Office of Disciplinary Counsel v. Pavlik, 00-400.

• Decision Date: 16 August 2000
• Docket Number: No. 00-400.,00-400.
• Citation: 89 Ohio St.3d 458,732 NE 2d 985
• Parties: OFFICE OF DISCIPLINARY COUNSEL v. PAVLIK.
• Court: Ohio Supreme Court

89 Ohio St.3d 458

732 NE 2d 985

OFFICE OF DISCIPLINARY COUNSEL v. PAVLIK.

No. 00-400.

Supreme Court of Ohio.

Submitted May 9, 2000.

Decided August 16, 2000.

Jonathan E. Coughlan, Disciplinary Counsel, and John K McManus, Assistant Disciplinary Counsel, for relator.

Mark H. Aultman and Charles W. Kettlewell, for respondent.

COOK, J.

Respondent has stipulated to a violation of DR 3-101(A), conceding that he aided Misch—an out-of-state attorney—in the unauthorized practice of law in Ohio. In Part I, below, we discuss the rules applicable to out-of-state attorneys who perform legal services in Ohio. In Part II, we consider the appropriate sanction for respondent's acknowledged misconduct.

I. Preventing the Unauthorized Practice of Law by Out-of-State Attorneys

A discussion of the rules pertaining to the in-state legal services rendered by out-of-state attorneys will assist members of the bar in preventing problems such as those that arose in this case from occurring in the future. In Part A, we note that, although the text of DR 3-101(A) provides that "[a] lawyer shall not aid a non-lawyer in the unauthorized practice of law" (emphasis added), the rule prohibits Ohio attorneys from aiding either laypersons or attorneys unlicensed in Ohio in the unauthorized practice of law. In Part B, we discuss some of the authorized methods for out-of-state attorneys to offer their legal expertise in Ohio.

A. Aiding Out-of-State Attorneys in the Unauthorized Practice of Law

Canon 3 of the Code of Professional Responsibility and its associated Ethical Considerations and Disciplinary Rules focus on preventing "laymen" or "nonlawyers" from engaging in the unauthorized practice of law. In addition, EC 3-9 and DR 3-101(B) recognize the impropriety of attorneys' practicing law in jurisdictions where they are not licensed. Our rules prohibiting the unauthorized practice of law are intended to protect Ohio citizens from the dangers of faulty legal representation rendered by persons not trained in, examined on, or licensed to practice by the laws of our state. These dangers can arise from the services of out-of-state attorneys unfamiliar with Ohio's legal system as well as from the work of laypersons unschooled in the legal profession. Accord Ayamo v. State Bd. of Governors of Washington State Bar Assn. (1946), 24 Wash.2d 706, 167 P.2d 674. And since a state's internal attorney-discipline system can impose disciplinary sanctions only upon that state's own licensed attorneys, each state has an interest in restricting the practice of law within its borders to those attorneys who are subject to its disciplinary system. See Gov.Bar R. IV(1) ("The Code of Professional Responsibility * * * shall be binding upon all persons admitted to practice law in Ohio" [emphasis added]); see, also, 18 Internatl. Ltd. v. Interstate Express, Inc. (1982), 116 Misc.2d 66, 455 N.Y.S.2d 224.

For these reasons, our Rules for the Government of the Bar define 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 [interns], Rule IX [temporary certification], or Rule XI [foreign legal consultants] of the Supreme Court Rules for the Government of the Bar." (Emphasis added.) Gov.Bar R. VII(2)(A). The rules also provide that an attorney who is admitted to the practice of law in another state, but not in Ohio, and who is employed by an Ohio law firm may not practice law in Ohio or hold himself or herself out as authorized to practice in Ohio until admitted to practice here. Gov.Bar R. VI(4)(D).

An Ohio lawyer can aid the unauthorized practice of law and violate DR 3-101(A), then, by facilitating or failing to adequately limit, through supervision, the activities of a lawyer unlicensed in Ohio. Respondent has stipulated to such a violation in this case.

B. Out-of-State Attorneys in Ohio

Although we may enjoin out-of-state attorneys from engaging in the unauthorized practice of law in our state, and although Ohio attorneys such as respondent violate DR 3-101(A) by aiding out-of-state attorneys in the unauthorized practice of law, our state's Rules for the Government of the Bar are not blind to the interjurisdictional realities of modern legal practice. EC 3-9, part of the Code of Professional Responsibility adopted by this court in Gov.Bar R. IV, explicitly recognizes the tension that exists between our global society and each state's regulation of the unauthorized practice of law: "[T]he demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client * * * including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice." Our state's Rules for the Government of the Bar provide several avenues through which out-of-state attorneys may perform legal services in Ohio under certain circumstances.

