Opinion
No. UPL-91-2.
Decided January 7, 1992.
J. Warren Bettis, Disciplinary Counsel, and Sally Ann Steuk, for relator.
This matter came before the Board of Commissioners on the Unauthorized Practice of Law ("Board") for hearing on August 25, 1991. Members of the Board present and participating in this decision were Kenneth F. Seibel, Chairman, Santiago Feliciano, Jr., Paul M. Greenberger, Jeffrey L. Maloon, D. John Travis and John W. Waddy, Jr.
Relator was represented by J. Warren Bettis, Disciplinary Counsel, and Sally Ann Steuk, Assistant Disciplinary Counsel. Respondent, Bruce A. Brown, was not represented by counsel.
On August 14, 1991, an agreed stipulation, waiver of notice and hearing, and relator's exhibits were filed. Therefore, neither the parties nor their counsel appeared at the hearing, and the Board considered only the pleadings and documents filed.
Respondent is apparently admitted to the practice of law in the state of New York and the United States District Court for the Eastern District of New York. Evidence in the record indicates that respondent had contact with the Admissions Office of the Supreme Court of Ohio concerning admission in Ohio without examination but, as of April 19, 1991, had not completed the application process.
Each of the stipulations was supported by exhibits filed by relator. Respondent admitted that he is not registered to practice law in Ohio. The other pertinent stipulations, which correspond to paragraph two of relator's complaint, are as follows:
"Respondent did render legal services in the State of Ohio during year 1991, to-wit:
"(a) Made application for and interviewed for the position of Assistant Director of Law, with the Department of Law, City of Cleveland, Ohio.
"(b) Prepared and circulated a professional resume reflecting bar membership in the Ohio State Bar.
"(c) Acted as an arbitrator for Cuyahoga County Court of Common Pleas' Arbitration Commission on three (3) cases, receiving renumeration for each."
Gov.Bar R VII (2)(A) states that "[t]he unauthorized practice of law is the rendering of legal services for others by anyone not registered under Rule VI or Rule XI of the Rules for the Government of the Bar of Ohio." Since it is undisputed that respondent Brown is not an attorney registered in Ohio, the issue before this Board is whether respondent's activities constitute "the rendering of legal services for others" and are therefore the unauthorized practice of law.
In all cases coming before this Board on stipulations by the parties, the Board is required to make its own determination of whether the facts support a finding that the unauthorized practice of law has been committed.
The activities described in the complaint, and repeated in Stipulations 2(a) and (b), involve respondent holding himself out as an attorney without the rendering of legal services for others. In determining whether these activities constitute the unauthorized practice of law, the Board has reviewed Section 2(A) of Gov.Bar R. VII and the case law pertaining to the unauthorized practice of law.
In the seminal case of Land Title Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650, the Supreme Court set forth a definition of what constitutes the unauthorized practice of law. In paragraph one of the syllabus, the court stated:
"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."
The court reaffirmed the foregoing definition in Judd v. City Trust Savings Bank (1937), 133 Ohio St. 81, 10 O.O. 95, 12 N.E.2d 288. After citing the Dworken definition, the court in Judd stated at 86, 10 O.O. at 97, 12 N.E.2d at 291: "The acts stressed in the above definition as constituting the practice of law are the performance of legal services for others. * * *" (Emphasis sic.)
Thus, it appears that the Supreme Court of Ohio, when it promulgated Gov.Bar R. VII, implicitly adopted the definition of the practice of law set forth in Judd.
When the facts of the case sub judice are applied to the foregoing law, the Board finds that respondent was not engaged in the unauthorized practice of law by making application and interviewing for a position as an attorney or by preparing and circulating a professional resume reflecting bar membership, since those acts did not involve the rendering of legal services by the respondent for others. Judd v. City Trust Savings Bank, supra; Gov.Bar R. VII. That is not to say, however, that a court may not enjoin respondent from holding himself out as an attorney if there is other evidence of the unauthorized practice of law.
Section 8 of Gov.Bar R. VII allows relator to seek an injunction in an appropriate case. Section 17 of the same rule provides that the rules relating to investigations and proceedings involving complaints of unauthorized practice of law shall be liberally construed for the protection of the public, the courts, and the legal profession. Further, it is well recognized that a court of equity may enjoin a continuous or recurring course of conduct. Salem Iron Co. v. Hyland (1906), 74 Ohio St. 160, 77 N.E. 751. In fact, the Supreme Court of Ohio has stated that if a defendant intends to commit a wrong and has the power to do it, there is no more reason to refuse an injunction to prevent the wrongdoing than to refuse one after its commencement. McArthur v. Kelly (1831), 5 Ohio 140.
In accord with the foregoing principles of law, the Supreme Court of Ohio affirmed the issuance of a permanent injunction prohibiting respondents in Dworken from engaging in various acts, including the following: "`Soliciting patronage under any representation, either in writing, orally or otherwise, that defendant will furnish legal services or legal advice to any patron.'" Dworken, supra, 129 Ohio St. 23 at 26, 1 O.O. at 314, 193 N.E. at 650.
