Is an Ohio attorney who is delinquent on biennial registration, but not yet stricken from the roll, engaged in the unauthorized practice of law while still practicing?
Ohio BPC Opinion 88-035: Delinquent Registration and the Unauthorized Practice of Law
Short answer: The Board concluded that an attorney who is delinquent in biennial registration but has not yet been stricken from the roll of registered attorneys is not engaged in the unauthorized practice of law during that period; the attorney does not engage in unauthorized practice until notified by the Supreme Court that he has been stricken and must discontinue practice.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007, and the Board flags subsequent amendments to Governing Bar Rule VI. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 5.5 on unauthorized practice) and the current Governing Bar Rules on attorney registration before relying on any specific rule mentioned here.
Plain-English summary
The Board was asked whether attorneys engage in the unauthorized practice of law if they render legal services while delinquent in their biennial registration with the Supreme Court of Ohio but not yet stricken from the rolls of registered attorneys.
The Board noted that the Code requires attorneys to assist in preventing the unauthorized practice of law (Canon 3), and that Governing Bar Rule VII defines the unauthorized practice of law as rendering legal services for others by anyone not registered under Governing Bar Rule VI, which sets the registration standard. It observed that a delinquent, not-yet-stricken attorney is technically not in compliance with the rule, but concluded the attorney is not engaged in the unauthorized practice of law unless and until notified by the Supreme Court that he has been stricken from the rolls and must discontinue practice; at that point the attorney has notice that rendering further legal services would be unauthorized practice. The Board also noted that biennial registration is effective for the entire two-year period, not just from the date of registration onward, and added that its conclusion was not meant to encourage attorneys to disregard prompt registration and payment of fees.
Common questions
Q: Is an attorney who misses registration but is still on the roll committing the unauthorized practice of law?
A: No. The Board concluded that an attorney who is delinquent in registration but not yet stricken from the roll is not engaged in the unauthorized practice of law during that period.
Q: When does it become unauthorized practice?
A: When the attorney is notified by the Supreme Court that he has been stricken from the rolls and must discontinue practice. After that notice, rendering further legal services would be the unauthorized practice of law.
Background and rules framework
The opinion applies former Canon 3 of the Ohio Code of Professional Responsibility (assisting in preventing unauthorized practice) and Governing Bar Rules VI (attorney registration) and VII (defining unauthorized practice). The current parallel on unauthorized practice is Ohio Prof. Cond. R. 5.5 and Model Rule 5.5, together with the current Governing Bar Rules on registration.
Citations and references
Rules of Professional Conduct and Governing Bar Rules:
- Former Canon 3, Ohio Code of Professional Responsibility
- Gov. Bar R. VI (Ohio), attorney registration
- Gov. Bar R. VII, Section 2(A) (Ohio), definition of the unauthorized practice of law
See also
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-035.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-35
Issued December 16, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Not current-subsequent rule amendments to Gov. Bar R. VI.]
SYLLABUS: A person who is delinquent in his or her registration as an attorney with the Supreme Court of Ohio, but who has not yet been stricken from the roll of registered attorneys should not be considered to be engaged in the unauthorized practice of law during such an unregistered period.
OPINION: We have before us your request for our opinion on whether attorneys are engaged in the unauthorized practice of law if they render legal services during a period in which they are delinquent in their biennial registration with the Supreme Court of Ohio, but are not yet stricken from the rolls of registered attorneys.
The Code of Professional Responsibility mandates that attorneys assist in preventing the unauthorized practice of law. Code of Professional Responsibility Canon 3 (1988). Governing Bar Rule VII defines the unauthorized practice of law as "the rendering of legal services for others by anyone not registered under Rule VI of the Rules for the Government of the Bar of Ohio." Governing Bar R. VII Sec. 2(A) (1986). As such, Governing Bar Rule VI, on attorney registration, sets the standard for determining proper registration.
Under the guidelines of this rule, an attorney who is delinquent in registering with the Supreme Court of Ohio, but is not yet stricken from the roll of authorized attorneys, is technically not in compliance with the rule. Despite this fact, it is our opinion that an attorney is not engaged in the unauthorized practice of law unless they were notified by the Supreme Court that they have been stricken from the rolls of authorized attorneys, and therefore must discontinue their practice. At that point the attorney has notice that rendering any additional legal services would be considered engaging in the unauthorized practice of law.
We must also note the fact that the biennial registration is effective for the entire two-year period, not just from the date of registration onward. Telephone interview with staff member, Office of the Clerk of the Supreme Court of Ohio (Nov.16, 1988).
Based on the preceeding, it is our opinion that an attorney who is delinquent in registering and paying fees to the Supreme Court of Ohio but not stricken from the roll of registered attorneys, is not engaging in the unauthorized practice of law. This, of course, is in no way meant to encourage attorneys to disregard the necessity of prompt registration and payment of fees.
This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Professional Responsibility.