The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Jones, Slip Opinion No. 2018-Ohio-4182.]
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. 2018-OHIO-4182
IN RE APPLICATION OF JONES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Jones, Slip Opinion No. 2018-Ohio-4182.]
Attorneys—Character and fitness—Prof.Cond.R. 5.5—A lawyer admitted to
practice law in another jurisdiction who provides legal services exclusively
in that jurisdiction from Ohio pending resolution of an application for
admission to Ohio bar without examination and who otherwise complies
with Prof.Cond.R. 5.5(c) is providing legal services on temporary basis and
therefore has not engaged in unauthorized practice of law—Application for
admission without examination approved.
(No. 2018-0496—Submitted July 17, 2018—Decided October 17, 2018.)
ON REPORT by the Board of Commissioners on Character and Fitness of the
Supreme Court, No. 668.
____________________
SYLLABUS OF THE COURT
A lawyer admitted to practice law in another jurisdiction who provides legal
services exclusively in that jurisdiction from an office in Ohio pending
resolution of an application for admission to the Ohio bar without
SUPREME COURT OF OHIO
examination and who otherwise complies with the provisions of
Prof.Cond.R. 5.5(c) is providing legal services on a temporary basis and
therefore has not engaged in the unauthorized practice of law.
____________________
O’DONNELL, J.
{¶ 1} Alice Auclair Jones is licensed to practice law in Kentucky and
applied for admission to the practice of law in Ohio without examination. The
Board of Commissioners on Character and Fitness found that after Jones filed her
application, she engaged in the unauthorized practice of law by practicing Kentucky
law from an Ohio office and failed to prove she has the requisite character, fitness,
and moral qualifications to practice law in Ohio; therefore, it recommends that we
disapprove her application. Jones objects to the findings and the recommendation.
{¶ 2} The issues presented are whether Jones violated Prof.Cond.R.
5.5(c), which permits a lawyer to “provide legal services on a temporary basis in
this jurisdiction” under certain circumstances, and whether this court should
approve her application. We conclude that a lawyer admitted to practice law in
another jurisdiction who provides legal services exclusively in that jurisdiction
from an office in Ohio pending resolution of an application for admission to the
Ohio bar without examination and who otherwise complies with the provisions of
Prof.Cond.R. 5.5(c) is providing legal services on a temporary basis and therefore
has not engaged in the unauthorized practice of law. Because Jones complied with
the rule, we conclude she did not engage in the unauthorized practice of law and
has the requisite character, fitness, and moral qualifications to practice law in Ohio,
and we approve her application pursuant to Gov.Bar R. I(9)(F)(1).
Background
{¶ 3} Jones graduated from George Mason University School of Law, was
admitted to practice law in Kentucky in 2009, and is a member in good standing of
the Kentucky bar. She initially practiced as an assistant commonwealth attorney in
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January Term, 2018
Jefferson County, Kentucky, and in 2014, took a position with Huddleston Bolen,
L.L.P., a law firm in Louisville, Kentucky, that subsequently merged with
Dinsmore & Shohl, L.L.P.
{¶ 4} On October 26, 2015, Jones applied for admission to the Ohio bar
without examination pursuant to Gov.Bar R. I(9). In November 2015, she moved
to Cincinnati, Ohio, for personal reasons and transferred to the Cincinnati office of
Dinsmore & Shohl, where she practiced law exclusively in matters related to
pending or potential proceedings before tribunals in Kentucky. She also maintained
an office at the firm’s Louisville location and frequently went to Kentucky for
depositions and hearings.
{¶ 5} The admissions committee of the Cincinnati Bar Association
recommended approval of her character, fitness, and moral qualifications to
practice law. However, due to a concern that Jones was engaging in the
unauthorized practice of law, the Board of Commissioners on Character and Fitness
invoked its sua sponte investigatory authority conferred by Gov.Bar R.
