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Court News Ohio

Ohio Bar Applicant Not Engaged in Unauthorized Practice of Law

A Kentucky attorney —who practiced law exclusively in Kentucky from an Ohio office while awaiting admission to practice in Ohio — did not engage in the unauthorized practice of law, the Ohio Supreme Court ruled today.

The Supreme Court was unanimous in concluding the Board of Commissioners on Character and Fitness inappropriately found Alice Auclair Jones engaged in the unauthorized practice of law. However, the justices were divided in their reasoning for doing so.

In an opinion that Justice Terrence O’Donnell authored for the majority, the Court concluded that Jones did not violate Prof.Cond.R. 5.5 because she was providing “legal services on a temporary basis,” an exception that permits attorneys licensed in other states to practice law in Ohio.

Chief Justice Maureen O’Connor and Justices Judith L. French and Patrick F. Fischer joined Justice O’Donnell’s opinion.

In a concurring opinion, Justice R. Patrick DeWine wrote that Jones was “working remotely” like “many employees in today’s world” and that Ohio’s rule prohibiting her from doing so is unconstitutional.

Justices Sharon L. Kennedy and Mary DeGenaro joined Justice DeWine’s opinion.

Attorney Moves to Firm’s Headquarters
Jones had been admitted to practice law in Kentucky in 2009 and served as an assistant commonwealth attorney before joining a Louisville law firm in 2014, which merged with Cincinnati-based Dinsmore & Shohl.

In 2015, Jones applied for admission to the Ohio bar and relocated to Dinsmore & Shohl’s Cincinnati office. She continued to practice law exclusively in Kentucky and maintained an office in Louisville for legal matters. The Cincinnati Bar Association recommended approval of her character and fitness to practice in Ohio.

Board Questions Practice
The character and fitness board questioned whether Jones was engaged in the unauthorized practice of law and opened an investigation. Jones argued that under the rules she was permitted to provide legal services on a temporary basis while her application was pending. A board hearing panel determined that Prof.Cond.R. 5.5(c) did not apply to Jones and that she was practicing law without authorization. The panel recommended that she stop practicing and engage only in services that could be provided by a law clerk or paralegal.

The board adopted the panel’s decision and recommended the Court disapprove Jones’ application for admission. Jones objected to the decision, arguing that the board misinterpreted the rule and that her constitutional rights under the due process clause and the “privileges and immunities clause” of the U.S. Constitution were being violated.

Court Examines Rule
Prof.Cond.R. 5.5(b)(1) prohibits a lawyer not admitted to practice in Ohio from establishing “an office or other systematic and continuous presence in the jurisdiction for the practice of law.” The rule, however, provides exceptions. Prof.Cond.R. 5.5.(c)(2) allows a lawyer to “provide legal services on a temporary basis” if the lawyer is admitted in another U.S. jurisdiction, is in good standing in that jurisdiction, regularly practices law, provides services reasonably related to pending matters in another jurisdiction, and is authorized by law and expects to appear in the pending proceedings.

Justice O’Donnell noted that “temporary” means “lasting for a limited time.” He indicated a comment to the rule provides no single test to determine whether a lawyer’s services are being provided on a “temporary basis.”

The opinion concluded that Jones satisfied the rule’s requirements.

 “She is a lawyer who is admitted in Kentucky, is in good standing in that jurisdiction, regularly practices law, and is providing legal services from an office in Ohio, and those services are reasonably related to pending or potential proceedings before tribunals in Kentucky, where she is authorized by law to appear in such proceedings,” Justice O’Donnell wrote: 
The Court determined that the length of time she has practiced law in Ohio on a temporary basis covers the time it has taken to resolve her application. Because she was not engaged in the unauthorized practice of law, the Court approved her admission without examination.

Concurrence Finds Rule Unconstitutionally Limits Jones’s Right to Pursue Her Chosen Profession
In his concurrence, Justice DeWine disagreed with the majority’s reading of Prof.Cond.R. 5.5. He found that, as written, the rule did prohibit Jones’s conduct, but that the rule “runs afoul of constitutional guarantees.”

“[A]s I see it, the problem is not that the board misread the rule; I’m convinced that the board’s reading is correct,” the concurring opinion stated. “The problem is that as applied here, the rule is irrational and arbitrary and cannot constitutionally be enforced.”

The concurrence noted that Article I, Section 1 of the Ohio Constitution recognizes that all people possess “certain inalienable rights, among which are those of enjoying and defending life, liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.” The Court has long recognized, he explained, that these liberty and property rights of the state constitution encompass a right to pursue one’s chosen profession.

The concurring opinion also found that Jones’s right to continue in her chosen profession free of unreasonable government interference was protected by the due process clause of the Fourteenth Amendment to the U.S. Constitution. Under long-established precedent, to satisfy constitutional requirements, a state rule regulating the practice of law must have a “rational connection with the applicant’s fitness or capacity to practice law.”

Justice DeWine noted that Jones did not hold herself out to be an Ohio attorney, did not practice in Ohio courts, and did not advertise for business in Ohio. Her practice was like that of any other Kentucky lawyer—except that “she was working remotely” from Ohio.

“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.”

2018-0496. In re Application of Jones, Slip Opinion No. 2018-Ohio-4182.

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Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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