Unauthorized Practice of Law

Licensed to practice law in Indiana, Virginia and the District of Columbia, non-Ohio licensed attorney Donald Doheny, Jr. was ordered to cease practicing law in Ohio and fined $25,000 for engaging in the unauthorized practice of law.

Suffering from the effects of a serious auto accident in 1993, Doheny, unable to maintain steady work, moved to St. Louis to live with his mother.  When she passed away, Doheny moved to Ohio to live with close friends.

While living there, Butler County informed Doheny’s friends that they violated a lease for a county airport hanger when they placed signage on the side and the roof.  After researching the matter, Doheny met with County officials, which resulted in the County dropping the demand to remove the signs.

Doheny then attended a County Commissioners’ meeting where he requested that the lease regarding the airport hanger be amended so that his friends could obtain a Small Business Loan and build a new hanger.  Doheny provided legal advice regarding building permits and met with government officials about compliance with the permits.  Doheny later recommended that his friends file suit against the County.

Doheny told the FAA that he represented his friends, using Doheny & Doheny law firm letterhead and listed as his business address property that his clients’ owned.  His friends paid him about $65,000 for Doheny’s legal services.

Doheny also charged his friends a fee for preparing a real estate purchase agreement.  He charged another man to prepare a deed to sell real estate.  He represented to Butler County jail officials that he was the family attorney for a man arrested.  He attempted to obtain the man’s release and was paid $2,000 for his efforts.

In March 2017, the Ohio State Bar Association filed a complaint with the Board on the Unauthorized Practice of Law charging Doheny with 11 counts of practicing law without an Ohio license.  On August 21, 2019, the Supreme Court of Ohio ordered Doheny to cease practicing law in Ohio and fined him $25,0000.

Gov.Bar R. VII permits the Supreme Court of Ohio to fine an individual found to have engaged in the unauthorized practice of law $10,000 for each incident.  The Supreme Court of Ohio could have fined Donehy up to $100,000 for the 10 counts for which it found him to be engaged in the unauthorized practice of law.  However, it deemed a $25,000 fine to be sufficient.



Revocable Trust for Attorney Ownership Shares Prohibited

One of the lawyer’s primary responsibilities is to render independent professional judgment to clients.  Prof.Cond.R. 2.3.

As a result, the Board of Professional Conduct released Advisory Opinion 2019-2 warning that attorneys are not permitted to enter into transfer on death agreements converting equity shares of a law firm into a revocable trust if one or more of the beneficiaries is a non-lawyer.  Ohio Revised Code Section 1709.06 permits the titling of securities in such a manner to allow for their transfer at death to avoid the requirement that they be administered as part of the decedent’s probate estate. Prof.Cond.R. 5.4(d)(1), however, prohibits law firm ownership by non-lawyers.  Similarly, Gov.Bar. R. III, §(3)(B) prohibits a lawyer from practicing law in a law firm where an equity holder is not authorized to practice law in Ohio or elsewhere.  The Board reasoned that such a transfer on death vehicle where the revocable trust becomes irrevocable upon the attorney’s death could result in a non-lawyer owning an interest in a law firm.  This could result in the remaining members of the firm violating both the Ohio Rules of Professional Conduct and the Ohio Supreme Court Rules for the Government of the Bar of Ohio.

The problem is not resolved where the Trustee of the Trust is an attorney because the beneficiaries would eventually become the owners of the equity shares.  The reason for the rule is that if non-lawyers are permitted ownership interests in law firms, a lawyer’s independent professional judgment may become compromised.


In Re Application Of Alice Auclair Jones: Time To Rethink The Unauthorized Practice Of Law Rules?

If you think you can practice your home state’s laws and service your home state clients while sitting in a firm or home office in Ohio without having an Ohio law license, you might want to think again.  According to the  Board of Commissioners on Character and Fitness (“Character and Fitness Board”), you may not have the requisite moral character to obtain an Ohio license because you are engaging in the unauthorized practicing of law in Ohio.

Currently before The Supreme Court of Ohio is In Re Application of Alice Auclair Jones, Supreme Court Case No. 2018-0496.  It is an original action in which the Character and Fitness Board recommended that The Supreme Court of Ohio disapprove Ms. Jones’s application on motion (called reciprocity) for an Ohio license because she engaged in the unauthorized practice of law. The Board came to this conclusion through a sua sponte investigation of Ms. Jones pursuant to Gov. Bar R. I, Sec. 10(B)(2)(e).

