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.