I have some real-world experience in trying to help lawyers already admitted in at least one jurisdiction obtain admission to practice here in Tennessee. My state’s system now is still less than ideal but not necessarily in a way that makes it strikingly more problematic than is the case in many other states. (In the long, long ago I wrote a bit about how it was strikingly more problematic but we obtained some important rule revisions that made things better, if not perfect.)
Part of the overall problem with this aspect of lawyer regulation is the antiquated nature of the overall process plus the increasingly-difficult-to-intellectually-justify approach that we have to the regulation of the practice of law in this nation that clings to the notion that each of the 50 states plus D.C. is entitled to make its own determinations about whether someone who is perfectly competent at practicing law in one state can manage to grasp how to practice law in their state.
The underlying premise and approach is one that institutionally leads itself easily into a protectionist and parochial approach to making admissions decisions. There are lots of ways in which the patchwork approach that exists to these issues has been very difficult to reconcile with advancements in technology and how easy it is for a lawyer sitting on a chair, in let’s say Oregon, with an internet connection can effectively practice law in, and service clients in, California or Texas or Maine or . . . well, you get the point.
This recent Law.com story tells the tale of an associate in a Kentucky office of Dinsmore Shohl who relocated to Ohio to work in the Cincinnati office and who is now at risk of being denied admission to the Ohio Bar based on “character and fitness” issues. The problem with her character and fitness to practice is that Ohio has concluded that she’s been engaged in the unauthorized practice of law in Cincinnati by continuing to represent Kentucky clients where she is licensed while waiting for a decision on her application to be admitted to practice law in Ohio.
As far as fact patterns go, this one is among the more innocuous and is one that – if you happen to practice in a firm that has offices in multiple states — you’ve probably seen happen without incident and perhaps never even contemplated could go awry for the lawyer involved:
The questions about Jones’ potential admission to the Ohio bar trace back to 2015, when the associate requested a transfer to Dinsmore’s Cincinnati office so she could start and raise a family in Ohio, according to court documents. The firm granted her request but asked Jones to first apply for admission to the Ohio bar. It also required her to continue working only on matters arising under Kentucky law while her application for admission to the Ohio bar was pending.
Following the firm’s suggestions, Jones applied in October 2015 for reciprocal admission to the Ohio state bar—a process that would allow her to avoid retaking the bar exam in Ohio. She then moved to Cincinnati and worked only on Kentucky matters. She took a maternity leave and returned to practicing Kentucky law while based in Cincinnati, according to court documents in the case.
The article also indicates that those advocating for her admission in Ohio have raised constitutional arguments that also address one of the core problems with the way admissions authorities will often take a “cake and eat it too” approach to these issues:
Jones also invoked the U.S. Constitution’s due process provisions under the 14th Amendment. In a May brief, Jones’ lawyer noted that Ohio’s bar rules would allow an Ohio lawyer to practice Ohio law even if that lawyer was physically doing the work in another place. But, Jones argued, the board’s view would prohibit an out-of-state lawyer who wanted to do some work while in Ohio.
Even merely reading about this situation is a frustrating endeavor but important to highlight because, even if the Court ultimately gets the answer right, it shows how archaic some aspects of this whole approach to these issues are. (Not the least of which being that we are talking about a situation in which this associate has now been under this cloud and in this situation for nearly three years.) And heaven help all the multi-state firms with Ohio offices if the Court gets the outcome wrong.