Ohio Board Advisory Opinion Op. 21-09

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 2021-9
Issued October 1, 2021
Withdraws Adv. Op. 2008-7 and 1990-6
Employment of a Disqualified or Suspended Lawyer
SYLLABUS: A lawyer or law firm may employ a disqualified or suspended lawyer
provided the lawyer does not practice law and is closely supervised by a licensed lawyer,
and both the disqualified/suspended lawyer and the supervising lawyer/law firm
otherwise comply with Gov.Bar R. V(23).

65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov
PATRICIA A. WISE
CHAIR
RICHARD A. DOVE
DIRECTOR
HON. D. CHRIS COOK
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL
OPINION 2021-9
Issued October 1, 2021
Withdraws Adv. Op. 2008-7 and 1990-6
Employment of a Disqualified or Suspended Lawyer
SYLLABUS: A lawyer or law firm may employ a disqualified or suspended lawyer
provided the lawyer does not practice law and is closely supervised by a licensed lawyer,
and both the disqualified/suspended lawyer and the supervising lawyer/law firm
otherwise comply with Gov.Bar R. V(23).
QUESTIONS PRESENTED:
1) May a lawyer or law firm employ a lawyer who is disqualified or suspended from the
practice of law?
2) May a lawyer, under suspension in the state where he or she is licensed, work as a
paralegal in a law office in Ohio under the supervision of a lawyer licensed to practice
in Ohio?
APPLICABLE RULES: Prof.Cond.R. 5.5
OPINION:
A lawyer who is suspended from the practice of law, without stay of the
suspension, or a disqualified attorney as defined in Gov.Bar R. V(35) is no longer
authorized to practice law. A suspended or disqualified lawyer must comply with the
Supreme Court’s order of suspension, disbarment, or resignation with discipline
pending. Yet, lawyers in those situations often seek employment with a law firm or
licensed lawyer.

Op. 2021-09 2
With one exception noted below, a lawyer or law firm is permitted to employ a
lawyer who is suspended, disbarred, or resigned from the practice of law with discipline
pending, so long as the lawyer does not practice law, is closely supervised by a licensed
lawyer, and only under the conditions set forth in Gov.Bar R. V(23). A “disqualified
attorney” is defined in Gov.Bar R. V(35)(F) as a “former attorney who has been disbarred
or who has resigned with discipline pending.” A suspended lawyer is not defined in the
rule, but the Board concludes the phrase describes a lawyer who is under any one or more
of the following: (1) an unstayed disciplinary suspension; (2) an interim remedial
suspension; (3) an interim felony suspension; (4) an interim child support default
suspension; (5) a mental illness suspension imposed pursuant to Gov.Bar R. V, Gov.Jud.
R. II, or Gov.Jud. R. III; (6) a registration suspension imposed pursuant to Gov.Bar R. VI;
or (7) a continuing legal education suspension imposed pursuant to Gov.Bar R. X.
An employing lawyer or law firm, as well as an employed disqualified or
suspended lawyer, must give careful consideration to the requirements found in Gov.Bar
R. V(23). The rule imposes conditions on both the employing lawyer or law firm as well
as the disqualified or suspended lawyer. Further, the disqualified or suspended lawyer
must comply with the specific requirements imposed by the Supreme Court in its
disqualification or suspension order.
Establishment of the Relationship
A disqualified lawyer is treated differently under the rule than a suspended
lawyer. A disqualified lawyer is not permitted to enter an employment, contractual, or
consulting relationship with a lawyer or law firm with which the disqualified lawyer was
associated at the time the misconduct occurred that resulted in his or her disqualification.
Gov.Bar R. V(23)(B). A suspended lawyer may return to a prior working relationship
with a lawyer or law firm even if the misconduct resulting in the suspension occurred
during the prior working relationship.
A lawyer or law firm seeking to enter an employment, contractual, or consulting
relationship with a disqualified or suspended lawyer is required to register the
relationship with the Office of Disciplinary Counsel on a form provided by the office.
Gov.Bar R. V(23)(C). The form requires, among other things, the duties to be performed,
the name of the lawyer responsible for directly supervising the disqualified or suspended

