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UNAUTHORIZED PRACTICE OF LAW UPDATE - 2010
Michelle A. Hall, Secretary
Board on the Unauthorized Practice of Law
The Supreme Court of Ohio
UPL = UNAUTHORIZED PRACTICE OF LAW
UPL Rules and Regulations
Definitions of UPL
UPL Considerations for Paralegals
UPL Board Procedure
Case Law Update
UPL Board Developments
Topics
UPL: Who Regulates?
Supreme Court of Ohio
Ohio Constitution Art. IV Sec. 2(B)(1)(g)
“The supreme court shall have original jurisdiction in the following…Admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law.”
UPL: Why Regulate?
Purpose of Gov.Bar R. VII
Section 17: This rule… shall be liberally construed for the protection of the public, the courts, and the legal profession…
Supreme Court View
“Gov.Bar R. VII is built on the premise that limiting the practice of law to licensed attorneys is generally necessary to protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation.” Cleveland Bar Assn. v. CompManagement, Inc. (2004)
UPL: What is it?
Gov.Bar R. VII (Supreme Court Rules for the Government of the Bar)
The unauthorized practice of law is the rendering of legal services for another by any person not admitted to practice in Ohio under Rule I, and not granted active status under Rule VI, or certified under Rule II (legal interns), Rule IX (temporary certification), or Rule XI (foreign legal consultants) of the Supreme Court Rules for the Government of the Bar of Ohio.
Rendering of legal services
for another
by any person
Not admitted to practice in Ohio
Definition of Practice of Law
“The practice of law is… the doing or performing services in a court… But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.” Land Title Abstract & Trust Co. v. Dworken (1934)
Definition of Practice of Law
“The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law.” Judd v. City Trust & Sav. Bank (1937)
UPL: Defined through Case Law
General: Legal Advice and Counsel Preparation of Legal Instruments / Contracts Management of Legal Action All Advice and Action Taken for Clients in
Matters Connected to the Law
UPL: Defined through Case Law
Specific: Estate planning services (“trust mills”) Advising debtors of legal rights to avoid foreclosure or
other collection proceedings Negotiating settlements Drafting deeds Imposters / “holding out” / “power of attorney” Selection / completion of forms Attorneys without proper license
UPL Exceptions
Third party administrators / BWC IDEA / Parent pro se representation Board of Revision complaints by corporate officers Jailhouse lawyers Company officer in small claims court Hearings before Unemployment Compensation
Board of Review / Bureau of Unemployment Services
Union elections / Collective bargaining
UPL: What about Paralegals?
ABA Model Guidelines for the Utilization of Paralegal Services
Lawyers delegate tasks to paralegals Not all legal tasks may be delegated Lawyer has ultimate responsibility for delegated
tasks Direct supervision and instruction Improper delegation = assisting in UPL Paralegal must act within delegated authority
Ohio Rules of Professional Conduct
Replaced former Ohio Code of Professional Responsibility on February 1, 2007
Prof. Cond. R. 5.3: Responsibilities regarding nonlawyer assistants The lawyer must give appropriate instruction and
supervision The lawyer can be responsible for the nonlawyer’s
violation of the Rules
Ohio Rules of Professional Conduct
Prof. Cond. R. 5.4: Professional independence of a lawyer With limited exception, the following is prohibited:
Sharing of legal fees with nonlawyersPartnerships with nonlawyersNonlawyers’ direction of lawyers’ professional
judgment
Ohio Rules of Professional Conduct
Prof. Cond. R. 5.5: UPL; Multijurisdictional Practice of Law No lawyer shall engage in UPL or assist another in
UPL Temporary Practice Holding out Corporate Status Federal Practice Only
Paralegal Canons and Ethical Considerations
Canon 6: A paralegal title shall be fully disclosed
Canon 7: A paralegal shall not engage in UPL
Potential Paralegal Issues
Preparing forms or other documents for persons to file later pro se
Inadequate supervision by the attorney Forgery of attorney signature on correspondence or
court pleading Not indicating to clients “not an attorney,” or
misleading by omission Appearances in courts Settlement negotiations
Recent “Paralegals” Cases
Columbus Bar Assn. v. Thomas (2006) Exceeded delegated authority, acted independently Prepared and filed pleadings Prepared estate documents Signed attorney’s name Gave legal advice $5,000 civil penalty
Recent “Paralegals” Cases
Ohio State Bar Assn. v. Cohen (2005) Dba DocuPrep USA (national chain of “independently
operated paralegal offices”) Drafted wills, pleadings, bankruptcy petitions, gave
legal advice, charged a fee
Cleveland Bar Assn. v. Para-Legals (2005) Sham authority of a power of attorney / no attorney
supervision Prepared dissolution documents that were filed in court Represented a Florida corp. in small claims court
Recent “Paralegals” Cases
Cleveland Bar Assn. v. McKissic (2005) Dba Vel’s Professional Services Selected and completed legal forms Gave legal advice
Cleveland Bar Assn. v. Coats (2003) Dba Paramount Paralegal Services Drafted divorce complaints and judgment entries for
filing on behalf of pro se litigants No attorney supervision Representation before admin. agency
Recent “Paralegals” Cases
Columbus Bar Assn. v. Purnell (2002) Filings in probate court in personal injury claim of a
minor Cincinnati Bar Assn. v. Cromwell (1998)
Business called “Paralegal Service Group” which operated without the supervision of an attorney
Negotiated settlements, prepared settlement agreement Akron Bar Assn. v. Greene (1997)
Drafted and filed a complaint for divorce, appeared in court
BCGD Opinions
Opinion 2009-6 Outsourcing of legal or support services domestically
or abroad, to lawyers or nonlawyers, is permissible but rules of supervision apply
Opinion 2002-4 A lawyer may not delegate the taking of a deposition to
a paralegal Does not matter if supervised or predetermined
questions Constitutes assisting with UPL
Other Sources
109 A.L.R.5th 275: “What Constitutes Unauthorized Practice of Law by Paralegal”
American Bar Association Center for Professional Responsibility / Client Protection http://www.abanet.org/cpr/clientpro/client.html
UPL Board Procedure
Board on the UPL
Created 1976 11 Attorneys, 1 Nonattorney Referrals for Investigation Adjudicates formal complaints of UPL
Three-member panels Hearings Settlement Agreements and Consent Decrees
Recommendations to the Supreme Court Advisory Opinions
Supreme Court Review
Board Final Report Court Order to Show Cause Parties may file objections (except in consent
decree cases) Oral argument Upon finding of UPL – Order issued:
Prohibits respondent from future conduct Reimbursement of costs incurred by relator and Board May impose civil penalty and tax costs
Civil Penalties
Began in 2003 $10,000 per “offense” 5 factor analysis
Degree of cooperation Number of occasions UPL was committed Flagrancy Harm to third parties Any other relevant factors
See UPL regulations Aggravation and Mitigation
Civil Penalties 2009
$6,651,490 in 8 cases
What happens to collected penalties?
