2018 Ethics Symposium

Professionalism:
A View from the
BENCHHonorable James E. Green
Franklin County Municipal Court

Unauthorized Practice of Law:
A bar to admission ?
Jonathan Coughlan
Coughlan Law Firm LLC
81 Mill Street
Columbus, Ohio 43230

For example --
• Kentucky lawyer
• Properly licensed in
Kentucky
• Working on Kentucky
legal matters
• Only for Kentucky
clients
• At Ohio firm with
Kentucky clients
• From Firm’s Cincinnati
office
• While living in
Cincinnati
UPL?
This Photo by Unknown Author is licensed under CC BY

Or…. What about…..
• Washington DC lawyer
• Partner in DC Firm
• Engaged in Federal Regulatory
Practice
• All large corporate clients
• Working for 6 months from Mom’s
house in Cleveland
• Not working on any Ohio matters
• Nor for any Ohio Corporations
UPL?This Photo by Unknown Author is licensed under CC BY-ND

OR.. How about….
• Lawyer licensed in Texas & NY
• Represents clients in both
jurisdictions
• On Tax matters – both state and
federal
• Wife takes a job in Toledo (M.D.)
• Works on client matters from
Toledo home
• Travels to Texas office
occasionally
•UPL?

And, finally……
• Indiana Lawyer
• Works out of Cincinnati law
firm
• On Indiana legal matters
• For Indiana clients
• Occasionally, assists Ohio
licensed partner on Ohio
matters under her
supervision
• Lives and works during the
evenings in Ohio home
This Photo by Unknown Author is licensed under CC BY-NC-ND

Rule 5.5 (b)
• A lawyer not admitted in Ohio
shall not:
(1) Establish an office or other
systematic and continuous
presence in Ohio for the
practice of law;
(2) Hold out to the public or
otherwise represent the
lawyer is admitted to practice
law in Ohio
This Photo by Unknown Author is licensed under CC BY-SA

Rule 5.5
• Lawyer duly licensed in another state may provide legal services on a
temporary basis in this jurisdiction of one or the following apply:
• In association with an Ohio lawyer who participates in the matter;
• Reasonably related to proceeding before tribunal in Ohio or another
state and if the lawyer, or the person lawyer is assisting, is authorized
by law or order to appear or reasonably expects to be so authorized;
• Related to pending/potential mediation, arbitration, ADR, in Ohio or
another state, and services reasonably related to lawyer’s practice
• Lawyer engages in negotiations, investigations, or other nonlitigation
activities that are reasonably related to lawyer’s practice in home
state
• PHEW!

ALL of these possibilities are
contingent on one requirement ---
-
TEMPORARY
This Photo by Unknown Author is licensed under CC BY-SA

First question --
• Does representing
out-of-state clients in
non-Ohio matters
from an Ohio location
constitute practicing
law in Ohio?This Photo by Unknown Author is licensed under CC BY

Gov. Bar R. VII
§2
The rendering of
legal services for
another by any
person not admitted
to practice in Ohio is
UPL
This Photo by Unknown Author is licensed under CC BY-ND

So, in Ohio…
The answer to the
question is YES -- it
is UPL for an
licensed out-of-state
lawyer to work on
their home
jurisdiction matters
while physically in
Ohio…

And, there are
a series of
exceptions to
Gov. Bar Rule
VII § 2….. The
relevant one
here is Rule
5.5
This Photo by Unknown Author is licensed under CC BY-NC-ND

Brings us back to 5.5 (c)
• Lawyer duly licensed in another state may provide legal services on a
temporary basis in this jurisdiction of one or the following apply:
• In association with an Ohio lawyer who participates in the matter;
• Reasonably related to a proceeding before a tribunal in Ohio or another state
and if the lawyer, or the person lawyer is assisting, is authorized by law or
order to appear or reasonably expects to be so authorized;
• Related to pending/potential mediation, arbitration, ADR, in Ohio or another
state, and services reasonably related to lawyer’s practice
• Lawyer engages in negotiations, investigations, or other nonlitigation
activities that are reasonably related to lawyer’s practice in home state

Specific cases
– In re Egan
• Egan worked at Cincy law firm
from 2002 – 2013
• Limited her practice to Kentucky
matters
• 2008 – applied for admission on
motion
• Denied – did not have 5 years
practicing in another
jurisdiction
• 2015 – applied to take 2016
Ohio bar exam

