[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Application of Swendiman, Slip Opinion No. 2016-Ohio-2813.]

NOTICE This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2016-O HIO -2813
I N RE A PPLICATION OF S WENDIMAN . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Application of Swendiman, Slip Opinion No. 2016-Ohio-2813.] Application for admission without examination

― Applicant engaged in unauthorized practice of law in Ohio

― Application disapproved

― Applicant may reapply. (No. 2015-0540—Submitted June 10, 2015—Decided May 5, 2016.)
O N R EPORT by the Board of Commissioners on Character and Fitness of the Supreme Court, No. 592.

___________________________ Per Curiam. {¶ 1} Matthew Ashley Swendiman of Ci ncinnati, Ohio, has applied for
admission to the Ohio bar without exa mination. The admissions committee of the Cincinnati Bar Association certified that Swendiman possessed the requisite
character and fitness and recommended that his application be approved. The Board
of Commissioners on Character and Fitn ess, however, invoked its sua sponteS UPREME C OURT OF O HIO

2 investigatory authority, conferred by Gov. Bar R. I(10)(B)(2)(e), apparently due to concerns arising from investigations initiated by the Occupational Safety and Health Administration (“OSHA”) and the CFA Institute, an association of investment professionals, as well as concerns that Sw endiman had engaged in the unauthorized practice of law in Ohio. {¶ 2} After conducting a hearing, a pane l of the board issued a report finding that Swendiman engaged in the unaut horized practice of law in Ohio before and after he applied for admission to the Oh io bar and that he has therefore failed to prove that he currently possesses the requisite character and fitness to practice law in this state. Therefore the panel recommended that his application for
admission without examination be denied. The board adopted the panel’s report in its entirety and recommends that we disapprove Swendima n’s application. Swendiman has not objected to the board’s report and recommendation. {¶ 3} We adopt the board’s findings, disapprove Swendiman’s pending application for admission without examin ation, and order him to immediately cease and desist activities constituting the practice of law in Ohio unless and until he is duly licensed to practice in this state.
Swendiman’s Practice of Law in Ohio {¶ 4} Swendiman has been admitted to practice law in three jurisdictions, including Indiana in 2001, Connecticut in 2003 (although this license is no longer active), and the District of Columbia in 2005. Since his first admission, he has primarily engaged in the financial-investment business as a lawyer and as a financial advisor. In 2006, he took a pos ition as in-house counsel for Fifth Third Bank and its asset-management subsidiary in Ohio and eventually became the chief administrative officer of that subsidiary. During his time with Fifth Third, Swendiman registered for corporate status pursuant to Gov.Bar R. VI(6). {¶ 5} Following Swendiman’s tenure at Fi fth Third, two employees filed a complaint with OSHA alleging that their employment was terminated after theyJanuary Term, 2016

3 voiced concerns about alleged exaggera tions and misrepresentations in the prospectuses for products offered by Fift h Third’s asset-management subsidiary during Swendiman’s tenure. Although the complaint apparently alleged that Swendiman had failed to correct misinformation regarding the identity of some of the subsidiary’s fund managers, he told the panel that OSHA never contacted him about the allegations. He also reported that the CFA Institute te rminated its related investigation into the allegations after an internal Fifth Third investigation and a third-party investigation c onducted at Fifth Third’s request found no evidence of wrongdoing. {¶ 6} Swendiman left Fifth Third in Ap ril 2011 to take a position as chief operating officer with another corporation, but he left that job after just seven months to start his own investment compan y, Swendiman Wealth Strategies, Inc.
He became of counsel to the Cincinnati la w firm Graydon, Head & Ritchey, L.L.P., in September 2012 and worked part-time for the firm while continuing to operate his investment company. Approximately six months after joining the firm, Swendiman applied for admission to the Oh io bar without examination. And by late 2014, he had closed his business a nd began working full-time for the firm, though his application for admissi on to the bar remained pending. {¶ 7} In a June 2013 amended affidavit of past practice, Swendiman avers that he has been and is practicing law at the Graydon firm. At the panel hearing, he testified that he took the position be cause his clients and other professional contacts were asking him not only to provide financial investment advice, but also to perform legal services for them. The panel found that because of Swendiman’s extensive experience in investment advising and contacts with institutional clients around the country, he was responsible for establishing client relationships and serving as a resource to the Graydon firm’s securities group. {¶ 8} Gov.Bar R. VII(2)(A)(1) defines the unauthorized practice of law in Ohio as the rendering of legal services for another by any person not admitted toS UPREME C OURT OF O HIO

