Opinion
Decided September 10, 1992.
Friedman Rummell Co., L.P.A., Carl D. Raforth and James Dietz, for relator.
Joseph O'Leary, for respondent.
This matter came before the Board of Commissioners on the Unauthorized Practice of Law ("board") on May 1, 1992 in Columbus, Ohio, on the formal complaint filed March 6, 1992. Members of the board present and participating in this decision were Kenneth F. Seibel, Chairman, John J. Carney, Jeffrey L. Maloon, Paul M. Greenberger, John W. Waddy, Jr., and D. John Travis.
Relator Mahoning County Bar Association was represented by Carl D. Raforth and James Dietz of Friedman Rummell Co., L.P.A., Youngstown, Ohio. Respondent H. Brian Rector, while initially filing a pro se answer to relator's complaint, was represented by Joseph O'Leary, Akron, Ohio. Both respondent and his counsel failed to appear at the hearing. The board considered the pleadings and documents filed and relator's witness testimony and exhibits.
At the time of the activities alleged in the complaint, respondent served as Executive Vice President of Niles Manufacturing Finishing, Inc., Niles, Ohio. The charges concerned respondent's conduct at the depositions of Robert K. Hendrick and Duane Stalnaker at the offices of attorney Richard T. Bush in Youngstown, Ohio. These depositions were taken as part of discovery in Dobrilovic v. Niles Mfg. Finishing Co., case No. 4:91-CV-0550, filed in the United States District Court for the Northern District of Ohio, Eastern Division. Bush served as counsel for plaintiff Dobrilovic. Hendrick and Stalnaker were President and employee, respectively, of defendant Niles Manufacturing, for whom Joseph O'Leary served as counsel.
At the deposition of Hendrick, attorney Bush asked the people in the room to identify themselves. When respondent identified himself, Bush asked if he was to serve as co-counsel, to which respondent replied in the affirmative. Respondent also objected to several questions posed by Bush during the course of the deposition and once instructed the deponent not to answer a question.
Relator's complaint alleged that respondent is not an attorney at law, and that he engaged in the unauthorized practice of law, by:
a. Rendering legal services for others, to wit, representation of Niles Manufacturing Finishing Co., and by holding himself out to be an attorney for that particular corporation in the case of Dobrilovic v. Niles Mfg. Finishing Co.
b. Representing Niles Manufacturing Finishing Co. as co-counsel during the deposition on July 23, 1991.
In his pro se answer, respondent (1) denied each and every allegation in the complaint; (2) stated that he appeared at the deposition of Hendrick as the "employer"; (3) alleged that the complaint was false and fraudulent and designed to coerce a settlement in the Dobrilovic case; (4) denied that he represented himself as an attorney in the Dobrilovic case; (5) stated that he was previously present at a pretrial conference for the Dobrilovic case, at which time his appearance was not objected to; (6) noted that the same matter was brought before the Akron Bar Association, which did not pursue the complaint; and (7) conversed with attorney O'Leary at the deposition of Hendrick as a matter of right. Attached to the answer was an affidavit of attorney O'Leary, in which he averred that he made all objections during the Hendrick deposition and that Rector never represented himself as co-counsel.
Attorney O'Leary then filed, on April 29, a motion to quash notice of hearing, subpoena, and subpoena duces tecum, on the grounds that the board lacked authority to discipline conduct in a federal court case. The motion was found not well taken and was overruled. Also on May 5, 1992, after failing to appear at the hearing, respondent filed a notice of removal, pursuant to Section 1446, Title 28, U.S. Code, to the United States District Court for the Northern District of Ohio, Eastern Division. The board held that the notice of removal was ineffective as its hearings are not subject to removal to the federal courts. See In the Matter of Registration of Edudata Corp. (D.Minn. 1984), 599 F. Supp. 1089, 1091; Cty. of Nassau v. Cost of Living Council (Em.App. 1974), 499 F.2d 1340, 1343; Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction (1976), Section 3721. While the board may be part of the disciplinary process, this hearing merely determines if a complaint should be filed in a court of common pleas. A proceeding before this board generally becomes a civil action removable under Section 1441, Title 28, U.S. Code only after it is appealed. See Edudata, at 1091; see, also, Range Oil Supply Co. v. Chicago, Rock Island Pacific RR. Co. (C.A.8, 1957), 248 F.2d 477. On June 1, relator filed a motion to dismiss or, in the alternative, to remand, in the district court. By order dated June 22, 1992, the relator's motion was sustained and the matter was dismissed by the federal court.
Gov.Bar R. VII(2)(A) stated 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." Relator submitted a certificate from Marcia J. Mengel, Clerk of the Supreme Court of Ohio, confirming that respondent has never been licensed or registered to practice law in Ohio.
The first issue is whether the board has the authority to authorize the filing of a complaint to enjoin a layman who engages in the unauthorized practice of law in a federal court case. We conclude that this board has that authority.
The United States Supreme Court squarely recognized the broad authority of the states to regulate against the unauthorized practice of law in Sperry v. Florida ex rel. Florida Bar (1963), 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428. In the absence of federal legislation to the contrary, the state has jurisdiction over the protection of its citizens from the practice of law by unauthorized laymen. Id. at 383, 83 S.Ct. at 1325, 10 L.Ed.2d at 431. Furthermore, the United States Supreme Court strictly limited application of the federal supremacy doctrine. "[T]he State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives." Id. at 402, 83 S.Ct. at 1335, 10 L.Ed.2d at 442.
