opinions or judgments and no representations as to the status of titles and they should not be relied on as legal work.
Cincinnati Bar Ass'n Op. 94-95-01, at 6 (n.d.). See as well Ohio State Bar Ass'n Informal Op. 79-6 (Sept. 20, 1979), discussed this section infra at "Lay organization as conduit for a lawyer's advice."
On December 17, 1999, the Ohio State Bar Association Special Committee on Multidisciplinary Practice (MDP) and the Legal Profession published its interim report. The report identified 22 disciplinary rules which would have to be modified if multidisciplinary practice were permitted. At page 6, the Special Committee defined the threshold question as follows:
"Can the public interest be well served through the offering of multidimensional (multidisciplinary) services, e.g., law, accounting, financial, insurance, and investment, without sacrificing or compromising the traditional and sacred core values of the legal profession, those being professional independence of judgment, protection of confidential client information and undivided client loyalty through avoidance of conflict of interest?"
Quoted in Robert N. Farquhar, Law "practice" of the future, Ohio Law., May/June 2000, at 8, 12.
After public hearings, the final report of the Special Committee to the OSBA Council of Delegates was adopted, as amended, on May 17, 2000. Therein, MDP was rejected. In a sentence, the conclusion was that "[t]he OSBA does not believe that MDP should be authorized or sanctioned." 73 Ohio St. B. Ass'n Rep. No. 22, at 553, 561 (May 29, 2000). The ABA reached the same result at its annual convention on July 11, 2000. ABAJ, Sept. 2000, at 92.
Lay organization as conduit for a lawyer's advice: Former OH DR 3-101(A) also was implicated when a lawyer provided legal advice to a lay organization that then used the advice to engage in the unauthorized practice of law. This situation was addressed in Ohio State Bar Ass'n Informal Op. 79-6 (Sept. 20, 1979). Under the facts considered, the OSBA assumed a nonlawyer company was providing estate-planning services that constituted the unauthorized practice of law. The opinion concluded that the lawyer was free to advise the company on legal matters affecting the company, but the lawyer could not provide advice that would help the company engage in the unauthorized practice of law. Such conduct would violate 3-101(A). See also Cleveland Bar Ass'n Op. 87-1 (July 31, 1987) (similar analysis applied where nonlawyer consultant employed attorney to review client personnel policies and then offered opinion on their legality based on lawyer's work). The OSBA opinion goes beyond this, however, to endorse a more substantial limit on lawyer conduct:
The fact that a lay organization may be able to perform a particular service to its clients unaided by any advice from a lawyer without being engaged in the unauthorized practice of law does not necessarily protect the lawyer on retainer if he aids in the performance of such service. When the advice of the lawyer on retainer is sought by his employer, the lay organization, to enable the latter to render service to a client, whether the lawyer is aiding or making possible the practice of law by the lay organization is to be judged, not on the basis of the nature of the conduct of the lay organization when it proceeds unaided by the lawyer, but rather on the basis of whether the advice given by the lawyer would involve the practice of law if given by him directly to a client.
Ohio State Bar Ass'n Informal Op. 79-6, at 3-4 (Sept. 20, 1979).
See also Bd. of Comm'rs on Grievances & Discipline Op. 2001-2, 2001 Ohio Griev. Discip. LEXIS 2 (Apr. 6, 2001) (lawyers contacted by commercial web-site offering to provide online (1) exclusive listing within zip codes in exchange for compensation, and (2) site that provides prompts to "make your will online now," are cautioned not to participate if the entity is engaged in the unauthorized practice of law; "[w]henever a law-related web site is offering services that go beyond merely a ministerial function of providing a legal form to users, the attorney should be on the alert that the company may be engaged in the unauthorized practice of law." Id. at *2.).
Hybrid situations: At times, the lawyer's affiliation with and conduct for an organization engaged in the unauthorized practice of law may raise both joint venture and conduit concerns. In Board of Commissioners on Grievances & Discipline Op. 92-15, 1992 Ohio Griev. Discip. LEXIS 6 (Aug. 14, 1992), the Board addressed such a situation. Under the proposed scheme, a law firm would be involved in preparing legal forms and videotapes for a business corporation's marketing of wills, living wills, and durable powers of attorney to customers, conduct that involves the unauthorized practice of law. The lawyers also would answer customer requests for information and assist customers in preparing finished documents. As such, the lawyer would be allowing the corporation to serve as the conduit for legal advice, to the extent the lawyer was not directly involved with the customer, and as a joint-venturer in the provision of legal services, to the extent the lawyer had contact with the customers being served. The Board found this conduct to violate numerous provisions of the Code, including former OH DR 3-101(A).
OH DR 2-103(D) organizations: Former OH DR 2-103(D) identified a limited class of organizations, such as lawyer-referral services and legal-service plans, that could permissibly pay for and market a lawyer's services to third parties. (Under the Rules, see Ohio Rule 7.2(b)(2) & (3) and discussion at section 7.2:400.) Lawyer participation in such organizations was not considered aiding the unauthorized practice of law. See, e.g., under the Code, Azzarello v. Legal Aid Soc., 117 Ohio App. 471, 185 N.E.2d 566 (Cuyahoga 1962); Ohio State Bar Ass'n Informal Op. 76-10 (Aug. 24, 1976). In contrast, participating in a nonqualified organization was prohibited. See, e.g., Cuyahoga County Bar Ass'n v. Gold Shield, Inc., 52 Ohio Misc. 105, 369 N.E.2d 1232 (C.P. Cuyahoga 1975). Accord Cincinnati Bar Ass'n Op. 94-95-02 (n.d.) (participation would violate former OH DR 3-101(A) (aiding a nonlawyer in the unauthorized practice of law), 3-102(A) (sharing legal fees with a nonlawyer), and 3-103(A) (forming a partnership to practice law with a nonlawyer)).
- Primary Ohio References: Ohio Rule 5.5(b)
- Background References: ABA Model Rule 5.5(b)
Lawyers admitted in other jurisdictions but not in Ohio also are prohibited from engaging in the unauthorized practice of law in Ohio, although the ability to practice here in conformity with Ohio law has been significantly enhanced by Ohio Rules 5.5(c) and (d). These divisions of the Rule in substance pick up the multijurisdictional practice of law provisions of MR 5.5 as amended in 2002. See sections 5.5:400 & :500. Nevertheless, Rule 5.5(b) sets the baseline for non-Ohio lawyers and prohibits them, subject to the division (c) and (d) safe harbors, from "establishing an office or other systematic and continuous presence in this jurisdiction for the practice of law" or from holding out to the public or otherwise representing that they are admitted in Ohio. Rule 5.5(b)(1) & (2).
