Can a lawyer licensed in another state open an Ohio office to handle only federal matters, and how must the letterhead read?
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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Plain-English summary
The Board addressed two questions about a lawyer admitted in another United States jurisdiction who wants to practice in Ohio exclusively before federal courts or agencies. On the first, it explained that while Prof. Cond. R. 5.5(a) and (b) bar an out-of-state lawyer from establishing a systematic and continuous Ohio presence or holding out as Ohio-admitted, the Supremacy Clause prevents a state from denying the right to perform functions authorized by federal law (Sperry v. Florida). Under Prof. Cond. R. 5.5(d)(2), a lawyer admitted and in good standing in another jurisdiction may therefore maintain an Ohio office to provide services authorized by federal law, such as appearing before federal courts or before agencies like USCIS that authorize practice by any-jurisdiction lawyers.
The Board cabined that authority. The out-of-state lawyer may not provide legal services arising out of or reasonably related to Ohio law; doing so is the unauthorized practice of law under Rule 5.5(a). Citing Disciplinary Counsel v. Harris and Cleveland Bar Ass'n v. CompManagement, the Board stressed that Ohio's definition of practicing law is broad, so the lawyer must limit the practice (Rule 1.2) to areas governed by federal law.
On the second question, the Board held that such a lawyer must avoid stating or implying Ohio admission. Under Rules 5.5(b)(2), 7.1, and 7.5, the lawyer's letterhead, business cards, website, advertising, fee agreement, and signage using "Attorney at Law" should affirmatively state that the lawyer is not admitted in Ohio and identify the federal courts or agencies before which the lawyer may appear, so the public is not misled into thinking the lawyer can handle Ohio-law matters. The opinion withdrew Advisory Opinion 91-06.
In practice
The opinion holds that, under the Ohio rules as they stood at the time, an out-of-state lawyer in good standing elsewhere may maintain an Ohio office or systematic and continuous presence under Prof. Cond. R. 5.5(d)(2) when the practice is authorized by federal law, but may not provide services based on Ohio law without committing the unauthorized practice of law. Per the opinion, the lawyer's letterhead and other communications using "Attorney at Law" should identify the federal courts or agencies the lawyer may appear before and disclose that the lawyer is not admitted in Ohio, to comply with Rules 5.5, 7.1, and 7.5.
Common questions
Q: Can a lawyer licensed only in another state open an office in Ohio?
A: The opinion concluded yes, if the practice is limited to matters authorized by federal law (such as federal court or federal agency practice) under Prof. Cond. R. 5.5(d)(2); the lawyer cannot handle Ohio-law matters.
Q: Does handling federal immigration matters from an Ohio office count as unauthorized practice?
A: The opinion concluded no; federal agencies such as USCIS authorize practice by lawyers admitted in any jurisdiction, so appearing before them from an Ohio office is authorized by federal law.
Q: Can the lawyer's letterhead say "Attorney at Law"?
A: The opinion concluded yes, but it must identify the federal courts or agencies the lawyer may appear before and include a disclaimer that the lawyer is not admitted in Ohio, under Rules 7.1 and 7.5.
Q: Can the out-of-state lawyer advise Ohio clients on Ohio law?
A: The opinion concluded no; providing services arising out of or reasonably related to Ohio law is the unauthorized practice of law under Rule 5.5(a), so the practice must stay within federal law.
Background and rules framework
The opinion interprets Ohio Prof. Cond. R. 5.5 (unauthorized practice; multijurisdictional practice), including the 5.5(d)(2) authorization for services a lawyer may provide under federal law, together with Rule 1.2 (scope of representation), 7.1 (communications about a lawyer's services), and 7.5 (firm names and letterheads) (Model Rules 5.5, 1.2, 7.1, 7.5). It applies the Supremacy Clause analysis of Sperry v. Florida to the boundary between state regulation of practice and federally authorized practice.