In re Egan
• Lawyer testified she had no idea she
might be engaged in UPL until she met
with counsel to assist with her application
• And the Cincy bar association lawyers
who interviewed her were equally
unaware this might be an issue so they
approved her application
• C & F board found that lawyer had
engaged in UPL – rec’d admission be
denied
• Noting that the “temporary” exception in
5.5(c) did not apply, the Court found she
engaged in UPL

Due to
exemplary
character and
professional
reputation
She was allowed
to sit for the Feb.
2018 exam

So, had to wait from 2015
until Feb 2018
• Not because she engaged in some
questionable conduct in a single legal
matter
• Not because she represented an Ohio
client when she wasn’t licensed in
Ohio
• Not because she had some legitimate
character issues – truthfulness, or
reliability or trustworthiness
• Not because she had a substance issue
• NOPE – just because her office was
located in Cincinnati

Another case – Texas/NY Tax Lawyer
• 2014 --Moved to Toledo because of wife’s new
position
• Continuing to represent clients in Texas & NY
• 2016 -- Decided to offer Tax Clinic at Law
School
• 2016 Sought admission on motion to Ohio bar
• Had requisite 5 years in another jurisdiction
• BUT what was the one difference between his
circumstances and Egan’s?This Photo by Unknown Author is licensed under CC BY-NC-ND

Rule 5.5 (b)
• A lawyer not
admitted in Ohio shall
not – establish an
office to other
systematic and
continuous presence
in Ohio for the
practice of law
This Photo by Unknown Author is licensed under CC BY-SA-NC

His actions violated
the “Boots on the
ground” rule just as
much as Egan’s
BOTH represented
clients from their
home jurisdiction &
both did so from an
Ohio location
This Photo by Unknown Author is licensed under CC BY-NC

Latest case
… Alice A.
Jones
2009 --Licensed in Kentucky
2009- 2015 Worked in Kentucky
2/2015 – her firm was acquired by Dinsmore
10/2015 – applied to take Ohio bar
11/2015 – moved to Cincy, worked in Cincy
office
ONLY worked on Kentucky matters for
Kentucky clients
Cincy Bar Association approved her application

Alice A.
Jones
05/2016 – C & F requested supplemental affidavit
11/2016 – C & F hearing panel appointed
04/2017 – C & F hearing held
08/2017 – Admission denied, order confirmed only
issue was her physical presence in Ohio, requested
an affidavit saying – ceasing practice in Ohio and only
engaging in services of a paralegal.
Jones refused to abandon Kentucky clients and
submit an affidavit with a faulty premise
(that she did not fit under 5.5 (c))

And since C & F
order in Aug.
2017
04/2018 – Supreme Court issued show cause order
07/2018 – Case argued to Supreme Court
Since 2015 Jones has –
Worked exclusively on Kentucky matters
Traveled to Kentucky to work on client matters
Maintained Dinsmore’s Kentucky address and phone #,
business cards & professional profile on firm’s website

Jones’
argument – in
compliance
with 5.5
Lawyer duly licensed in another state
may provide legal services on a
temporary basis in this jurisdiction if:
Reasonably related to proceeding before
a tribunal in Ohio or another state and if
the lawyer, or the person lawyer is
assisting, is authorized by law or order
to appear in such proceeding or
reasonably expects to be so authorized;

Temporary
because her
application
has been
pending this
whole
time….
This Photo by Unknown Author is licensed under CC BY-SA-NC

So, which is it?
• Is she an out-of-state lawyer who
established an office with a
systematic and continuous
presence in Ohio for the practice
of law?
• OR
• Is she temporarily providing
services related to pending or
potential proceedings before a
tribunal in another jurisdiction
where the lawyer is authorized to
appear?