I(10)(B)(2)(e) and appointed a panel to conduct a hearing on the matter.
{¶ 6} At the hearing, Jones argued that Prof.Cond.R. 5.5(d)(2) permitted
her to establish an office in Ohio if she provided legal services she was authorized
to provide by Ohio law and that Prof.Cond.R. 5.5(c) authorized her to provide legal
services in Ohio on a temporary basis. Jones testified that in her view, the services
she is providing from Ohio during the pendency of her application are temporary
because if she is not admitted, she will have to “find a place to practice in the state
of Kentucky,” and if she is admitted, she will “integrate into the Cincinnati, Ohio,
office” and her “practice will change.”
{¶ 7} The panel found Prof.Cond.R. 5.5(c) did not apply because it “does
not appear that Ms. Jones meets the requirement that she regularly be practicing
law in Kentucky since by her own testimony she has lived and worked in Ohio since
2015” and the panel did “not believe that her practice of law has been temporary as
3
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contemplated by” that rule. Thus, the panel found she was currently engaged in
the unauthorized practice of law in Ohio. Although Jones “otherwise [had] no
issues that would affect her character and fitness,” the panel was “disturbed” by the
ongoing nature of her conduct and recommended that the board hold the matter in
abeyance and give Jones 30 days to cease the practice of law in Ohio and provide
an affidavit representing that she is engaging only in services that could be rendered
by a law clerk or paralegal.
{¶ 8} The board found Jones was currently engaged in the unauthorized
practice of law and followed the panel’s recommendation, but Jones did not cease
her practice in Ohio and instead moved for reconsideration and filed an affidavit
indicating she would continue to practice in Ohio during the pendency of her
application.
{¶ 9} The panel recommended the board deny the motion for
reconsideration, again rejecting the claim that Jones’s services were temporary for
purposes of Prof.Cond.R. 5.5(c). It explained that the term “temporary” should be
contrasted with “the earlier reference in the rule to establishing an office or a
systematic and continuous presence. If a lawyer has established an office and a
continuous and systematic presence, then it can reasonably be concluded that the
services being rendered by the lawyer are not temporary.” To support this
interpretation, the panel relied on Gov.Bar R. I(9)(H) and a proposal of the
American Bar Association for a model rule on practice pending admission. It found
that Jones “has maintained an office and a continuous and systematic presence in
Ohio and has been practicing law,” was engaged in the unauthorized practice of
law, and had “failed to prove by clear and convincing evidence that she possesses
the character, fitness, and moral qualifications for admission to the practice of law
in Ohio.”
{¶ 10} The board adopted the panel’s report and recommends that we
disapprove Jones’s application for admission without examination.
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January Term, 2018
Objections to Board Recommendation
{¶ 11} Jones has filed objections to the board’s findings and
recommendation. She asserts the term “temporary” “is readily and correctly
understood as the opposite of ‘permanent’ ” and she complied with Prof.Cond.R.
5.5(c)(2), which she claims permits a lawyer to “provide legal services in Ohio
during the temporary period in which the lawyer’s application to be admitted by
reciprocity to the Ohio Bar is pending” if the lawyer satisfies the other requirements
of the rule. She maintains the panel’s emphasis on her establishing an office or
other systematic and continuous presence in Ohio is misplaced because
Prof.Cond.R. 5.5(c)(2) permits such conduct for a temporary period and that
alternatively, her practice “cannot reasonably be interpreted as a ‘systematic and
continuous’ Ohio presence.” In addition, Jones asserts that “a resolution against
her * * * clashes with” the Due Process Clause and the Privileges and Immunities
Clause of the United States Constitution.
{¶ 12} The Cincinnati Bar Association supports her position.
Issue
{¶ 13} The issue presented is whether Jones provided legal services on a
“temporary basis” in Ohio for purposes of Prof.Cond.R. 5.5(c).
