As adopted by the Ohio State Bar Association Council of Delegates:
In January, 2001, then OSBA President Reginald S. Jackson Jr. appointed a Special Committee on Multijurisdictional Practice (MJP) to examine all of the aspects of MJP, including its relationship to the unauthorized practice of law and the regulation of the legal profession.
The special committee is composed of Robert N. Farquhar, chair, Dayton; F. M. Apicella, Cleveland; Frank E. Bazler, Troy; Professor William C. Becker, Akron; Paula L. Brooks, Columbus; Richard D. Brooks Jr., Columbus; Robert L. Ellis, Columbus; Jonathan W. Marshall, Columbus; Marcia J. Mengel, Columbus; Frederick L. Oremus, Athens; Mary Lee Pilla, Solon; Kenneth F. Seibel, Cincinnati; and Patricia A. Walker, Medina. Staff support was provided by William K. Weisenberg, assistant executive director for public affairs and government relations, and Eugene P. Whetzel, general counsel.
The special committee met on May 3, 2001, and June 15, 2001. In addition, it reviewed numerous documents and reports from the American Bar Association Commission on MJP and other jurisdictions. Special committee members Farquhar and Apicella and staff counsel Weisenberg attended hearings conducted by the ABA commission, and the special committee conducted a survey of OSBA members that is included as an appendix to this report.
The special committee recognizes the changing landscape of the world in which we live, where commerce and industry seem without boundaries or barriers. Technology has ushered in an age of instant and boundless communication where geographic and jurisdictional boundaries appear as mere lines on a map. Today, the practicing lawyer can conduct business on behalf of a client across states, countries and continents without leaving his or her home or office. If necessary, the same lawyer could transact business in multiple locations in a single day. The increase in the speed by which we travel and communicate brings with it rising client expectations concerning how fast the "deal" can be consummated and where to go next. Clients want their lawyers to transact business on their behalf and want their lawyers to be front and center. Today's lawyers are expected to be mobile and extra-territorial.
Increasingly, the practice of law is a national-international profession. Lawyers transact business and provide representation across state lines more than ever, using teleconferencing, facsimiles and other means of electronic communication. What laws and ethical rules should apply to these endeavors? Does the Ohio lawyer risk engaging in the unauthorized practice of law while representing a client in Illinois? More substantively, should the lawyer be exposed to such a risk? Should the Illinois lawyer representing a client "incidentally" in Ohio need to be licensed in Ohio? Should the Illinois lawyer be subject to Ohio's disciplinary rules, continuing legal education rules, competence, character and fitness, and professional liability insurance rules? What if the "foreign" lawyer sets up "shop" in Ohio or affiliates with an Ohio law firm? Should the "foreign" lawyer be required to register or notify Ohio authorities? Should the "foreign" lawyer be required to be licensed? These are just a few of the questions examined by the special committee and parallel committees across the country.
The special committee weighed the survey of OSBA members, reports and commentary from the ABA Commission on MJP, literature from other states and entities, and the diverse opinions of members of the special committee.
Both a majority and minority report were submitted to the Council of Delegates that considered the matter at its Nov. 9, 2001, meeting. The Council of Delegates adopted the majority report after amending into it several recommendations from the minority report. The report as adopted by the Council thus assimilated the majority and minority report recommendations into one cohesive document designed to provide optimum protection to the public.
The following principles were adopted by the Council of Delegates pertaining to the activities of lawyers in representing clients in a multijurisdictional capacity, as such activities pertain to the unauthorized practice of law1:
1. A lawyer admitted in another jurisdiction who represents a client in Ohio shall be subject to the disciplinary rules of Ohio adopted by the Supreme Court of Ohio. In this regard, it is recommended that all states adopt reciprocal policies pertaining to discipline that afford full faith and credit to the disciplinary rules of the state where the misconduct or other breach occurs.
2. A lawyer shall consent to the appointment of the clerk of the Supreme Court of Ohio as agent on whom service of process may be made for all actions against the lawyer or the lawyer's firm that may arise out of the lawyer's participation in legal matters in this jurisdiction.
3. A lawyer admitted to practice in another jurisdiction who provides legal services in Ohio shall be in good standing in the jurisdiction where the lawyer is licensed and shall not be subject to a current or pending license suspension or disbarment in another state, and shall not hold himself or herself out as being admitted to practice in this jurisdiction.
4. To open a law office in Ohio, a person must be admitted to practice in Ohio; otherwise, this constitutes the unauthorized practice of law. If a law firm opens an office, all lawyers resident in the office must be admitted in Ohio.
5. In-house counsel should be permitted to represent his or her employer consistent with Gov. Bar Rule VI, Section 4, other than where pro hac vice must be obtained.
6. Provision of services as a mediator or arbitrator does not constitute the practice of law and should be permitted without requiring any pro hac vice or other admission.
7. The prohibition on the unauthorized practice of law shall not apply to an attorney duly licensed and authorized to practice law in another state while such attorney is temporarily in this state and is engaged with respect to existing clients in either (i) a particular matter, or (ii) particular matters to the extent such matters arise out of or are otherwise reasonably related to the lawyer's practice in such other state.
8. A lawyer should not be considered engaged in the unauthorized practice of law while performing:
a. activities that a nonlawyer could perform;
b. activities that constitute advice or opinion work on a matter of special experience of the lawyer, if that expertise or experience is in an area of law that is federal, e.g. patent, trademark, copyright, federal taxation, Social Security and the like.
c. Activities that constitute advice or opinion on a matter of special experience of the lawyer if that advice relates to the interpretations or application of another state's laws to an Ohio client.
The committee recommends that the provisions of proposed Rule 5.5 of the Model Rules of Professional Conduct as reported by the ABA Ethics 2000 Commission be considered as safe harbor for a lawyer practicing outside his or her licensing jurisdiction. The relevant provisions are as follows:
". . . (b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when:
(1) the lawyer is authorized by law or order to appear before a tribunal or administrative agency in this jurisdiction or is preparing for a potential proceeding or hearing in which the lawyer reasonably expects to be so authorized; or
(2) other than engaging in conduct governed by paragraph (1):
(i) a lawyer who is an employee of a client acts on the client's behalf, or in connection with the client's matters on behalf of the client's commonly owned organizational affiliates;
(ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer's representation of an existing client in a jurisdiction in which the lawyer is admitted to practice; or
(iii) the lawyer is associated in a particular matter with a lawyer admitted to practice in this jurisdiction who actively participates in the representation.
(c) A lawyer shall not assist another person in the unauthorized practice of law."
Adopted by the OSBA Council of Delegates Nov. 9, 2001
*The appendix that refers to a survey of OSBA members is available upon request.
1 The Council of Delegates recognizes that some of these principles are already well established rules in Ohio and restates them here simply for the purpose of clarity and completeness.