[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 Decisions, 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. 

SLIP OPINION NO. 2016-OHIO-2813

IN RE APPLICATION OF SWENDIMAN. 

[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.) 

ON REPORT by the Board of Commissioners on Character and 

Fitness of the Supreme Court, No. 592. 

___________________________ 

Per Curiam. 

{¶ 1} Matthew Ashley Swendiman of Cincinnati, Ohio, has applied for 

admission to the Ohio bar without examination. 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 Fitness, however, invoked its sua sponte 
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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 Swendiman had engaged in the 

unauthorized practice of law in Ohio. 

{¶ 2} After conducting a hearing, a panel of the board issued a report 

finding that Swendiman engaged in the unauthorized practice of law in Ohio before 

and after he applied for admission to the Ohio 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 Swendiman’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 examination, 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 position 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 Fifth Third, two employees filed a 

complaint with OSHA alleging that their employment was terminated after they 
January Term, 2016 

3

voiced concerns about alleged exaggerations and misrepresentations in the 

prospectuses for products offered by Fifth 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 terminated its related 

investigation into the allegations after an internal Fifth Third investigation and a 

third-party investigation conducted at Fifth Third’s request found no evidence of 

wrongdoing. 

{¶ 6} Swendiman left Fifth Third in April 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 company, Swendiman Wealth Strategies, Inc. 

He became of counsel to the Cincinnati law 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 Ohio bar without examination. And by 

late 2014, he had closed his business and began working full-time for the firm, 

though his application for admission 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 because 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 to 
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practice in Ohio under Rule I of the Supreme Court Rules for the Government of 

the Bar. A person not so admitted may practice law if he or she is rendering legal 

services in compliance with the requirements 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 for 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 presence 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 Ohio. The panel noted that Swendiman did 

not cite any legal authority to support his “seemingly novel” argument that his 

practice of law in Ohio was authorized, and it found no cases directly on point. 

Moreover, the panel found that cases in which 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 had 
January 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 Michigan, 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 the District of Columbia bar is not 

tantamount to admission by a separate federal 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 particularly 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 six months after he commenced his legal 

employment with the Graydon firm to apply 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 admissions 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 findings 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 investigation, including a new character and fitness 
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6

interview and report by the National Conference 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 must 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 deficiency 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 determining 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 reliability of the information concerning the 

conduct, among other factors. Gov.Bar R. I(11)(D)(4). 

{¶ 15} The panel found that Swendiman has 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 admission without examination. Swendiman 

may reapply for admission without examination, and if he does, he will be subject 

to a full character and fitness examination. 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. 

PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ., concur. 

O’CONNOR, C.J., dissents and would permanently deny admission. 

LANZINGER and O’NEILL, 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. 

_________________