Law and Analysis
{¶ 14} Gov.Bar R. I(11)(D)(1) specifies that an applicant for admission 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.” And the “[c]ommission of an act constituting the unauthorized
practice of law” is one factor to be considered in evaluating an applicant’s
character, fitness, and moral qualifications. Gov.Bar R. I(11)(D)(3)(c).
{¶ 15} Gov.Bar R. I(9)(H) generally prohibits applicants for admission
without examination from engaging “in the practice of law in Ohio prior to the
presentation of the applicant to the Court pursuant to division (G) of this section.”
5
SUPREME COURT OF OHIO
However, Gov.Bar R. VII(2)(A)(1)(f) specifically excepts from the definition of
the unauthorized practice of law “[r]endering legal services in accordance with Rule
5.5 of the Ohio Rules of Professional Conduct.”
{¶ 16} Prof.Cond.R. 5.5(b)(1) prohibits “[a] lawyer who is not admitted to
practice in this jurisdiction” from establishing “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(d)(2) provides that “[a]
lawyer admitted and in good standing in another United States jurisdiction may
provide legal services in this jurisdiction through an office or other systematic and
continuous presence” if “the lawyer is providing services that the lawyer is
authorized to provide by * * * Ohio law.”
{¶ 17} Prof.Cond.R. 5.5(c)(2) authorizes a lawyer to “provide legal
services on a temporary basis in this jurisdiction” if (1) the lawyer “is admitted in
another United States jurisdiction,” (2) the lawyer “is in good standing in the
jurisdiction in which the lawyer is admitted,” (3) the lawyer “regularly practices
law,” (4) “the services are reasonably related to a pending or potential proceeding
before a tribunal in this or another jurisdiction,” and (5) “the lawyer, or a person
the lawyer is assisting, is authorized by law or order to appear in such proceeding
or reasonably expects to be so authorized.” (Italics sic.)
{¶ 18} “Temporary” means “[l]asting for a time only; existing or
continuing for a limited (usu. short) time; transitory.” Black’s Law Dictionary 1693
(10th Ed.2014); accord Webster’s Third New International Dictionary 2353
(2002).
{¶ 19} Comment 6 to Prof.Cond.R. 5.5 notes:
There is no single test to determine whether a lawyer’s
services are provided on a “temporary basis” in this jurisdiction, and
may therefore be permissible under division (c). Services may be
6
January Term, 2018
“temporary” even though the lawyer provides services in this
jurisdiction on a recurring basis, or for an extended period of time,
as when the lawyer is representing a client in a single lengthy
negotiation or litigation.
(Emphasis added.)
{¶ 20} A lawyer who applies for admission without examination to the
Ohio bar in accordance with Gov.Bar R. I(9) and thereafter provides legal services
from Ohio in the jurisdiction where that applicant is already admitted to practice
law pending the resolution of that application is providing services on a temporary
basis because those services are transitory and will continue only until the
application is resolved.
{¶ 21} Here, the record establishes that Jones satisfied the requirements of
Prof.Cond.R. 5.5(c)(2). 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. Although Jones began practicing Kentucky law
from Ohio more than two years ago, after she had applied for admission prior to
moving to Ohio, her practice from Ohio pending her application is on a temporary
basis because the continuation of her practice depends on the resolution of her
application.
{¶ 22} This case stands in contrast to In re Egan, 151 Ohio St.3d 525, 2017-
Ohio-8651, 90 N.E.3d 912, in which Shannon O’Connell Egan, an attorney
admitted to the Kentucky bar, established offices in Cincinnati, Ohio, from which
she practiced Kentucky law for more than ten years. Although this court concluded
she “engaged in the unauthorized practice of law in this state for an extended period
of time,” id. at ¶ 12, Egan practiced in Ohio for six years before filing the first of
7
SUPREME COURT OF OHIO
two applications for admission to the Ohio bar without examination and she
admitted that her practice was not temporary for purposes of Prof.Cond.R. 5.5(c).