Systematic and continuous presence can be shown both by conduct in the state and by outside conduct directed toward the state. "For example, advertising in media specifically targeted to Ohio residents or initiating contact with Ohio residents for solicitation purposes could be viewed as a systematic and continuous presence," even though the lawyer is not physically present in the state. Ohio Rule 5.5 cmt. .
Rule 5.5(b) is consistent with the provisions of Gov Bar R VI 3(D), which states, with respect to an attorney not admitted in Ohio who is "employed by, associated with, or a partner in an Ohio law firm," that, until admitted, "the attorney may not practice law in Ohio, hold himself or herself out as authorized to practice in Ohio, or practice before any nonfederal court or agency in this state on behalf of any person except himself or herself, unless granted leave by the court or agency."
While there are some unauthorized practice cases under the former OHCPR that now fall by the wayside, given the multijurisdictional safe harbors created in divisions (c) and (d), there are a few Code decisions that still would be condemned as unauthorized practice under division (b). Those cases are discussed here; the Code cases that seem consistent with the new safe harbors are discussed in sections 5.5:400-:500.
One such case that would come within the prohibitions of Rule 5.5(b) is In re Stage, 81 Ohio St.3d 554, 692 N.E.2d 993 (1998), in which an out-of-state lawyer awaiting admission in Ohio engaged in conduct implying that she was already admitted in Ohio. The Supreme Court found that using letterheads stating "General Counsel" and "Attorney at Law," absent a disclaimer accompanying use of these titles, consitituted the unauthorized practice of law under the "holding out" provisions of ORC 4705.07. At a minimum, this would violate division (b)(2) (holding oneself out as authorized to practice in Ohio). Accord Bd. of Comm'rs on Grievances & Discipline Op. 89-37, 1989 Ohio Griev. Discip. LEXIS 7 (Dec. 15, 1989) (lawyer awaiting Ohio admission cannot hold himself or herself out as licensed to practice in Ohio or to give legal advice to Ohio clients prior to admission).
Other decisions involving conduct that would violate Rule 5.5(b)(1) and (2) include: Office of Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003 Ohio 2568, 789 N.E.2d 210 ("[r]espondent wrongfully held himself out as an attorney licensed to practice law in this state"); Cleveland Bar Ass'n v. Moore, 87 Ohio St.3d 583, 722 N.E.2d 514 (2000) (office in Ohio and holding himself out as authorized to practice in Ohio); Cleveland Bar Ass'n v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998) (same).
As discussed in section 5.5:510, Gov Bar R VI 3(A)-(B) provides that upon proper registration, a non-Ohio attorney may perform legal services for a nongovernmental Ohio employer if the attorney is a full-time employee of that employer under "corporate status," although he or she cannot appear in that capacity before a court or agency unless leave is granted. But performing such services without registering constitutes the unauthorized practice of law, see Gov Bar R VI 3(C); Office of Disciplinary Counsel v. Doan, 77 Ohio St.3d 236, 673 N.E.2d 1272 (1997), and would violate 5.5(b) as well. "Corporate status" is not available to a lawyer not admitted in Ohio who is employed by, associated with, or a partner in an Ohio law firm. Gov Bar R VI 3(D).
It must be remembered that, in addition to any action taken by Ohio with respect to conduct of an out-of-state attorney, the licensing jurisdiction of the out-of-state attorney can determine whether the conduct violates its own rules of professional responsibility. See, e.g., Royal Indem. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 34, 501 N.E.2d 617, 620 (1986) (recognizing that "an attorney may be disciplined in both his home state and the state in which he appeared pro hac vice."). Accord Ohio Rule 8.5(a) (see section 8.5:200). See generally ABA, Annotated Model Rules of Professional Conduct 469 (6th ed. 2007) (commentary) (lawyers engaged in multijurisdictional practice subject to discipline both in states where they practice and in states of licensure).
- Primary Ohio References: Ohio Rule 5.5(c)
- Background References: ABA Model Rule 5.5(c)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 3.33-3.34
- Commentary: ALI-LGL § 3
Over the years the needs of clients have become increasingly multijurisdictional. Local clients often have dealings with parties from other jurisdictions or conduct business in many jurisdictions. To accommodate these changing needs, lawyers were increasingly called upon to work on matters in states where they were not licensed to practice. State unauthorized-practice-of-law rules, however, were slow to respond. This disconnect was addressed by the ABA in its 2002 amendments to the Model Rules on multijurisdictional practice, and the resulting changes are largely incorporated in Ohio Rule 5.5(c). This division, along with division (d), permits multijuridictional practice on the terms there stated. Division (c) sets forth four situations in which an out-of-state lawyer may practice temporarily in Ohio; division (d) specifies two instances in which such a lawyer may establish an office or other continuous presence in Ohio. The latter are discussed in sections 5.5:500-:520 infra; the former are discussed here. A helpful summary of Ohio Rule 5.5(c) & (d) is found at Brian F. Toohey, Road Work: MJP Five Years Later, Clev. B.J., Dec. 2007, at 10.
The body of division (c) provides as follows:
A lawyer who is admitted in another United States jurisdiction, is in good standing in the jurisdiction in which the lawyer is admitted, and regularly practices law may provide legal services on a temporary basis in this jurisdiction if one or more of the following apply: [setting forth the four categories, which are discussed hereafter in sections 5.5:410-:440].
The goal of the drafters was to identify a limited array of instances in which practice in Ohio by an out-of-state lawyer would serve client needs without creating an "unreasonable risk to the interests of . . . clients, the public or the courts." Ohio Rule 5.5 cmt. . Three concerns animate the Rule.
The first is the need for some assurance that the out-of-state lawyer will provide competent representation. To this end, the lawyer must be admitted in another United States jurisdiction, be in good standing in that jurisdiction, and regularly practice law. Ohio Rule 5.5(c). Thus, the lawyer must not be disbarred or suspended in that jurisdiction, as that lawyer would not be in good standing; nor can the lawyer be on inactive status, as that lawyer would not be involved in regularly practicing law. Ohio Rule 5.5 cmts.  & . (Comment  adds the gloss that "admitted" for purposes of division (c) "excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.")
