The Ohio Supreme Court ruled today that a Cincinnati attorney who had been previously admitted in three other states engaged in the unauthorized practice of law when he began providing legal services while his application for admission to the Ohio bar was pending.

The Supreme Court voted 4-3 to deny Matthew A. Swendiman admission to the bar without passing the bar exam. The Cincinnati Bar Association had recommended his application be approved, but an independent investigation by the Board of Commissioners on Character and Fitness found that while Swendiman was offering investment advice to his clients, he also provided legal services while his admission application was pending. The court majority voted to allow Swendiman to reapply for admission without examination, while two justices would have required he take the exam to be admitted and one would have permanently denied admission.

Swendiman Focused Time on Investment Business
Swendiman had been admitted to practice law in Indiana in 2001, in Connecticut in 2003, and the District of Columbia in 2005. He has primarily engaged in the financial-investment business as a lawyer and financial advisor. He served as in-house counsel at a large bank and then left to be a corporate officer at another corporation. He left the post to start his own investment company, then joined the Cincinnati law firm Graydon, Head & Ritchey though a part-time “of counsel” relationship while continuing to operate his investment company.

About six months after joining the firm, Swendiman applied for admission to the Ohio bar without examination, and by late 2014 he closed his business and began working for Graydon fulltime. Swendiman admitted he had been practicing law at the firm and took the position with the firm because his clients were asking him to provide not only financial advice, but also legal services.

In a per curiam opinion, the Court explained that the unauthorized practice of law in Ohio is defined as rendering legal services for another by any person not admitted to practice in Ohio. A person not admitted in Ohio may render legal services in compliance with the requirements of the multijurisdictional practice of law, and Swendiman argued he is complying with the rules governing multijurisdictional practice.

Swendiman admitted he established an office in Ohio and practiced law in the state, but that his practice was authorized by the rule because he was admitted in another state, was in good standing in that state, and providing services “that the lawyer is authorized to provide by federal or Ohio law.” The Court stated Swendiman was arguing that because he was advising clients regarding federal law only and because he is licensed in the District of Columbia, where filings before the Securities Exchange Commission and other federal agencies are made, he was authorized to render service in Ohio.

A board panel hearing Swendiman’s case noted he did not cite any legal authority to support his “seemingly novel” argument and it found no other cases that addressed the issue.

“Moreover, the panel found that cases in which a lawyer’s practice of law has been deemed authorized by federal law occurred when the lawyer’s practice had been specifically authorized by a separate federal admissions authority,” the opinion stated.

The Court cited a 2013 case (Disciplinary Counsel v. Harris) where the attorney was not found to be in the unauthorized practice of law when representing a client in U.S. Bankruptcy Court in Ohio while not being a member of the Ohio bar. He had been admitted to the bankruptcy court, which has the power to regulate the practice of law in the cases before it. A federal appeals court extended that power further when it allowed an attorney licensed in Texas not only to appear in bankruptcy court in Michigan but also to advise clients on bankruptcy actions and proceedings because the bankruptcy court in Michigan authorized him to participate in cases.

Swendiman’s admission to practice in the District of Columbia is not the same as admission to a particular court, the Court concluded. It found Swendiman does not possess the character and fitness to practice law in Ohio. The Court ordered Swendiman to cease all practice of law in Ohio until he is licensed and stated he can reapply for admission without examination.

Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined the opinion.

Justices Judith Ann Lanzinger and William M. O’Neill dissented without a written opinion and would permanently deny Swendiman admission without examination. Chief Justice Maureen O’Connor dissented without a written opinion and would permanently deny admission.

2015-0540. In re Application of Swendiman, Slip Opinion No. 2016-Ohio-2813.

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