Opinion
No. UPL-90-7.
Decided March 4, 1992.
Thompson, Hine Flory and Gordon M. Strauss; Clark Eyrich and Stephen MacConnell, for relator.
This matter came before the Board of Commissioners on the Unauthorized Practice of Law on the formal complaint filed November 29, 1990.
Relator Cincinnati Bar Association was represented by Gordon M. Strauss, Thompson, Hine and Flory, Cincinnati, Ohio, and Stephen MacConnell, Clark and Eyrich, Cincinnati, Ohio. Respondent Marva Davis was not represented by counsel. This matter was heard by the board on August 25, 1991 and December 13, 1991 in Columbus, and on October 25, 1991 in Cincinnati. Respondent appeared at the August 25 hearing, but did not appear at the subsequent hearings.
Respondent is also known as Marva Moore Davis, Marva Moore, and Marva J. Mohr.
At the time of the activities alleged in the complaint, respondent served as the Executive Director of the Cincinnati Minority and Female Business Incubator, Inc. ("CBI"), an organization that assisted businesses in the start-up phase. The charges concern respondent's involvement with Dr. Karen Kay Lacy in the negotiation and consummation of a contract between Dr. Lacy and Deaconess Hospital of Cincinnati and with business and tax matters associated with the incorporation of Dr. Lacy's practice.
Relator's complaint alleged that respondent is not an attorney at law and engaged in the unauthorized practice of law by:
a. Forming a corporation for a client, filing corporate documents, and giving advice on tax and related matters: to wit, she formed a professional services corporation for one Karen Kay Lacy, M.D., preparing and filing the documents, and advising Dr. Lacy to transfer certain assets into the corporation;
b. Negotiating a contract on behalf of a third party: to wit, she represented the aforementioned Dr. Lacy in contract negotiations with the Deaconess Hospital, expressly affirming to personnel of Deaconess Hospital that she did so as an attorney; and
c. Effecting such representation notwithstanding that Respondent is not an attorney registered in accordance with Gov.Bar R. III, VI, or XI, yet holding herself out expressly as such an attorney.
In her answer, respondent: (1) stated that she acted "exclusively and solely" in her capacity as Executive Director of the Cincinnati Minority and Female Business Incubator, Incorporated ("CBI"); (2) stated that CBI "utilized lawyers * * * in relation to the parties mentioned in the complaint"; and (3) denied any violation of the Rules for the Government of the Bar or the Ohio Revised Code.
Section 2(A) of Rule VII of the Rules for the Government of the Bar of Ohio states that "[t]he unauthorized practice of law is the rendering of legal services for others by anyone not registered under Rule VII or Rule XI of the Rules for the Government of the Bar of Ohio." In pleadings filed with the board, respondent did not specifically address whether she was licensed to practice law. However, respondent never offered the defense that she is a licensed attorney, and 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. Consequently, the issue before this board is whether respondent's activity constitutes "the rendering of legal services" and is, therefore, the unauthorized practice of law.
The first allegation of the complaint refers to respondent's activities in the preparation of documents to form a corporation and transfer assets into the corporation.
In 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 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 contours of the practice of law were explored in Special Master Commrs. v. McCahan (1960), 83 Ohio Law Abs. 1, 14 O.O.2d 221, 167 N.E.2d 541. The court in that case observed at 11, 14 O.O.2d at 229, 167 N.E.2d at 550, as follows:
"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."
It also has been held that the rendering of legal services includes "[t]he preparation of * * * articles of incorporation, and other legal documents * * * and the execution of those documents * * *." Ohio State Bar Assn. v. Brunson (June 29, 1978), Darke C.P. No. 43501, unreported. The preparation and filing of articles of incorporation and other documents necessary to the establishment of corporations, and the giving of legal advice incident to the incorporation, have specifically been held to constitute the unauthorized practice of law. Ohio State Bar Assn. v. Keyes (Apr. 26, 1979), Fairfield C.P. No. 45395, unreported.
The complaint also alleges that respondent represented Dr. Lacy in contract negotiations with Deaconess Hospital "expressly affirming to personnel of Deaconess Hospital that she did so as an attorney." Roger Logan, who, during the period in question, was employed by Deaconess Hospital and negotiated with Dr. Lacy and respondent for the hospital, confirmed that respondent actively engaged in negotiations on the contract. Both assert that respondent did so while representing herself as Dr. Lacy's legal representative.
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. The nineteen-page contract between Dr. Lacy and Deaconess Hospital is a complex document that creates substantial rights and responsibilities, and potential liabilities, for each of the parties. The review, negotiation, and redrafting of such a document, and advising Dr. Lacy as to the substance and legal effect of the contract, while holding oneself out as an attorney, clearly are "one of the activities generally included in the practice of law."
Incidentally, it appears that the advice given by respondent to Dr. Lacy was erroneous. Although respondent purported to form a professional corporation, respondent included Dr. Lacy's mother and sister as shareholders. R.C. 1785.05, however, states that only individuals who are licensed or otherwise authorized to render professional services may become shareholders of such a professional association. Further, no common stock was issued and the stated capital was declared to be $250,000 despite actual assets not exceeding $13,000. Dr. Lacy engaged another attorney to correct these matters.
After careful consideration of the pleadings, evidence, arguments of counsel and the respondent, and the applicable law, the board finds as follows:
1. Respondent is not an attorney licensed to practice law in Ohio.
2. Respondent advised Karen K. Lacy, M.D., on tax and corporate matters, including the preparation of articles of incorporation and the transfer of assets into the corporation.
3. Respondent represented Dr. Lacy in contract negotiations with Deaconess Hospital of Cincinnati in 1989 and 1990 during which respondent held herself out as Lacy's attorney.
4. Respondent's activities constitute 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, Marva Davis, 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 herself out as an attorney in this state. This conduct also may be made the subject of a criminal proceeding, by virtue of R.C. 4705.07 and 4705.99. Disciplinary Counsel v. Brown (1992), 61 Ohio Misc.2d 792, 584 N.E.2d 1391.
The board notes that respondent has represented to the board that she has obtained "a M.Ed in educational psychology, a juris doctorate, and a doctorate of divinity" and has clerked for a federal judge. If these representations are true, respondent should realize the impropriety of her conduct. Moreover, relator submitted as evidence certified copies of documents in People v. Davis, Municipal Court of California, San Diego Judicial District, case No. M559615CF. Those documents indicate that on November 8, 1990, respondent pled no contest to and was found guilty of engaging in the unauthorized practice of law. As part of her sentence, respondent was ordered not to violate any similar law for three years. Accordingly, a copy of this opinion shall be sent to the prosecuting authorities for San Diego County, California.
Relator 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 shall be served upon relator, respondent, all counsel of record, Disciplinary Counsel, and the Ohio State Bar Association.
It is further ordered that a copy of this opinion be sent to the Prosecuting Attorney of Hamilton County, Ohio, for consideration pursuant to R.C. 4705.07 and 4705.99, and to the prosecuting authorities of San Diego County, California, as noted above.
So ordered.