There is one ambiguity of note here. Suppose a lawyer is admitted in multiple jurisdictions, but is not in good standing in one of them. From the language of the Ohio Rule, the out-of-state lawyer still appears eligible for practice in Ohio, as the lawyer is "admitted in another jurisdiction, is in good standing in the jurisdiction in which the lawyer is admitted, and regularly practices law." Under the analogous Model Rule, in contrast, temporary out-of-state practice is allowed only if the out-of-state lawyer has not been "disbarred or suspended from practice in any jurisdiction." Model Rule 5.5(c). Whether the drafters intended this departure from the Model Rule is unclear. It is not mentioned in the ABA Model Rules Comparison to Rule 5.5, a surprising omission for so substantial a change. Further confusing the issue, in Comment  to the Ohio Rule, the Model Rule language quoted above is employed. Ohio Rule 5.5 cmt. .
A related concern about competence is addressed in Comment . It notes that the duty of communication in Ohio Rule 1.4 may at times require an out-of-state lawyer to inform the client that he is not licensed in Ohio, such as where Ohio law dominates the matter at hand. Ohio Rule 5.5 cmt. . This acknowledgement will help alert the client to a possible mismatch between the needs of the case and the background of the attorney.
The second limitation on practice in Ohio by an out-of-state lawyer pursuant to division (c) is that it occur only on a "temporary basis." The exact contours of that phrase, however, are far from clear. As Comment  provides:
There is no single test to determine whether a lawyer's services are provided on a "temporary basis" in this jurisdiction, and may therefore be permissible under division (c). Services may be "temporary" even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.
The third limitation is on the circumstances under which temporary practice is allowed. As discussed in the sections that follow, the Rule identifies four instances in which temporary practice is permissible. On its face the list might appear exclusive: only if the practice is temporary, and only if one of the four conditions is met, is the practice authorized. The comments, however, suggest that these four safe harbors do not constitute an exhaustive list. As Comment  states, "[t]he fact that conduct is not so identified [in the four situations set forth in the Rule] does not imply that the conduct is or is not authorized." Ohio Rule 5.5 cmt. .
To the extent an out-of-state lawyer engages in temporary practice within the state, the lawyer is subject to the state's disciplinary authority. Ohio Rule 5.5 cmt. . See Ohio Rule 8.5(a) and its discussion in section 8.5:200.
Pursuant to Ohio Rule 5.5(c)(1), a regularly practicing out-of-state lawyer in good standing in the jurisdiction where admitted may provide temporary legal services in Ohio where
the services are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.
As stated in Comment :
Division (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this provision to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.
Rule 5.5 cmt. . ABA, Annotated Model Rules of Professional Conduct 466 (6th ed. 2007) (commentary), emphasizes that the local lawyer "cannot serve 'merely as a conduit'" for the out-of-state lawyer, but must “actively participate” in and share responsibility for the representation.
5.5:420 Authorization to Appear in Pending or Potential Proceeding Before Tribunal (Pro Hac Vice Admission) (see also 8.1:240)
Ohio Rule 5.5(c)(2) authorizes temporary practice in the state by an out-of-state lawyer in two circumstances. One is the situation in which the lawyer is involved in a proceeding outside the state but needs to conduct certain activities within Ohio in support of that out-of state proceeding. The second is the situation in which an out-of-state lawyer is admitted to practice in Ohio by an in-state court or tribunal for a particular case, so called pro hac vice admission.
In either instance, the lawyer must be "authorized by law or order to appear in such proceeding or reasonably expect to be so authorized." Id. If one lawyer involved in the representation fits this description, ethical permission is extended to those assisting that lawyer. Id. As noted in Comment , division (c)(2) "permits conduct by lawyers who are associated with that [authorized] lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation." Rule 5.5 cmt. .
In-state activity in support of an out-of-state proceeding: In many instances, to carry out litigation in one forum, a lawyer will need to work in others -- to interview witnesses, take depositions, review documents, meet with clients, and so on. Ohio Rule 5.5(c)(2) approves such temporary practice in Ohio by out-of-state lawyers. See also Ohio Rule 5.5 cmt. . Accord Bd. of Comm'rs on Grievances & Discipline Op. 2002-4, 2002 Ohio Griev. Discip. LEXIS 8 (June 14, 2002) (opining that lawyer not licensed in Ohio may take deposition in Ohio incidental to litigation in jurisdiction where lawyer admitted (but pro hac vice admission required if litigation to take place in Ohio)).
Pro hac vice admission - In general: Out-of-state lawyers often are admitted to practice before Ohio tribunals to handle particular cases. If a lawyer has been admitted for this purpose, or reasonably expects to be, then the lawyer may take actions in the state reasonably related to that proceeding. Ohio Rule 5.5(c)(2). Thus, the Rule clearly authorizes work done before as well as after formal admission on a case, so long as the pre-admission conduct was done with reasonable expectation of subsequent admittance on the matter.
The steps necessary to secure such status will vary by the circumstances. As Comment  points out, the authority to practice under subdivision (c)(2) "may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency." Ohio Rule 5.5 cmt. . The out-of-state lawyer will need to follow applicable procedures, if any, and request that the tribunal, in its discretion, admit her for this purpose.
Pro hac vice admission - Applying for pro hac vice status: The lawyer seeking pro hac vice admission must comply with any applicable local rules that may apply to such requests. These local rules vary on such matters as:
Whether the motion must be made by an attorney admitted to practice in Ohio; compare SCt Prac R I(2)(B) and 8th Dist. (Cuyahoga County) Ct App Loc R 44(C)(2) (imposing such a requirement), with Hamilton County CPR 10(F) (silent on this issue).
The contents of the motion or other papers that must be filed; compare SCt Prac R I(2)(B) (motion must state attorney's qualifications), with Franklin County CP Gen R 91 (applicant must file written oath and certification of familiarization with applicable court rules and be sponsored in writing by licensed Ohio attorney).
Whether the out-of-state attorney must affiliate with Ohio co-counsel. Compare Franklin County CP Gen R 91 (requiring Ohio co-counsel), and Lucas County CP Gen R 1.03(A) (same), with Hamilton County CPR 10(F) (court may require local counsel), and Montgomery County CP Gen R 1.31 V (same).
