Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, July 17, 2018

Barclay Petroleum Inc. v. Matthew Bailey, trustee of the Bailey Family Trust dated 1/12/2007 et al., Case no. 2017-1387
Fourth District Court of Appeals (Hocking County)

State of Ohio v. Adam R. Cupp, Case nos. 2017-1547 and 2017-1701
Eleventh District Court of Appeals (Geauga County)

David M. Blackstone et al. v. Susan E. Moore et al., Case no. 2017-1639
Seventh District Court of Appeals (Monroe County)

In re Application Alice Auclair Jones, Case no. 2018-0496
Board of Commissioners on Character and Fitness

Was Property Owner Prevented from Claiming Oil and Gas Lease Ended Even Though Prior Owner Accepted Gas for Home?

Barclay Petroleum Inc. v. Matthew Bailey, trustee of the Bailey Family Trust dated 1/12/2007 et al., Case no. 2017-1387
Fourth District Court of Appeals (Hocking County)


  • Did a landowner expressly represent to an oil and gas leaseholder that providing free gas was sufficient to keep an oil and gas lease in effect, and was the landowner then “estopped” from later claiming that the lease terminated during the time the landowner accepted the free gas?
  • If the landowner accepted benefits under an oil and gas lease without reserving certain rights, was the landowner “quasi-estopped” from claiming that the lease terminated before the acceptance of benefits?

Darrell and Janet Lucas owned a 70-acre property in Hocking County and, in 1984, leased their oil and gas rights to a predecessor of Barclay Petroleum Inc. The lease contained a standard “habendum clause,” which provided a primary term of one year. After that, the lease would remain in effect “as long thereafter as oil, gas, or casinghead gas is produced from the leased premises or operations are continued as herein provided.” The Lucases were paid a 12.5 percent royalty for oil and gas produced and sold, and they also used the natural gas produced from the wells for their house without charge. The natural gas was the primary way the Lucases heated their home.

Barclay Petroleum acquired the oil and gas rights in 1987. Three wells were drilled on the Lucas property and produced oil and/or gas for many years. Well #3 was drilled in 1989, and oil and/or natural gas from this well was sold commercially until 2000. No oil or gas was sold commercially from the well from 2001 through 2006, in 2008, or from 2010 through 2012. Barclay did, however, continue to operate the well that produced the natural gas for the Lucas home throughout the 2000s and fixed any problems with that service when they arose.

Darrell Lucas died in 2012, and the Lucases’ daughter sold the land. The purchaser divided the land into four parcels, and re-sold them to four separate buyers. One buyer purchased a parcel containing the Lucas house. Matthew and Lora Bailey bought another parcel, which contained Well #3. The Baileys raised issues with the lease and the wells, complaining that the oil company had abandoned, and didn’t maintain and operate, the wells.

Oil Company Sues New Property Owners
In February 2014, the oil company filed a lawsuit against the Baileys, alleging that the couple had violated the lease and seeking continued access to Well #3 on the Bailey property. In a counterclaim, the Baileys argued that the lease had terminated when the oil company didn’t commercially produce oil from the Lucas wells from 2010 to 2012.

The trial court granted summary judgment to the oil company, finding that the lease was still in effect. The trial court ruled that the company’s production of natural gas for the Lucas home was enough to maintain the lease or, alternatively, that the Lucases were satisfied with the supply of free gas to their home to the point that the longstanding conduct kept the lease in effect. Either way, the trial court stated, the Baileys couldn’t claim that the lease had terminated during the time the Lucases owned the land because the Lucases never made such a claim when they owned the property.

The Baileys appealed to the Fourth District Court of Appeals, which reversed the trial court’s determination. The Fourth District ruled that the lease had terminated when Barclay failed to produce oil in paying quantities and that the Lucases’ use of free natural gas produced by the wells wasn’t the acceptance of benefits under the lease.

The company appealed the decision to the Ohio Supreme Court, which agreed to review the issues.

Lease Still in Effect, Oil Company Contends
The company argues that courts have interpreted the words “produced” or “production” in oil and gas leases to mean production of oil and gas in paying quantities, meaning “sufficient to yield a profit,” quoting a 1980 Ohio Supreme Court decision. In addition, analysis of these terms becomes unnecessary when legal principles of “estoppel” are considered, the company maintains. “Equitable estoppel” essentially means that a party in a lawsuit is stopped from taking legal action that is contradictory to that party’s previous words, claims, or conduct.

