Friday Follow Up: Ohio Gets to the Right Outcome on UPL

Almost exactly three months ago, I wrote about what I considered to be a very disturbing ruling in a lawyer admissions case in Ohio.  If you missed that post, you can read it here.

I’m pleased to write, in follow-up today, that the Ohio Supreme Court has ultimately gotten to the correct outcome – it has rejected the findings below that the applicant was engaged in UPL while working on Kentucky matters for Kentucky clients in an Ohio office while awaiting action on her application for admission in Ohio.  As a result, it has finally cleared her to be admitted to practice in Ohio after multiple years of waiting after transferring from a Kentucky office of her law firm employer to an Ohio office of that same firm.

The majority opinion does a workperson-like job at justifying that outcome by stretching the meaning of the word “temporary” to its furthest defensible point — anything that is not permanent.  But, as the fascinating-and-much-more-important-to-the-future-of-our-profession concurring opinion explains: the majority opinion did so at the cost of mostly ignoring other text of the rules – particularly the text of the relevant rule that limits when a lawyer can provide services “through an office.”

The concurring opinion deserves your attention and a full read.  It is my strong hope that the rationale and logic expressed in the concurring opinion is the rationale and logic which will be embraced moving forward by all courts and other bodies dealing with this issue.  If RPC 5.5 could be used to determine that a lawyer “working remotely” is engaged in UPL, then RPC 5.5 applied in that fashion is simply, but plainly, unconstitutional.

The core of the concurring opinion’s analysis is a strong and smart understanding of what such a rule is truly saying:

But when applied to a lawyer who is not practicing Ohio law or appearing in Ohio courts, [RPC] 5.5(b) serves no state interest. Plainly, as applied to such a lawyer, the rule does not further the state’s interest in protecting the integrity of our court system. Jones, and others like her, are not practicing in Ohio courts.

Nor does application of the rule to such lawyers serve the state’s interest in protecting the Ohio public. Jones and others in her situation are not providing services to or holding themselves out as lawyers to the Ohio public.  Jones’s conduct as a lawyer is regulated by the state of Kentucky—the state in
whose forums she appears.

The problem is that unless a specific exception applies, [RPC] 5.5(b)(1) holds one to be engaged in the “unauthorized practice of law” and subject to legal sanction therefor simply because one has established an office or a systematic and continuous presence in the state. The rule deems such a
lawyer to have engaged in the unauthorized practice of law regardless of whether her practice touches on the Ohio public or Ohio courts. In an earlier age, perhaps such a rule made sense. Before the advent of the Internet, electronic communication, and the like, a lawyer who worked in Ohio was almost always
practicing Ohio law. But today that is hardly the case. Any number of lawyers, for any number of reasons, may choose to do their work from Ohio. Yet that does not give Ohio a right to prohibit their conduct.

Indeed, imagine what would happen if the rule were strictly enforced. Are we to ban lawyers from setting up a secondary office inside their homes so that they can access their files remotely simply because their homes happen to be in Ohio and their practices in another state? What about a New York attorney who maintains an Ohio vacation home on Lake Erie and is there for several months of the year? Certainly such an attorney has a continuous and systematic
presence in Ohio, but are we really going to say that she has engaged in the unauthorized practice of law because she does New York legal work at her vacation home?

I would conclude that as applied to an out-of-state attorney who is not practicing in Ohio courts or providing Ohio legal services, [RPC] 5.5(b)(1) violates Article I, Section 1 of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

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