Failure to follow the applicable local rules can result in the court's rejecting the pro hac vice admission request. See, e.g., White v. Wyeth Labs., 38 Ohio St.3d 707, 533 N.E.2d 360 (1988) (motion to appear pro hac vice denied for failure to comply with Supreme Court rule requiring co-signing of motion by member of Ohio bar). Cf. In re Reza, 138 B.R. 190 (Bankr. S.D. Ohio 1992) (motion denied for failure to follow local bankruptcy rule requiring statement in form of pleading that pro hac vice applicant was qualified to practice before court).
And, needless to say, following generally applicable state-wide rules is also essential. Thus, in Office of Disciplinary Counsel v. Fucetola, 93 Ohio St.3d 145, 753 N.E.2d 180 (2001), the respondent filed a complaint for a client simultaneously with his motion for admission pro hac vice. The case proceeded as if he had been admitted, but a year later the court denied the motion for admission, even though respondent asserted that the party being represented was a long-time client. The lawyer also filed two other actions on behalf of the same client in the same court, but without filing motions to appear pro hac vice. The Supreme Court, noting that out-of-state attorneys not admitted in Ohio may appear with the permission of the judge hearing the cause under Gov Bar R I 9(H), found that respondent did not have the permission of the judge to appear in any of the three cases and enjoined him from further activity constituting the unauthorized practice of law in Ohio. Under the Rules, it would seem that – at least as to the first instance in Fucetola (where the out-of-state lawyer did file for pro hac vice status) – 5.5(c)(2) would offer protection, so long as the lawyer “reasonably expected” his motion to be granted.
Pro hac vice admission - Court discretion: Attorneys not admitted to the practice of law in Ohio, who seek to represent a client before an Ohio court, may request permission from the court to appear pro hac vice. See Gov Bar R I 9(H), discussed at section 8.1:240. In Royal Indemnity Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986), the Court held that the decision to permit out-of-state counsel to appear pro hac vice is a matter within the sound discretion of the trial courts. Furthermore, the right of an out-of-state attorney to appear pro hac vice in Ohio is not a protectable interest under the Due Process Clause of the Fourteenth Amendment. Leis v. Flynt, 439 U.S. 438 (1979). Therefore, an attorney challenging the denial or revocation of pro hac vice status must demonstrate that the decision of the court amounted to an abuse of discretion. Royal Indem. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986). For a case in which denial of pro hac vice admission was held to be an abuse of discretion, see Martinez v. Yoho's Fast Food Equipment, No. 00 AP-441, 2000 Ohio App. LEXIS 5946 (Franklin Dec. 19, 2000). Compare Walls v. City of Toledo, 166 Ohio App.3d 349, 2006 Ohio 2111, 850 N.E.2d 789 (Lucas), where the denial was held not to be an abuse of discretion.
In its Ohio Code Comparison to Rule 5.5, the Task Force confirms that pro hac vice admission is a matter within the discretion of the tribunal before whom the lawyer seeks to appear; it cites both Gov Bar R I 9(H) and the Royal Indemnity case. In connection with the exercise of this discretion, Ohio courts have articulated several nonexclusive factors that may be considered in determining whether such an admission is warranted. E.g., State v. Ross, 36 Ohio App.2d 185, 304 N.E.2d 396 (Franklin 1973); accord Walls v. City of Toledo, 166 Ohio App.3d 349, 2006 Ohio 2111, 850 N.E.2d 789 (Lucas) (applying the Ross factors). First, the court may consider the nature of the personal relationship between the out-of-state counsel and the party seeking representation. A "long-standing personal relationship" between the out-of-state counsel and the client appears to militate in favor of the granting of pro hac vice admission. Id. at 197, 304 N.E.2d at 404. See Martinez v. Yoho's, 2000 Ohio App. LEXIS 5946, at *11, 15 (overturning trial court's denial of pro hac vice admission in part because court failed to consider "established attorney/client relationship"). A second factor that courts may consider is whether the out-of-state counsel is the usual or customary counsel for the party in states where the out-of-state counsel is admitted to the practice of law. Third, courts should determine whether alternative counsel, already admitted to the practice of law in Ohio, are competent to represent the party in the case at hand. In addition, the court will assess whether the out-of-state lawyer can competently and ethically handle the matter at hand. State v. Ross supra (denying pro hac vice admission to out-of-state counsel whose conduct raised ethical concerns). See also Ross v. Reda, 510 F.2d 1172 (6th Cir. 1975) (finding state court's refusal in State v. Ross to admit out-of-state counsel pro hac vice on the proferred grounds did not violate appellant's Sixth Amendment right to counsel; denial of writ of habeas corpus affirmed). For a federal case in which counsel's conduct raised ethical and/or professionalism concerns that similarly resulted in denial of pro hac vice status, see In re Horn, 285 B.R. 390 (Bankr. N.D. Ohio 2002).
In Westfall v. Cross, 144 Ohio App.3d 211, 759 N.E.2d 881 (Belmont 2001), the trial court had denied a motion, made on the eve of trial, of one of the defendants for pro hac vice admission of his out-of-state attorney. The lower court concluded both that the three Ross factors were not present and that "exceptional circumstances" need be present to support the grant of such a motion. Seizing on the exceptional circumstances basis for denial, the defendant/appellant argued that this was a new legal standard, was not a sound reasoning process, and therefore was an abuse of discretion. The court of appeals sidestepped the "exceptional circumstances" rationale and focused on the three nonexclusive Ross factors; it concluded that the trial court did not abuse its discretion in deciding that the Ross factors had not been met, particularly the third factor (whether other Ohio attorneys were available to represent him, as to which appellant provided no evidence at all). Noting that the case against appellant had been pending for a year and a half before the pro hac vice motion was filed two weeks before the trial setting, the court concluded that the denial of the motion was therefore soundly grounded and affirmed.