When it’s shown that a landowner has been cashing royalty checks, accepting free gas for home use, using the oil company’s labor and skills, and acting as if the lease is in place, the landowner, or subsequent landowner, can’t then claim the lease wasn’t in effect during that time, the company asserts. The Lucases cashed checks, used gas for their home, and had the company address problems with the supply of gas until the land was sold in 2012, the company notes.

Contrary to the Fourth District’s ruling, the company maintains there is no reason to exempt oil and gas leases from the legal principles of estoppel. These principles are designed “to prevent results contrary to good conscience and fair dealing,” the company states, citing “Ohio Jurisprudence,” a publication of Ohio law. The company contends that other states – Illinois, Kansas, Kentucky, Oklahoma, and West Virginia – have viewed estoppel as a tool to determine rights under oil and gas leases. Preventing parties and courts from relying on these principles would incentivize parties to take actions in bad faith and put many existing oil and gas leases into doubt, creating more disputes, in the company’s view.

The Lucases told the company they didn’t care how much oil the wells produced as long as they received a consistent supply of free natural gas for their home, the company states. It notes that it provided expertise, time, materials, and labor, and carried appropriate liability insurance on the wells, to ensure that gas supply for 25 years. The Lucases caused the company to rely in good faith on the couple’s representations, and the company would be harmed if the Baileys, as the subsequent property owners, were able to go back on those representations, Barclay argues.

Barclay also raises an argument based on “quasi-estoppel.” The company explains that estoppel focuses on actions others take when relying on a party’s statements or actions, while quasi-estoppel is rooted in the benefits that the party itself receives. A party that accepts the benefits of a contract can’t later deny the obligations required in that contract, the company notes. In the company’s opinion, the Baileys can’t claim that the lease terminated when the Lucases were accepting the lease’s benefits, such as free natural gas for their home and maintenance services, and never tried to end the lease. The rights the Lucases stemmed from the lease they signed, not from their status as the landowner, the company states.

Lease Automatically Terminated in 2012, New Landowners Argue
The Baileys maintain that the company hasn’t provided any evidence that the Lucases ever made “an express representation” that the supply of natural gas to their home would keep the lease in effect. Testimony from the Lucases’ daughter and the company’s former president about statements Darrell Lucas may have made doesn’t undermine or change the terms of the lease, the Baileys insist. The Baileys assert that the Supreme Court should refuse to consider this argument regarding “express representations” because the hearsay statements from others besides Darrell and Janet Lucas aren’t express representations demonstrating the landowners agreed that the supply of free gas alone would keep their lease in effect indefinitely.

While the company argues that the Fourth District ruled estoppel principles never apply to oil and gas lease disputes, the Baileys counter that the appeals court instead applied the principles to the facts of this case and determined the elements required for estoppel weren’t met. Specifically, there was no misleading representation made by the Lucases that the company relied on and that served to keep the lease in effect. Instead, the Baileys contend, the Lucases simply accepted the free natural gas contractually owed to them based on the lease’s terms. Providing gas to the Lucas home didn’t change the terms of the lease, which automatically terminated when the oil and gas production ceased for two years, the Baileys argue. They assert that the lease required the oil and/or gas production to be for commercial purposes.

“In summary, the Fourth District stated the obvious: if you are lawfully owed something under a valid contract, then the acceptance of that thing, in and of itself, will not extend the life of the underlying contract and you will not be estopped from arguing that the contract expired under its own terms at some later time,” the Baileys’ brief states.

On the quasi-estoppel issue, the Baileys maintain that the test for this issue is whether the disputed act is inconsistent with the lease termination. In the Baileys’ view, the Lucases were entitled to the benefit of the natural gas from their property because they owned the property, not because they entered into the lease. Although the Lucases accepted the gas for their home and accepted related maintenance, that service didn’t cause the lease to stay in effect because they were entitled to use that gas as the property owners regardless of whether the lease was in effect or not, the Baileys assert. As with the estoppel argument, the Fourth District simply found that quasi-estoppel didn’t apply in this case, not that the principles don’t apply in any oil and gas dispute, the Baileys state.