1. Admission Without Examination

Gov.Bar R. I(9) permits certain experienced out-of-state attorneys to apply for admission to the practice of law in Ohio without examination, when those attorneys intend to practice law in Ohio "actively and on a continuing basis." Gov.Bar R. I(9)(A)(6). Division (H) of this rule emphasizes that an applicant for admission must not engage in the practice of law in Ohio prior to the approval of his or her application and presentation of the applicant to this court by a licensed Ohio attorney. By its own terms, however, Division (H) does not apply to participation in litigation by out-of-state attorneys in Ohio cases when the attorney participates with leave of court.

2. Registration for Corporate Status

Our rules also permit out-of-state attorneys employed full-time by nongovernmental Ohio employers (but not by Ohio law firms) to register for "corporate status." Gov.Bar R. VI(4). An out-of-state attorney granted corporate status under this section "may perform legal services in Ohio solely for a nongovernmental Ohio employer, as long as the attorney is a full-time employee of that employer." Gov.Bar R. VI(4)(A).

There are several important caveats to this rule. An attorney granted corporate status may not practice before any Ohio court or agency on behalf of the attorney's Ohio employer "or any person except himself or herself, unless granted leave by the court or agency." Gov.Bar R. VI(4)(B). And out-of-state attorneys who perform legal services in Ohio for their employers but do not register or qualify to register under this rule are subject to referral for investigation concerning the unauthorized practice of law. Gov.Bar R. VI(4)(C).

Finally, registration for corporate status does not apply to out-of-state attorneys who are employed by, associated with, or partners in an Ohio law firm. Gov.Bar R. VI(4)(D). "Until the attorney is admitted to the practice of law in Ohio, the attorney may not practice law in Ohio, hold himself or herself out as authorized to, practice law in Ohio, or practice before any nonfederal court or agency in this state on behalf of any person except himself or herself, unless granted leave by the court or agency. The law firm may include the name of the attorney on its letterhead only if the letterhead includes a designation that the attorney is not admitted in Ohio." Id.

3. Admission Pro Hac Vice

An out-of-state attorney who has not attained one of the above qualifications may still, with respect to a particular proceeding, appear before Ohio tribunals, participate in oral arguments, and file pleadings, memoranda, briefs, or other documents by following the applicable court rules of practice and obtaining admission pro hac vice. See, e.g., S.Ct.Prac.R. 1(2); Loc.R. 1.03 of the Court of Common Pleas of Lucas County, General Division; see, also, Gov.Bar R. I(9)(H).

4. Limited Practice of Law by Foreign Legal Consultants

Those admitted to the practice of law in a foreign country or political subdivision thereof may apply for a certificate of registration as a foreign legal consultant. See Gov.Bar R. XI. Foreign legal consultants may render legal services in Ohio, but they are subject to significant limitations regarding both the scope of those services and the legal documents or instruments that they may draft. Id., Section 5.

5. Partnerships Among Lawyers Licensed in Different Jurisdictions

Lawyers authorized to practice law in different jurisdictions may form partnerships and use the same firm name in each jurisdiction so long as the firm letterhead and other permissible listings of members and associates "make clear the jurisdictional limitations" on those attorneys. DR 2-102(D).

The foregoing discussion indexes some of the options available to out-of-state attorneys who wish to provide limited services to Ohio clients. In Cleveland Bar Assn. v. Misch, supra, 82 Ohio St.3d at 260-261, 695 N.E.2d at 247-248, this court discussed these rules, distinguished Misch's activities from those of a consultant, business broker, or paralegal, and held that Misch had impermissibly rendered legal services in Ohio. Respondent has acknowledged that he failed to monitor Misch to ensure that Misch did not mislead Sindell clients or exceed his limited authority, and that his breach of this duty led Sindell clients or former clients to erroneously believe that Misch was authorized to practice law in Ohio.

II. Determining the Appropriate Sanction

Relator objects to the board's recommendation that respondent receive a public reprimand, contending that respondent's misconduct—when measured against this court's precedent and the ABA Standards for Imposing Lawyer Sanctions— warrants a one-year suspension from the practice of law....