Deposited in the Attorney Services Fund Attorney disciplinary system Clients’ Security Fund UPL operations Commission on Professionalism Attorney Services (registration and CLE) Ohio Legal Assistance Foundation Ohio Lawyers Assistance Program
Fund report available on Court’s website
Other UPL Remedies
R.C. 4705.01; 4705.07 Must be admitted with the Supreme Court to
practice law No false representation as an attorney Can pursue civil damages if UPL finding by Board
/ Court Criminal penalty for UPL = 1st Degree
Misdemeanor
UPL Case Law Update
Notable UPL Cases 2009
Columbus Bar Assn. v. Am. Family Prepaid Legal
Cincinnati Bar Assn. v. Foreclosure Solutions Cleveland Bar Assn. v. Boyd II Disciplinary Counsel v. Brown Cincinnati Bar Assn. v. Mid-South Estate
Planning
UPL Decisions 2009
Columbus Bar Assn. v. Am. Family Prepaid Legal Trust mill case Court found at least 3,826 breaches of a 2003 consent
agreement $6.4 million civil penalty imposed against 4
respondents $60,000 in civil penalties against 19 individual
respondents $10,000 in civil penalties through 4 consent decrees $25,000 per day fine for not timely disclosing
customer list
UPL Decisions 2009
Cincinnati Bar Assn. v. Foreclosure Solutions Foreclosure mill Serviced 12,000-14,000 Ohioans $50,000 civil penalty
UPL Decisions 2009
Cleveland Bar Assn. v. Boyd II Preparation and filing of pleadings in domestic
relations cases for a fee $20,000 civil penalty Respondent also found to have engaged in UPL in
2006 Found in contempt of 2006 Court order Arrest warrant 10/21/09 7 days mandatory incarceration
UPL Decisions 2009
Disciplinary Counsel v. Brown Disbarred attorney from NY Legal advice and representation Use of “Esq.” and “J.D.” Also found to have engaged in UPL in 2003 $50,000 civil penalty Respondent currently incarcerated
UPL Decisions 2009
Cincinnati Bar Assn. v. Mid-South Estate Planning Trust mill 2 cases:
Consent decree, injunction, $17,500 civil penalty Injunction, $50,000 civil penalty
UPL Board: Recent Developments
Advisory Opinions
UPL 2008-01: Lawyer and Nonlawyer Representation of Labor Organizations in Collective Bargaining and Labor Grievance Arbitration
UPL 2008-02: Nonattorney Completion of Mortgage Instruments
UPL 2008-03: Legal Document Preparation by Online Services
Pro Hac Vice
Pro hac vice = a privilege granted to out-of-state attorneys not admitted in Ohio to appear before a tribunal on a limited basis
New Gov.Bar R. XII Centralizes pro hac vice admission Out-of-state attorneys must file application with
Supreme Court and pay $100 annual registration Three pro hac vice admissions per calendar year Attorney must also file motion with the tribunal Effective January 1, 2011
Proposed Amendments to Gov.Bar R. VII
Will be presented to Court for initial consideration in February 2010
Concepts Definition of UPL clarified Ohio AG may act as relator Expansion of Board membership Board election of chair and vice-chair Settlement procedure refined
Gov.Bar R. VII
UPL Regs
UPL Flowchart
Gov.Bar R. XII
Advisory Opinions 2008-01, 02, 03
R.C. 4705.01, 4705.07, 4705.99
Prof. Cond. R. 5.3, 5.4, 5.5
BCGD Opinions 2002-4, 2009-6
Handouts
Friday, November 5, 2010
Ohio Judicial Center
Columbus, Ohio
Annual UPL Seminar
Michelle A. Hall, Secretary
Board on the Unauthorized Practice of Law
Supreme Court of Ohio
65 South Front Street
Columbus, Ohio 43215
614.387.9318
Contact Information
http://www.supremecourtofohio.gov/Boards/UPL/ Board Final Reports Consent Decrees and Settlement Agreements Rules, Regulations, Statutes, Advisory Opinions Supreme Court Decisions FAQs How to file a complaint
UPL Board Website
Questions?
THANK YOU PACO