Conclusion
{¶ 23} A lawyer who resides in Ohio and who practices only the law of an
out of state jurisdiction from an office in Ohio and appears only before tribunals in
a foreign jurisdiction pending the resolution of an application for admission without
examination to the Ohio bar is providing services on a temporary basis for purposes
of Prof.Cond.R. 5.5(c). Because Jones satisfied the requirements of Prof.Cond.R.
5.5(c)(2) by practicing Kentucky law from an office in Ohio pending the resolution
of her application, she has not engaged in the unauthorized practice of law and
therefore she does possess the requisite character, fitness, and moral qualifications
to practice law in this state. Accordingly, we conclude that Jones did not engage in
the unauthorized practice of law. We approve her application for admission without
examination.
Judgment accordingly.
O’CONNOR, C.J., and FRENCH, and FISCHER, JJ., concur.
DEWINE, J., concurs in judgment only, with an opinion joined by KENNEDY
and DEGENARO, JJ.
__________________
DEWINE, J., concurring in judgment only.
{¶ 24} Does an out-of-state attorney who practices law exclusively in the
courts of the state where she is licensed engage in the unauthorized practice of law
because she happens to work out of an office in Ohio? Prof.Cond.R. 5.5, a rule
promulgated by this court, seems to say that the answer is yes. But in my view, the
rule—as applied in the situation before us and others like it—runs afoul of
constitutional guarantees.
{¶ 25} The majority reaches the correct result in approving Alice Auclair
Jones’s application for admission without examination. Majority opinion at ¶ 23.
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January Term, 2018
It does so by concluding that the Board of Commissioners on Character and Fitness
misread the rule. Id. at ¶ 20. But as I see it, the problem is not that the board
misread the rule; I’m convinced that the board’s reading is correct. The problem is
that as applied here, the rule is irrational and arbitrary and cannot constitutionally
be enforced. I therefore concur in the court’s judgment approving Jones’s
application, but I do so because I find the rule to be unconstitutional when applied
to Jones and others like her.
I. The majority incorrectly reads the unauthorized-practice-of-law
provisions of the Rules of Professional Conduct
{¶ 26} The Ohio Constitution grants this court original jurisdiction over the
“[a]dmission to the practice of law, the discipline of persons so admitted, and all
other matters relating to the practice of law.” Article IV, Section 2(B)(1)(g), Ohio
Constitution. Pursuant to that authority, we have promulgated sets of rules and
established boards to oversee the implementation of those rules on our behalf. This
case involves the construction of one such set of rules—the Rules of Professional
Conduct—and a recommendation from one of our boards—the Board of
Commissioners on Character and Fitness.
{¶ 27} It is undisputed that Jones practiced law exclusively in matters
related to pending or potential proceedings before tribunals in Kentucky. She did
not hold herself out to be an Ohio attorney. She did not practice in Ohio courts.
And she did not advertise for business in Ohio. In short, she conducted her practice
like any other Kentucky attorney, but she happened to be working out of an office
located in Ohio while doing so. We might say—as we do of many employees in
today’s world—that she was working remotely.
{¶ 28} Confronted with these facts, the board concluded that Jones had
engaged in the unauthorized practice of law in violation of Prof.Cond.R. 5.5(b).
Under the rule, unless authorized by the professional-conduct rules or other law, a
lawyer who is not admitted to practice in Ohio “shall not * * * establish an office
9
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or other systematic and continuous presence in this jurisdiction for the practice of
law.” Prof.Cond.R. 5.5(b)(1).
{¶ 29} Jones conceded that she had established an office and a continuous
physical presence in Ohio, but she maintained that her practice was authorized
because she was providing services on a “temporary basis” as authorized by
Prof.Cond.R. 5.5(c), which states:
A lawyer who is admitted in another United States
jurisdiction, is in good standing in the jurisdiction in which the
lawyer is admitted, and regularly practices law may provide legal
services on a temporary basis in this jurisdiction if * * *:
***
(2) the services are reasonably related to a pending or
potential proceeding before a tribunal in * * * another jurisdiction,
if the lawyer * * * is authorized by law or order to appear in such
proceeding * * *.
