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Rule 5.5 Gets an Update: New flexibility for remote legal practice in Ohio

As remote working arrangements become more popular in the legal profession and beyond, the Supreme Court of Ohio has made changes to allow greater flexibility for attorneys who are licensed in another state. 

 

Rule 5.5 of the Ohio Rules of Professional Conduct addresses the unauthorized practice of law (UPL) with respect to lawyers who are admitted to the bar in other states, but not in Ohio. For many years, the rule restricted lawyer mobility by prohibiting such out-of-state lawyers from having an office in Ohio or establishing any “other systematic and continuous presence” here. 

 

This rule and its application proved vexing for many attorneys and their law firms. The case of In re Application of Jones, 2018-Ohio-4182, memorialized the plight of a lawyer licensed in Kentucky, who was initially disapproved for Ohio admission based on a board’s finding that she had committed UPL. The sole basis for the UPL finding was that she had continued to handle Kentucky cases after she moved to her firm’s Ohio office ­— notwithstanding the fact that she had already applied for Ohio admission at the time of her move. 

 

In its 2018 decision approving attorney Jones’ admission to the Ohio bar, the Supreme Court of Ohio provided a measure of flexibility for lawyers relocating to Ohio. Construing Rule 5.5, the Court found that her conduct in Ohio fell within the “temporary basis” exception to the rule’s general prohibition of UPL because she was awaiting admission to the Ohio bar. 

 

Would-be Ohio lawyers gained some additional clarity in 2019, when the Supreme Court added a new provision to its Rules for the Governance of the Bar. Once an eligible attorney from another state has submitted an application for admission in Ohio, that attorney can then submit an Application for Certification to Practice Pending Admission. Subject to several limitations, this certification allows the attorney to provide legal services in Ohio while the application for full admission to the bar is processed. 

 

But what about an out-of-state attorney who doesn’t intend to become a member of the Ohio bar? For example, an attorney may build a successful litigation practice in New York, as a duly licensed member of that state’s bar, but then move to Cincinnati on an indefinite basis to care for a sick family member or to accommodate a spouse’s new job. Continuing to serve New York clients from a home office in Ohio would arguably expose that attorney to charges of UPL under the longstanding language of Rule 5.5. 

 

Other situations also presented serious professional risks under a strict reading of Rule 5.5, as Justice DeWine noted in his separate opinion in the Jones case. An out-of-state attorney who spends each summer at a vacation home on Lake Erie could be accused of UPL for continuing to serve clients during that time. Justice DeWine also posited a question that took on even greater significance with the COVID-19 pandemic: “Are we to ban lawyers from setting up a secondary office inside their homes so that they can access their files remotely simply because their homes happen to be in Ohio and their practices in another state?” 

 

Effective September 1, 2021, the Supreme Court of Ohio unanimously adopted amendments to Rule 5.5 that eliminate those traps for attorneys who are licensed in other jurisdictions. Under newly amended Rule 5.5, an attorney who is admitted and in good standing in another jurisdiction is affirmatively permitted to provide legal services “through an office or other systematic and continuous presence” in Ohio, provided the following conditions are met: 

  • The legal services at issue are authorized by the attorney’s licensing jurisdiction; 
  • The lawyer does not solicit business in Ohio, accept clients for representation in Ohio, or appear before Ohio tribunals (other than pro hac vice practice); 
  • The lawyer does not “state, imply, or hold himself or herself out as an Ohio lawyer or as being admitted to practice law in Ohio”; and
  • The lawyer complies with the Ohio Rules of Professional Conduct regarding professional independence (Rule 5.4), communications about legal services (Rule 7.1), and firm names and letterheads (Rule 7.5). 

 

Thus, the mere fact of an Ohio address no longer prevents the New York attorney in the first example above from continuing to serve New York clients in New York proceedings. 

 

New Rule 5.5 also includes a common-sense requirement that attorneys and their firms actively note any jurisdictional limitations: “If any Ohio presence is indicated on any lawyer or law firm materials available for public view, such as the lawyer’s letterhead, business cards, website, advertising materials, fee agreement, or office signage, the lawyer and the law firm should affirmatively state the lawyer is not admitted to practice law in Ohio.” 

 

With these amendments, the Supreme Court of Ohio has made a welcome change for our profession and our overall economy. Attorneys with practices in other jurisdictions may now choose to live and work in Ohio under clear guidelines that allow them to continue serving their clients outside the state. 


Flamm is a partner in the Employment & Labor Relations practice group at Taft Stettinius & Hollister LLP. In July 2018, he argued on behalf of the Cincinnati Bar Association as relator in In re Application of Jones, 2018-Ohio-4182. 

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