Covid, Confusion Mitigates Unauthorized Practice

The Kentucky Supreme Court has reprimanded an attorney admitted in Ohio for practicing south of the Ohio River prematurely

In October of 2020, Rogalinski took and passed Ohio’s October 2020 bar examination.  In December of 2020, Rogalinski became licensed to practice law in the state of Ohio. She is not and has never been licensed to practice law in Kentucky. In August of 2021, Rogalinski filed an application with the Kentucky Office of Bar Admission (KOBA) seeking admission by her transferred score from her 2020 Ohio bar examination. State supreme courts and bar licensing agencies, including Kentucky and Ohio, had entered into Reciprocity Agreements by which October 2020 bar examinees, like Rogalinski, could submit their October 2020 scores from one jurisdiction to another and be credited with that result.

From April to October of 2021, Rogalinski was employed as a staff attorney by the Kentucky Department of Public Advocacy (DPA). While employed as a DPA attorney and despite being unauthorized to practice law in this state, Rogalinski represented clients in court and provided legal advice. DPA appears to have believed Rogalinski either had a limited license to practice law or was authorized to practice with the supervision of a licensed attorney. Rogalinski indicates that she was confused about her ability to practice law in Kentucky and believed she was acting appropriately. She attributes this confusion to the following circumstances: she had a limited license to practice law in Ohio during her final year of law school; she was seeking admission to the Kentucky bar; and she was permitted to represent clients by her superiors at DPA.

The result signals that the court accepted significant  mitigation

The KBA cites these cases to demonstrate that a public reprimand is an appropriate sanction. The KBA further notes that Rogalinski was confused about her ability to practice law in Kentucky and that this confusion appears to have been shared by her supervisor at DPA. This confusion is understandable, given that 2020 was the first year of the COVID-19 pandemic and all state supreme courts and bar admissions offices struggled with balancing public health and safety with the ongoing need to license recent law school graduates. This Court adopted supervised practice provisions to permit recent law graduates to practice under the supervision of a licensed attorney during the bar examination process, and these orders were issued and amended several times.  Finally, the KBA notes that there is insufficient evidence to determine that Rogalinski affirmatively misrepresented to DPA that she was authorized to practice law.

We have thoroughly reviewed the facts and relevant caselaw. Although the cases cited by the KBA all involve attorneys who were licensed to practice law in Kentucky but whose licenses were suspended, we find this distinction of little consequence. We agree with Rogalinski and the KBA that a public reprimand is appropriate here. The Character and Fitness Committee will consider Rogalinski’s actions in deciding whether she meets the good character and fitness standards required to obtain admission to the Kentucky bar. We urge the committee to act swiftly on Rogalinski’s application and to strongly consider in mitigation the unique situation within which Rogalinski found herself.