Disciplinary Counsel v. Harris , 137 Ohio St. 3d 1 ( 2013 )

[Cite as Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026.]
DISCIPLINARY COUNSEL v. HARRIS.
[Cite as Disciplinary Counsel v. Harris, 137 Ohio St.3d 1, 2013-Ohio-4026.]
Attorneys—Misconduct—Attorney not licensed in Ohio practicing in federal
district court located in Ohio—Ohio has no authority to enforce Ohio
Rules of Professional Conduct against attorney not licensed in Ohio—
Complaint dismissed and matter referred to Board on Unauthorized
Practice of Law for further proceedings.
(No. 2012-1698—Submitted February 26, 2013—Decided September 26, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-077.
____________________
O’DONNELL, J.
{¶ 1} This issue in this case is whether Donald Harris, an attorney who is
admitted to the practice of law in the District of Columbia and the Northern and
Southern Districts of Ohio, but who is not admitted to the practice of law in the
state of Ohio, is subject to the disciplinary authority of this court. Because Harris
is not a member of the Ohio bar and has not taken an oath to be bound by the
Ohio Rules of Professional Conduct, these rules do not apply to him; rather, his
conduct is subject to review by the Board on the Unauthorized Practice of Law
(“UPL Board”).
{¶ 2} Accordingly, we dismiss the Aimee Skeel matter in deference to
the authority of the bankruptcy court, and we dismiss the remaining matters and
refer them to the UPL Board for further proceedings.
Factual and Procedural Background
{¶ 3} Donald Harris has never been admitted to the practice of law in the
state of Ohio. However, as a member of the District of Columbia bar and of the
SUPREME COURT OF OHIO
bars of the United States District Court for the Northern and Southern Districts of
Ohio, he has focused his practice in bankruptcy law before the federal courts
geographically located in Ohio.
{¶ 4} In August 2011, disciplinary counsel filed a four-count complaint
against Harris relating to his representation of an Ohio client in bankruptcy
proceedings before the United States District Court for the Northern District of
Ohio, his establishment of a limited-liability company on behalf of an Ohio client,
his assistance to an Ohio client in a mortgage modification, and representations
regarding the relationship between an Ohio-licensed attorney and the Donald
Harris Law Firm. Disciplinary counsel maintains that since Harris is an out-of-
state attorney practicing federal law within Ohio’s boundaries, he is subject to the
disciplinary authority of this state pursuant to Prof.Cond.R. 8.5.
{¶ 5} A hearing panel of the Board of Commissioners on Grievances and
Discipline concluded that disciplinary counsel had properly filed the complaint
against Harris pursuant to Prof.Cond.R. 8.5. The panel further found that Harris
had engaged in numerous violations of the Ohio Rules of Professional Conduct
and recommended that Harris be indefinitely suspended from representing Ohio
citizens in the state of Ohio. Upon review, the board adopted the findings of fact,
conclusions of law, and recommendation of the panel.
{¶ 6} In his objections to the report and recommendation of the board,
Harris asserts that Prof.Cond.R. 8.5 does not authorize this court to enforce the
Ohio Rules of Professional Conduct against attorneys who are not licensed in
Ohio. Moreover, Harris maintains that Prof.Cond.R. 5.5(a)—which prohibits a
lawyer from practicing law in a jurisdiction in violation of its regulation of the
legal profession—applies only to attorneys licensed in Ohio who practice in
another jurisdiction. And he further contends that the federal courts and the
District of Columbia have jurisdiction over any disciplinary matters relating to his
practice in the federal bankruptcy courts.
2
January Term, 2013
The Court’s Authority to Regulate the Practice of Law in Ohio
{¶ 7} Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants this
court “ ‘exclusive power to regulate, control, and define the practice of law in
Ohio.’ ” Greenspan v. Third Fed. S. & L. Assn., 122 Ohio St.3d 455, 2009-Ohio-
3508, 912 N.E.2d 567, ¶ 16, quoting Cleveland Bar Assn. v. CompManagement,
Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39. We have
explained that “[a]ny definition of the practice of law inevitably includes
representation before a court, as well as the preparation of pleadings and other
legal documents, the management of legal actions for clients, all advice related to
law, and all actions taken on behalf of clients connected with the law.” Cleveland
Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, 857
N.E.2d 95, ¶ 22.
{¶ 8} We have defined the unauthorized practice of law as “ ‘the
rendering of legal services for another by any person not admitted to practice in
Ohio under Rule I and not granted active status under Rule VI, or certified under
Rule II, Rule IX, or Rule XI of the Supreme Court Rules for the Government of
the Bar of Ohio.’ ” (Emphasis added.) Lorain Cty. Bar Assn. v. Kocak, 121 Ohio
St.3d 396, 2009-Ohio-1430, 904 N.E.2d 885, ¶ 17, quoting former Gov.Bar R.
