The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Egan, Slip Opinion No. 2017-Ohio-8651.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-8651
IN RE APPLICATION OF EGAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Egan, Slip Opinion No. 2017-Ohio-8651.]
Attorneys—Character and fitness—Prof.Cond.R. 5.5—Attorney who is not
admitted to the practice of law in this jurisdiction may not establish an office
or other systematic and continuous presence in this jurisdiction for the
practice of law—Pending application to take the bar exam approved—
Applicant may apply to take the February 2018 bar exam.
(No. 2017-0397—Submitted May 17, 2017—Decided November 22, 2017.)
ON REPORT by the Board of Commissioners on Character and Fitness of the
Supreme Court, No. 663.
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Per Curiam.
{¶ 1} Applicant, Shannon O’Connell Egan, of Cincinnati, Ohio, is a 1998
graduate of the Louisiana State University Paul M. Hebert Law Center. She was
admitted to the Kentucky bar in October 1998 and the Indiana bar in October 2014.
SUPREME COURT OF OHIO
In November 2015, Egan applied to register as a candidate for admission to the
practice of law in Ohio and to take the July 2016 bar exam. Based on findings that
Egan engaged in the unauthorized practice of law (“UPL”) by establishing offices
in Cincinnati, Ohio, from which she practiced Kentucky law for more than ten
years, the Board of Commissioners on Character and Fitness recommends that we
disapprove her current application but permit her to reapply for the February 2018
bar exam. We adopt the board’s findings of fact. Based on evidence of Egan’s
exemplary character and professional reputation and the steps she and her firm have
taken to rectify her conduct, however, we find that Egan has carried her burden of
proving that she currently possesses the requisite character, fitness, and moral
qualifications to practice law in this state. We therefore approve Egan’s pending
application and permit her to sit for the February 2018 bar exam.
Summary of Proceedings
{¶ 2} In June 2016, the admissions committee of the Cincinnati Bar
Association recommended that Egan’s character, fitness, and moral qualifications
to practice law be approved. The Board of Commissioners on Character and
Fitness, however, invoked its sua sponte investigatory authority, conferred by
Gov.Bar R. I(10)(B)(2)(e), and scheduled a hearing on the matter.
{¶ 3} The evidence presented at the hearing shows that Egan accepted a
position in the Cincinnati law office of Lerner, Sampson & Rothfuss in September
2002 and practiced Kentucky law from that office until March 2013, when she
accepted a position with another Cincinnati law firm. Lerner, Sampson’s letterhead
stated that Egan was “admitted in Kentucky.” Although the letterhead did not
affirmatively state that she was admitted only in Kentucky, it so implied, in that it
described other attorneys as “also admitted in Kentucky.” The board accepted
Egan’s testimony that she limited her practice to Kentucky matters, that she did not
hold herself out as an Ohio lawyer or enter an appearance in an Ohio court, and that
she neither met with clients nor conducted depositions in Ohio.
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January Term, 2017
{¶ 4} In late 2008, Egan applied for admission to the Ohio bar without
examination with the belief that she had completed the five years of practice in
another jurisdiction required by Gov.Bar R. I(9)(A)(2). However, this court’s bar-
admissions counsel returned Egan’s application with a letter stating that Egan did
not meet all of the requirements for admission without examination. The letter did
not state that Egan had violated any rule, but it informed her that her employment
in the Cincinnati office of Lerner, Sampson & Rothfuss could not be counted as
past practice of law for purposes of admission without examination because under
Gov.Bar R. I(9)(B)(2), time in practice is credited only when it is “performed in a
jurisdiction in which the applicant was admitted or in a jurisdiction that
affirmatively permitted such practice by a lawyer not admitted to practice in that
jurisdiction.”
{¶ 5} Egan filed a second application for admission without examination
after she joined the Cincinnati office of Graydon, Head & Ritchey, L.L.P., in March
2013. In rejecting that application, bar-admissions counsel reiterated the reasons
that Egan’s previous application was rejected and suggested that she contact the
Board on the Unauthorized Practice of Law if she had questions about the effect of
her legal employment in Ohio. In response to that letter, Graydon, Head & Ritchey
moved Egan to the firm’s Kentucky office—though she continued to work in the
firm’s Cincinnati office approximately 40 percent of the time—issued her new
business cards, and changed her signature block. The firm also sought advice from
the Cincinnati Bar Association, who downplayed the UPL issue and advised that
Egan would have to take the bar exam and that she would likely be asked questions
about potential UPL issues if she applied to take the exam.
{¶ 6} At the panel hearing, Egan testified that she is a community-minded
person who would never intentionally violate professional rules. Under
questioning from the panel, Egan insisted that it never occurred to her that she might
be engaging in UPL until she received notice of the board’s sua sponte investigation
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SUPREME COURT OF OHIO
and met with her counsel in August 2016. She testified that since that time, she has
performed legal services exclusively in Kentucky and Indiana, where she is
licensed, and has stopped working from her Ohio home on evenings and weekends.
In addition, Egan stated that one of her character and fitness interviewers expressed
dismay that she had not been admitted on motion, and other attorneys react with
incredulity when told of her difficulties. She also presented evidence that a former
colleague had engaged in the same conduct with different results. His application
for admission without examination was also rejected because the required five years
of practice included practice in a jurisdiction in which he was not admitted, but he
was later permitted to take the bar exam without a character and fitness hearing.