When parties to a lease continue to interact with each other after the lease ends, the Baileys maintain that the expired lease isn’t revived. Instead, the Baileys note, a new relationship is formed, called “tenancy at will.” Any benefit accepted by the Lucases or the other property owners after the 2012 automatic termination didn’t revive or modify the lease, or create a new lease, the Baileys argue. Because the Baileys never have accepted any benefits from the company, no tenancy relationship was created or exists between them and the company, they conclude.

Oil and Gas Industry Associations Submit Brief
The Ohio Oil and Gas Association and Southeastern Ohio Oil and Gas Association have filed a joint amicus curiae brief supporting Barclay Petroleum’s positions. Their brief argues, “A lease can be producing in ‘paying quantities,’ for example, and therefore remain in full force and effect, even when there is a pause in commercial sales. And, as in the case here, lease parties will often continue to treat their lease as valid and ongoing, and perform their lease obligations accordingly, notwithstanding an interruption in production. Given that reality, fundamental principles of equitable estoppel and quasi-estoppel are necessary to recognize and give effect to the parties’ relationship, as evidenced by their actions and course of dealing with one another.”

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Barclay Petroleum Inc.: Douglas Cole, 614.481.0900

Representing Matthew and Lora Bailey, trustees of the Bailey Family Trust: Joshua O'Farrell, 330.455.6112

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Do Defendants Receive Jail-Time Credit for New Offense When in Jail as Sentence for Another Crime?

State of Ohio v. Adam R. Cupp, Case nos. 2017-1547 and 2017-1701
Eleventh District Court of Appeals (Geauga County)

ISSUE: Is a defendant entitled to jail credit for pre-sentence time held in detention on bond if, during the same period, the defendant is serving a jail sentence on a separate case?

In June 2015, the state filed charges in municipal court against Adam R. Cupp for one count of rape. Cupp posted a bail bond a few days later, and the case was transferred to the Geauga County Common Pleas Court. On June 29, the grand jury indicted Cupp on counts of rape, kidnapping, endangering children, and gross sexual imposition.

At his initial court appearance on these charges in early August, Cupp pled not guilty, and the common pleas court set his bail amount. However, Cupp was being held in the Geauga County jail for violating probation in another case and couldn’t have posted bail.

In October 2015, Cupp pled guilty in municipal court to the probation violations. The municipal court imposed two 180-day consecutive jail sentences, which began retroactively on Aug. 3, 2015, and ended on July 26, 2016.

In the new case, Cupp pled guilty on June 16, 2016, to attempted abduction and endangering children. The common pleas court sentenced Cupp in September 2016 to a 36-month prison term with 58 days of credit for the time he served in jail after July 26 while awaiting sentencing.

Appeals Court Credits Jail Time Toward Sentence in Current Case
Cupp appealed to the Eleventh District Court of Appeals. On the issue of Cupp’s jail-time credit, the Eleventh District reversed the trial court, concluding that he was entitled to credit in the current case for the time he was in jail for the probation violations, starting from the point the common pleas court set his bail in the current case. After the Eleventh District issued its opinion, Cupp died in prison.

The Geauga County Prosecutor’s Office appealed the decision to the Ohio Supreme Court, which decided to hear the case. The Supreme Court also determined that the Eleventh District’s decision conflicts with rulings on this issue by other state appellate courts, and the Court agreed to review that conflict.

Jail-Time Credit Statutes
A provision in R.C. 2929.19 states that a trial court must include in its sentencing entry “the number of days that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced.”

R.C. 2967.191 requires the Department of Rehabilitation and Correction to reduce a prisoner’s stated term “by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial” and other reasons not pertinent to this appeal.

Defendant Not Entitled to Credit for Time Served on Separate Case, Prosecutor Argues
Until the Eleventh District’s decision in this case, the prosecutor contends, all other Ohio appellate courts considering this issue found that the phrase “confined for any reason arising out of the offense for which the prisoner was convicted and sentence” means that time in jail or prison for other offenses are not credited toward a sentence in a current case. The prosecutor points to rulings in several appeals courts – the First, Ninth, Tenth, Twelfth, and even the Eleventh in earlier decisions – that have made the same interpretation.

The prosecutor notes that Cupp was confined in jail from Aug. 3, 2015, until July 26, 2016, on the probation violations handled in Chardon Municipal Court. For the current case, he remained in jail until sentenced on Sept. 22, 2016, and he received credit for the days between July 26 and Sept. 22. The first stretch of time was for unrelated offenses that happened to coincide with the pre-detention phase of the current case, the prosecutor states. The prosecutor argues Cupp wasn’t entitled to “double credit” by applying the time being served for the probation violations to his three-year sentence in the current case. 

