Disciplinary Counsel v. Harris

[Cite as Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026.]

DISCIPLINARY COUNSEL v. HARRIS.

[Cite as Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026.]

Attorneys—Misconduct—Attorney not licensed in Ohio practicing in federal

district court located in Ohio—Ohio has no authority to enforce Ohio

Rules of Professional Conduct against attorney not licensed in Ohio—

Complaint dismissed and matter referred to Board on Unauthorized

Practice of Law for further proceedings.

(No. 2012-1698—Submitted February 26, 2013—Decided September 26, 2013.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-077.

____________________

O’DONNELL, J.

{¶ 1} This issue in this case is whether Donald Harris, an attorney who is

admitted to the practice of law in the District of Columbia and the Northern and

Southern Districts of Ohio, but who is not admitted to the practice of law in the

state of Ohio, is subject to the disciplinary authority of this court. Because Harris

is not a member of the Ohio bar and has not taken an oath to be bound by the

Ohio Rules of Professional Conduct, these rules do not apply to him; rather, his

conduct is subject to review by the Board on the Unauthorized Practice of Law

(“UPL Board”).

{¶ 2} Accordingly, we dismiss the Aimee Skeel matter in deference to

the authority of the bankruptcy court, and we dismiss the remaining matters and

refer them to the UPL Board for further proceedings.

Factual and Procedural Background

{¶ 3} Donald Harris has never been admitted to the practice of law in the

state of Ohio. However, as a member of the District of Columbia bar and of the

SUPREME COURT OF OHIO

bars of the United States District Court for the Northern and Southern Districts of

Ohio, he has focused his practice in bankruptcy law before the federal courts

geographically located in Ohio.

{¶ 4} In August 2011, disciplinary counsel filed a four-count complaint

against Harris relating to his representation of an Ohio client in bankruptcy

proceedings before the United States District Court for the Northern District of

Ohio, his establishment of a limited-liability company on behalf of an Ohio client,

his assistance to an Ohio client in a mortgage modification, and representations

regarding the relationship between an Ohio-licensed attorney and the Donald

Harris Law Firm. Disciplinary counsel maintains that since Harris is an out-of-

state attorney practicing federal law within Ohio’s boundaries, he is subject to the

disciplinary authority of this state pursuant to Prof.Cond.R. 8.5.

{¶ 5} A hearing panel of the Board of Commissioners on Grievances and

Discipline concluded that disciplinary counsel had properly filed the complaint

against Harris pursuant to Prof.Cond.R. 8.5. The panel further found that Harris

had engaged in numerous violations of the Ohio Rules of Professional Conduct

and recommended that Harris be indefinitely suspended from representing Ohio

citizens in the state of Ohio. Upon review, the board adopted the findings of fact,

conclusions of law, and recommendation of the panel.

{¶ 6} In his objections to the report and recommendation of the board,

Harris asserts that Prof.Cond.R. 8.5 does not authorize this court to enforce the

Ohio Rules of Professional Conduct against attorneys who are not licensed in

Ohio. Moreover, Harris maintains that Prof.Cond.R. 5.5(a)—which prohibits a

lawyer from practicing law in a jurisdiction in violation of its regulation of the

legal profession—applies only to attorneys licensed in Ohio who practice in

another jurisdiction. And he further contends that the federal courts and the

District of Columbia have jurisdiction over any disciplinary matters relating to his

practice in the federal bankruptcy courts.

2

January Term, 2013

The Court’s Authority to Regulate the Practice of Law in Ohio

{¶ 7} Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants this

court “ ‘exclusive power to regulate, control, and define the practice of law in

Ohio.’ ” Greenspan v. Third Fed. S. & L. Assn., 122 Ohio St.3d 455, 2009-Ohio-

3508, 912 N.E.2d 567, ¶ 16, quoting Cleveland Bar Assn. v. CompManagement,

Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39. We have

explained that “[a]ny definition of the practice of law inevitably includes

representation before a court, as well as the preparation of pleadings and other

legal documents, the management of legal actions for clients, all advice related to

law, and all actions taken on behalf of clients connected with the law.” Cleveland

Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, 857

N.E.2d 95, ¶ 22.

{¶ 8} We have defined the unauthorized practice of law as “ ‘the

rendering of legal services for another by any person not admitted to practice in

Ohio under Rule I and not granted active status under Rule VI, or certified under

Rule II, Rule IX, or Rule XI of the Supreme Court Rules for the Government of

the Bar of Ohio.’ ” (Emphasis added.) Lorain Cty. Bar Assn. v. Kocak, 121 Ohio

St.3d 396, 2009-Ohio-1430, 904 N.E.2d 885, ¶ 17, quoting former Gov.Bar R.

