TO BE PUBLISHED

2018-SC-000049-KB
MARC LAWRENCE OBERDORFF MOVANT


## v. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
The Office ofBar Counsel (Bar Counsel) requests review ofthe Findings ofFact, Conclusions ofLaw, and Recommendations ofthe Board ofGovernors ofthe Kentucky BarAssociation (Board) entered January 31, 2018. Marc Lawrence Oberdorff, who was admitted to the Kentucky bar in August 2000,
was suspended from the practice oflaw in February 2010. In December 2016, Oberdorfffiled an application for restoration. After a review, the Character and Fitness Committee (Committee) recommended disapproval ofhis application for restoration. Pursuant to**Supr~me** Court Rule (SCR) 3.500(3)(f), ·this matter
was referred to the Board for its review.· Disagreeing wit;h. the Committee's assessment, the Board recommended that Oberdorffs application for restoration be granted. Bar Counsel petitions this Court to reject the Board's ( recommendation and, in its place, follow the recommendation ofthe Committee. After a careful review, this Court adopts the recommendation of the Board.'7 FACTS AND PROCEDURAL HISTORY Oberdorffwas admitted as a member ofthe Kentucky bar on August 18, 

### " 2000. Previously, Oberdorffhad practiced law in Ohio for twentyyears, having been**ad~itted** in 1980. Oberdorff's purpose in becoming a member ofthe Kentucky bar was to expand his Ohio legal practj.ce into**K~ntucky.** However, the expected business did not develop and Oberdorffnever acquired any clients in Kentucky. Consequently, Oberdorff stopped paying his dues as mandated by SCR 3.050 and failed to comply with the continuing legal education · requirements ofSCR 3.645 (previously SCR 3.669). Accordingly, Oberdorffwas sus.pended from the practice oflaw in ·Kentucky on February 17, 2010. In the interim, Oberdorffcontinued to practice law in Illinois until late 2016, when he took a position with Pope Flynn, LLC in South Carolina. When J. Oberdorffbegan the licensing process in South Carolina, he learned that he could not sit for the South Carolina bar·exam while suspended in another jurisdiction. To clear this impediment to his sitting for the South Carolina bar

- . . exam, Oberdorfffiled an application for restoration ofhis membership in the Kentucky bar. In a-letter to KBA Executive Director'John O. Meyers, Oberdorffstated that 1) he had never practiced law in Kentucky; 2) he had no expectation of practicing law in Ke°:tucky in ·the future; 3) the purpose of**fi~ing** his application
was to certify to the State ofSouth Carolina that his license was not suspended
. in anotherjurisdiction, and 4) upon restoration, he planned to formally withdraw as a member ofthe Kentucky bar. Subsequently, Oberdorff 2 (

### submitted the required documentation to the Committee, including application fee·s and a cash bond of$2,500. Oberdorffs application established, notwithstanding the reasons for his suspension in Kentucky, his lack ofprior discipline or criminal activity which would cast adverse light on his application. On August 8, 2017, the Committee rendered its Findings ofFact, Conclusions of.Law, and**Recommendat~ons.** 

### While the Committee concluded that Oberdorff"provep by clear and convincingevidence that he is worthy of the trust and_ confidence ofthe public and methis burden to show that he possesses the requisite character and fitness to practice law in K_entucky[,]" it recommended disapproval ofhis application for restoration. I 

### The Committee found that Oberdorffdid not e_xptess :the intent to practice law in Kentucky as mandated by SCR.2.013. Subsequently, Oberdorffs case was submitted to the Board for review pursuant to SCR 3.500(3)(f). The Board by a vote of 18-0 (with two members absent) adopted all findings ofthe Committee with the exception ofits findings regarding Oberdorffs eligibility for license restoration. Rejecting the Committee's findings that Oberdorfffailed to express intent to practice law in Kentucky, the Board explained "[a]lthough, Mr. Oberdorffcandidly admitted he

1 The Coriim.ittee was initially concerned aboutwhether Oberdorffwas engaging in the unauthorized practice oflaw given that he appeared to be practicinglaw in South Carolina, while.notyet admitted there. However, the Committee was satisfied by Oberdorffs statementthat he was practicingfederal taxlawin South Carolina, which he was authorized to perform. Additionally, Oberdorffstated that his workwas being supervised by otherlicensed attorneys in South Carolina. Moreover, Oberdorff submitted an expertreport from Professor Michael J. Virzi, that stated that Oberdorff was not engaged in the unauthorized practice oflaw in South Carolina. 3

### had no intent to practice in Kentuckywhen he made his initial application, during the application process·and in his briefhe stated, by and through

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### counsel, his intent to practice in Kentucky." Furthermore, the Board noted that "there is no mention iri SCR 2.013 

### ofthe time period for expressing the required intent." Employing a common sense analysis ofthe totality ofthe circumstances, the Board elected to reject the recommendation ofthe
. Committee and conclude that Oberdorffwas eligible for restoration, had complied with all relevant rules and requirements for restoration, and that he should be permitted to sit for the Kentucky bar exam pursuant to SCR**~** . 3.500(3). 