In the prosecutor’s view, the Eleventh District’s decision leads to an absurd result that the legislature couldn’t have intended. Under that court’s reasoning, a defendant serving a jail sentence in one case would have the same time credited toward a new prison sentence for a separate offense, the prosecutor maintains.

In addition, Cupp wasn’t confined in lieu of paying bail for the current case, the prosecutor argues. Bail is designed to ensure that a defendant appears in court. Even if Cupp had posted bail for the current case, he couldn’t have been released because he was in jail for the other offenses, the prosecutor explains. Because bail has no effect in these circumstances, the prosecutor reasons that such defendants can’t be considered as confined while awaiting sentencing in a pending case.

“Pre-sentence detention time certainly should be applied to an eventual sentence of incarceration, but only in circumstances in which it is the sole reason a defendant is confined,” the prosecutor wrote in the brief to the Supreme Court.

Defendant Was Detained and Deserves Credit for Jail Time, Cupp’s Attorney Maintains
Cupp’s attorney counters that Cupp was confined in the current case in lieu of bail, so he was entitled to credit against his sentence in the current case for the days he served in jail before he was sentenced. The language “any reason” in the statutes include the possibility of multiple, coinciding detentions, Cupp’s attorney argues. “Any means any,” he states.

The attorney maintains that the Eleventh District’s decision doesn’t lead to absurd results, as the prosecutor argues. He points to standards in state law requiring misdemeanor sentences to run concurrent to felony sentences as an example. The double credit that would result here is the same outcome that state law requires in similar situations, the attorney asserts.

“Double time cannot be an absurd result if double time is the default position at sentencing in many cases and required in many other cases with single time being reserved only for the most serious of cases,” the brief states.

Rather than serving to ensure the defendant’s appearance in court, Cupp’s attorney argues that bail is designed instead to permit a person’s freedom before being tried and convicted. Due process requires a broad reading of the statutes, he contends.

He also maintains that the appeals court decisions conflicting with the Eleventh District’s ruling aren’t on point because they rely on State v. Dawn, a 1975 case from the First District Court of Appeals in which it’s not clear whether the defendant had been held in lieu of bond.

To decide that jail credit shouldn’t be granted in this situation, the Court would have to review the municipal court probation violations that aren’t part of the case record, the attorney adds. He argues that appellate courts across the state are trying to assess whether defendants have other cases within its jurisdiction or in other jurisdictions that would affect jail-time credit determinations, creating case law on this issue that he describes as a “convoluted mess.” By adopting a way of determining jail-time credit that simply looks at the case in question, courts will have predictability and uniformity in sentencing, Cupp’s attorney’s concludes.

Public Defender Wants Jail Time Counted for Overlapping Cases
The Ohio Public Defender’s Office has filed an amicus brief supporting Cupp’s arguments, noting that in the last year alone it has received 231 formal requests for assistance specifically regarding jail-time credit. The office states that appellate courts are improperly using the “separate and apart” language from Dawn to deny individuals credit for time served when the confinement was related to the offense for which the individual was convicted and sentenced.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (Case Nos. 2017-1547 and 2017-1701).

Representing the State of Ohio from the Geauga County Prosecutor’s Office: Nicholas Burling, 440.279.2100

Representing Adam R. Cupp: Sean Buchanan, 330.762.0700

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Did Marketable Title Act Extinguish Oil and Gas Royalty Rights?

David M. Blackstone et al. v. Susan E. Moore et al., Case no. 2017-1639
Seventh District Court of Appeals (Monroe County)


  • Under Ohio’s Marketable Title Act, does the definition of “specific identification” regarding a reservation in a title mean the volume and page number of the index must be included in the reference?
  • Does actual knowledge of a reservation of a mineral right that is not specifically identified in a title qualify as an exception to the Marketable Title Act, which would preserve that reservation?