Op. 2021-09 3
lawyer and an affidavit that the lawyer has read and understands the disbarment order,
the resignation order, or the suspension order. Gov.Bar R. V(23)(C). The employment,
contractual, or consulting relationship may not commence until after the employing
lawyer or law firm receives a written acknowledgement from the Office of Disciplinary
Counsel. Gov.Bar R. V(23)(D).
Requirements During the Relationship
A disqualified or suspended lawyer is not permitted to have any direct client
contact, other than as an observer in any meeting, hearing, or interaction between a
lawyer and a client. Gov.Bar R. V(23)(A)(1). Direct client contact includes
communication by telephone, mail, email, in person, or any other form of
communication. If a disqualified or suspended lawyer is to complete work or services on
a client matter, the employing lawyer or law firm must provide written notification of the
status of the disqualified or suspended lawyer to the client prior to commencement of
that lawyer’s work on the matter. Gov.Bar R. V(23)(F). A disqualified or suspended
lawyer performing legal research and writing on a client matter invokes the requirement
of notification to the client. The required notice must be provided directly to each client
for whom the disqualified or suspended lawyer is providing work. Leaving a generic
notice form in different locations around a law office, which may not be brought to a
client’s attention, does not comply with the rule. See Disciplinary Counsel v. Dougherty and
Cicero, 157 Ohio St.3d 486, 2019-Ohio-4418.
Despite the prohibition on direct client contact, a disqualified or suspended lawyer
is not prohibited from serving as a receptionist, provided that any communication with
a client is limited to scheduling an appointment, taking a message, or transferring a
question or call to the appropriate legal or non-legal staff. If the employing lawyer or law
firm limits the duties of the disqualified or suspended lawyer to receptionist activities,
mail room services, copying services, filing completed pleadings with a court, or other
similar limited conduct, the requirement of notification is not invoked since these
activities do not directly involve performing work or providing services on a client
matter.
A disqualified or suspended lawyer is also not permitted to receive, disburse, or
otherwise handle client trust funds or property. Gov.Bar R. V(23)(A)(2). Pursuant to this

Op. 2021-09 4
restriction, a disqualified or suspended lawyer should not have any duties related to
client trust funds or property.
Change or Termination of the Relationship
The employing lawyer or law firm must file an amended form when there is a
material change in the relationship or the information provided on the prior registration
form. Gov.Bar R. V(23)(E). The employing lawyer or law firm must notify the Office of
Disciplinary Counsel upon termination of the employment, contractual, or consulting
relationship. Id.
Lawyer Disqualified or Suspended by Another State
For purposes of employment within the state of Ohio, the Board finds no
distinction between a lawyer who has been disqualified or suspended in Ohio and one
disqualified or suspended by another state. Both are prohibited from practicing law or
holding themselves out as licensed to practice law in Ohio. A lawyer disqualified or
suspended in another jurisdiction must comport his or her conduct with that
jurisdiction’s restrictions on a disqualified or suspended lawyer’s activities as well as any
order of disqualification or suspension. A lawyer or law firm seeking to enter into an
employment, contractual, or consulting relationship with any disqualified or suspended
lawyer, including one disqualified or suspended in another jurisdiction must comply
with the registration requirements contained in Gov.Bar R. V(23)(C).
Prof.Cond. R. 5.5(a)
A lawyer may not assist another lawyer in practicing law in violation of the
regulation of the legal profession. Prof.Cond.R. 5.5(a). “Ohio attorneys have a duty to
ensure that their employees do not engage in the unauthorized practice of law.”
Disciplinary Counsel v. Willis, 96 Ohio St.3d 142, 2002-Ohio-3614. As such, it is necessary
for the employing lawyer to exercise close supervisory control over the disqualified or
suspended lawyer to prevent any unauthorized practice of law. For example, an
employing lawyer must not permit a disqualified or suspended lawyer to: 1) participate
in substantive legal discussions and give his or her analysis or opinion; 2) respond to
clients’ legal questions or requests for legal advice when answering the phone; 3) provide
litigation strategy or advice to the employing lawyer; or 4) allow the disqualified or

Op. 2021-09 5
suspended lawyer to actively participate in depositions rather than just attend as an
observer. See Willis and Dougherty, supra; Cincinnati Bar Assn. v. Begovic, 157 Ohio St.3d
401, 2019-Ohio-4531.