Court News Ohio
Court News Ohio
Court News Ohio

Board of Professional Conduct Issues Advisory Opinions on Out-of-State Lawyers and Civil Settlements

The Ohio Board of Professional Conduct has issued two advisory opinions. The first concerns out-of-state lawyers engaging in temporary transactional legal services in Ohio, and another concerns civil settlements.

Advisory Opinion 2018-02 replaces a 1990 advisory opinion and provides updated guidance to out-of-state lawyers representing financial institutions on a temporary basis in Ohio in order to close a loan secured by property in the state. The board concludes that an out-of-state lawyer, under the Rules of Professional Conduct, may prepare loan documents, negotiate the terms of the loan, and physically attend a loan closing in Ohio without running afoul of the general rule prohibiting the unauthorized practice of law by out-of-state lawyers.

Ohio conduct rules permit an out-of-state lawyer to engage in transactional legal services that arise out of, or are reasonably related to, the lawyer’s practice in another jurisdiction. The board points to several factors that demonstrate that the out-of-state lawyer is permissibly performing legal services in Ohio including whether significant aspects of the work involve the law of his or her jurisdiction and the client currently or previously was represented by the lawyer.

The board also concludes that the relatively short time frame required to complete the loan transaction satisfies a requirement in the rule that the services be performed on a “temporary basis.” This opinion withdraws Adv. Op. 90-12.

Advisory Opinion 2018-03 addresses the propriety of offering or accepting a civil settlement agreement that includes a provision restricting a lawyer’s post-settlement communications about information contained in the court record.  The board concludes that the use of such a provision in a settlement agreement limits a lawyer’s ability to attract new clients and thus represents an impermissible restriction on the lawyer’s right to practice under the Rules of Professional Conduct. The board notes that the rule protects the public’s unfettered ability to choose lawyers who have the requisite background and experience in certain areas of the law and prevents conflicts from arising between current and future clients.

Lawyers may refer to their participation in the underlying litigation, even when the settlement agreement was confidential, in order to advertise their expertise and availability to potential clients. The board recommends that the advisory opinion be applied prospectively to lawyer conduct.

The Ohio Supreme Court has indicated that it will be reviewing Adv. Op. 2018-3 and may propose amendments to the Rules of Professional Conduct in response to the opinion.

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