The ABA Committee on Ethics and Professional Responsibility issued on October 8, 2014, its Formal Opinion 468, entitled “Facilitating the Sale of a Law Practice.” ABA Opinions are non-binding in Ohio but are often authoritative. The Syllabus of the Opinion confirms that when a lawyer or law firm sells a law practice under Rule 1.17, the seller must cease to engage in the private practice of law, or in an area of practice that has been sold, in the relevant jurisdiction. Nonetheless, the selling lawyer or law firm may assist the purchaser(s) in the orderly transition of active client matters for a reasonable period of time after the closing of the sale. And neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent solely on the transition of matters.

Ohio Rule 1.17 differs markedly from its counterpart under the ABA Model Rules. While the ABA permits a lawyer to sell less than his or her entire practice, Rule 1.17 permits the sale of part of a practice only where a disqualifying conflict of interest would occur in regard to some clients and matters. The ABA Rule 1.17(a) requires that in a sale or purchase of a law practice, or an area of law practice, the selling attorney must cease to engage in the private practice of law or in the area of practice that has been sold in either the geographic area or the jurisdiction where the practice has been conducted.

Comment [3] of the Ohio Rule 1.17, by contrast, provides that the purchasing and selling attorneys may agree to a reasonable limitation on the selling lawyer’s ability to reenter the practice of law following consummation of the sale. These limitations may preclude the selling lawyer from engaging in the practice of law for a specific period of time or in a defined geographical area, or both. However, the sale agreement may not include limitations if the selling lawyer is selling his practice to “enter academic service, assume employment as a lawyer on the staff of a public agency or a legal services entity that provides legal services to the poor, or as in-house counsel to a business.”

Thus it is absolutely incumbent upon sellers or purchasers of a law practice in Ohio to be totally familiar with the Ohio Rule 1.17 and its Comments and Comparisons.

As to the specific issue raised and discussed in Formal Opinion 468, neither ABA Rule 1.17 nor its Comments discuss whether a selling lawyer may continue to be involved in the practice to assist in the orderly transition of active client matters. The Opinion reasonably states that given the history and purpose of 1.17, as well as its provisions and Comments, “it seems reasonable to conclude that the transition of pending or active client matters from a selling lawyer or firm to a purchasing lawyer or firm need not be immediate or abrupt.” Opinion 468 explicitly states, and Ohio practice would not be to the contrary, that a seller is not forbidden from assisting a purchaser or purchasers in the orderly transition of active client matters for a reasonable period of time after the closing of the sale. Nonetheless, the ABA Opinion, on which Ohio is silent, is that neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent only on the transition of matters. The same result would arise in Ohio under the restrictions on fees under Ohio Rule 1.5.