Crossing The Ohio River: A Significant Admissions Case

Dan Trevas previews an interesting case up for argument this Wednesday before the Ohio Supreme Court

In re Application Alice Auclair Jones, Case no. 2018-0496
Board of Commissioners on Character and Fitness

The Board of Commissioners on Character and Fitness recommends that attorney Alice A. Jones, who practiced law in Kentucky before transferring to her law firm’s Ohio office, not be admitted to the practice of law in Ohio without taking the Ohio bar examination. The board alleges that Jones is committing the unauthorized practice of law by continuing to represent Kentucky clients in Kentucky courts while residing and working in Ohio.

Jones has challenged the board’s decision that she is in violation of Rule 5.5 of the Rules of Professional Conduct. She asserts that because she doesn’t solicit or represent Ohio clients, she isn’t engaging in the unauthorized practice of law.

The Cincinnati Bar Association, which recommended Jones for admission without examination, and her law firm, Dinsmore & Shohl have filed amicus curiae briefs in her support, claiming the board’s interpretation of the rule would significantly harm the ability for Ohio law firms, companies, and government to attract quality attorneys who are in good standing in other jurisdictions. A joint brief supporting Jones was submitted by six of Ohio’s largest law firms. 

Attorney Marries and Moves
In 2009, Jones became a member of the Kentucky Bar Association and began her legal career as an assistant commonwealth attorney in Louisville. She served in that positon until 2014, when she entered private practice as an associate attorney in the Louisville office of Huddleston Bolen.

In 2015, Dinsmore & Shohl acquired Huddleston Bolen, and Jones became an associate attorney in the Dinsmore Louisville office. Later that year, she planned to move to Cincinnati with her future husband and requested permission to transfer to Dinsmore’s Cincinnati office. The firm allowed her to transfer with the condition that she apply and be admitted to the Ohio bar, and that she continue to practice Kentucky law exclusively until her application was resolved. She filed her application to be admitted without examination to practice law in Ohio and then moved to Ohio.

Jones began working in Cincinnati, restricting her practice to Kentucky matters, then took maternity leave, before returning to practice.

A Cincinnati Bar Association committee interviewed Jones in April 2016 and recommended to the board that her application be approved.

Board Concerned About Continued Practice
After an April 2017  hearing, the board filed an entry stating that except for her physical presence in Ohio, there were no issues affecting Jones’ character, fitness, or moral qualifications to practice law. The board, however, ordered Jones to cease the practice of law and submit an affidavit stating she would only provide services that could be offered by a paralegal or law clerk until the board completed its review.

Jones responded that her practice wasn’t in violation of Ohio’s professional conduct rules and that she would continue to represent Kentucky clients. The board responded that the Ohio Supreme Court hasn’t directly addressed the issue of whether Rule 5.5 permits an attorney licensed in another jurisdiction to practice law, pending admission to Ohio, so long as the attorney isn’t practicing Ohio law. The board’s panel concluded Jones’ activities constitute the unauthorized practice of law, which makes her unfit for admission without exam to the Ohio bar.

Rule Prohibits Kentucky Representation, Board Argues
The character and fitness board notes that Rule 5.5 states, “A lawyer who is not admitted to practice in this jurisdiction shall not, except as authorized by these rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” The board also indicates that Rule 5.5(c)(2) provides that a lawyer in good standing in another jurisdiction may provide services on a temporary basis.

The board explains that Jones contends her practice is “temporary” and that she is in compliance with the rule. However, the board argues the provision acts as an exception for those not establishing a “systematic and continuous presence.” The board concludes that Jones’ work and residence in Ohio is the type of sustained presence that disqualifies her for the temporary status exception.

“Whether an attorney is handling a matter involving Ohio law or the law of another jurisdiction, the attorney is in either case practicing law. Applicant is merely contending that while in Ohio she is not dealing with matters that arise under Ohio law, but that does not mean that she is not practicing law in Ohio while not admitted to do so,” the board’s report stated.

Attorney Challenges Board’s Interpretation, Raises Constitutional Issues
Jones contends that the board misinterprets the meaning of “temporary” in the rule, and notes that an official comment to the rule indicates attorneys moving to Ohio from another jurisdiction may continue to serve their existing clients on a “temporary” basis, which may last for extended periods of time based on the nature of the legal matter. She argues the board states the typical duration of an application to be admitted without exam lasts nine months, and argues that she has done nothing to prolong the matter, which has now taken more than two and a half years.

Jones maintains that the board misinterprets the rule, which allows a lawyer to establish a systematic and continuous presence in Ohio while awaiting admission. However, she argues she hasn’t established anything other than a physical presence in the state, which is not the same thing as a systematic and continuous presence. A systematic presence would require an attempt to solicit and represent clients in Ohio or being engaged in firm work on Ohio matters, which she hasn’t done.

As a matter of public policy, Jones argues the state’s concern regarding the unauthorized practice of law is the protection of the public from unqualified representation. She notes that she isn’t harming or risking the harm of any Ohioan because her practice is exclusively in Kentucky.

Additionally, Jones raises a constitutional question about whether the law discriminates against out-of-state lawyers moving to Ohio. She notes the rules allow an Ohio lawyer to practice law in Ohio while not physically present in the state. An Ohio lawyer can permanently move to Florida and practice law in Ohio every day through the use of a computer, she observes. She argues the U.S. Constitution’s Fourteenth Amendment’s privileges and immunities clause and due process clause is violated by allowing Ohio lawyers to practice from anywhere, while characterizing the work of a Kentucky attorney working out of Ohio as the unauthorized practice of law.

Law Firms Concerned About Board’s Position
The joint brief submitted by Thompson Hine, Frost Brown Todd, Bricker & Ecker, Squire Patton Boggs (US), Porter Wright Morris & Arthur, and Keating Muething & Klekamp takes no position on whether Jones should be admitted, but expresses concern about the board’s interpretation of Rule 5.5. The firms state that the board’s position doesn’t protect against any identifiable threat of harm that licensed attorneys from other states would pose by serving clients from other states while awaiting admission to Ohio. However, they find the board’s interpretation would be a “substantial impediment” to recruiting attorneys and unduly restricts the mobility of lawyers.

– Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Alice Auclair Jones: David Greer, 937.223.3277

Representing the Cincinnati Bar Association: Brian Dershaw, 513.357.9359

(Mike Frisch)