Grappling with the realities of an increasingly mobile legal industry, the Ohio Supreme Court is considering whether a Dinsmore & Shohl associate who moved from Kentucky to Cincinnati could continue serving Kentucky clients as she awaits admission to the Ohio bar.
The Ohio high court heard oral arguments on Tuesday in the case of Alice Jones, a Dinsmore & Shohl litigation associate who joined that firm in 2015 after it merged with Huddleston Bolen. Jones, who was admitted to the Kentucky bar in 2009 and worked for several years as an assistant prosecutor in Louisville, joined Huddleston’s Louisville office in 2014.
The case challenges a determination by Ohio’s Board of Commissioners on Character and Fitness, which in February held that Jones’ working arrangement—in which she lives in Ohio but has stuck to representing Kentucky clients under Kentucky law, under the supervision of a Louisville-based partner—was out-of-step with the bar admission rules in Ohio.
Arguing for Jones, David Greer of Bieser Greer & Landis said on Tuesday that the board’s determination ran counter to both common sense and the specific facts surrounding Jones’ situation.
“If you look at this case either close up or at a distance, Alice Jones is qualified and has a right to be admitted reciprocally to the practice of law in Ohio,” Greer said, according to a video of Tuesday’s arguments.
The questions about Jones’ potential admission to the Ohio bar trace back to 2015, when the associate requested a transfer to Dinsmore’s Cincinnati office so she could start and raise a family in Ohio, according to court documents. The firm granted her request but asked Jones to first apply for admission to the Ohio bar. It also required her to continue working only on matters arising under Kentucky law while her application for admission to the Ohio bar was pending.
Following the firm’s suggestions, Jones applied in October 2015 for reciprocal admission to the Ohio state bar—a process that would allow her to avoid retaking the bar exam in Ohio. She then moved to Cincinnati and worked only on Kentucky matters. She took a maternity leave and returned to practicing Kentucky law while based in Cincinnati, according to court documents in the case.
Despite a favorable recommendation in early 2016 from the Cincinnati Bar Association and a determination by Ohio’s character and fitness board that there weren’t any problems with Jones’ fitness or character, the board expressed concern over Jones’ activity as a lawyer while living in Ohio.
Ultimately, the board held that because she was living in Ohio and practicing law, but wasn’t admitted to the state bar, Jones was effectively engaging in the “unauthorized practice of law” under Ohio’s professional conduct rules. That unauthorized practice, in turn, made her unfit for admission without taking the Ohio bar exam, the board held.
“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 wrote in its report, which was approved in February.
Jones and her firm, along with the Cincinnati bar association, represented by Taft, Stettinius & Hollister, all challenged that conclusion. In briefs and during Tuesday’s oral arguments, they maintained that Ohio’s rules allow a lawyer to practice in her home jurisdiction—in Jones’ case, Kentucky—during the temporary period while her application for bar admission is pending.
“Out-of-state lawyers who move to Ohio and continue the practice of law of the jurisdiction where they are licensed while awaiting admission do not engage in the unauthorized practice of law, so long as they do not solicit or represent Ohio clients,” Jones’ firm, Dinsmore, wrote in an amicus brief filed on June 12.
Jones also invoked the U.S. Constitution’s due process provisions under the 14th Amendment. In a May brief, Jones’ lawyer noted that Ohio’s bar rules would allow an Ohio lawyer to practice Ohio law even if that lawyer was physically doing the work in another place. But, Jones argued, the board’s view would prohibit an out-of-state lawyer who wanted to do some work while in Ohio.
“The practice of Kentucky law by a Kentucky lawyer has no substantial relationship to the unauthorized practice of Ohio law whether that lawyer is physically located in Kentucky, or in Ohio, or in Florida, or anywhere else,” wrote Jones’ lawyer, Greer, in the May brief. “To require a Kentucky lawyer who is physically present in Ohio to abandon her Kentucky clients and to abandon her professional status as a lawyer constitutes unconstitutional discrimination against out-of-jurisdiction bar applicants.”
The case, which the Ohio Supreme Court took under advisement after Tuesday’s arguments, has drawn the attention of six prominent firms with a heavy presence in Ohio—Thompson Hine; Frost Brown Todd; Bricker & Eckler; Squire Patton Boggs; Porter Wright Morris & Arthur; and Keating Muething & Klekamp. The firms submitted a collective amicus brief on June 12.
Although they didn’t come out directly in support of Jones, the firms argued that the board’s determination in her case could create a “substantial impediment” to their attempts to recruit lateral hires. The firms also argued that it is good public policy to allow lawyers to practice in Ohio temporarily as they await admission to the state bar. Such an arrangement, they wrote, helps promote client choice and attract highly skilled professionals who want to live in Ohio and support the state economy.
“The board’s interpretation mandates that potential lateral hire candidates who want to come to Ohio to live, work and pay taxes can only do so if they choose to give up their practice and livelihoods for the eight-to-10 months it takes to process their admission applications,” the firms wrote in their amicus brief. “A regulatory structure that unduly restricts lawyer mobility—without an overriding need to do so and without a clear resulting benefit—is contrary to the interests of clients, the state, the organized bar and the firms such as these amici that serve clients and help drive Ohio’s economy.”