VII(2)(A), 103 Ohio St.3d XCIX, CI. Gov.Bar R. VII(2)(A)(4) defines the
unauthorized practice of law to include “[h]olding out to the public or otherwise
representing oneself as authorized to practice law in Ohio by a person not
authorized to practice law by the Supreme Court Rules for the Government of the
Bar or Prof.Cond.R. 5.5.” And controlling in this case is our own precedent: “a
lawyer admitted to practice in another state, but not authorized to practice in
Ohio, who counsels Ohio clients on Ohio law and drafts legal documents for them
is engaged in the unauthorized practice of law in Ohio.” Cleveland Bar Assn. v.
Moore, 87 Ohio St.3d 583, 584, 722 N.E.2d 514 (2000), citing Cleveland Bar
Assn. v. Misch, 82 Ohio St.3d 256, 695 N.E.2d 244 (1998).
3
SUPREME COURT OF OHIO
Rules of Professional Conduct Do Not Apply to Harris
{¶ 9} Although Harris is licensed to practice law in another jurisdiction,
because he is not admitted to the Ohio bar, our Rules of Professional Conduct,
designed to regulate conduct of attorneys admitted to practice law in Ohio, do not
apply to him. He never subjected himself to them because he has never been
admitted to practice law in this state.
{¶ 10} Every lawyer who is admitted to practice law in Ohio takes an oath
of office. See Gov.Bar R. I(1)(F). As part of that oath, the attorney swears or
affirms to support the Constitutions of the United States and the state of Ohio and
to “abide by the Ohio Rules of Professional Conduct.” Gov.Bar R. I(8)(A).
{¶ 11} Harris never took that oath and never agreed to abide by our rules,
and we are reluctant to impose our rules of conduct on him or other such attorneys
who engage in the practice of law in our state. It appears that this is precisely
why we have created the UPL Board and why we have defined the unauthorized
practice of law as “ ‘[t]he rendering of legal services for another by any person
not admitted to practice in Ohio.’ ” Kocak, 121 Ohio St.3d 396, 2009-Ohio-1430,
904 N.E.2d 885, ¶ 17, quoting former Gov.Bar R. VII(2)(A), now Gov.Bar R.
VII(2)(A)(1).
{¶ 12} In this regard, Harris is no different from an accountant, a real
estate agent, or a financial planner who undertakes activity that constitutes the
practice of law and who becomes subject to discipline pursuant to the
unauthorized practice of law framework. It is inconsistent to conclude that an
attorney admitted in another jurisdiction who engages in the unauthorized practice
of law in Ohio becomes subject to the Board of Commissioners on Grievances
and Discipline when another professional, such as a real estate agent, who
engages in the unauthorized practice of law becomes subject to the UPL Board.
Similarly, our decision today is in accordance with Gov.Bar R. VI(3)(C), which
provides:
4
January Term, 2013
An attorney who is admitted to the practice of law in
another state or in the District of Columbia, but not in Ohio, and
who performs legal services in Ohio for his or her employer, but
fails to register in compliance with this section or does not qualify
to register under this section, may be referred for investigation of
the unauthorized practice of law under Gov.Bar R. VII * * *.
(Emphasis added.)
{¶ 13} Additionally, our sanctions for serious violations of the Rules of
Professional Conduct, suspension and disbarment, are ineffective and meaningless
to Harris because he is not a member of the Ohio bar. We cannot suspend or
disbar an attorney who is not a member of the Ohio bar. Thus, we consider these
matters as alleged unauthorized practice of law violations.
Harris’s Conduct
The Bankruptcy Proceedings
{¶ 14} Harris represented Aimee Skeel in two bankruptcy petitions filed
in the United States Bankruptcy Court for the Northern District of Ohio. We
determine that Harris did not engage in the unauthorized practice of law when he
represented Skeel because, as a member of the District of Columbia bar, and
having been admitted to practice in the Northern District of Ohio, he was
authorized to practice before the United States Bankruptcy Court for the Northern
District of Ohio. As such, he becomes subject to the disciplinary authority of
those federal courts.
{¶ 15} As the Bankruptcy Court for the Northern District of Ohio
explained, “[a] bankruptcy court has the power to regulate the practice of law in
the cases before it.” In re Ferguson, 326 B.R. 419, 422 (Bankr.N.D.Ohio 2005),
citing United States v. Johnson, 327 F.3d 554, 560 (7th Cir.2003); see also
5
SUPREME COURT OF OHIO
Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27(1991) (“the Court has held that a federal court has the power to control admission
to its bar and to discipline attorneys who appear before it”). Specifically, Loc.R.