(Italics sic.) The board rejected Jones’s argument, finding that her practice was not
temporary. As a consequence, it recommended that her application for admission
without examination be denied.
{¶ 30} The majority determines that Jones falls within the Prof.Cond.R.
5.5(c)(2) exception because she was providing services on a temporary basis in
Ohio. Majority opinion at ¶ 21. But as much as the majority strains to find
otherwise, the provision does not apply. The provision does not define
“temporary,” but its meaning becomes clear when read in the context of the entire
rule. Prof.Cond.R. 5.5(b) begins with language of exclusion, stating that a lawyer
not admitted to practice in Ohio may not “establish an office or other systematic
and continuous presence in the jurisdiction for the practice of law.” Prof.Cond.R.
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January Term, 2018
5.5(b)(1). It then sets up two categories of exceptions: subsection (c) applies to
attorneys whose out-of-state practice requires them to come into Ohio to perform
work on their cases on a temporary basis, and subsection (d) prescribes when an
out-of-state lawyer can practice in Ohio “through an office or other systematic and
continuous presence.”1 Thus, practicing on a “temporary basis” in subsection (c)
is juxtaposed with practicing “through an office” in subsection (d). It is clear, then,
that an attorney who sets up an office in Ohio is not providing services on a
“temporary basis” within the meaning of the rule.
{¶ 31} The comments to the rule support this reading. Regarding
subsection (c), the comments explain that the provision “does not authorize a
lawyer to establish an office * * * in this jurisdiction without being admitted to
practice generally here.” Prof.Cond.R. 5.5, Comment 5. Similarly, “a lawyer who
is admitted to practice law in another jurisdiction and who establishes an office * *
* in this jurisdiction must become admitted to practice law generally in this
jurisdiction,” except as permitted in subsection (d). Prof.Cond.R. 5.5, Comment
15.
{¶ 32} Because she established an office in Ohio, Jones’s practice was not
temporary within the meaning of Prof.Cond.R. 5.5(c). Thus, her arrangement was
not authorized by our rules. The question remains, however, whether disapproving
Jones’s application under these circumstances would violate her constitutional
rights.
II. This case presents issues under the federal and state Constitutions
{¶ 33} In addition to her argument regarding the construction of
Prof.Cond.R. 5.5, Jones asserts that disapproval of her application would violate
1
The services that may be provided “through an office or other systematic and continuous presence”
without admission to the Ohio bar are limited to services provided to an employer or its
organizational affiliates for which a tribunal’s permission to appear pro hac vice is not required,
services that the lawyer is authorized to provide by federal or Ohio law, and certain pro bono
services. Prof.Cond.R. 5.5(d).
11
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the Due Process and Privileges or Immunities Clauses of the Fourteenth
Amendment to the United States Constitution as well as the Privileges and
Immunities Clause of Article IV, Section 2 of the United States Constitution.
{¶ 34} Missing from Jones’s argument is any claimed violation of the Ohio
Constitution. Ordinarily, we will not consider a constitutional claim that has not
been raised. But this case presents a circumstance that is different from the usual.
Here, we are confronted not with a challenge to a legislative enactment, as is
typically the case, but with a challenge to rules promulgated by this court under the
authority granted to us by the Ohio Constitution. “This court may no more
disregard or infringe upon the constitutional rights of our citizens in the exercise of
its regulatory functions than may any other branch of government.” Shimko v.
Lobe, 103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 27. Because it is our
own rule that is at issue, we are obligated in the first instance to ensure that the rule
comports with constitutional guarantees. Thus, in addition to the federal
constitutional claims raised by Jones, I consider whether our rule as applied to Jones
comports with the Ohio Constitution.
