Anyone who takes or defends depositions in Ohio will want to be familiar with Opinion 2022-13, issued by The Ohio Board of Professional Conduct (“the Board”). The Opinion will be of particular interest to out-of-state lawyers who want to take depositions in Ohio but are concerned about engaging in the unauthorized practice of law.
Taking or defending a deposition is the practice of law – Duh!
The Opinion makes clear one thing that should have been obvious—taking or defending a deposition is the practice of law in Ohio. Handling a deposition cannot be delegated to nonlawyers (including paralegals), even if the lawyer supervises the nonlawyer during the deposition. A nonlawyer doing so engages in the unauthorized practice of law in violation of O.R.C. 4705.07 and Ohio Sup. Ct. R. Gov’t Bar VII (31)(J). Of equal significance, a lawyer who instructs a nonlawyer to take a deposition, formulates questions to be used in the deposition, or instructs the nonlawyer to represent a deponent at a deposition is assisting in the unauthorized practice of law, in violation of Prof.Cond.R. 5.5(a).
Ohio’s temporary practice exception explained
The Opinion explains the application of several temporary practice exceptions found in Ohio’s version of Prof.Cond.R. 5.5(c), which is similar to those found in most jurisdictions. Pursuant to these exceptions, lawyers licensed and regularly practicing in jurisdictions outside Ohio may take or defend Ohio depositions in certain limited circumstances.
Association with Ohio lawyer
An out-of-state lawyer can take or defend a deposition in Ohio so long as they associate with an Ohio lawyer who meaningfully participates and takes responsibility for the matter. While the Ohio lawyer does not have to attend the deposition, they should be available remotely to provide any necessary assistance.
Reasonably related to a pending or potential proceeding
Out-of-state lawyers can also take or defend depositions in Ohio in matters reasonably related to a pending or potential proceeding in a tribunal, either in Ohio or another jurisdiction, so long as they are admitted in the state where the matter is pending or have been admitted pro hac vice or reasonably expect to be so authorized. Subordinate lawyers associated with the out-of-state lawyer, who do not expect to appear before the tribunal, may also take or defend a deposition related to that pending or potential proceeding, as they are permitted by rule to assist in such matters.
Services arising out of or reasonably related to the lawyer’s practice in his or her home jurisdiction
Where services arise out of or are reasonably related to the jurisdiction in which a lawyer is licensed, an out-of-state lawyer is permitted to conduct or defend a deposition in Ohio that is related to an arbitration, mediation, or other alternative dispute resolution process, for which pro hac vice admission is not required, or alternatively is related to an investigation, negotiation, or other nonlitigation activity in Ohio.
Different state, different rules
The Board concluded that Ohio lawyers may take or defend a deposition in a state outside Ohio in which the lawyer is not licensed, if permitted by that state. The Opinion references American Bar Association, Variations of the ABA Model Rules of Professional Conduct. A quick look at the Variations serves as a strong reminder that you must look not only at what your home state has to say, but also into the requirements found in the rules and regulations of the state in which you seek to take or defend the deposition.