Can a lawyer registered as inactive work as a volunteer judicial law clerk or give free legal advice?

Currency note

The Board withdrew this opinion on October 10, 1997 after Gov. Bar R. VI §2 was amended effective September 1, 1991. It issued in 1989 under the former Ohio Code of Professional Responsibility and the Governing Bar Rules as they then stood. Treat this page as historical context, not current guidance. Verify against the current Ohio Governing Bar Rules and Rules of Professional Conduct before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed two requests on whether an attorney registered inactive with the Supreme Court of Ohio would be engaged in the unauthorized practice of law by working voluntarily as a judicial law clerk or by advising fellow church members on legal problems.

The Board explained that the Code requires all attorneys to assist in preventing the unauthorized practice of law, that in Ohio the unauthorized practice is rendering legal services for others by anyone not registered under Gov. Bar R. VI, and that while Gov. Bar R. VI permits an Ohio-admitted attorney to acquire inactive status, an inactive attorney is not authorized to practice law. The practice of law, per EC 3-5, is the rendition of legal services for others that calls for the professional judgment of a lawyer, meaning the educated ability to relate the general body of law to a client's specific problem.

Applying that, the Board concluded that the duties of a judicial law clerk are generally preparatory or ministerial and do not involve rendering services for others or exercising a lawyer's professional judgment, so an inactive attorney may properly serve as a judicial law clerk. As for free legal advice to fellow church members, the Board concluded that giving advice without charge does not remove it from the category of services rendered for others that call for professional legal judgment, so it would be improper for an inactive lawyer to render legal advice even voluntarily.

Common questions

Q: Can an inactive-status lawyer work as a judicial law clerk?

A: Under this opinion, yes. The Board concluded the clerk's duties are preparatory or ministerial and do not require a lawyer's professional judgment.

Q: Can an inactive lawyer give free legal advice?

A: No. The Board concluded that advice without charge is still a legal service calling for professional judgment, so an inactive lawyer may not render it.

Background and rules framework

The opinion interprets the Ohio Governing Bar Rules, Gov. Bar R. VI (registration and inactive status) and Gov. Bar R. VII §2(A) (definition of unauthorized practice), with the former Code's Canon 3 and EC 3-5 (the practice of law and professional judgment).

Citations and references

Governing Bar Rules and Code provisions (Ohio):

• Gov. Bar R. VI, registration and inactive status; Gov. Bar R. VII §2(A), unauthorized practice
• Former Code of Professional Responsibility, Canon 3; EC 3-5, the practice of law

See also

• Ohio BPC Opinion 1988-035: Delinquent Registration Is Not Unauthorized Practice
• Ohio BPC Opinion 1989-011: Non-Lawyer Employee Signing on Firm Letterhead

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-026.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 89-26
Issued August 18, 1989

[Withdrawn- by Board on October 10, 1997 due to amended Gov. Bar. VI §2, eff. Sept. 1, 1991]

SYLLABUS: A lawyer who is registered "inactive" under Governing Bar Rule VI cannot render services to others requiring the professional judgment of a lawyer.

OPINION: We have before us two requests for our opinion on whether an attorney, who is registered inactive with the Supreme Court of Ohio, would be engaged in the unauthorized practice of law by working voluntarily as a judicial law clerk or as an advisor to fellow church members on legal problems.

The Code of Professional Responsibility mandates that all attorneys assist in preventing the unauthorized practice of law. Code of Professional Responsibility Canon 3 (1988). In Ohio, the unauthorized practice of law is the rendering of legal services for others by anyone not registered under Gov. Bar R. VI. Gov. Bar R. VII §2(A). Gov. Bar R. VI which sets the standard for proper registration, permits an attorney admitted to the practice of law in Ohio to acquire inactive status. Gov. Bar R. VI, §8. However, an attorney registered inactive is not authorized to practice law.

The practice of law relates to the rendition of legal services for others that call for the professional judgment of lawyer. Code of Professional Responsibility, EC 3-5. The professional judgment of a lawyer is considered to be his educated ability to relate the general body and philosophy of law to a specific legal problem of a client. Code of Professional Responsibility, EC 3-5.

Generally speaking, the duties of a judicial law clerk are preparatory or ministerial in nature and do not include the rendition of services for others or the exercise of the professional judgment of a lawyer. Hence, an attorney registered inactive may properly act as a judicial law clerk.

With regard to an inactive attorney offering free legal advice to fellow church members, it is our opinion that simply because advice is given without charge does not exclude it from the category of services rendered for others which call for the exercise of professional legal judgment. Therefore, we believe it would be improper for a lawyer registered inactive to render legal advice even voluntarily to fellow church members.

This is an informal non-binding advisory opinion based only on the facts presented and limited to questions arising under the Code of Professional Responsibility.