{¶ 35} In reviewing the constitutionality of our rules, we use the same
standards applied to any other constitutional challenge. Our rules “must comply
with the state and federal constitutions like any other rules and may be tested in any
court of competent jurisdiction.” Christensen v. Bd. of Commrs. on Grievances &
Discipline, 61 Ohio St.3d 534, 537, 575 N.E.2d 790 (1991).
A. The Ohio and federal Constitutions protect one’s right to pursue a chosen
profession free from arbitrary and unreasonable governmental restraints
{¶ 36} The Ohio Constitution recognizes that all people possess “certain
inalienable rights, among which are those of enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and seeking and obtaining
happiness and safety.” Article I, Section 1, Ohio Constitution. This concept dates
back to the founding days of our state. While the language was introduced in its
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January Term, 2018
current form in 1851 with the enactment of our modern constitution, Ohio’s first
constitution contained substantially similar language: “[A]ll men are born equally
free and independent, and have certain natural, inherent and unalienable rights;
amongst which are the enjoying and defending life and liberty, acquiring,
possessing and protecting property, and pursuing and obtaining happiness and
safety * * *.” Article VIII, Section 1, Ohio Constitution of 1802.
{¶ 37} This court has long held that the liberty and property rights
guaranteed by Article I, Section 1 encompass a right to pursue one’s chosen
profession:
The word “liberty,” as used in the first section of the Bill of
Rights, does not mean a mere freedom from physical restraint or
state of slavery, but is deemed to embrace the right of man to be free
in the enjoyment of the faculties with which he has been endowed
by his Creator, subject only to such restraints as are necessary for
the common welfare.
Palmer v. Tingle, 55 Ohio St. 423, 441, 45 N.E. 313 (1896). Thus, we have
affirmed that “[t]he right to labor, to contract, to do business or to engage in any of
the common occupations of life is one of the inalienable rights of the citizen.”
Sanning v. Cincinnati, 81 Ohio St. 142, 156, 90 N.E. 125 (1909); see also
Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412 (1943); Frecker v. Dayton,
153 Ohio St. 14, 90 N.E.2d 851 (1950).
{¶ 38} Historically, we have understood that “[t]he rights guaranteed by
Article I of the Constitution are not unrestricted rights but are subject to limitation
or abrogation to such extent as may be necessary to promote the health, safety,
morals or general welfare of society as a whole.” Correll at 538. Thus, we have
held that a statute proscribing fortune-telling was not “an unreasonable, arbitrary,
13
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and oppressive exercise of the police power,” Davis v. State, 118 Ohio St. 25, 28,
160 N.E. 473 (1928), because “fortune-telling and similar crafts are fraudulent
practices, and therefore not within the protection afforded to a lawful business,” id.
at 31. On the other hand, we have determined that a municipal regulation limiting
the hours during which one could operate a barber shop was an impermissible
exercise of the police power because “[w]hether the patrons of a barber shop get a
hair cut, shave, shine, or any other service rendered in a barber shop between the
hours of 8:00 o’clock a.m. and 8:00 o’clock p.m. or at some other time of the day
or night * * * can have no possible relation to the safety, morals or general welfare
of the public.” Correll at 540-541.
{¶ 39} Most recently, we have stated the test for “reviewing legislation that
impacts the rights guaranteed by Section 1, Article I” as follows: “[T]he legislation
will be upheld if it bears a real and substantial relation to the public health, safety,
morals, or general welfare, and if the legislation is not arbitrary or unreasonable.”
State v. Williams, 88 Ohio St.3d 513, 524, 728 N.E.2d 342 (2000), citing Benjamin
v. Columbus, 167 Ohio St. 103, 110, 146 N.E.2d 854 (1957). The same standards
apply to rules promulgated by this court. See Christensen, 61 Ohio St.3d 534, 575
N.E.2d 790.