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 5.5 (unauthorized practice of law; multijurisdictional practice), incl. 5.5(a), (b), (d)(2) (Model Rule 5.5)
- Ohio Prof. Cond. R. 1.2 (scope of representation) (Model Rule 1.2)
- Ohio Prof. Cond. R. 7.1 (communications concerning a lawyer's services) (Model Rule 7.1)
- Ohio Prof. Cond. R. 7.5 (firm names and letterheads) (Model Rule 7.5)
Statutes and regulations:
- 8 C.F.R. 1.2, 292.1(a)(1) (practice before USCIS)
- Local Rule 83.3(b), U.S. District Court, S.D. Ohio
Cases:
- Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), Supremacy Clause and federally authorized practice
- Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026, out-of-state lawyer with an Ohio office practicing before a federal bankruptcy court
- Cleveland Bar Ass'n v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, scope of the practice of law in Ohio
Other opinions cited:
- Alaska Ethics Op. 2010-1: out-of-state lawyer must advise clients he or she is not licensed in the forum state
- Philadelphia Bar Ass'n Ethics Op. 2005-14: letterhead must state limited admission and practice scope
See also
- Ohio BPC Op. 1991-006: Out-of-State Attorney, Federal Practice Office, and UPL (withdrawn by this opinion)
- Ohio BPC Op. 2011-002: Out-of-State Lawyer, Debt Settlement, and Temporary Practice
- Ohio BPC Op. 1999-007: Out-of-State Attorney as Equity Holder in an Ohio Firm
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_16-009.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
OHIO BOARD OF PROFESSIONAL CONDUCT
OPINION 2016-9
Issued December 9, 2016
Out-of-State Lawyer Practicing Exclusively Before Federal Courts or Agencies
Syllabus of Opinion:
An out-of-state lawyer who is admitted and in good standing in another United
States jurisdiction, and also is admitted or authorized by law to appear before a federal
court or agency in Ohio, may maintain an office or other systematic and continuous
presence in Ohio. An out-of-state lawyer who is engaged in a federal practice and
maintains a physical office in Ohio, may not provide legal services based on Ohio law to
clients.
The letterhead of a lawyer not licensed to practice law in Ohio, engaged in a federal
practice, and who maintains an office or other systematic and continuous presence, may
include the designation “Attorney at Law,” but must identify the federal courts or
agencies to which the lawyer is admitted or permitted to appear and include an
appropriate disclaimer regarding his or her jurisdictional limitations.
This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in
response to a prospective or hypothetical question regarding the application of ethics rules
applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely
responsible for the content of this advisory opinion, and the advice contained in this opinion
does not reflect and should not be construed as reflecting the opinion of the Supreme Court
of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio
Board of Professional Conduct.
OHIO BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov/boards/boc
PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL
OPINION 2016-9
Issued December 9, 2016
Withdraws Opinion 91-06
Out-of-State Lawyer Practicing Exclusively Before Federal Courts or Agencies
SYLLABUS: An out-of-state lawyer who is admitted and in good standing in another
United States jurisdiction, and also is admitted or authorized by law to appear before a
federal court or agency in Ohio, may maintain an office or other systematic and
continuous presence in Ohio. An out-of-state lawyer who is engaged in a federal practice
and maintains a physical office in Ohio, may not provide legal services based on Ohio
law to clients.
The letterhead of a lawyer not licensed to practice law in Ohio, engaged in a federal
practice, and who maintains an office or other systematic and continuous presence, may
include the designation “Attorney at Law,” but must identify the federal courts or
agencies to which the lawyer is admitted or permitted to appear and include an
appropriate disclaimer regarding his or her jurisdictional limitations.
APPLICABLE RULES: Prof.Cond.R. 1.2, 5.5, 7.1, and 7.5.
QUESTIONS PRESENTED: 1
(1) Whether an out-of-state lawyer, not admitted to practice in Ohio, is
engaged in the unauthorized practice of law in Ohio if the lawyer advises
1The questions presented in this advisory opinion are the same or substantially similar to the questions
presented in Adv.Op. 91-06.
Op. 2016-9 2
clients on federal claims and appears in federal courts or before federal
agencies in Ohio.
(2) Whether an out-of-state lawyer, who maintains an office in Ohio as
authorized by federal law, is engaged in the practice of law in Ohio if the
lawyer uses the designation “Attorney at Law” on his or her letterhead.
OPINION:
Question One
An out-of-state lawyer may not practice in violation of Ohio’s regulation of the
practice of law. Prof.Cond.R. 5.5(a). An out-of-state lawyer, not admitted to Ohio, is
unable to establish an office or other systematic or continuous presence in Ohio for the
practice of law unless authorized by law or the Rules of Professional Conduct. More
importantly, an out-of-state lawyer may not hold out to the public that he or she is
admitted to practice law in Ohio. Prof.Cond.R. 5.5(b).
Under the Supremacy Clause of the U.S. Constitution (Art. VI), a state may not
deny to those failing to meet its own qualifications, the right to perform functions
authorized by federal law. Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 385 (1963).
Consequently, under Prof.Cond.R. 5.5(d)(2), an out-of-state lawyer is permitted to
provide legal services in Ohio that the lawyer is authorized to provide under federal law.
More specifically, a lawyer engaged in federal practice, who is admitted to practice in
another United States jurisdiction and is in good standing, may establish an office or other
systematic and continuous presence in Ohio.2 Legal services authorized under federal
law include those services arising out of admission before the federal courts in Ohio.
Admission to practice before a federal district or bankruptcy court derives from
membership in a state bar. See e.g., Local Rule 83.3(b), Federal District Court, Ohio S.D.;
see also, Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026 (out-of-state
2 In Adv.Op. 91-06, the question before the Board involved an out-of-state lawyer seeking to establish an
office in Ohio to practice federal law, but who was no longer admitted in any jurisdiction due to a
resignation from practice not related to discipline. Analyzed under this opinion, the lawyer would not be
permitted to practice in Ohio under Prof.Cond.R. 5.5(d) because the lawyer is not admitted and in good
standing in any United States jurisdiction.