VII(2)(A), 103 Ohio St.3d XCIX, CI. Gov.Bar R. VII(2)(A)(4) defines the

unauthorized practice of law to include “[h]olding out to the public or otherwise

representing oneself as authorized to practice law in Ohio by a person not

authorized to practice law by the Supreme Court Rules for the Government of the

Bar or Prof.Cond.R. 5.5.” And controlling in this case is our own precedent: “a

lawyer admitted to practice in another state, but not authorized to practice in

Ohio, who counsels Ohio clients on Ohio law and drafts legal documents for them

is engaged in the unauthorized practice of law in Ohio.” Cleveland Bar Assn. v.

Moore, 87 Ohio St.3d 583, 584, 722 N.E.2d 514 (2000), citing Cleveland Bar

Assn. v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998).

3

SUPREME COURT OF OHIO

Rules of Professional Conduct Do Not Apply to Harris

{¶ 9} Although Harris is licensed to practice law in another jurisdiction,

because he is not admitted to the Ohio bar, our Rules of Professional Conduct,

designed to regulate conduct of attorneys admitted to practice law in Ohio, do not

apply to him. He never subjected himself to them because he has never been

admitted to practice law in this state.

{¶ 10} Every lawyer who is admitted to practice law in Ohio takes an oath

of office. See Gov.Bar R. I(1)(F). As part of that oath, the attorney swears or

affirms to support the Constitutions of the United States and the state of Ohio and

to “abide by the Ohio Rules of Professional Conduct.” Gov.Bar R. I(8)(A).

{¶ 11} Harris never took that oath and never agreed to abide by our rules,

and we are reluctant to impose our rules of conduct on him or other such attorneys

who engage in the practice of law in our state. It appears that this is precisely

why we have created the UPL Board and why we have defined the unauthorized

practice of law as “ ‘[t]he rendering of legal services for another by any person

not admitted to practice in Ohio.’ ” Kocak, 121 Ohio St.3d 396, 2009-Ohio-1430,

904 N.E.2d 885, ¶ 17, quoting former Gov.Bar R. VII(2)(A), now Gov.Bar R.

VII(2)(A)(1).

{¶ 12} In this regard, Harris is no different from an accountant, a real

estate agent, or a financial planner who undertakes activity that constitutes the

practice of law and who becomes subject to discipline pursuant to the

unauthorized practice of law framework. It is inconsistent to conclude that an

attorney admitted in another jurisdiction who engages in the unauthorized practice

of law in Ohio becomes subject to the Board of Commissioners on Grievances

and Discipline when another professional, such as a real estate agent, who

engages in the unauthorized practice of law becomes subject to the UPL Board.

Similarly, our decision today is in accordance with Gov.Bar R. VI(3)(C), which

provides:

4

January Term, 2013

An attorney who is admitted to the practice of law in

another state or in the District of Columbia, but not in Ohio, and

who performs legal services in Ohio for his or her employer, but

fails to register in compliance with this section or does not qualify

to register under this section, may be referred for investigation of

the unauthorized practice of law under Gov.Bar R. VII * * *.

(Emphasis added.)

{¶ 13} Additionally, our sanctions for serious violations of the Rules of

Professional Conduct, suspension and disbarment, are ineffective and meaningless

to Harris because he is not a member of the Ohio bar. We cannot suspend or

disbar an attorney who is not a member of the Ohio bar. Thus, we consider these

matters as alleged unauthorized practice of law violations.

Harris’s Conduct

The Bankruptcy Proceedings

{¶ 14} Harris represented Aimee Skeel in two bankruptcy petitions filed

in the United States Bankruptcy Court for the Northern District of Ohio. We

determine that Harris did not engage in the unauthorized practice of law when he

represented Skeel because, as a member of the District of Columbia bar, and

having been admitted to practice in the Northern District of Ohio, he was

authorized to practice before the United States Bankruptcy Court for the Northern

District of Ohio. As such, he becomes subject to the disciplinary authority of

those federal courts.

{¶ 15} As the Bankruptcy Court for the Northern District of Ohio

explained, “[a] bankruptcy court has the power to regulate the practice of law in

the cases before it.” In re Ferguson, 326 B.R. 419, 422 (Bankr.N.D.Ohio 2005),

citing United States v. Johnson, 327 F.3d 554, 560 (7th Cir.2003); see also

5

SUPREME COURT OF OHIO

Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27

(1991) (“the Court has held that a federal court has the power to control admission

to its bar and to discipline attorneys who appear before it”). Specifically, Loc.R.