{¶ 40} The Fourteenth Amendment to the federal Constitution also has
been held to protect the right of an individual to pursue and continue in a chosen
occupation free from unreasonable government interference. Dent v. West
Virginia, 129 U.S. 114, 121-122, 9 S.Ct. 231, 32 L.Ed. 623 (1889); Allgeyer v.
Louisiana, 165 U.S. 578, 589, 17 S.Ct. 427, 41 L.Ed. 832 (1897); Truax v. Raich,
239 U.S. 33, 38-41, 36 S.Ct. 7, 60 L.Ed. 131 (1915). The state may set standards
and regulate professions with the aim of protecting the public from “the
consequences of ignorance and incapacity, as well as of deception and fraud.” Dent
at 122. But the state “cannot exclude a person from the practice of law or from any
other occupation in a manner or for reasons that contravene the Due Process or
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January Term, 2018
Equal Protection Clause of the Fourteenth Amendment.” Schware v. New Mexico
Bd. of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957),
citing Dent. Rational-basis review applies to such claims. As the court explained
in Schware, professional qualifications imposed by the state on the practice of law
“must have a rational connection with the applicant’s fitness or capacity to practice
law.” Id. at 239.
B. Ohio does not have any legitimate government interest in regulating an
attorney who does not practice in Ohio courts or provide Ohio legal services
{¶ 41} Under both the Fourteenth Amendment to the United States
Constitution and Article I, Section 1 of the Ohio Constitution, the constitutional
question here turns on identifying Ohio’s interest in prohibiting Jones from
representing her Kentucky clients while working in a Cincinnati office. The short
answer is that there is none.
{¶ 42} Two state interests generally have been identified as supporting
attorney-regulation schemes. First, a state’s interest in regulating attorneys arises
from the role that lawyers serve in administering justice through the state’s court
system. As the United States Supreme Court has explained, “[the] interest of the
States in regulating lawyers is especially great since lawyers are essential to the
primary governmental function of administering justice, and have historically been
‘officers of the courts.’ ” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95
S.Ct. 2004, 44 L.Ed.2d 572 (1975).
{¶ 43} The other state interest in regulating attorneys is the protection of
the public. Our unauthorized-practice-of-law regulations flow from the notion that
such rules are “generally necessary to protect the public against incompetence,
divided loyalties, and other attendant evils that are often associated with unskilled
representation.” Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d
168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 40; see also Middlesex Cty. Ethics
Commt. v. Garden State Bar Assn., 457 U.S. 423, 434-435, 102 S.Ct. 2515, 73
15
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L.Ed.2d 116 (1982). That sentiment is reiterated in the Ohio Rules of Professional
Conduct; “limiting the practice of law to members of the bar protects the public
against rendition of legal services by unqualified persons,” Prof.Cond.R. 5.5,
Comment 2. Likewise, the provisions of Prof.Cond.R. 5.5(c) are meant to protect
“the interests of clients and the public.” Prof.Cond.R. 5.5, Comment 8.
{¶ 44} But when applied to a lawyer who is not practicing Ohio law or
appearing in Ohio courts, Prof.Cond.R. 5.5(b) serves no state interest. 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.
Jones’s conduct as a lawyer is regulated by the state of Kentucky—the state in
whose forums she appears.
{¶ 45} The problem is that unless a specific exception applies,
Prof.Cond.R. 5.5(b)(1) holds one to be engaged in the “unauthorized practice of
law” and subject to legal sanction therefor simply because one has established an
office or a systematic and continuous presence in the state. The rule deems such a
lawyer to have engaged in the unauthorized practice of law regardless of whether
her practice touches on the Ohio public or Ohio courts. In an earlier age, perhaps
such a rule made sense. Before the advent of the Internet, electronic
communication, and the like, a lawyer who worked in Ohio was almost always
practicing Ohio law. But today that is hardly the case. Any number of lawyers, for
any number of reasons, may choose to do their work from Ohio. Yet that does not
give Ohio a right to prohibit their conduct.