Op. 2016-9 3
lawyer with an office in Ohio was a member of the District of Columbia bar and was
admitted to practice before the United States Bankruptcy Court for the Northern District
of Ohio.)
In addition to federal courts, several federal agencies expressly authorize by
regulation a lawyer admitted to practice in any jurisdiction to practice and appear before
them. For example, a lawyer may appear before and represent others before the United
States Citizenship and Immigration Services (“USCIS”) that has jurisdiction over the
immigration and naturalization of aliens. 8 CFR §§ 1.2, 292.1(a)(1). There is no
requirement under USCIS regulations that the lawyer be a member of the bar of the state
in which the lawyer practices immigration law.
When establishing an office in Ohio under Prof.Cond.R. 5.5(d), an out-of-state
lawyer is prohibited from providing legal services to clients arising out of or reasonably
related to Ohio law. Providing legal services or advice to clients requiring the application
of Ohio law constitutes the unauthorized practice of law. Prof.Cond.R. 5.5(a). Harris, at
¶8, 18. The unauthorized practice of law in Ohio “includes representation before a court,
as well as the preparation of pleadings and other legal documents, the management of
legal actions for clients, all advice related to law and all actions taken on behalf of clients
connected with the law.” Cleveland Bar Ass’n v. CompManagement, Inc., 111 Ohio St.3d 444,
2006-Ohio-6108, ¶22. Accordingly, an out-of-state lawyer is required to limit his or her
legal practice under Prof.Cond.R. 1.2 to the areas of law governed by federal law.
In conclusion, an out-of-state lawyer admitted in good standing in another United
State jurisdiction may maintain an office or other systematic and continuous presence in
Ohio if the lawyer is providing services authorized by federal law. Services authorized
by federal law include the legal services necessary to represent clients before federal
courts or federal agencies. A lawyer engaged in these services under Prof.Cond.R.
5.5(d)(2) is not engaged in the unauthorized practice of law, but must refrain from
providing services based on Ohio law.
Op. 2016-9 4
Question Two
An out-of-state lawyer seeking to practice in Ohio exclusively before federal courts
or agencies and who maintains an office should also take precautions to not state or imply
that the lawyer is admitted in Ohio. Prof.Cond.R. 5.5(b)(2). Prof.Cond.R. 7.1 prohibits
misleading communications about a lawyer or his or her services. In addition, a law firm
with offices in more than one jurisdiction is required to indicate the jurisdictional
limitations of the lawyer or lawyers not licensed to practice in Ohio. Prof.Cond.R. 7.5.
Consequently, the lawyer’s letterhead, business cards, website and advertising materials,
fee agreement, and even office signage containing the designation “Attorney at Law”
should affirmatively state that the lawyer is not admitted in Ohio. Otherwise,
communications from or about the lawyer could convey a misleading impression that the
lawyer is generally admitted to practice in Ohio and can provide legal services requiring
application of Ohio law. See Alaska Ethics Op. 2010-1 (out-of-state lawyer must clearly
advise clients that he or she is not an Alaskan lawyer); Philadelphia Bar Ass’n, Ethics Op.
2005-14 (“Rules 7.1 and 7.5b require that the inquirer note on all her letterhead, office
signage, business cards and on/in any other publicity or advertising vehicles, that she is
admitted only in the state to which she is licensed, and that her practice in Pennsylvania
is strictly limited to Immigration and Naturalization.”)
Based on the forgoing, the letterhead of lawyer not admitted to practice law in
Ohio, who maintains an office or other systematic and continuous presence in Ohio and
appears in federal court or before federal agencies, may include the designation
“Attorney at Law,” but the letterhead should identify the federal courts to which the
attorney is admitted or agencies permitted to appear before, with an appropriate
disclaimer regarding the lack of admission to the Ohio bar, in order to comply with
Prof.Cond.R. 5.5, 7.1, and 7.5.
Op. 2016-9 5
CONCLUSION: An out-of-state lawyer may establish an office or systematic and
continuous presence in Ohio if the lawyer’s practice is authorized by federal law. An out-
of-state lawyer engaged in a federal practice in Ohio who maintains an office in Ohio
should identify the courts to which the lawyer is admitted or the agencies to which the
lawyer is permitted to appear. The lawyer should also take affirmative steps to
communicate the fact the lawyer is not admitted to practice law in Ohio through the
lawyer’s letterhead, business cards, website, fee agreement, and office signage that
contains the designation “Attorney At Law.” An out-of-state lawyer who maintains an
office in Ohio limited to a federal practice may not provide legal services based on Ohio
law to clients.
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