Pro hac vice admission - Revocation of status: With respect to revocation of pro hac vice status, the Ohio Supreme Court has made it clear that a trial court has inherent authority to regulate the practice of law before it and pursuant to this authority reserves the right to revoke an out-of-state attorney's pro hac vice privileges. Royal Indem. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986). Cf. Walls v. City of Toledo supra, where, in a state case removed to federal court, the out-of-state counsel was granted pro hace vice status by the federal court, but on remand, such status was denied for, inter alia, conduct violative of the Ohio Rules of Civil Procedure. Counsel's attempt to invoke law of the case, based on his admission by the federal court, was rebuffed, inasmuch as the doctrine renders legal determinations by a reviewing court controlling in subsequent proceedings. "'The federal trial court is not a reviewing court of the state trial court's decision.'" 116 Ohio App.3d 349, at para. 19 (citation omitted).
At a minimum, the courts have determined that conduct that would justify the disqualification of an attorney admitted to practice in Ohio will also justify the revocation of pro hac vice status. See id.; In re Northern Ohio Tireworkers, 92 Ohio App.3d 69, 634 N.E.2d 249 (Summit 1993). Thus, an attorney whose participation in a trial creates an actual or potential conflict of interest should not be permitted to appear pro hac vice. Royal Indem., 27 Ohio St.3d 31, 501 N.E.2d 617. Similarly, an attorney who cannot take part in the court proceedings with a reasonable degree of propriety, or who engages in egregious conduct that is likely to adversely affect future proceedings, should expect to have his pro hac vice privileges revoked. Id. However, the courts have not yet addressed the issue whether the standards for revocation of pro hac vice status are identical to the standards employed for the disqualification of an attorney admitted to practice in Ohio. See id. In other words, it is still an open question whether conduct short of justifying disqualification would nevertheless support a pro hac vice revocation.
A related concern is whether an attorney appearing pro hac vice is entitled to an evidentiary hearing before pro hac vice status is revoked. It appears relatively well-settled that sufficient evidence must be presented to the trial court in order to justify revocation. See, e.g., In re N.B. & S.B., Nos. CA93-09-183, CA93-09-184, 1994 Ohio App. LEXIS 3363 (Ohio App. Butler Aug. 1, 1994) (referee failed to develop sufficient factual basis to support the revocation of pro hac vice status); Tireworkers, 92 Ohio App.3d 69, 634 N.E.2d 249 (trial court erred in ruling there was sufficient evidence to find attorney had engaged in egregious conduct). The courts are split, however, as to whether an evidentiary hearing is necessary to accomplish this. In Shaheen v. Meros, No. 95- L-037, 1995 Ohio App. LEXIS 5108 (Ohio App. Lake Nov. 17, 1995), the Eleventh District Court of Appeals denied an out-of-state attorney the right to an evidentiary hearing before his pro hac vice status was revoked. The court noted that the attorney had not demonstrated that a hearing was required and that there was no authority to support the attorney's proposition that a hearing was necessary. Cf. Leis v. Flynt, 439 U.S. 438 (1979) (no due process right to a hearing before pro hac vice status is denied). In contrast, the Twelfth District Court of Appeals found that the trial court had abused its discretion in revoking the attorney's pro hac vice status without first ordering an evidentiary hearing. In re N.B. & S.B., Nos. CA93-09-183, CA93-09-184, 1994 Ohio App. LEXIS 3363 (Ohio App. Butler Aug. 1, 1994). The court emphasized the gravity of the complaints levied against the out-of-state counsel as well as the important rights at stake in the underlying proceeding. For a case distinguishing the N.B. & S.B. decision, see Swearingen v. Waste Tech. Indus., 134 Ohio App.3d 702, 731 N.E.2d 1229 (Columbiana 1999), where the court found that even if a hearing may be appropriate when pro hac vice status is revoked, as in N.B. & S.B., there is no such requirement when a pro hac vice motion is denied.
(Note that, in addition to a court’s inherent authority to revoke the pro hac vice status of a lawyer appearing before it, revocation can also be effected as a result of disciplinary proceedings. This occurred in Cincinnati Bar Ass’n v. Mullaney, 119 Ohio St.3d 412, 2008 Ohio 4541, 894 N.E.2d 1210, where the sanction imposed on the respondent, admitted in Kentucky and before various Ohio courts pro hac vice, was to enjoin him from practicing in Ohio, pro hac vice or otherwise, for two years.)
Pro hac vice admission - Appeal of denial or revocation of pro hac vice status: The final issue concerning pro hac vice admission to gain the attention of the courts is whether the denial or revocation of pro hac vice privileges is an appealable decision. The Ohio Supreme Court has held that an order denying permission for out-of-state counsel to appear pro hac vice meets the statutory definition of a final, appealable order set forth in ORC 2505.02. Guccione v. Hustler Magazine, 17 Ohio St.3d 88, 477 N.E.2d 630 (1985). The Court emphasized the fact that an order denying pro hac vice status could not be effectively reviewed at the conclusion of the trial since prejudicial error would be difficult to prove. It should be noted that ORC 2505.02 was amended in 1998. Given that the amendment generally expanded the definition of final, appealable orders, it is unlikely to undercut the continuing validity of the Guccione decision. See Klein v. Streicher, 93 Ohio St.3d 446, 755 N.E.2d 880 (2001) (court of appeals holding that denial of motion for admission pro hac vice was not final appealable order summarily reversed on authority of ORC 2505.02 and Guccione); accord Martinez v. Yoho's Fast Food Equip., No. 00 AP-441, 2000 Ohio App. LEXIS 5946 (Ohio App. Franklin Dec. 19, 2000) (following Guccione rule under amended statute). A penetrating look at this issue under the amended version of ORC 2505.02 is provided by the Seventh District Court of Appeals in Westfall v. Cross, 144 Ohio App.3d 211, 759 N.E.2d 881 (Belmont 2001). In Westfall, a defendant sought to have an out-of-state attorney admitted pro hac vice as his lead counsel. The trial court denied the motion. On appeal, the court first looked to ORC 2505.02(B)(2) and concluded that the "special proceeding" requisite was not present, because the right to appear pro hac vice is conferred by common law, not by statute as the definition of special proceeding requires. Under ORC 2505.02(B)(4), however, the court found that the denial satisfied the statutory test of a final appealable order. Thus, (1) it denied a provisional remedy -- one ancillary to the underlying action, (2) it conclusively determined the issue by unqualifiedly denying the motion to appear, and (3) it denies the appealing party any meaningful remedy on later appeal, because it cannot be effectively reviewed following final judgment, as to which the court cited Guccione among other cases. Swearingen v. Waste Tech. Indus., 134 Ohio App.3d 702, 731 N.E.2d 1229 (Columbiana 1999), likewise relied on ORC 2505.02(B)(4) in finding a denial of pro hac vice status to be a final appealable order. In another case subsequent to Guccione, the First Circuit Court of Appeals held that where an attorney was denied permission to appear pro hac vice as co-counsel, as opposed to trial counsel, the order is not subject to interlocutory appeal. In re Myers, 107 Ohio App.3d 489, 669 N.E.2d 53 (Hamilton 1995). The court distinguished this situation from the usual case because the order did not preclude the out-of-state counsel from remaining on the case in an of-counsel capacity and continuing to advise the client. In other words, the order denying the out-of-state counsel's motion to appear pro hac vice as co-counsel did not substantially affect the right of the litigant to counsel of his choice since the out-of-state attorney was free to remain involved in the case.