{¶ 46} Indeed, imagine what would happen if the rule were strictly
enforced. Are we to ban lawyers from setting up a secondary office inside their
homes so that they can access their files remotely simply because their homes
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January Term, 2018
happen to be in Ohio and their practices in another state? What about a New York
attorney who maintains an Ohio vacation home on Lake Erie and is there for several
months of the year? Certainly such an attorney has a continuous and systematic
presence in Ohio, but are we really going to say that she has engaged in the
unauthorized practice of law because she does New York legal work at her vacation
home?
{¶ 47} I would conclude that as applied to an out-of-state attorney who is
not practicing in Ohio courts or providing Ohio legal services, Prof.Cond.R.
5.5(b)(1) violates Article I, Section 1 of the Ohio Constitution and the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.2 As applied
to such an attorney, the rule violates Article I, Section 1 both because it does not
“bear[] a real and substantial relation to the public health, safety, morals, or general
welfare” and because it is “arbitrary” and “unreasonable,” Williams, 88 Ohio St.3d
at 524, 728 N.E.2d 342. Similarly, applying the rule to such an attorney violates
the Fourteenth Amendment because it does not bear a rational relationship to any
discernable state interest. See Washington v. Glucksberg, 521 U.S. 702, 728, 117
S.Ct. 2258, 138 L.Ed.2d 772 (1997); Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483, 491, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
III. Jones’s application should be granted
{¶ 48} The board recommended denial of Jones’s application for the sole
reason that she had engaged in the unauthorized practice of law in violation of
Gov.Bar R. VII(2)(A). Because I find the rule relied upon by the board to be
unconstitutional when applied to Jones and others who are similarly situated, and
2
Because of my conclusion that the rule as applied to Jones violates Article I, Section 1 of the Ohio
Constitution and the Due Process Clause of the Fourteenth Amendment, it is not necessary to
consider her arguments that it also violates the Privileges and Immunities Clause of Article IV,
Section 2 of the United States Constitution and the Privileges or Immunities Clause of the Fourteenth
Amendment to the United States Constitution.
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SUPREME COURT OF OHIO
because there was no other basis for the board’s recommendation, I concur in the
court’s judgment approving Jones’s application.
KENNEDY and DEGENARO, JJ., concur in the foregoing opinion.
_______________
Bieser, Greer & Landis, L.L.P., and David C. Greer, for applicant.
Taft, Stettinius & Hollister, L.L.P., Brian G. Dershaw, and Justin D. Flamm,
for the Cincinnati Bar Association.
Dinsmore & Shohl, L.L.P., Brian S. Sullivan, Mark A. Vander Laan, and
Heidi W. Dorn, for amicus curiae Dinsmore & Shohl, L.L.P., in support of
applicant.
Frost Brown Todd, L.L.C., and Matthew C. Blickensderfer, in support of
none of the parties for amicus curiae Frost Brown Todd, L.L.C.
Thompson Hine, L.L.P., Thomas L. Feher, Frank R. DeSantis, and Karen
E. Rubin, in support of none of the parties for amicus curiae Thompson Hine, L.L.P.
Bricker & Eckler, L.L.P., and Randolph C. Wiseman, in support of none of
the parties for amicus curiae Bricker & Eckler, L.L.P.
Squire Patton Boggs, L.L.P., and Pierre H. Bergeron, in support of none of
the parties for amicus curiae Squire Patton Boggs, L.L.P.
Porter, Wright, Morris & Arthur, L.L.P., Robert W. Trafford, and Charles
C. Warner, in support of none of the parties for amicus curiae Porter, Wright,
Morris & Arthur, L.L.P.
Keating, Muething & Klekamp, P.L.L., and James R. Matthews, in support
of none of the parties for amicus curiae Keating, Muething & Klekamp, P.L.L.
__________________
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