The End
Jon Coughlan
Coughlan Law Firm LLC
81 Mill St. Suite 300
Columbus, Ohio 43230

SWITCHING
Law Firms:
Walking the Tight Rope
Presented by
Chris Weber

RPC 5.6
No restrictive
covenants

Permissible Planning
ACTIONS
Obtain office space, supplies,
equipment
Financing
Prepare list of clients expected
to leave the firm
Inform clients

RPC 7.3a
In person/phone/real
time electronic

Ohio’s
GUIDE
Clients with whom lawyer had
“significant personal contacts”
“Determined from
prospective of client”
“Who at firm represents you”

Joint Letter
from law firm and
departing lawyer

Date of departure
Status of matter
Whom to contact
for file transfer
Client options
Fee on deposit
Address A/R

No Joint Letter?
Separate letter – RPC 1.4

Don’t disparage
Cover same
contents
Don’t encourage
clients to sever ties
with the firm

Client
FILE
Cooperate with transfer
Bear expense to copy
Don’t hold hostage

Firm DON’Ts
Don’t disparage
Don’t restrict access to records
Don’t refuse to provide new
contact info
DO monitor departing
lawyer’s emails

Lawyer DON’Ts
Don’t take client lists
Don’t take firm property/records
Don’t take firm’s financial data

Additional Client Considerations
Confidentiality Change of
Counsel
Refund
Unearned Fees

RPC 1.6
Disclosure for
conflict purposes

Chris Weber
Kegler Brown Hill + Ritter
cweber@keglerbrown.com
keglerbrown.com/weber
614-462-5415

Upon death or dissolution of a Member, the other
Members shall have the option to purchase; if the
other Members exercise such option to purchase,
then the affected Member or the personal
representative of the estate of the deceased Member
shall sell all of the Company Units owned by the
Seller. The Purchaser shall exercise such option, if at
all, by written notice of exercise delivered to the
Seller within one hundred eighty (180) days after the
occurrence of the Triggering Event. The purchase
price and terms of payment for such purchase shall
be as provided in Sections 10.5, 10.6, and 10.7 below.

RPC 1.7
Conflicts
A lawyer’s acceptance or continuation
of representation of a client creates a
conflict of interest if either:
Representation of client will be directly
adverse to another current client; OR
There’s substantial risk the lawyer’s
ability to consider, recommend, or carry
out an appropriate course of action for
that client will be materially limited by
lawyer’s responsibilities to another
client, a former client, a third person or
by the lawyer’s own personal interests

CRITICAL
Questions
Difference in interests between the client
and lawyer or between two clients exists
or is likely to arise?
Whether this difference in interests will
materially interfere with the lawyer’s
independent professional judgment?

Shall not accept/continue
representation unless:
Competent +
diligent
representation
to each client
Informed
consent,
confirmed in
writing
Not prohibited
by division (c)

RPC 1.7
Conflicts
Even if clients consent, can’t
accept representation if either:
Prohibited by law; OR
One client will be asserting a claim
against another in the same
proceeding

Will the
check clear?
ACCEPT
representation
REJECT
representation

Competent +
diligent
representation
to each client
Legal knowledge, skills,
thoroughness, prep
Dedication to client interests
Ability to “see it through”
to conclusion

Informed
consent
confirmed in
writing
Aware of relevant circumstances
Reasonably foreseeable adverse
effects of conflict
Highly fact specific

Not prohibited
by division (c)
Is it prohibited by law?
Is one party asserting claim
against another?
Usually arises in litigation,
not transactional

RPC 1.7
Conflicts
Depending on the
circumstances, a material
limitation conflict may be
present

IMPORTANCE
of an Engagement Letter
“We understand that our
clients are Don Draper,
Bertram Cooper, Roger
Sterling + Pete Campbell”

Define scope
Avoid “Re: Legal
Representation”
Define what you’re
doing
Define what you’re
NOT doing

RPC 1.7
Conflicts
Whether the lawyer may
properly request a client to
waive conflicts that might arise
in the future is subject to the
test of division (b)

RPC 1.7
Conflicts
The effectiveness of such
waivers is generally determined
by the extent to which the
client reasonably understands
the material risks that the
waiver entails

Sophisticated client
Particular type of conflict
With which the client
is already familiar

Unsophisticated client
General/open-ended waiver
Limited explanation

RPC 1.7
Conflicts
A lawyer cannot represent
multiple parties to a
negotiation whose interests are
fundamentally antagonistic,
regardless of their consent

Sophisticated client(s)
Agree on key terms
All over but the drafting

RPC 4.2
Represented Person
A lawyer shall not communicate
about the subject of the
representation with a person the
lawyer knows to be represented by
another lawyer in the matter, unless
the lawyer has the consent of the
other lawyer or is authorized to do
so by law or a court order

YOU
Don, just send me an
email while we’re on the
phone, confirming that
it’s okay we proceed
without your lawyer.