In the case of In re Cowgill (1973), 37 Ohio App.2d 121, 66 O.O.2d 237, 307 N.E.2d 919, the defendant was an unlicensed practitioner of patent law. The Marion County Court of Appeals ruled that state regulation imposed no burden or restraint upon the authority of the federal government. Rather, the appeals court found state action seeking merely to regulate those furnishing legal services without a license to do so by either the federal or state authorities. Cowgill at 125, 66 O.O.2d at 239-240, 307 N.E.2d at 921-922. As the state court concluded, "there is no federal purpose to protect those whom [the federal authority] does not license from further regulation by the state." Cowgill at 126, 66 O.O.2d at 240, 307 N.E.2d at 922.
We conclude that the state of Ohio has the authority to discipline unlicensed conduct by a layman before a federal court. The state of Ohio thus joins other states in determining that the unauthorized practice of law falls within the jurisdiction of the state regulating body, whether the source of the law practiced is the state of Ohio, another state of the United States, the United States, or a foreign country. See Kennedy v. Bar Assn. of Montgomery Cty., Inc. (1989), 316 Md. 646, 663, 561 A.2d 200, 208-209 (federally licensed attorney practicing state law subject to disciplinary proceedings before state regulating body). See, also, In the Matter of Perrello (1979), 270 Ind. 390, 386 N.E.2d 174; Indiana ex rel. Disciplinary Comm. of the Supreme Court of Indiana v. Crofts (Ind. 1986), 500 N.E.2d 753; Fair v. Givan (N.D.Ind. 1981), 509 F. Supp. 1086, 1990; In re Roel (1957), 3 N.Y.2d 224, 165 N.Y.S.2d 31, 144 N.E.2d 24.
The second question is whether respondent's conduct constitutes "the rendering of legal services" so as to be the unauthorized practice of law.
The Supreme Court of Ohio set forth the clearest definition of what constitutes the unauthorized practice of law in the case of Land Title Abstract Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650. In the first paragraph of its syllabus, the court held:
"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 in Special Master Commrs. v. McCahan (C.P. 1960), 83 Ohio Law Abs. 1, 11, O.O.2d 221, 229, 167 N.E.2d 541, 550, also described the many areas of legal practice:
"It is clear that a licensed attorney in the practice of law generally engages in three principal types of professional activity. These types are legal advice and instructions to clients to inform them of their rights and obligations; preparation for clients of documents and papers requiring knowledge of legal principles which is not possessed by an ordinary layman; and appearance for clients before public tribunals, which possess the power and authority to determine rights of life, liberty and property according to law, in order to assist in the proper interpretation and enforcement of law."
One of the activities generally included in the practice of law is advising others on their legal rights and responsibilities. ABA/BNA Lawyers' Manual on Professional Conduct (1984), at 21:8004. Accordingly, the appeals court in Cowgill found state intervention appropriate when an unlicensed defendant held himself out as being legally qualified to render opinions, counsel, and advice. Cowgill, 37 Ohio App.2d at 122, 66 O.O.2d at 238, 307 N.E.2d at 919-920.
Respondent clearly demonstrates this activity throughout the deposition of Hendrick. Respondent objected several times to questions made by opposing counsel and at one point instructed the deponent not to answer. (Depo. at 62-63.) Respondent also expressly identified himself to attorney Bush as "cocounsel" in the presence of attorney O'Leary. (Depo. at 3.) Moreover, during the deposition, respondent was seated at a large table next to the deponent, while O'Leary was seated at the opposite end of the table. (Depo. at XX.)
After careful consideration of the pleadings, evidence, arguments of counsel, and the applicable law, the board finds as follows:
1. Respondent is not an attorney licensed to practice law in the state of Ohio.
2. Respondent advised Hendrick on matters of law, particularly as state and federal laws pertain to the facts of the Dobrilovic case.
3. Respondent represented Hendrick in his deposition on July 23, 1991, for the Dobrilovic case, at which time respondent identified himself as co-counsel with attorney O'Leary in the presence of O'Leary.
4. Respondent represented Niles Manufacturing Finishing Co. in the Dobrilovic case at the depositions of both Hendrick and Stalnaker on July 23, 1991.
5. Respondent's conduct constitutes the unauthorized practice of law, and a permanent order prohibiting and enjoining respondent from engaging in such activity is warranted.
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, H. Brian Rector, has engaged in the unauthorized practice of law and for the appropriate injunctive relief enjoining respondent from doing so and from holding himself out as counsel in this state.
To the extent the conduct of respondent may also be a violation of R.C. 4705.07 and 4705.99, Disciplinary Counsel v. Brown (1992), 61 Ohio Misc.2d 792, 584 N.E.2d 1391, a copy of this opinion shall be sent to the Prosecuting Attorney of Mahoning County, Ohio.
The board also concludes that attorney O'Leary, a licensed member of the bar, may have violated DR 3-101, by aiding the unauthorized practice of law, and DR 1-102, by filing a false affidavit in this proceeding. Therefore, it is ordered that this matter shall be referred to Disciplinary Counsel for a review of the conduct of O'Leary.
Pursuant to Gov.Bar R. VII(9), 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 shall be served upon relator, respondent, all counsel of record, and the Ohio State Bar Association.
So ordered.