The issue of holding oneself out as an attorney was again addressed by the Supreme Court when it decided In re Unauthorized Practice of Law (1963), 175 Ohio St. 149, 23 O.O.2d 445, 192 N.E.2d 54. A court-appointed committee in that case brought a complaint against Brown, Weiss and Wohl, a partnership that counseled claimants having workers' compensation claims. In paragraph three of the syllabus, the court declared:
"No person, other than an attorney in good standing, may hold himself out as being qualified to render service to those who may have claims for compensation arising under the Workmen's Compensation Laws of Ohio or as being able to render services in the preparation and presentation of such claims nor may such person render such advice or services if a fee for such advice or services is to be received from or charged against the one having such a claim."
Other courts similarly have issued injunctions against holding oneself out as an attorney. The court in Goodman v. Provident Savings Bank Trust Co. (C.P. 1939), 29 Ohio Law Abs. 673, 15 O.O. 385, 4 Ohio Supp. 75, stated at 675, 15 O.O. at 386, 4 Ohio Supp. at 78: "* * * Of course, if the defendant has no right to practice law, it has no right to advertise to obtain law business." Similarly, the court of appeals, in deciding In re Cowgill (1973), 37 Ohio App.2d 121, 66 O.O.2d 237, 307 N.E.2d 919, affirmed the issuance of an injunction precluding the defendant from holding himself out as being legally qualified to render opinions, counsel, and advice.
The Board therefore finds that if there is an independent basis upon which to seek an injunction against respondent, the court also may enjoin him from holding himself out as an attorney. Accordingly, we proceed to consider the remaining allegation, which concerns the respondent's serving as an arbitrator for three cases in the Cuyahoga County Court of Common Pleas, to determine whether this independent basis exists.
Such conduct may also be made the subject of a criminal proceeding, by virtue of R.C. 4705.07 and 4705.99.
R.C. 4705.07 provides that:
"No person who is not regularly licensed to practice law in this state shall hold himself out in any manner as an attorney at law, or shall represent himself either orally or in writing, directly or indirectly, as authorized to practice law.
"The use of `lawyer,' `attorney at law,' `counselor at law,' `law,' `law office,' or other equivalent words by any person not licensed to practice law, in connection with his own name, or any sign, advertisement, card, letterhead, circular, or other writing, document, or design, the evident purpose of which is to induce others to believe such person to be an attorney, constitutes holding out within the meaning of this section."
R.C. 4705.99 provides in part that:
"(A) Whoever violates section 4705.07 of the Revised Code shall be fined not less than twenty-five nor more than five hundred dollars."
Arbitrations in Cuyahoga County are governed by Local Rule 29, which provides that arbitrators shall be attorneys:
"Rule 29. Mandatory Arbitration
"* * *
"PART II. SELECTION OF ARBITRATORS
"(A) In all cases subject to arbitration, the members of the Board of Arbitrators shall be appointed by the Arbitration Commissioner from the list of all members of the Bar of Cuyahoga County who are certified by the Supreme Court of Ohio and eligible to practice law in Ohio and who have been admitted to the practice of law for more than one year. * * *"
Clearly, not all arbitration proceedings contemplate attorney arbitrators. Local Rule 29 arbitrations in Cuyahoga County, however, may only be conducted by members of the bar, who are paid by the county for their services to the litigants. Therefore, the Board finds that respondent's service as an arbitrator constituted the unauthorized practice of law since he rendered services for others which, by rule, may only be rendered by an attorney.
After careful review and consideration of the pleadings, stipulations, evidence, and the applicable law, the Board finds that relator has proven one of the allegations of the complaint to the extent required by Gov.Bar R. VII; that respondent has engaged in the unauthorized practice of law; and that relator should be authorized to proceed pursuant to Section 8 of Gov.Bar R. VII.
The Board therefore authorizes relator to commence an action in a court of competent jurisdiction for the purpose of obtaining a judicial determination whether respondent, Bruce Andrew Brown, has engaged in the unauthorized practice of law, and to seek appropriate injunctive relief.
It is also the finding of the Board that relator, as part of the injunctive relief, may seek a court order enjoining respondent from holding himself out as an attorney in this state.
It is further ordered that a copy of this Opinion and Order be sent to the Law Director of the city of Cleveland, Ohio, for consideration pursuant to R.C. 4705.07 and 4705.99.
Relator and the Law Director of the city of Cleveland shall notify the Secretary of the Board of all subsequent proceedings in this matter and shall send the Secretary a copy of any judgment, order, or settlement agreement filed in a subsequent court proceeding.
Pursuant to Section 9 of Gov.Bar R. VII, relator may seek reimbursement from the Board for expenses and attorney fees incurred in the further prosecution of this matter.
A copy of this Opinion and Order shall be served upon relator, respondent, all counsel of record, the Cleveland Bar Association, the Cuyahoga County Bar Association, and the Ohio State Bar Association.
So ordered.