RPC 1.7
Conflicts
The rule applies even though the
represented person initiates or
consents to the communication. A
lawyer must immediately terminate
communication with a person if,
after commencing communication,
the lawyer learns that the person is
one with whom communication is
not permitted by this rule

Can you discuss
with in-house
counsel

From: Other party’s lawyer
To: Other party
cc: You
Subject: Why we will destroy the other side
Dear So-and-so:
The other party is weak, but they will get weaker. Their Board is
starting to revolt. We will have a huge opportunity to buy for
pennies if we wait two weeks. I would recommend cooling
negotiations for now. Let’s move when they start to circle the
drain.
Sincerely,
Other party’s lawyer

RPC 4.4Respect for Third Parties
A lawyer who receives a
document or ESI relating to the
representation of the lawyer’s
client and knows or reasonably
should know that the document
or ESI was inadvertently sent
shall promptly notify the sender

From: Other party’s lawyer
To: Other party
cc: You
Subject: Why we will destroy the other side
ATTORNEY CLIENT PRIVILEGED COMMUNICATION
Dear So-and-so:
The other party is weak, but they will get weaker. Their Board is
starting to revolt. We will have a huge opportunity to buy for
pennies if we wait two weeks. I would recommend cooling
negotiations for now. Let’s move when they start to circle the
drain.
Sincerely,
Other party’s lawyer

RPC 4.4Respect for Third Parties
Where a lawyer is not required
by applicable law to do so, the
decision to voluntarily return
such a document or delete ESI is
a matter of professional
judgment ordinarily reserved to
the lawyer

From: Me
To: Other party
Subject: Inadvertent communication
Dear Other party’s lawyer:
This morning you inadvertently copied me on what appeared to
be a privileged communication with your client. As soon as I
realized what it was, I stopped reading it and permanently
deleted all copies from all of my electronic mailboxes. If the
communication was intended for me, please re-send it.
Sincerely,
Me

CLIENT
(seller)
We would be willing to
have some of the deal
money paid by way of an
earnout provision.

YOU
Paying some of the
purchase price through
an earnout is a non-
starter.

RPC 4.1
Truthfulness
In the course of representing a client,
a lawyer shall not knowingly do either
of the following:
Make a false statement of material fact
or law to a third person
Fail to disclose a material fact when
disclosure is necessary to avoid
assisting in an illegal or fraudulent act
by a client

YOU
I don’t think an earnout
is going to work.

YOU
Earnouts come with all
kinds of problems on the
back end that I want to
avoid for my client.
Try again.

CLIENT
(CFO)
Find us tax savings. We’ll
pay you 30% of whatever
you save us.

RPC 1.5
Fees + Expenses
A fee may be contingent on the
outcome of the matter for which the
service is rendered:
Shall be in writing signed by client +
lawyer, explain terms
Lawyer must prepare closing
statement

RPC 1.5
Fees + Expenses
A lawyer shall not make an
agreement for, charge, or collect an
illegal or clearly excessive fee. To
determine if reasonable:
Time and labor, difficulty, skills
required
Amount involved, results obtained,
experience of lawyer, etc.

YOU
We spent three hours
and found one (lawful)
change that will save you
$3 million.

YOU
Please make our
$990,000 check out to
Kegler Brown Hill +
Ritter, LPA.

CLIENT
(CFO)
Find us tax savings. We’ll
pay you 5% of whatever
you save us.

YOU
We spent 40 hours ($12k
of billable hours) and
found one change that
will save you $1 million.

YOU
Please make our $50,000
check out to Kegler
Brown Hill + Ritter, LPA.

Real estate deal
Opposing counsel sends it back
No redlines
“Looks good. Thanks.”

RPC 3.4Fairness to opposing counsel
This is all about litigation – no
faking evidence, concealing
evidence, disobeying the court, etc.

RPC 4.1
Truthfulness
[1] A lawyer is required to be
truthful when dealing with others
on a client’s behalf.

RPC 4.1
Misconduct
It is professional misconduct for a
lawyer to do any of the following:
(c) Engage in conduct involving
dishonesty, fraud, deceit, or
misrepresentation

Jason H. Beehler
Kegler Brown Hill + Ritter
jbeehler@keglerbrown.com
keglerbrown.com/beehler
614-462-5452

2018 Ethics Symposium

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2018 Ethics Symposium