Ohio Board Advisory Opinion Op 91-006

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 91-6
Issued April 12, 1991
[Withdrawn- by Opinion 2016-9 on December 9, 2016]
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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 attorney not admitted in Ohio who sets up an office within the state for the practice
of federal law is engaged in the unauthorized practice of law in violation of DR 3-101 (B). This
opinion is not to be interpreted as prohibiting the attorney's appearance before a federal court to which
he/she has been admitted. The Board acknowledges that what constitutes the unauthorized practice
of law is ultimately a legal question to be decided by the courts.
The letterhead of an attorney not licensed to practice law in Ohio, who resides in Ohio and appears
in federal court, should identify the federal courts to which the attorney is admitted, make a disclaimer
regarding admission in Ohio, and otherwise comply with DR 2-101, DR 2-102, and DR 2-105.
OPINION: We have before us a request for an advisory opinion on questions regarding whether a
practice of federal law within Ohio by an attorney not licensed by Ohio is an unauthorized practice
of law within the state. The questions are as follows:
1. Whether an attorney who resides in Ohio but who is not admitted to the Bar of
Ohio or any other state court is engaged in the unauthorized practice of law in
Ohio if the attorney advises clients on federal claims, appears in federal courts in
Ohio and limits his practice to the federal courts to which he is admitted;
2. Whether an attorney who resides in Ohio but is not admitted to the Bar of Ohio or
any other state court is engaged in the unauthorized practice of law in Ohio if the
attorney uses "Attorney at Law" letterhead with his Ohio address in connection
with his practice in the federal court to which he is admitted and in good standing?
The attorney's admission to the federal bar was based upon his admission to a state bar from which
he has since resigned for reasons not related to discipline.

Op. 91-6 2
DR 3-101 (B) of the Code of Professional Responsibility provides "[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." In Ohio, no person is permitted to practice as an attorney unless he/she has been
admitted to the bar by order of the Supreme Court of Ohio. OHIO REV. CODE ANN. §4705.01
(Baldwin 1990). The question before the Board is whether an attorney can avoid the proscriptions
of DR 3-101 (B) and section 4705.01 by limiting his/her practice to federal courts. This question
requires an analysis of the tension between a state's right to regulate the practice of law within its
borders and the federal court system's right to regulate practice in the federal courts.
The Supreme Court of Ohio has constitutional authority to prescribe rules governing practice and
procedure in all courts of the state and to make rules governing admission to the practice of law and
the discipline of those admitted. OH Const. art. IV, § 5. The Supreme Court of Ohio has the inherent
power to regulate, control and define the practice of law in Ohio. Melling v. Stralka, 12 Ohio St. 3d
105, 106-07, 465 N.E.2d 857, 859-60 (1984); In re Unauthorized Practice of Law in Cuyahoga
County, 175 Ohio St. 149, 192 N.E.2d 54 (1963), cert. denied, Brown v. Unauthorized Practice of
Law Committee of Cuyahoga County Ohio, 376 U.S. 970 (1964). reh’g denied, 377 U.S. 940 (1964);
Judd v. City Trust & Savings Bank, 133 Ohio St. 81, 85, 12 N.E.2d 288, 290 (1937). The supreme
court's jurisdiction over the discipline of attorneys is exclusive and absolute. Smith v. Kates, 46 Ohio
St. 2d 263, 266, 348 N.E. 2d 320, 322 (1976).
Although the state supreme court has the express power to develop rules regarding practice and
procedure within the state, the federal courts have the power to develop rules for the practice within
federal courts. 28 U.S.C. §§ 1654, 2072. Clearly, federal courts have control over attorneys admitted
to the federal bar. See Theard v. United States, 354 U.S. 278 (1957) and Selling v. Radford, 243
U.S. 46 (1917).
Admission to practice before a federal court generally derives from membership in a state bar. See,
e.g., Federal Rules of Appellate Procedure Rule 46 (a); U.S. District Court Rules E.D.& W.D.
Kentucky Rule 3 (a), N.D. Ohio Rule 2.02. Compare S.D. Ohio Rule 2.5.2 (Eligibility for admission
to the bar of the Southern District of Ohio derives only from membership in the Ohio bar.) However,
disbarment from a state bar does not automatically lead to disbarment from a federal bar. Theard v.
United States, 354 U.S. 278, 282 (1957); Selling v. Radford, 243 U.S. 46, 49 (1917); Thus,
theoretically, an attorney can remain a member of a federal bar even though the attorney is no longer
a member of a state bar. Such is the case in the hypothetical question we are addressing.