2090-2(b) of the United States Bankruptcy Court for the Northern District of Ohio

states that “[p]rofessional conduct and attorney discipline shall be governed by

Local Civil Rule 83.7,” which provides that “any attorney admitted to practice

before this Court may be subjected to such disciplinary action as the

circumstances warrant.” Loc.Civ.R. 83.7(b)(1) of the United States District Court

for the Northern District of Ohio.

{¶ 16} Here, the United States Bankruptcy Court for the Northern District

of Ohio exercised its authority and declined to sanction Harris or order the

disgorgement of attorney fees for his representation of Skeel in bankruptcy

proceedings. Because the alleged misconduct involving Skeel occurred before the

United States Bankruptcy Court for the Northern District of Ohio and because that

court has the power to discipline Harris for his practice before it, we dismiss this

charge in deference to the disciplinary authority of the United States Bankruptcy

Court for the Northern District of Ohio.

Formation of an L.L.C.

{¶ 17} Darlene Martincak engaged Harris to file a petition in bankruptcy.

She also asked Harris to help her transfer five properties owned by her company

to Alexander Roussos. Prior to the filing of the bankruptcy, Harris met with

Martincak and Roussos to discuss the property transfers and agreed to assist them.

In relation to these transactions, during oral argument, Harris’s counsel admitted

that Harris had formed an L.L.C. Harris did not inform Martincak or Roussos that

he was not licensed to practice law in Ohio.

{¶ 18} Harris has never been admitted to the practice of law in Ohio, does

not have active status, and is not certified. By definition, then, Harris did not

commit a disciplinary violation because he never became subject to our

6

January Term, 2013

disciplinary rules by gaining admission to the bar of the state of Ohio. Rather,

Harris may have engaged in the unauthorized practice of law when he assisted

Roussos in establishing an L.L.C. in accordance with Ohio law and when he

participated in transferring properties to that L.L.C. See Columbus Bar Assn. v.

Verne, 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 1-4. In addition,

by his silence, he may have further engaged in the unauthorized practice of law by

leading Roussos and Martincak to believe that he was a member of the Ohio bar.

See Gov.Bar R. VII(2)(A)(4), which defines the unauthorized practice of law to

include holding out to the public or otherwise representing oneself as authorized

to practice law. Thus, since Harris is not admitted to the Ohio bar and because the

conduct with which he is charged has been defined by this court to constitute the

unauthorized practice of law, we dismiss the disciplinary action and refer this

matter to the UPL Board.

Modification of a Mortgage

{¶ 19} Harris also agreed to seek modification of a mortgage that Ronald

Sharp—a client whom Harris had represented in two prior bankruptcy

proceedings—held on his residence and failed to inform Sharp that he was not

licensed to practice law in Ohio.

{¶ 20} While we agree with the board that there is insufficient evidence to

support the allegations that Harris committed any disciplinary violations relating

to the modification of Sharp’s mortgage, we refer this matter to the UPL Board

for its consideration and review.

Violations Involving Information about Legal Services

{¶ 21} Harris formed the Donald Harris Law Firm in 2004. The firm

maintained a website, which indicated that unnamed attorneys in his firm were

licensed in various states, including Ohio. In addition, Harris’s letterhead stated,

“Attorneys at Law” below the firm name and listed Loretta Riddle, a member of

the Ohio bar, as an attorney. However, the nature of the working relationship

7

SUPREME COURT OF OHIO

between Harris and Riddle is unclear. Thus, by holding out to the public that

Riddle was a member of the Donald Harris Law Firm, he may have engaged in

the unauthorized practice of law in Ohio. See Gov.Bar R. VII(2)(A)(4). We

therefore refer this matter to the UPL Board for its consideration and review.

Conclusion

{¶ 22} Because Harris is not a member of the Ohio bar, he is not subject

to this court’s disciplinary authority. Rather, as an attorney not admitted to

practice in Ohio, he may have engaged in the unauthorized practice of law by

rendering legal services in Ohio to Ohio clients.

{¶ 23} Therefore, in conformity with our previous decisions in Moore and

Misch and our longstanding definition of the unauthorized practice of law, we

dismiss the Skeel matter in deference to the authority of the bankruptcy court.

We further dismiss the Roussos/Martincak matter, the Sharp matter, and the

charges relating to information about legal services and refer these matters to the

UPL Board for further proceedings.

So ordered.

O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and

O’NEILL, JJ., concur.

____________________

Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant

Disciplinary Counsel, for relator.

Oglesby & Oglesby, Ltd., and Geoffrey L. Oglesby, for respondent.

________________________

8