### Oberdorffwas further ordered to pay.current membership dues at the time this Courtrenders its decision alongwith the costs ofhis ethics proceeding.

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### Subsequently, Bar Counsel sought review ofthe Board's

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### recommendation. As acknowledged by Bar Counsel, SCR 3.500(3)(f) 

### does not address the situation present in the case at bar, namelywhere the Board has disagreed with the Committee's recommendation ofdisapproval for an application for restoration. Oberforffdoes not object to this Court's consideration ofthis issue, which will be discussed in detail below.2

2 Oberdorffdoes objectto Bar Counsel's motion for leave to file a brief, arguing that Bar Counsel's tenqered briefwas little more than a redressing ofits pleading· before the Board, and that as such itis unnecessary for this Court's review. In the alternative, Oberdorfffiled a motion for the Court's consideration, were we to grant Bar Counsel's motion. We have overruled Oberforff's objection and have reviewed the pleadings submitted by Bar Counseland Oberdorff. 4 /ANALYSIS 

### Bar Counsel urges this Court to rejectthe Board's. recommendation because it allegedly ignores and circumvents the clear language ofSCR 2.013. SCR 2.013 states that [e]very applicant must intend to engage in the practice oflaw in Kentucky·and agree to abide by the rules, duties and standards imposed upon attorneys ofthis state. No person shall seek admission to the Bar ofKentucky for the primary purpose ofusing ·such admission as a**ba~is** 

### for obtaining admission to the Bar of

some sister state or the District ofColumbia or to circumvent the admission requirements ofsuch sister state or District. The giving
· oferroneous information as to intention to practice law in the State

ofKentucky shall be grounds for denying the applicant's ,application or for disbarment. \ 

### Bar Counsel contends that Oberdorff's statements to Executive Director Meye:i;-s demonstrate thathe does not intend to practice law in Kentucky. Furthermore, Bar Courisel contends that Oberdorff's sole purpose for. restoration is to becorp.e eligible to apply for admission to South**Caro,Iina~s** 

### bar. Oberdorffresponds by arguing that Bar Counsel and the Committee have erred by not permitting him to change his mind regarding his desire to practice law in Kentucky. Oberdorffcontends that under the reasoning promulgated by Bar Counsel and the Committee, "if

### an attorney states he does not intend to ·

. . 

### practice law in Kentucky, that is an**irrevocabl~** 

### position which**~annot** 

### be changed or altered at any point in time. Under that approach, six months later, or sixyears later, the Applicant,. such as Mr. Oberdorffwould not be able

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### to take a different position." Further, Oberdorffnoted the Board's conclusion that SCR 2.013 does not have any time frame as to when the intent to practice law in· Kentucky must be expressed. 51 We agree with the Board that SCR 2.013 does not expressly state a time frame within which an attorney must identify his intent to practice'law in the Commonwealth. While Oberdorffreferenced the possibility ofhis practicing law in Kentucky before the Committee and Board, his intention to practice should his motion for,restoration be granted is far from definitive.3 However, we agree with the Board that_Qberdorff's representation about his intentto practice law in Kentucky is sufficient to meet the requirements ofSCR 2.013. While Oberdorff seeks to obtain restoration to pursue licensing in South Carolina, this goal is not mutually exclusive with Oberdorff's newfound interestin practicing law in Kentucky. Accordingly, we adopt the recommendations ofthe Board, and it is hereby ORDERED, 1. MarcLawrence Oberdorffis eli'gible for restoration to membership in the Kentucky bar. 2. This matte+ shall be referred to the Board ofBar Examiners for examination as set forth in SCR 3.500(3); the results ofthe examination shall

\ be certified by the B'oard ofBar Examiners to this Court and to the Executive Director ofthe KEA.

3 In a letter to the Committee's General Counsel Oberdorffstated that "[he] could, legitimately, seekpublic finance/federal tax public.entityrepresentation in Kentucky as a condition ofthe restoration ofhis license in Kentucky." Oberdorffwent on to saythat "[t]he Pope Flynn lawfirm, although located in South Carolina, also

,occasionanyhandles niatters in North Carolina. Extending-that to Kentuckywould not necessarily be a stretch. If, as a condition ofobtainingrestoration ofhis license in Kentucky, thatpotential needs**~o** be**so~dified,** he will do so." 63. Upon**su~cessful** corhpl.etion ofthe exam, Oberdorffshall notbe restored to membership until he pays**due~** and all costs associated with these disciplinary proceedings, in the amount of$768.18. All sitting. All concur. ' ENTEREp: April 26, 2018.

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