Interestingly, throughout this process, Ms. Jones is and always has been a lawyer in good standing in the Commonwealth of Kentucky. While practicing law in Kentucky, she decided to join her firm in its Cincinnati, Ohio office.  Prior to moving to Cincinnati, Ms. Jones filed an Application to be Admitted to the Bar Without Examination.  The Cincinnati Bar Association recommended that she be approved.  Pursuant to Rule, the Board requested an updated affidavit from Ms. Jones, who revealed that she had made the move to her firm’s Cincinnati office while the application was pending.  From the Ohio office, Ms. Jones practiced only Kentucky law, only engaged clients in Kentucky and only appeared in Kentucky courts. In short, the only thing she was really doing in Ohio was the work on the case.  She handled no cases in Ohio or for Ohio clients.

Applications based on reciprocity require the applicant to prove her character and fitness by clear and convincing evidence. Gov. Bar R. I(12)(C)(6).  Ohio Prof.Cond.R. 5.5 permits out-of-state attorneys to provide legal services on a temporary basis.  The Character and Fitness Board, however, determined that, sometime during the pendency of Ms. Jones’s application, her provision of legal services in Ohio became permanent.

What is interesting about this case is that Ohio has a Board on the Unauthorized Practice of Law (“UPL Board”).  Its duty is to investigate and prosecute the unauthorized practice of law in Ohio.  Gov. Bar R. VII has a procedure for such prosecutions and defines the practice of law.  Gov. Bar R. VII, Sections 2-7.  The UPL Board must prove, by a preponderance of the evidence, that one has engaged in the unauthorized practice of law.  However, the UPL Board never heard Ms. Jones’s case.  Rather, the Character and Fitness Board made the determination.  It is unclear why the Character and Fitness Board did not refer the matter to the UPL Board.

Why is this important?  Well, a determination that Ms. Jones engaged in the unauthorized practice of law can have far-reaching consequences, apart from being disapproved for an Ohio license.  She can be fined up to $10,000 per incident.  Gov. Bar. R. VII(8)(B).  Ms. Jones could risk disciplinary action in her home state of Kentucky since engaging in the unauthorized practice of law is a violation of Kentucky Prof. Cond. R. 3.130(5.5). In Ohio, R.C. 4705.07 prohibits the unauthorized practice of law.  Where proven beyond a reasonable doubt, R.C. 4705.99 makes it a first-degree misdemeanor, punishable by imprisonment of up to one year and a fine of up to $1,000.  All this because Ms. Jones failed to prove by clear and convincing evidence that she had the requisite character and fitness to be admitted as an Ohio attorney through reciprocity.

This rather presents a conundrum.  The Character and Fitness Board is empowered to hold a hearing to determine whether an applicant has engaged in any conduct that would disqualify the applicant from being granted an Ohio license.  One of those disqualifying events is the unauthorized practice of law.  It makes sense that the Character and Fitness Board can recommend disapproval on that basis where an applicant has already been found to have engaged in such conduct.  This could only occur after a hearing before the proper Board, applying the proper law, and using the proper burden of proof. Given the consequences, this seems an important consideration.

At the July 17, 2018, oral argument, it was clear that some Justices were concerned that there would be no consequences to Ms. Jones if she committed an ethics violation prior to being granted an Ohio license.  It is, of course, true that if Ms. Jones violated an Ohio Rule of Professional Conduct prior to receiving her Ohio license, the Supreme Court of Ohio would have no jurisdiction to sanction her.  However, Kentucky would.  Kentucky Prof. Cond. R. 3.130(8.5)(a) indicates that the Kentucky Supreme Court has the authority to sanction a Kentucky attorney no matter where the misconduct occurs.  Most state’s professional conduct rules have similar provisions.

Disapproving Ms. Jones’s Application will produce a myriad of related questions.  Assuming that the attorney is not advertising in Ohio, practicing Ohio law or holding himself out as an Ohio attorney, what about an attorney who practices law remotely?  Would an attorney whose law firm servers are based in another state be engaging in the unauthorized practice of law in Ohio merely because he accessed those servers in Ohio?  What if the attorney’s letterhead, email signature, phone number, fax number and all other indicia of the attorney’s practice indicate that the attorney is practicing in the state in which the servers are located?  Would that, nevertheless, be the unauthorized practice of law because the attorney is sitting in his Ohio home office?

Today’s technology allows for the type of situation described above.  Do we really want to require such an attorney to obtain an Ohio license in those circumstances or be at risk of one or more of the above sanctions?  The idea behind all of these rules is to protect Ohio citizens from charlatans who would hold themselves out as qualified to handle legal matters when they are not.  Does sanctioning Ms. Jones or an attorney working remotely really serve that purpose?  For now, we must await the Supreme Court of Ohio’s determination on this very important issue.