The advent of hydraulic fracturing, known as fracking, opened up large portions of Ohio for oil and gas drilling that were once thought inaccessible, and now are deemed valuable. Several Ohio property owners have disputed who owns the mineral rights under surface properties that have changed ownership over the years. In Ohio, there are two ways to extinguish old claims of mineral rights that were made when the mineral rights were severed from the surface property rights. Property owners can attempt to extinguish the rights through the Dormant Mineral Act or the Ohio Marketable Title Act. The Ohio Supreme Court has clarified in recent years how to apply the Dormant Mineral Act. The parties in this case are seeking the Court’s interpretation of the Ohio Marketable Title Act and its potential use to extinguish a severed oil and gas right.

In 1915, Nick and Flora Kuhn conveyed 60 acres of Monroe County property to W.D. Brown. In the transaction they recorded a reservation of a one-half interest in all oil and gas royalty from the property for themselves and their “heirs and assigns.” David M. Blackstone acquired title to the property in 1969 through a deed, which referenced Nick Kuhn and his reservation of the oil and gas royalty for him, and his heirs and assigns.

Blackstone married and, in 2001, conveyed the property to himself and his wife to transform the ownership to them both. In 2012 and 2013, the Blackstones filed an action in Monroe County Common Pleas Court to extinguish the Kuhns’ rights to the oil and gas royalty by using the Ohio Dormant Mineral Act and the Ohio Marketable Title Act (MTA). The trial court ruled in the Blackstones’ favor in 2014 and several heirs of the Kuhns’, including Susan E. Moore, appealed to the Seventh District Court of Appeals.

As the appeal was pending, the Ohio Supreme Court issued decisions regarding the application of the Dormant Mineral Act. Those rulings invalidated the Blackstone’s attempt to use the law to extinguish the Kuhns’ family claims.

Examining the Blackstones’ use of the MTA, the Seventh District in 2017 reversed the trial court’s decision, finding that the 1969 deed transferring the property to David Blackstone serves as the “root of title” under the MTA. The reference to the Kuhn severed royalty in the 1969 deed was a “specific reference” and not a “general reference.” Because it was specific, it serves as an exception to the rule that extinguishes older oil and gas reservations from property ownership. The Blackstones appealed the decision, and the Supreme Court agreed to hear the case.

Law Extinguished Vague Reference, Property Owners Argue
Ohio’s MTA was based on a national model act, and in 1961 Ohio became the 10th state to adopt the Model Marketable Title Act. The MTA shortens the review of titles that are required when real estate is transferred. The law created a “root of title,” which fixes a time of 40 years that a search must go back to locate any claims of rights or interests in property before it could be transferred.

In 2012, the Blackstones attempted to sell 246 acres of oil and gas mineral rights to Antero Resources Appalachian Corporation, which included the 60 acres they acquired from the Kuhns’ property. The Blackstones filed a notice attempting to declare the Kuhns’ interest abandoned, and the Kuhn heirs responded and attempted to have the court establish that they owned the mineral rights.

The parties agreed that for the purpose of the MTA, Blackstone’s 1969 title served as the root of title. The Blackstones argue that under R.C. 5301.49(A) only references to an interest in the land title that have the “specific identification” of the claim are exempt from extinguishment. The couple states that Ohio’s Fifth District Court of Appeals decided in Duvall v. Hibbs (1983) that a specific identification means one that includes the property index volume and page number so that a title examiner can go directly to the conveyance record to verify the reservation without having to do a voluminous search of title indexes.

The Blackstones argue the Seventh District ignored the volume and page number requirement and instead chose to use a “four factor” test established by other appeals courts. The couple notes that several others states that have adopted the model MTA have decided that specific identification requires the volume and page number of the transaction.

“After all, the reason for the distinction between general and specific references under R.C. 5301.49(A) is because of their vastly different impact on the process of locating the instrument creating the interest. Further, creating such a bright line test will give effect to the legislative purpose of simplifying and facilitating land title transactions,” the Blackstones’ brief states.

The couple argues that if the Court doesn’t require a reference to the volume and page number, it should require the names of the person granting the reservation, the recipient of the reservation, and the date in which the reservation was recorded. That requirement wouldn’t eliminate a search of records that are older than the root of title, but would simplify the search.

Knowledge of Reservation Doesn’t Impact Law, Couple Asserts
In addition to finding the Kuhns’ interest in the 1969 deed was specific, not general, the Seventh District also concluded that David Blackstone had actual knowledge of the reservation. The court noted that in the late 1970s, Blackstone attempted to buy the mineral rights from one of the Kuhn heirs, but negotiations fell through.

