Ohio Board Advisory Opinion Op 16-009

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
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.

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
CHAIR
RICHARD A. DOVE
DIRECTOR
WILLIAM J. NOVAK
VICE- CHAIR
D. ALLAN ASBURY
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
1 The 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.