Ohio Rule 5.5(c)(3) authorizes temporary practice in Ohio by an out-of-state lawyer where three conditions are met:
 the services are reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction,  if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and  are not services for which the forum requires pro hac vice admission.
The first factor seems largely open-ended. If the services are reasonably related to any alternative dispute resolution proceeding, that condition is met.
The second condition, that the services "arise out of or reasonably related to" the lawyer's practice in a state where the lawyer is admitted, is explored in Comment . There the drafters identify several indicia of the necessary relationship (which is a requisite of Rule 5.5(c)(4), as well as (c)(3)).
Some turn on the client. Examples of when a lawyer may service clients outside the jurisdiction in which they are licensed would include a client, now outside the jurisdiction, who has a preexisting relationship with the lawyer, or a client with a substantial connection to the jurisdiction in which the lawyer is admitted. In these circumstances, there is a reason for this lawyer to be engaged by these clients for a matter in a state outside the lawyer's licensure.
In other instances the relationship is shown by the nature of the matter. As Comment  provides:
The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction [in which the lawyer is admitted]. In other cases, significant aspects of the lawyer's work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each.
Rule 5.5 cmt.  (bracketed material added).
The comment also acknowledges that on some issues expertise trumps local concerns. Thus a sufficient relationship may be shown where the lawyer has
recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
Id. (In February 2007, prompted by the Hurricane Katrina disaster, the ABA adopted a Model Court Rule regarding provision of legal services on a temporary basis following a major disaster; MR 5.5 cmt.  was amended at the same time to cross-reference to this Model Court Rule.)
The third factor is that the forum does not require pro hac vice admission for the services involved. Ohio Rule 5.5(c)(3). If such admission is required, Ohio Rule 5.5(c)(2) controls. For example, a lawyer "must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require." Rule 5.5 cmt. .
The final subdivision of Rule 5.5(c) permits cross-border practice on a temporary basis where
the lawyer engages in negotiations, investigations, or other nonlitigation activities that arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
Ohio Rule 5.5(c)(4). These services, according to Comment , "include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers." Rule 5.5 cmt. .
In addition to the “temporary” requisite applicable to all subsections of Rule 5.5(c), the major limitation in subsection (c)(4) is that the activities must "arise out of or [be] reasonably related to" the lawyer's practice in a jurisdiction where the lawyer is admitted to practice. As remarked in ABA, Annotated Model Rules of Professional Conduct 486 (5th ed. 2003) (commentary), the pre-amendment version of MR 5.5 was "particularly unfair to transactional lawyers" who, by definition "do not appear before tribunals or agencies and therefore could not provide services in other jurisdictions pursuant to existing pro hac vice mechanisms." The provision is intended to extend approval for temporary out-of-state practice in these circumstances by transactional lawyers. ABA, Annotated Model Rules of Professional Conduct 467 (6th ed. 2007) (commentary) (subsection (c)(4) “permits the temporary cross-border provision of legal services that arise out of or are reasonably related to the lawyer’s practice where the lawyer is admitted, even if they do not involve litigation or ADR procedures.”). It fills the gap for services not covered by Ohio Rule 5.5(c)(2) or (3). Ohio Rule 5.5 cmt. .
A Board of Commissioners opinion that fits reasonably comfortably within the confines of the (c)(4) transactional exception (even though it speaks in terms of an out-of state "firm," rather than lawyer) is Board of Commissioners on Grievances & Discipline Op. 90-12, 1990 Ohio Griev. Discip. LEXIS 19 (Aug. 17, 1990). In its syllabus the Board stated:
An out-of-state law firm does not engage in the unauthorized practice of law by representing out-of-state lending institutions regarding loans made to persons and entities in Ohio secured by property located in Ohio. The law firm may prepare the loan documents, negotiate the terms of the agreement with the borrower's counsel, and offer legal advice to the lending institution regarding Ohio law. The law firm may also represent the lending institution in Ohio at the loan closing. This board cannot address any issues regarding the legal liability stemming from this type of practice.
Id. at *1. The Board went on to delineate the general boundaries of acceptable practice by an out-of-state firm. The opinion provided that lawyers in an out-of-state firm could advise clients on Ohio law and prepare documents to be given legal effect in Ohio, assuming they have the requisite competence to do so. They also may engage in limited practice in the state if the practice is an "isolated occurrence" of limited duration, or if it is more extensive but incidental to a multistate problem. Appearance in court is permissible if the attorney gains pro hac vice admission. See section 5.5:420. Opinion 90-12 was cited with approval by the Ohio Supreme Court in Cleveland Bar Ass'n v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998).
- Primary Ohio References: Ohio Rule 5.5(d)
- Background References: ABA Model Rule 5.5(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 3.37
- Commentary: ALI-LGL § 3
Ohio Rule 5.5(d)(1) permits a lawyer admitted and in good standing in another jurisdiction to provide legal services on an ongoing basis in Ohio where
the lawyer is registered in compliance with Gov. Bar R. VI, Section 3, and is providing services to the employer or its organizational affiliates for which the permission of a tribunal to appear pro hac vice is not required.
