In Re Application of Swendiman
146 Ohio St. 3d 444
Ohio2016Background
- Matthew A. Swendiman, admitted in Indiana, Connecticut (inactive), and D.C., applied for admission to the Ohio bar without examination while working as "of counsel" for Graydon, Head & Ritchey, L.L.P.
- Previously worked in Ohio as in-house counsel and executive at Fifth Third Bank and later ran an investment firm; OSHA and CFA Institute inquiries arose during his Fifth Third tenure but were closed without finding wrongdoing.
- While employed part-time (then full-time) at Graydon, Swendiman provided legal services to clients in Ohio and waited nearly six months after starting legal work before applying for Ohio admission.
- The Cincinnati Bar Association's admissions committee certified his character and fitness, but the Board of Commissioners on Character and Fitness invoked sua sponte review due to concerns about unauthorized practice of law and other investigations.
- A board panel found Swendiman engaged in the unauthorized practice of law in Ohio before and after his application and concluded he failed to prove he currently possesses the requisite character and fitness; the board adopted the panel report.
- The Supreme Court of Ohio adopted the board's recommendation, disapproved the application without prejudice to reapplication following a full character-and-fitness review, and ordered Swendiman to cease practicing law in Ohio until licensed.
Issues
| Issue | Swendiman's Argument | Board / Opposition Argument | Held |
|---|---|---|---|
| Whether Swendiman engaged in unauthorized practice of law in Ohio | His work at Graydon was authorized under Prof.Cond.R. 5.5(d)(2) because he was licensed in D.C. and was providing services governed by federal law | He established an office and continuous presence in Ohio and lacked a federal or Ohio authorization to render legal services in Ohio | Court held he engaged in unauthorized practice; his reliance on D.C. licensure/federal-law argument failed |
| Whether admission to D.C. or advising on federal law authorizes practice in Ohio | Admission in D.C. and advising on federal matters (e.g., SEC filings) sufficed to permit practice in Ohio under Prof.Cond.R. 5.5(d)(2) | Authorization under Prof.Cond.R. 5.5(d)(2) requires specific federal or Ohio law allowing the practice (e.g., admission by a federal court or federal admissions authority) | Court rejected Swendiman’s theory; contrasted with cases where federal courts expressly authorize practice |
| Whether the conduct affected his character and fitness for admission | Conduct was inadvertent and not intentional; he had prior bar admissions and professional experience | Unauthorized practice is a relevant factor that can disqualify an applicant for lacking requisite honesty, diligence, or reliability | Court found he failed to prove by clear and convincing evidence that he possesses requisite character and fitness due to unauthorized practice |
| Appropriate disposition and any remedial measures | Requested entry to bar without examination | Board recommended disapproval but permitted reapplication after full investigation; ordered cease-and-desist | Court disapproved the current application, allowed reapplication with full character-and-fitness review, and ordered immediate cessation of practicing law in Ohio until licensed |
Key Cases Cited
- Disciplinary Counsel v. Harris, 137 Ohio St.3d 1 (2013) (bankruptcy-court admission can authorize practice before that federal court without state-bar admission)
- In re Desilets, 291 F.3d 925 (6th Cir. 2002) (attorney admitted to appear before federal bankruptcy court authorized to counsel clients in bankruptcy matters in that jurisdiction)