The couple argues that actual knowledge of a reservation isn’t an exception to the rule under R.C. 5301.49(A), and that the courts can’t rewrite the statute to include an additional exception that the legislature didn’t.

While actual knowledge isn’t an exception, the Blackstones note the failed negotiations put the Kuhn heirs on notice that they should take steps under the MTA to preserve a right that existed prior to the root of title. Under R.C. 5301.51(A), the heirs had 40 years after the property transferred to Blackstone to record a reservation and preserve their interest.

Property Owner’s Definition Too Narrow, Heirs Argue
Moore and the Kuhn heirs note the MTA doesn’t define “specific identification” and argue the Blackstones’ interpretation of the language is too narrow and a bright-line rule is unnecessary. They suggest the legislature sought to have a more flexible rule that depends on the circumstances of each title transfer. The Seventh District applied a four-factor test used by the Fourth and Eighth district courts of appeals that considers whether the language identifies: the type of mineral right created; the nature of the reservation, such as a lease or easement; the name of the original owner; and whether it referenced the instrument that created the interest, such as the sale of the property that severed the surface from the mineral rights.

The heirs also argue the property owners want the Court to insert language into the statute, noting that the legislature could have chosen to change “specification identification” to “volume and page number” but haven’t.

They explain “specific identification” means providing a title examiner with enough information to identify a “particular” land record and the interest belonging to a “particular” person. It doesn’t mean it has to be so specific that it takes the title examiner “directly” to the land record, which is what inclusion of the index volume and page number would do, they argue.

The heirs also maintain that the Blackstones’ actual notice of the claim based on the negotiations denies them the right to invoke the MTA to extinguish the interest. The heirs note the Blackstones had an actual copy of the 1915 deed before they even filed a complaint to have the interest invalidated. They maintain the argument that a title searcher would have difficulty finding the title is irrelevant because the Blackstones already have notice of an outstanding interest.

Friend-of-the-Court Brief
An amicus curiae brief supporting the Blackstones’ position has been submitted by the Ohio Land Title Association.

Some Parties Not Participating
Other Kuhn heirs involved in the proceedings are represented by a separate attorney. Because Ila Carpenter and other heirs didn’t submit a brief, the Court has prohibited from them participating in oral argument.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing David M. Blackstone et al.: Daniel Corcoran, 740.373.5455

Representing Susan E. Moore et al.: Mark Stubbins, 740.452.8484

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Kentucky Attorney Relocating to Ohio Challenges Admission Rejection

In re Application Alice Auclair Jones, Case no. 2018-0496
Board of Commissioners on Character and Fitness

The Board of Commissioners on Character and Fitness recommends that attorney Alice A. Jones, who practiced law in Kentucky before transferring to her law firm’s Ohio office, not be admitted to the practice of law in Ohio without taking the Ohio bar examination. The board alleges that Jones is committing the unauthorized practice of law by continuing to represent Kentucky clients in Kentucky courts while residing and working in Ohio.

Jones has challenged the board’s decision that she is in violation of Rule 5.5 of the Rules of Professional Conduct. She asserts that because she doesn’t solicit or represent Ohio clients, she isn’t engaging in the unauthorized practice of law.

The Cincinnati Bar Association, which recommended Jones for admission without examination, and her law firm, Dinsmore & Shohl have filed amicus curiae briefs in her support, claiming the board’s interpretation of the rule would significantly harm the ability for Ohio law firms, companies, and government to attract quality attorneys who are in good standing in other jurisdictions. A joint brief supporting Jones was submitted by six of Ohio’s largest law firms. 

Attorney Marries and Moves
In 2009, Jones became a member of the Kentucky Bar Association and began her legal career as an assistant commonwealth attorney in Louisville. She served in that positon until 2014, when she entered private practice as an associate attorney in the Louisville office of Huddleston Bolen.

In 2015, Dinsmore & Shohl acquired Huddleston Bolen, and Jones became an associate attorney in the Dinsmore Louisville office. Later that year, she planned to move to Cincinnati with her future husband and requested permission to transfer to Dinsmore’s Cincinnati office. The firm allowed her to transfer with the condition that she apply and be admitted to the Ohio bar, and that she continue to practice Kentucky law exclusively until her application was resolved. She filed her application to be admitted without examination to practice law in Ohio and then moved to Ohio.

