Ohio Board Advisory Opinion Op 90-012

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 90-12
Issued August 17, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An out-of-state law firm does not engage in the unauthorized practice of law by
representing out-of-state lending institutions regarding loans made to persons and entities in Ohio
secured by property located in Ohio. The law firm may prepare the loan documents, negotiate the
terms of the agreement with the borrower's counsel, and offer legal advice to the lending institution
regarding Ohio law. The law firm may also represent the lending institution in Ohio at the loan
closing. This Board cannot address any issues regarding the legal liability stemming from this type
of practice.
OPINION: We have before us your request regarding the unauthorized practice of law. Your firm
represents clients located in the jurisdictions where your lawyers are licensed to practice law. The
lending institutions make loans to persons and entities within Ohio secured by property located in
Ohio. You specifically inquire whether you may prepare loan documents in your offices, negotiate
the terms of the agreements with the borrower's counsel, give legal advice to the lending institution
regarding Ohio law and travel to Ohio for the loan closing.
The Code of Professional Responsibility discourages us from placing unreasonable territorial
limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity
of a client to obtain the services of a lawyer of his choice in all matters. Code of Professional
Responsibility, EC 3-9. Moreover, Ethical Consideration 8-3 states that clients and lawyers should
not be penalized by undue geographical restraints upon representation in legal matters, and the bar
should improve licensing, reciprocity, and admission procedures consistent with the needs of
modern commerce. However, a lawyer shall not practice law in a jurisdiction where to do so would
be in violation of regulations of the profession in that jurisdiction. Code of Professional
Responsibility, DR 3-101 (B).
Op. 90-12 2
Withdrawn by Adv. Op. 2018-02

Based upon the facts presented, we believe that you would not be engaging in the unauthorized
practice by representing the lending institutions regarding Ohio based loans and property.
However, you must make full disclosure to your clients that you are not licensed to practice in
Ohio. You should inform the client of the limitations on your practice including that your pro hac
vice admission would be required in order to appear in any Ohio tribunal. See, e.g., Leis v. Flynt,
439 US 438 (1979).
One commentator has stated that no distant state has the power to prohibit an out-of-state lawyer
from advising a client about the distant state's law. Wolfram, Modern Legal Ethics, 867 (1986).
Further, an out-of-state lawyer may prepare a document intended to be given legal effect in Ohio
without risking disciplinary action provided the lawyer complies with the competency requirement
under Canon 6 of the Code of Professional Responsibility. As Professor Wolfram points out in his
treatise, when an out-of-state lawyer travels to Ohio the in-state law practice is tolerated if the
client is a regular client and "either (1) the lawyer's presence is an isolated occurrence and the work
is not extensive in duration or (2) the in-state practice is more extensive but is 'incidental' to
advising a client on a multi-state problem." Id. (citations omitted). However, a persistent practice
in Ohio would be considered the unauthorized practice of law. Wolfram, Modern Legal Ethics, 868
(1986).
Therefore, it is our opinion and you are so advised that an out-of-state firm would not be engaging
in the unauthorized practice of law by representing out-of-state lending institutions regarding loans
made in Ohio and secured by property located in Ohio.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.