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Ohio Cannot Discipline D.C. Lawyer Who Has Bankruptcy Practice in Ohio

Wednesday, October 9, 2013
By Joan C. Rogers

Oct. 7 --The Ohio Supreme Court Sept. 26 held that its disciplinary authority does not extend to a lawyer who is licensed in another jurisdiction but practices in federal bankruptcy courts in Ohio and has represented Ohio residents in other matters ( Disciplinary Counsel v. Harris, Ohio, No. 2012-1698, 9/26/13).

In an opinion by Justice Terrence O'Donnell, the court concluded that the lawyer is not subject to discipline for allegedly violating the Ohio Rules of Professional Conduct because he has never been admitted to practice in Ohio. Instead, the lawyer's actions fall within the purview of the court's unauthorized practice board, it said.

Bankruptcy Practice in Buckeye State
Donald Harris is a member of the District of Columbia bar and is admitted to the bars of the U.S. district courts in Ohio. He focuses his practice in bankruptcy law before the federal courts in Ohio.

Ohio disciplinary authorities charged Harris with violating Ohio's lawyer conduct rules in a bankruptcy matter and other aspects of his practice.

Harris contended that he was not subject to Ohio's disciplinary authority and that Rule 5.5(a)--which prohibits a lawyer from practicing law in a jurisdiction in violation of its regulations governing the legal profession--applies only to Ohio-licensed attorneys who practice in another jurisdiction.

However, a hearing panel found, and the Board of Commissioners on Grievances and Discipline agreed, that Harris was subject to discipline under Rule 8.5, had committed numerous rule violations, and should be indefinitely suspended from representing Ohio citizens in Ohio.

Rule 8.5(a) states in part: “A lawyer not admitted in Ohio is also subject to the disciplinary authority of Ohio if the lawyer provides or offers to provide any legal services in Ohio. A lawyer may be subject to the disciplinary authority of both Ohio and another jurisdiction for the same conduct.”

Not Subject to Ohio Ethics Rules.
The supreme court dismissed the disciplinary case against Harris. “Because Harris is not a member of the Ohio bar, he is not subject to this court's disciplinary authority,” it declared. “Rather, as an attorney not admitted to practice in Ohio, he may have engaged in the unauthorized practice of law by rendering legal services in Ohio to Ohio clients.”
“We cannot suspend or disbar an attorney who is not a member of the Ohio bar.”

Ohio Supreme Court

The court decided that the Ohio Rules of Professional Conduct do not apply to Harris because he is not a member of the Ohio bar and has not taken an oath to be bound by those rules. He never subjected himself to the rules because he has never been admitted to practice in Ohio, the court reasoned.

“[W]e are reluctant to impose our rules of conduct on him or other such attorneys who engage in the practice of law in our state,” the court stated. O'Donnell added that this situation was precisely why the court created the Board on the Unauthorized Practice of Law and why it defined UPL as “the rendering of legal services by any person not admitted to practice law in Ohio.”

In this regard, the court said, Harris is no different from an accountant, a real estate agent or a financial planner who undertakes activity that constitutes the practice of law and becomes subject to discipline within the UPL framework.

“It is inconsistent to conclude that an attorney admitted in another jurisdiction who engages in the unauthorized practice of law in Ohio becomes subject to the Board of Commissioners on Grievances and Discipline when another professional, such as a real estate agent, who engages in the unauthorized practice of law becomes subject to the UPL Board,” O'Donnell said.

The court also reasoned that its sanctions for serious misconduct--suspension from practice and disbarment--are ineffective and meaningless to lawyers who are licensed only in other states. “We cannot suspend or disbar an attorney who is not a member of the Ohio bar,” O'Donnell stated. “Thus, we consider these matters as alleged UPL violations.”

Referral to UPL Board
The court referred three of the four matters raised in the disciplinary case to its UPL board. Allegations that Harris established a limited liability company for an Ohio client, assisted an Ohio client in a mortgage modification and misrepresented his affiliation with an Ohio-licensed attorney amount to UPL allegations, the court said.

On the other hand, the court dismissed a charge that Harris engaged in misconduct in the course of representing a client in a federal bankruptcy proceeding in the Northern District of Ohio.

Noting that Harris was authorized to practice in the bankruptcy court and was subject to that tribunal's disciplinary authority, the court found that the charge of misconduct in the bankruptcy proceeding should be dismissed out of deference to the bankruptcy court because that court exercised its authority and declined to sanction him.

Geoffrey L. Oglesby, Sandusky, Ohio, represented Harris. Disciplinary Counsel Jonathan E. Coughlan and Assistant Disciplinary Counsel Philip A. King, Columbus, Ohio, represented their office.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

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