Op. 91-6 3
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 within the scope of federal authority.
Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 385 (1963). Thus, in Sperry, Florida could not
prohibit a nonlawyer, never admitted to the bar of any state, from appearing before the United States
Patent office, because his practice was authorized by federal statute.
The United States Court of Appeals for the District of Columbia Circuit ruled that the District of
Columbia Court of Appeals Committee on Unauthorized Practice of Law did not act beyond its
authority in investigating New York attorneys who maintained an office in the District of Columbia
without being members of the local bar. Simons v. Bellinger, 643 F.2d 774, 786 (D.C. Cir. 1980).
The court rejected the attorneys' assertion that the exclusively federal nature of their legal practice in
the District of Columbia placed the attorneys beyond the authority of any local bar committee. Id. at
785-86.
Courts considering disciplinary charges arising out of the unauthorized practice of law recognize the
federal/state tension created when the alleged unauthorized practice is federal. See e.g., Kennedy v.
Bar Ass'n of Montgomery County, 316 Md. 646, 561 A.2d 200 (1989); In re Perrello, 270 Ind. 390,
386 N.E.2d 174 (1979); Ginsburg v. Kovrak, 392 Pa. 143, 139 A.2d 889 (1958), appeal dism'd, 358
U.S. 52 (1958); Petition of Kearney, 63 So.2d 630 (Fla. 1953) (en banc); In re Page, 257 S.W.2d 679
(Mo. 1953) (en banc). Nevertheless, these courts have rejected federal practice exceptions to rules
and regulations prohibiting the unlicensed practice of law within a state. Id.
These courts reason that the "practice" of law necessarily involves more than advising clients on
federal law, preparing federal court documents and appearing before federal courts. For example,
screening clients and representing only those whose matters require suit or defense in a federal court,
requires interview, research, analysis, and explanation of legal rights which would constitute the
practice of state law. Kennedy at 209-10. Further, "conducting of the business management of a law
practice" -- the handling of clients' money, the requirements of IOLTA, and other management
matters -- are part of the total process of practicing law and are subject to the state's control over the
profession. Perrello 386 N.E.2d at 179.

Op. 91-6 4
In response to question one, this Board is of the opinion that an attorney not admitted in Ohio who
sets up an office within the state for the practice of federal law is engaged in the unauthorized practice
of law in violation of DR 3-101 (B). The Board cautions that this opinion is not to be interpreted as
prohibiting the attorney's appearance before a federal court to which he/she has been admitted. The
Board also acknowledges that what constitutes the unauthorized practice of state law is a legal
question to ultimately be decided by the courts.
In response to the second question, an attorney's letterhead must not be false or misleading. Code of
Professional Responsibility DR 2-101, DR 2-102. In the past the Board has expressed the opinion
that under certain circumstances, jurisdictional limitations should be indicated on the letterhead. An
attorney admitted in another state and awaiting admission in Ohio may be listed on Ohio law firm's
letterhead provided the jurisdictional limitations are indicated. Ohio SupCt, Op. 89-37 (1989). A
multistate firm name can contain the name of an attorney not licensed to practice within the state
provided that the jurisdictional limitations are enumerated on the letterhead and in other permissible
listings. Ohio SupCt, Op. 91-4 (1991).
The ethics committee of the Cleveland Bar Association has expressed the opinion that an attorney
admitted to practice before the United States District Court, Northern District of Ohio and not
admitted to practice in the state courts of Ohio, may state on his letterhead and office door "Attorney-
Not Admitted to Practice Before the Courts of the State of Ohio. Cleveland Bar Ass'n, Op. 127
(1976). The committee stated it would be inappropriate to indicate on letterhead or otherwise that
the attorney's practice is limited to a federal district court because it would imply a level of expertise
or specialization in violation of DR 2-105.
This Board's opinion is that the letterhead of an attorney not licensed to practice law in Ohio, who
resides in Ohio and appears in federal court, should identify the federal courts to which the attorney
is admitted, make a disclaimer regarding admission in Ohio, and otherwise comply with DR 2-101,
DR 2-102, and DR 2-105.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility and the Supreme Court
Rules for the Government of the Bar of Ohio.