{¶ 7} The board found that Egan had engaged in the unauthorized practice
of law by establishing an office in Ohio from which she practiced Kentucky law
full-time from 2002 until at least 2013 and approximately 40 percent of the time
from 2013 until August 2016. The board found that her conduct, to the extent that
it continued after the February 1, 2007 effective date of the Rules of Professional
Conduct, violated Prof.Cond.R. 5.5(b)(1) (prohibiting a lawyer who is not admitted
to the practice of law in this jurisdiction to establish an office or other systematic
and continuous presence in this jurisdiction for the practice of law). The board also
acknowledged that by some accounts, conduct like Egan’s is widespread in
Cincinnati.
{¶ 8} The board found that Egan’s testimony seemed honest and sincere and
that she has presented evidence that she is a very competent and careful attorney.
But it also stated that it was “difficult to believe that she did not have some inkling
that there might be a problem” when her applications for admission without
examination were twice rejected for practicing law in a jurisdiction in which she
was not admitted to the bar.
{¶ 9} Given the length of time that Egan had engaged in the unauthorized
practice of law and the relatively short period of time that she had been in
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January Term, 2017
compliance with Prof.Cond.R. 5.5 at the time of the hearing, the board
recommended that we disapprove her pending application but permit her to reapply
for the February 2018 bar exam.
Disposition
{¶ 10} An applicant to the Ohio bar must prove by clear and convincing
evidence that he or she “possesses the requisite character, fitness, and moral
qualifications for admission to the practice of law.” Gov.Bar R. I(11)(D)(1).
Evidence that an applicant has committed an act constituting the unauthorized
practice of law is one factor to be considered in determining whether an applicant
is fit to practice law in this state. Gov.Bar R. I(11)(D)(3)(c).
{¶ 11} Prof.Cond.R. 5.5 governs the multijurisdictional practice of law in
Ohio. It provides that a lawyer who is not admitted to practice law in this
jurisdiction shall not “establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law,” except as authorized by these
rules or other law. Prof.Cond.R. 5.5(b)(1). The rule provides limited exceptions to
this prohibition. It authorizes a lawyer who is admitted in another United States
jurisdiction, who is in good standing in that jurisdiction, and who regularly
practices law to provide legal services in Ohio on a temporary basis if the services
fall within certain limits described in the rule. See Prof.Cond.R. 5.5(c)(1) through
(4). But Egan admitted that her practice was not temporary within the meaning of
the rule. The rule also authorizes a lawyer admitted and in good standing in another
United States jurisdiction to provide legal services in Ohio through an office or
other systematic and continuous presence in just three circumstances. But Egan
has not proven that any of those circumstances exist here.1 See Prof.Cond.R.
1
Prof.Cond.R. 5.5(d)(1) through (3) permit a lawyer who is admitted and in good standing in another
United States jurisdiction to provide services in Ohio through an office or other systematic and
continuous presence in just three circumstances: (1) the lawyer is registered for corporate-counsel
status with the Office of Attorney Services and is providing legal services to the lawyer’s employer
or its organizational affiliates for which the permission of a tribunal to appear pro hac vice is not
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SUPREME COURT OF OHIO
5.5(d)(1) through (3). Moreover, Official Comment [15] to the rule explains:
“Except as provided in divisions (d)(1) through (d)(3), a lawyer who is admitted to
practice law in another jurisdiction and who establishes an office or other
systematic or continuous presence in this jurisdiction must become admitted to
practice law generally in this jurisdiction.” Egan never became admitted to the bar
in Ohio. Thus, there can be no dispute that Egan’s conduct constituted the
unauthorized practice of law. For that reason, we adopt the board’s findings of fact.
{¶ 12} Although we find that Egan engaged in the unauthorized practice of
law in this state for an extended period of time, we note that she did not engage in
the practice of Ohio law, and there is no evidence tending to demonstrate that she
caused any harm to her clients or the citizens of Ohio. Based on evidence of Egan’s
exemplary character and professional reputation and the steps that she and her firm
took to relocate her practice to Kentucky once they realized the import of her
conduct, we find that Egan has carried her burden of proving that she currently
possesses the requisite character, fitness, and moral qualifications to practice law
in this state. Therefore, we approve Egan’s pending application and permit her to
sit for the February 2018 bar exam, provided that she satisfies the remaining
registration requirements.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, and
FISCHER, JJ., concur.
DEWINE, J., concurs in judgment only.
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required, (2) the lawyer is providing services that the lawyer is authorized to provide by federal or
Ohio law, or (3) the lawyer is registered for corporate-counsel status with the Office of Attorney
Services and is providing authorized pro bono services.
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January Term, 2017
Kegler, Brown, Hall & Ritter, L.P.A., and Jonathan E. Coughlan, for
applicant.
The Law Office of James A. Whittaker. L.L.C., and Laura I. Murphy, for
the Cincinnati Bar Association.
Tucker Ellis, L.L.P., Benjamin C. Sassé, and Irene C. Keyse-Walker, for
the Board of Commissioners on Character and Fitness.
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