This is one of the two circumstances under division (d) in which an out-of-state lawyer in good standing in his or her jurisdiction "may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis." Rule 5.5 cmt. . Such a lawyer, however, under the Ohio Rule, must "comply with the registration requirements set forth in Gov. Bar R. VI, Section 3," Rule 5.5 cmt. , for corporate status. A lawyer granted corporate status "may perform legal services in Ohio solely for a nongovernmental Ohio employer, as long as the attorney is a full-time employee of that employer." Gov Bar R VI 3(A). (At the moment, subdivision (d)(1), Comment , and the Governing Bar Rule do not mesh smoothly. In division (d)(1), the final version struck the language "is a fulltime employee of a nongovernmental Ohio employer." Comment  struck the word "fulltime" but retained "nongovernmental entity." Rule VI 3(A) speaks in terms of a lawyer "employed full-time by a nongovernmental Ohio employer." Since division (d)(1) in effect incorporates Rule VI 3(A) by reference, the intent probably is that corporate status is limited to fulltime nongovernmental lawyer/employees, despite the deletions made in the final version of (d)(1) and the comment.)
As noted, Gov Bar R VI 3(A) clearly authorizes an out-of-state in-house attorney to provide legal services for his employer in Ohio, provided the "corporate status" registration requirements of the Bar Rule are satisfied; Rule 5.5(d)(1) further requires that the services must be limited to those not requiring pro hac vice status. See generally 1 Restatement (Third) of the Law Governing Lawyers § 3 cmt. f (2000). This does not preclude a lawyer admitted on corporate status from appearing pro hac vice. It simply means that such status does not itself secure admission to the tribunal. That must be independently sought. Gov Bar R VI 3(B).
As is equally clear from Gov Bar R VI 3(C), however, such a lawyer,
who performs legal services in Ohio for his or her employer, but fails to register in compliance with this section or does not qualify to register under this section, may be referred for investigation of the unauthorized practice of law under Gov. Bar R. VII . . . .
This is what happened to the respondent in Office of Disciplinary Counsel v. Doan, 77 Ohio St.3d 236, 673 N.E.2d 1272 (1997); he was an admitted Kentucky lawyer who worked in-house for an Ohio corporation in Cincinnati but "had not registered for corporate status under [what was then] Gov. Bar R. VI(4)(A)." Id. at 237, 673 N.E.2d at 1273. Based on these facts, the Court found that respondent had engaged in the unauthorized practice of law. See also Cleveland Bar Ass'n v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998) (Illinois attorney employed as officer of Ohio corporation who did not seek admission or corporate status engaged in unauthorized practice, but opinion is premised almost entirely on his equally unauthorized "consulting" work for Cleveland law firm. See discussion of Misch at section 5.5:230.
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 § 3.37 (1996).
Where authorized by law, both lawyers and nonlawyers can engage in practice within the state. Ohio Rule 5.5(d)(2) codifies that principle with respect to lawyers. It permits a lawyer admitted and in good standing in "another United States jurisdiction" (i.e., including "the District of Columbia and any state, territory, or commonwealth of the United States," Rule 5.5 cmt. ) to provide legal services in Ohio if:
the lawyer is providing services that the lawyer is authorized to provide by federal or Ohio law.
Nonlawyers: With respect to nonlawyers, if federal law authorizes nonlawyer representation in certain situations such practice is permissible and cannot be treated by a state as the unauthorized practice of law. There is no question that, by virtue of the Supremacy Clause, the federal government may authorize individuals to practice law who are not licensed by the state to do so. For example, the United States Patent and Trademark Office permits nonlawyers to practice before it under the designation "patent attorney." Accordingly, an individual may carry on such a practice in Ohio as long as the practice is limited to that authorized by federal law. Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963); Mahoning County Bar Ass'n v. Harpman, 62 Ohio Misc.2d 573, 608 N.E.2d 872 (Bd. of Comm'rs on Unauthorized Practice of Law 1993). If the individual's conduct goes beyond the scope of the conduct authorized by federal law and necessary to the federal practice, however, such conduct would probably be the unauthorized practice of law, despite Rule 5.5(d)(2), since the Rule addresses only conduct by out-of-state lawyers.
Another related question arises when a layperson appears on behalf of another in an Ohio federal court proceeding. Does Ohio have jurisdiction over the matter or is it solely a federal concern? Pre-Rule Ohio decisions held that Ohio had authority to treat such conduct as the unauthorized practice of law. Mahoning County Bar Ass'n v. Rector, 62 Ohio Misc.2d 564, 608 N.E.2d 866 (Bd. of Comm'rs on Unauthorized Practice of Law 1992) (nonlawyer corporate officer's representation of corporation and corporation witnesses at deposition in federal court case constituted unauthorized practice of law). Since the Rules, including the 5.5(d)(2) safe harbor, are directed at lawyer, not layperson, conduct, the Rector holding is probably still viable.
Lawyers: A lawyer admitted and in good standing in another United States jurisdiction may provide legal services in Ohio where authorized by federal law or the law of Ohio. As elaborated in Comment , such a lawyer "may establish an office or other systemic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis." Rule 5.5 cmt. . (Except as provided in subdivisions (d)(1) and (2), a lawyer cannot establish an office or other continuous presence in Ohio unless admitted to practice generally here. Id.)
With respect to federal-law authorization, it is unclear whether Ohio Rule 5.5(d)(2) changes the law in this area. The basic issue is how do we treat an out-of-state lawyer who practices "exclusively" before a federal tribunal or is otherwise engaged in a solely federal practice.
The Rule implies that such a practice is permissible, but prior cases and ethics opinions in Ohio cast doubt on this conclusion. In Bd. of Comm'rs on Grievances & Discipline Op. 91-6, 1991 Ohio Griev. Discip. LEXIS 24 (Apr. 12, 1991), the Board declared that "[a]n attorney not admitted in Ohio who sets up an office within the state for the practice of federal law is engaged in the unauthorized practice of law . . . ." Id. at syllabus. The decision was based on a conclusion that it is often impossible to participate in a purely federal practice. Citing law from a variety of other jurisdictions, the Board observed:
These courts reason that the "practice" of law necessarily involves more than advising clients on federal law, preparing federal court documents and appearing before federal courts. For example, screening clients and representing only those whose matters require suit or defense in a federal court, requires interview, research, analysis, and explanation of legal rights which would constitute the practice of law. . . . Further, "conducting of the business management of a law practice" – the handling of client's money, the requirements of IOLTA, and other management matters – are part of the total process of practicing law and are subject to the state's control over the profession.
Id. at *7 (internal citations omitted).