4 practice in Ohio under Rule I of the Supr eme Court Rules for the Government of the Bar. A person not so admitted may practic e law if he or she is rendering legal services in compliance with the requi rements of Prof.Cond.R. 5.5 regarding the multijurisdictional practice of law. Swendiman argued that his practice with the Graydon firm is authorized by Prof.Cond.R. 5.5(d)(2). {¶ 9} Prof.Cond.R. 5.5(b)(1) prohibits a lawyer who is not admitted to practice in this jurisdiction from establishing an office or other systematic and continuous presence in this jurisdiction fo r the practice of law except as otherwise authorized by the Professional Rules or other law. Swendiman admitted that he has established an office and a continuous pres ence in Ohio and that he had practiced law in this state, but he contended that his practice was authorized pursuant to Prof.Cond.R. 5.5(d)(2), which provides that a lawyer admitted and in good standing in another United States jurisdiction may provide legal services in this jurisdiction if “the lawyer is providing services that the lawyer is authorized to provide by federal or Ohio law.” During the proceedings below, Swendiman appeared to argue that because he was advising clients regarding federal law only and because he was licensed to practice law in the District of Columbia, where filings before the Securities and Exchange Commission and other federal agencies are made, he was
authorized to render those services in Oh io. The panel noted that Swendiman did not cite any legal authority to support his “seemingly novel” argument that his practice of law in Ohio wa s authorized, and it found no cases directly on point. Moreover, the panel found that cases in wh ich a lawyer’s practice of law has been deemed to be authorized by federal law occurred when the lawyer’s practice had been specifically authorized by a separate federal admissions authority. {¶ 10} For example, in Disciplinary Counsel v. Harris , 137 Ohio St.3d 1, 2013-Ohio-4026, 996 N.E.2d 921, ¶ 14-15, this court found that Harris did not engage in the unauthorized practice of law when he represented a client before the United States Bankruptcy Court for the Northern District of Ohio, because he hadJanuary Term, 2016

5 been admitted to practice in that court, even though he had not been admitted to the Ohio bar. In doing so, we acknowledged that “ ‘[a] bankruptcy court has the power to regulate the practice of law in the cases before it.’ ” Harris at ¶ 15, quoting In re Ferguson, 326 B.R. 419, 422 (Bankr.N.D.Ohio 2005). See also In re Desilets
, 291 F.3d 925 (6th Cir.2002) (holding that an attorney licensed in Texas and admitted to practice before a federal bankruptcy court in Michigan was authorized to practice federal bankruptcy law in Mich igan, even though he was not licensed in Michigan, because the bankruptcy court’s rules permitted the attorney not only to appear before the bankruptcy court, but also to counsel clients in bankruptcy actions or proceedings). Distinguishing Swendiman’s case from Harris and Desilets
, however, on the ground that admission to th e District of Columbia bar is not tantamount to admission by a separate fe deral authority, the panel found that
Swendiman’s reliance on Prof .Cond.R. 5.5(d)(2) was misplaced. {¶ 11} Although the panel did not believe that Swendiman’s conduct was intentional, it found that he was not par ticularly attentive to Prof.Cond.R. 5.5 or thoughtful or diligent about how he should proceed once he decided to resume the practice of law, as he waited almost si x months after he commenced his legal employment with the Graydon firm to appl y for admission to the Ohio bar. Finding that Swendiman engaged in the unauthorized practice of law in Ohio and that he
continued to do so at the time of his ad missions hearing, however, the panel found that he did not possess the requisite character and fitness to practice law in this

state. {¶ 12} The board adopted the panel’s findi ngs of fact and recommendation that Swendiman’s pending application for admission without examination be disapproved. The board recommended that he be permitted to reapply for admission to the practice of law in Ohio by filing a new application and undergoing a complete character and fitness investiga tion, including a new character and fitnessS UPREME C OURT OF O HIO

6 interview and report by the National Confer ence of Bar Examiners. And as noted above, Swendiman failed to object to the board’s findings or recommendation. Disposition {¶ 13} An applicant to the Ohio bar mu st prove by clear and convincing evidence that he or she “possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.” Gov.Bar R. I(11)(D)(1). The applicant’s record must justify “the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them.” Gov.Bar R. I(11)(D)(3). “A record manifesting a significant defici ency in the honesty, trustworthiness, diligence, or reliability of an applicant may constitute a basis for disapproval of the applicant.” Id. {¶ 14} Commission of an act constituting the unauthorized practice of law
is one factor to be considered in dete rmining whether an applicant possesses the requisite character, fitness, and moral qualifications to practice law in Ohio. Gov.Bar R. I(11)(D)(3)(c). In assigning weight and significance to the applicant’s prior conduct, we consider the age of the applicant at the time of the conduct, the recency of the conduct, and the reliabilit y of the information concerning the conduct, among other factors. Gov.Bar R. I(11)(D)(4). {¶ 15} The panel found that Swendiman ha s engaged in the unauthorized practice of law in Ohio before and after he submitted his application for admission
to the Ohio bar without examination. We find, at a minimum, that he has failed to present sufficient evidence to establish that he was authorized by Ohio or federal law to provide the legal services that he has rendered to clients in Ohio through his employment with Graydon, Head & Ritchey. Therefore, we agree that he has failed to carry his burden of proving by clear and convincing evidence that he currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio.January Term, 2016

7 {¶ 16} Accordingly, we adopt the board’s recommendation to disapprove Swendiman’s pending application for ad mission without examination. Swendiman may reapply for admission without examinati on, and if he does, he will be subject
to a full character and fitness examinati on. Furthermore, we order Swendiman to immediately cease and desist all activities described herein and any other activities constituting the practice of law in Ohio unless and until he is duly licensed to practice in this state. Judgment accordingly.
P FEIFER , O’D ONNELL , K ENNEDY , and F RENCH , JJ., concur.
O’C ONNOR , C.J., dissents and would permanently deny admission.
L ANZINGER and O’N EILL , JJ., dissent and would permanently deny admission without prior examination.

_________________ Graydon, Head & Ritchey, L.L.P., and Steven P. Goodin, for applicant. Maria C. Palermo; Santen & Hughes and Stephanie M. Day, for Cincinnati
Bar Association.

_________________