Although I love my home state of Ohio, I have to acknowledge that we are not often in the avant-garde when it comes to legal ethics. After all, Ohio was one of the last jurisdictions in the Union to adopt the Model Rules of Professional Conduct (2007). But last week, the Ohio Supreme Court put out for public comment proposed rule amendments that would add the Buckeye State to a small number of progressive jurisdictions — namely, those that permit lawyers to practice temporarily while awaiting approval of their applications to “waive in” to the bar.
Out-of-the box AWOX
As background, most U.S. jurisdictions have some form of “admission without examination” process (“AWOX”), to allow lawyers licensed elsewhere, who have a specified number of years of practice under their belts and meet other qualifications, to become licensed without having to take the bar exam.
But the AWOX application process is a bureaucratic one and can be slow, requiring a character-and-fitness assessment, filling out a long form and providing lots of documentation. In Ohio, the process can take nine months. (Like gestation of another sort.)
In the meantime, what can the applicant do as far as practicing law? Most jurisdictions answer “Nothing.” Without a license in that state, an AWOX applicant essentially has the status of a law clerk during the time that the application is pending.
Restrictive AWOX rules limit the opportunities of migrating lawyers, in an economy that is increasingly borderless in other respects. For instance, a lawyer who has to move to a new jurisdiction to follow a spouse’s employment can face considerable downtime, even though the lawyer is eligible for AWOX. The rules also put law firms who want to hire laterals from out of state in a bind, knowing that a candidate might have to put down an existing practice and work (and be billed) as a paralegal while awaiting AWOX.
The ABA has long been a proponent of a model rule that it calls “Practice Pending Admission.” The proposed rule, promulgated in August 2012, establishes a window of time during which a lawyer who has a license in good standing elsewhere and a designated number of years of experience can practice temporarily in a different state while awaiting admission there.
Select group with progressive rules
Only a very few jurisdictions currently permit any form of practice pending AWOX. They include the District of Columbia, under Ct. of Appeals R. 49(c)(8) (“Limited Duration Supervision by D.C. Bar Member”) and Missouri, under Sup. Ct. R. 8.06 (“Temporary Practice by Lawyers Applying for Admission to the Missouri Bar”).
Now, Ohio proposes to join this vanguard. Under proposed amendments to the state supreme court’s bar governance rules, an applicant who is eligible for AWOX and has submitted an AWOX application could apply for permission to practice for 365 days while awaiting processing of the application.
Two of the key requirements under the proposed Ohio rule: the applicant must submit the AWOX application within 90 days of establishing an office or “systematic presence” in Ohio, and must either “associate with an active Ohio lawyer who is admitted to practice in Ohio” or attest that the applicant will “only practice the law of the jurisdiction in which the applicant is already admitted.”
The Ohio proposal is out for public comment until April 10.
In re Application of Jones
The new Ohio proposal follows the state supreme court’s decision last fall in In re Application of Jones. The case involved a licensed Kentucky lawyer who moved just across the Ohio River to join the Cincinnati office of the firm she was already practicing with. Sitting in Cincinnati, she continued to represent her Kentucky litigation clients in Kentucky courts, but when she applied for AWOX under Ohio’s current rules, the Board of Character and Fitness said she had been engaging in the unauthorized practice of law.
The Ohio Supreme Court, though, held that the lawyer was engaging in a permitted form of temporary practice under Ohio’s version of Model Rule 5.5(c)(2), which says that a lawyer can practice in Ohio in connection with proceedings before a tribunal located where the lawyer is authorized to practice, and approved the lawyer’s AWOX application.
That was the right result, and I’m proud to say that my firm spearheaded a group of law firm amici that submitted a brief in the case.
But, arguably, a better and more-direct way to support practice pending admission without examination is via a rule change — and that is what is now under consideration. Ohio might sometimes lag behind in ethics innovations, but this time it is in the vanguard.