2090-2(b) of the United States Bankruptcy Court for the Northern District of Ohio
states that “[p]rofessional conduct and attorney discipline shall be governed by
Local Civil Rule 83.7,” which provides that “any attorney admitted to practice
before this Court may be subjected to such disciplinary action as the
circumstances warrant.” Loc.Civ.R. 83.7(b)(1) of the United States District Court
for the Northern District of Ohio.
{¶ 16} Here, the United States Bankruptcy Court for the Northern District
of Ohio exercised its authority and declined to sanction Harris or order the
disgorgement of attorney fees for his representation of Skeel in bankruptcy
proceedings. Because the alleged misconduct involving Skeel occurred before the
United States Bankruptcy Court for the Northern District of Ohio and because that
court has the power to discipline Harris for his practice before it, we dismiss this
charge in deference to the disciplinary authority of the United States Bankruptcy
Court for the Northern District of Ohio.
Formation of an L.L.C.
{¶ 17} Darlene Martincak engaged Harris to file a petition in bankruptcy.
She also asked Harris to help her transfer five properties owned by her company
to Alexander Roussos. Prior to the filing of the bankruptcy, Harris met with
Martincak and Roussos to discuss the property transfers and agreed to assist them.
In relation to these transactions, during oral argument, Harris’s counsel admitted
that Harris had formed an L.L.C. Harris did not inform Martincak or Roussos that
he was not licensed to practice law in Ohio.
{¶ 18} Harris has never been admitted to the practice of law in Ohio, does
not have active status, and is not certified. By definition, then, Harris did not
commit a disciplinary violation because he never became subject to our
6
January Term, 2013
disciplinary rules by gaining admission to the bar of the state of Ohio. Rather,
Harris may have engaged in the unauthorized practice of law when he assisted
Roussos in establishing an L.L.C. in accordance with Ohio law and when he
participated in transferring properties to that L.L.C. See Columbus Bar Assn. v.
Verne, 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 1-4. In addition,
by his silence, he may have further engaged in the unauthorized practice of law by
leading Roussos and Martincak to believe that he was a member of the Ohio bar.
See Gov.Bar R. VII(2)(A)(4), which defines the unauthorized practice of law to
include holding out to the public or otherwise representing oneself as authorized
to practice law. Thus, since Harris is not admitted to the Ohio bar and because the
conduct with which he is charged has been defined by this court to constitute the
unauthorized practice of law, we dismiss the disciplinary action and refer this
matter to the UPL Board.
Modification of a Mortgage
{¶ 19} Harris also agreed to seek modification of a mortgage that Ronald
Sharp—a client whom Harris had represented in two prior bankruptcy
proceedings—held on his residence and failed to inform Sharp that he was not
licensed to practice law in Ohio.
{¶ 20} While we agree with the board that there is insufficient evidence to
support the allegations that Harris committed any disciplinary violations relating
to the modification of Sharp’s mortgage, we refer this matter to the UPL Board
for its consideration and review.
Violations Involving Information about Legal Services
{¶ 21} Harris formed the Donald Harris Law Firm in 2004. The firm
maintained a website, which indicated that unnamed attorneys in his firm were
licensed in various states, including Ohio. In addition, Harris’s letterhead stated,
“Attorneys at Law” below the firm name and listed Loretta Riddle, a member of
the Ohio bar, as an attorney. However, the nature of the working relationship
7
SUPREME COURT OF OHIO
between Harris and Riddle is unclear. Thus, by holding out to the public that
Riddle was a member of the Donald Harris Law Firm, he may have engaged in
the unauthorized practice of law in Ohio. See Gov.Bar R. VII(2)(A)(4). We
therefore refer this matter to the UPL Board for its consideration and review.
Conclusion
{¶ 22} Because Harris is not a member of the Ohio bar, he is not subject
to this court’s disciplinary authority. Rather, as an attorney not admitted to
practice in Ohio, he may have engaged in the unauthorized practice of law by
rendering legal services in Ohio to Ohio clients.
{¶ 23} Therefore, in conformity with our previous decisions in Moore and
Misch and our longstanding definition of the unauthorized practice of law, we
dismiss the Skeel matter in deference to the authority of the bankruptcy court.
We further dismiss the Roussos/Martincak matter, the Sharp matter, and the
charges relating to information about legal services and refer these matters to the
UPL Board for further proceedings.
So ordered.
O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
____________________
Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant
Disciplinary Counsel, for relator.
Oglesby & Oglesby, Ltd., and Geoffrey L. Oglesby, for respondent.
________________________
8