In an opinion that is not a model of clarity, the Ohio Supreme Court seemed to suggest a similar result in Office of Disciplinary Counsel v. Chavers, 80 Ohio St.3d 441, 687 N.E.2d 415 (1997). The facts in Chavers are clear -- the lawyer was suspended in Ohio throughout the time in question, but in federal court he was in good standing until 1992, at which time he was suspended in federal court as well. The panel found a 3-101(B) violation in respondent's "continued practice of law in 1990 and later years" in federal bankruptcy court, "even after being suspended from practice in that district." Id. at 443, 687 N.E.2d at 416. The findings and conclusions of the panel were adopted by the Board and in turn by the Court. The Court's analysis, however, focused, first, on the fact that "respondent continued to practice in the bankruptcy court after being suspended" there, which violated 3-101(B). Id. But then the Court seemed to shift gears and emphasized, much like Board Opinion 91-6, that
appearing solely in federal court entails other activities in carrying out the practice of law that are not solely federal in nature and warrant state regulation. To file a bankruptcy case, a lawyer must counsel his client on Ohio law relating to exemptions and preferential and fraudulent transfers, among other matters. Respondent, therefore, by necessity counseled his client on Ohio law while he was suspended and not in good standing [in Ohio? in both Ohio and federal court?], although he filed the case in the bankruptcy court.
Id. at 44, 687 N.E.2d at 416-17 (bracketed material added). This analysis would seem to taint respondent's federal practice prior to the federal suspension as well as after, but the Court never expressly so states. The bottom line is that Chavers is probably in accord with Opinion 91-6, but this is not entirely clear.
With Chavers, compare In re Desilets, 291 F.3d 925 (6th Cir. 2002), holding that an out-of-state attorney (licensed in Texas) could practice bankruptcy law before a federal bankruptcy court in Michigan and maintain an office in Michigan, even though not licensed to practice in Michigan. Desilets is cited with approval in the discussion of MR 5.5(d)(2) in ABA, Annotated Model Rules of Professional Conduct 468-69 (6th ed. 2007) (commentary).
Also on the other side of the ledger from Chavers is Gov Bar R VI 3(D), which, after stating that 4(A) corporate status does not apply to an out-of-state attorney in an Ohio law firm, goes on to specify that such attorneys in Ohio firms, until admitted in Ohio, "may not . . . practice before any nonfederal court or agency in this state on behalf of any person other than himself or herself . . . ." (Emphasis added.) The word "nonfederal," added in 1992, would seem to have opened up practice before federal courts and agencies for such a lawyer. The language of Rule 5.5(d)(2) is consistent with this result, although the Chavers case, decided years after the amendment, certainly is not.
The Task Force in its Ohio Code Comparison to Rule 5.5 states that "[n]o change in Ohio law or ethics rules is intended by adoption of Rule 5.5"; it also says that "the boundaries of permitted activities in Ohio by a lawyer admitted elsewhere are currently reflected in case law and the Supreme Court Rules for the Government of the Bar of Ohio." Id. Does the "case law" (Chavers) trump the Bar Rules (Rule VI 3(D))? Or can they be "reconciled" by saying the lawyer can appear in federal court but can't do any other lawyering necessary to that appearance? Definitive resolution of the issue will have to await the Supreme Court's interpretation of Rule 5.5(d)(2).
As to state law authorization, the "Ohio law" exception "includes statute, court rule, executive regulation, or judicial precedent," Rule 5.5 cmt. , although no concrete examples of such authorization on a regular, rather than temporary, basis have been found. (Pro hac vice admission, of course, comes to mind as an example of temporary practice authorized by court rule or precedent.)
Suspended lawyers: Just as in Ohio Rule 5.5(c), Ohio Rule 5.5(d) authorizes in-state conduct by lawyers not licensed in Ohio who are "admitted and in good standing in another United States jurisdiction." Once again, this diverges from the corresponding Model Rule, which applies only if the lawyer is "admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction." Under the Model Rule formulation, a lawyer could be admitted in jurisdictions X and Y, but suspended in jurisdiction Y. That lawyer would fail the MR 5.5(d)(2) test, whereas under a literal reading of the Ohio counterpart he or she would not, so long as "good standing" had not been taken away in jurisdiction X.
This problem plays out in a special way if the lawyer is suspended in Ohio, but is admitted to practice before a federal court in the state. Arguably such a lawyer may proceed under the Rule, inasmuch as the lawyer is admitted and in good standing in another United States jurisdiction. Yet this result is difficult to reconcile with the Ohio Supreme Court's language in the Chavers case and to the Task Force's stated intent that the adoption of the Rule involves "no change in the Ohio law or ethics rules" (Ohio Code Comparison to Rule 5.5). See Chavers, 80 Ohio St.3d 441, 687 N.E.2d 415 (seemingly finding that conducting federal bankruptcy practice while suspended in Ohio constituted the unauthorized practice of law; see caveat about the Chavers decision supra). But see the "nonfederal" language in Gov Bar R VI 3(D), also discussed above.
In contrast to Chavers, an opinion out of the Eastern District in Pennsylvania held that the Supremacy Clause precluded Pennsylvania from keeping a Pennsylvania lawyer from setting up a Philadelphia office for the sole purpose of representing clients before the federal court for the Eastern District of Pennsylvania, at a point in time when he was still under suspension by the state but had been reinstated by the federal court. Surrick v. Killion, No. 04-5668, 2005 U.S. Dist. LEXIS 6755 (E.D. Pa. Apr. 18, 2005). The Supremacy Clause/preemption analysis was affirmed by the Third Circuit in Surrick v. Killion, 449 F.3d 520 (3d Cir. 2006) (citing, inter alia, Desilets), although the Court of Appeals also emphasized the importance of comity and Pennsylvania's "compelling interest" in regulating the practice of law within its borders. Id. at 530. Contra as to the Supremacy Clause/preemption issue, Office of Disciplinary Counsel v. Marcone, 855 A.2d 654 (Pa. 2004) (suspended Pennsylvania lawyer who had been readmitted to practice before federal court could not maintain law office in commonwealth so long as he was unauthorized to practice before Pennsylvania state courts). (The Killion and Marcone cases are discussed in Stephanie Francis Ward, Pulling on a Fine Line, ABAJ, Jan. 2007, at 24-25.) Query whether Killion (and Desilets), rather than Chavers, are not more in tune with the language of Ohio Rule 5.5(d)(2).