Ohio Board Advisory Opinion Op 18-002

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.
OPINION 2018-2
Issued June 8, 2018
Withdraws Opinion 90-12
Out-of-State Lawyer Representing Lending Institution
SYLLABUS: An out-of-state lawyer who is admitted and in good standing in another
United States jurisdiction may represent, on a temporary basis, an out-of-state lending
institution concerning loans made to persons and entities in Ohio secured by real
property located in Ohio. The out-of-state lawyer may prepare loan documents,
negotiate the terms of the agreement with the borrower or counsel, and attend the loan
closing in Ohio without engaging in the unauthorized practice of law.

65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov
DAVID L. DINGWELL
CHAIR
RICHARD A. DOVE
DIRECTOR
SANFORD E. WATSON
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL
OPINION 2018-2
Issued June 8, 2018
Withdraws Opinion 90-12
Out-of-State Lawyer Representing Lending Institution
SYLLABUS: An out-of-state lawyer who is admitted and in good standing in another
United States jurisdiction may represent, on a temporary basis, an out-of-state lending
institution concerning loans made to persons and entities in Ohio secured by real
property located in Ohio. The out-of-state lawyer may prepare loan documents,
negotiate the terms of the agreement with the borrower or counsel, and attend the loan
closing in Ohio without engaging in the unauthorized practice of law.
APPLICABLE RULES: Prof.Cond.R. 5.5
QUESTION PRESENTED: 1 Whether an out-of-state lawyer, not admitted to
practice in Ohio, may prepare loan documents for a loan secured by Ohio property,
negotiate the terms of the loan agreement with the borrower or borrower’s counsel, and
attend the loan closing in Ohio.
OPINION:
Under the Rules of Professional Conduct, an out-of-state lawyer may not establish
an office or other systematic or continuous presence, or hold out to the public that he or
she is admitted to practice law in Ohio. Prof.Cond.R. 5.5(b). However, the rules permit
a lawyer, admitted and in good standing in another United States jurisdiction, to provide
1 The question presented in this advisory opinion is the same or substantially similar to the question
presented in Adv.Op. 90-12.

Op. 2018-2 2
certain types of legal services on a “temporary basis” in Ohio through the application of
one or more enumerated safe harbors. Prof.Cond.R. 5.5(c)(1)-(4).
One safe harbor applies to transactional legal services and permits an out-of-state
lawyer to engage in “nonlitigation activities that arise out of or are reasonably related to
the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”
Prof.Cond.R. 5.5(c)(4). This safe harbor provides some latitude for transactional lawyers
to provide legal services for established clients in jurisdictions in which they are not
formally licensed. ABA Report to the House of Delegates, No. 201(B) (August, 2002).
Despite this safe harbor, out-of state lawyers should fully inform their clients that they
are not licensed to practice in Ohio and that pro hac vice admission would be required in
order to appear in any Ohio tribunal in the event of litigation.
A determination of whether a lawyer’s out-of-state services “arises out of or are
reasonably related” to the lawyer’s practice in his or her licensing jurisdiction is aided by
the consideration of several factors enumerated in Prof.Cond.R. 5.5, cmt. [14]. The
comment states that, inter alia, facts demonstrating that the client is previously or
currently represented by the lawyer, that the client has substantial contacts with the
jurisdiction in which the lawyer is licensed, or that significant aspects of the transaction
involve the law of the lawyer’s jurisdiction, evidence the required relationship of the out-
of-state lawyer with his or her home jurisdiction. See also Restatement (Third) of the Law
Governing Lawyers, §3 cmt. (e) (Am. Law Inst. 2000). Here, if the out-of-state lawyer’s
services are provided to a current client, the transaction relates to the client’s out-of-state
business, and significant aspects of the work are conducted in the jurisdiction of
licensure, then the representation is “arising out of or are reasonably related” to his or
her practice in the licensing jurisdiction.
When applying the rule’s “temporary basis” requirement, there is no single test to
determine whether an out-of-state lawyer’s services in another jurisdiction are temporary
rather than permanent. Prof.Cond.R. 5.5, cmt. [6]. However, the term is broadly
construed to include legal services provided on a recurring basis or even over an
extended period of time. Id. In addition, the use of the term “temporary basis” in the
larger context of Rule 5.5 implies a temporal limitation that is different from the
establishment of an office or other systematic or continuous presence in the jurisdiction.
The legal services ordinarily required to conduct a loan transaction secured by real

Op. 2018-2 3
property can typically be completed by a lawyer in a relatively short timeframe and
therefore can reasonably be viewed as being provided only on a “temporary basis.”
Based on the foregoing, if the lending institution is a client of the lawyer, and the
lawyer is admitted and in good standing in his or her licensing jurisdiction, then the
lawyer may provide legal services on a temporary basis on behalf of the out-of-state
institutional client. Specifically, the out-of-state lawyer may engage in legal services
necessary to undertake the representation, including drafting the lending agreement in
accordance with federal or state regulations in Ohio or his or her licensing jurisdiction,
as well as negotiating the terms of the agreement with the borrower or counsel and
attending the loan closing.
CONCLUSION: A lawyer admitted and in good standing in another jurisdiction, may
represent an out-of-state lending institution in conjunction with a loan closing on
property located in Ohio without the need to retain local counsel. These services may
include the drafting of loan documents, negotiation with the borrower, and attendance
at the loan closing held in Ohio. Because the typical legal services required to complete
a loan transaction are usually of a short duration, the services meet the temporal
limitation of the rule as being provided on a temporary basis. An out-of-state lawyer
engaged in transactional legal services authorized under Prof.Cond.R. 5.5(c)(4) is not
engaged in the unauthorized practice of law in Ohio.