AugustReport - page 5

August 2013 CBA REPORT
l
5
cover article
T
T
he Bible says no man can serve
two masters.
1
The Supreme Court
of Ohio Board of Commissioners
on Grievances & Discipline now dis-
agrees.
Introduction
In Opinion 2013-1 (“opinion”), the
board, reversing a long-standing posi-
tion, concluded that “[a] lawyer may
practice in more than one firm at the
same time if the practice otherwise
complies with the Rules of Professional
Conduct.”
2
In so
doing, however,
the lawyer “has
to be diligent in
avoiding conflicts
of interest,” must
“scrupulously
maintain client
confidentiality and professional inde-
pendence,” and “must inform his or her
clients of all multiple firm associations.”
3
Having arrived at this “modern view of
practice in multiple firms,”
4
the board
formally withdrew, in whole or in part,
certain earlier advisory opinions.
5
In the opinion, the board described
the road it traveled to reach its new
position and discussed the ethical issues
inherent in multi-firm practice. This
article gives an overview of the opinion
and those issues.
The History Behind the Opinion
In Advisory Opinion 89-35, its first
foray into the subject, the board con-
cluded that a lawyer “may not practice
with more than one legal professional as-
sociation or law firm in Ohio at the same
time.”
6
That determination was based
primarily on Gov. Bar R. III(3)(B), which
provided at the time that “[n]o attorney
shall be associated in any capacity with
a legal professional association other
than the one with which the attorney
is actively and publicly associated.”
7
In
Opinion 89-35, the board also identi-
fied the ethical considerations that, as
discussed below, retain their importance
today.
The Ohio Supreme Court amended
Gov. Bar R. III in 1995. Those amend-
ments eliminated the language that
banned practice in multiple legal profes-
sional associations.
8
In Advisory Opinion 97-2, the board
opined that a retired lawyer could be
“of counsel” to two different law firms
but said that it was “not contradicting,
overruling, or withdrawing the advice
in Opinion 89-35[.]”
9
The board ratio-
nalized that apparent inconsistency by
saying that “of counsel” relationships
were “unique and distinct from that of
partner or associate relationships.”
10
In Advisory Opinion 99-7, the Board
was asked whether a lawyer not admitted
in Ohio could be a member, partner, or
other equity holder in both an out-of-
state firm and an Ohio firm.
11
While
declining to answer that specific ques-
tion, the board reaffirmed its view that a
lawyer should not practice in more than
one law firm.
12
The board concluded
that potential ethical hurdles continued
to justify a prohibition on such em-
ployment, notwithstanding the court’s
amendment of Gov. Bar R. III. The board
also noted that the court had declined
to adopt an amendment to that rule that
would have explicitly allowed practice in
multiple firms.
13
In 2007, the court adopted the Rules
of Professional Conduct. Between the
adoption of the rules and its issuance
of the opinion,
the board did not
revisit the issue of
multi-firm practice,
although it did
provide “additional
guidance” on “of
counsel” relation-
ships in Advisory Opinion 2008-1.
14
The
board concluded there that so long as
a lawyer maintains the requisite “con-
tinuing, close, regular, and personal
relationship with each firm” and avoids
conflicts of interest, the lawyer may serve
as of counsel to more than one firm.
15
Beyond that, Opinion 2008-1 did not
take a position on practice in multiple
firms under the rules.
16
The Approaches of Other
Jurisdictions
The American Bar Association and
jurisdictions outside Ohio have also con-
fronted the issue of multi-firm practice.
Both the ABA and the majority of other
jurisdictions “take the position that prac-
tice in multiple firms is permissible if it
By Chip Finke
Simultaneous Practice
in Multiple Firms
The board reaffirmed its belief “that there are
significant ethical issues for lawyers to consider
if they practice in more than one firm.”
1,2,3,4 6,7,8,9,10,11,12,13,14,15,...36
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