Jones began working in Cincinnati, restricting her practice to Kentucky matters, then took maternity leave, before returning to practice.

A Cincinnati Bar Association committee interviewed Jones in April 2016 and recommended to the board that her application be approved.

Board Concerned About Continued Practice
After an April 2017hearing, the board filed an entry stating that except for her physical presence in Ohio, there were no issues affecting Jones’ character, fitness, or moral qualifications to practice law. The board, however, ordered Jones to cease the practice of law and submit an affidavit stating she would only provide services that could be offered by a paralegal or law clerk until the board completed its review.

Jones responded that her practice wasn’t in violation of Ohio’s professional conduct rules and that she would continue to represent Kentucky clients. The board responded that the Ohio Supreme Court hasn’t directly addressed the issue of whether Rule 5.5 permits an attorney licensed in another jurisdiction to practice law, pending admission to Ohio, so long as the attorney isn’t practicing Ohio law. The board’s panel concluded Jones’ activities constitute the unauthorized practice of law, which makes her unfit for admission without exam to the Ohio bar.

Rule Prohibits Kentucky Representation, Board Argues
The character and fitness board notes that Rule 5.5 states, “A lawyer who is not admitted to practice in this jurisdiction shall not, except as authorized by these rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” The board also indicates that Rule 5.5(c)(2) provides that a lawyer in good standing in another jurisdiction may provide services on a temporary basis.

The board explains that Jones contends her practice is “temporary” and that she is in compliance with the rule. However, the board argues the provision acts as an exception for those not establishing a “systematic and continuous presence.” The board concludes that Jones’ work and residence in Ohio is the type of sustained presence that disqualifies her for the temporary status exception.

“Whether an attorney is handling a matter involving Ohio law or the law of another jurisdiction, the attorney is in either case practicing law. Applicant is merely contending that while in Ohio she is not dealing with matters that arise under Ohio law, but that does not mean that she is not practicing law in Ohio while not admitted to do so,” the board’s report stated.

Attorney Challenges Board’s Interpretation, Raises Constitutional Issues
Jones contends that the board misinterprets the meaning of “temporary” in the rule, and notes that an official comment to the rule indicates attorneys moving to Ohio from another jurisdiction may continue to serve their existing clients on a “temporary” basis, which may last for extended periods of time based on the nature of the legal matter. She argues the board states the typical duration of an application to be admitted without exam lasts nine months, and argues that she has done nothing to prolong the matter, which has now taken more than two and a half years.

Jones maintains that the board misinterprets the rule, which allows a lawyer to establish a systematic and continuous presence in Ohio while awaiting admission. However, she argues she hasn’t established anything other than a physical presence in the state, which is not the same thing as a systematic and continuous presence. A systematic presence would require an attempt to solicit and represent clients in Ohio or being engaged in firm work on Ohio matters, which she hasn’t done.

As a matter of public policy, Jones argues the state’s concern regarding the unauthorized practice of law is the protection of the public from unqualified representation. She notes that she isn’t harming or risking the harm of any Ohioan because her practice is exclusively in Kentucky.

Additionally, Jones raises a constitutional question about whether the law discriminates against out-of-state lawyers moving to Ohio. She notes the rules allow an Ohio lawyer to practice law in Ohio while not physically present in the state. An Ohio lawyer can permanently move to Florida and practice law in Ohio every day through the use of a computer, she observes. She argues the U.S. Constitution’s Fourteenth Amendment’s privileges and immunities clause and due process clause is violated by allowing Ohio lawyers to practice from anywhere, while characterizing the work of a Kentucky attorney working out of Ohio as the unauthorized practice of law.

Law Firms Concerned About Board’s Position
The joint brief submitted by Thompson Hine, Frost Brown Todd, Bricker & Ecker, Squire Patton Boggs (US), Porter Wright Morris & Arthur, and Keating Muething & Klekamp takes no position on whether Jones should be admitted, but expresses concern about the board’s interpretation of Rule 5.5. The firms state that the board’s position doesn’t protect against any identifiable threat of harm that licensed attorneys from other states would pose by serving clients from other states while awaiting admission to Ohio. However, they find the board’s interpretation would be a “substantial impediment” to recruiting attorneys and unduly restricts the mobility of lawyers.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Alice Auclair Jones: David Greer, 937.223.3277

Representing the Cincinnati Bar Association: Brian Dershaw, 513.357.9359

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.