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Unauthorized practice of law update

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1 Unauthorized practice of law update - 2010
Michelle A. Hall, Secretary Board on the Unauthorized Practice of Law The Supreme Court of Ohio Thank you for the invitation Took over from Allan Asbury in May 2009 Secretary to the Board What is the Secretary? Manage Bd operations + financial, case docket, hearings, report, advisory opinion, and rule drafting assistance, public inquiries, issues that overlap w/ atty discipline and bar admissions, collections, website content, statistics


3 Topics UPL Rules and Regulations Definitions of UPL
UPL Considerations for Paralegals UPL Board Procedure Case Law Update UPL Board Developments A lot of ground to cover Feel free to ask questions during… will also try to save time for questions at the end Questions will make for a more lively presentation Will cover some basics that may be review… we have not spoken to this group for a few years… make sure those that are new have the general concepts… we can all be on the same page

4 UPL: Who Regulates? Let’s start with a simple question… who regulates UPL in Ohio?

5 Supreme Court of Ohio Here they are
While some process before a case gets to the Court, ultimately their decision A state matter Where does the Court’s authority originate? Supreme Court of Ohio

6 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.” Authority originates in the Ohio Constitution Basis for UPL, admissions (bar exam), attorney discipline, CLE, etc

7 UPL: Why Regulate?

8 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… Rules for the Government of the Bar (also pursuant to authority of Constitution) Public Policy

9 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) Oft-quoted and most recent pronouncement of the Court re: purpose of UPL regulation

10 UPL: What is it? Where do we find the definition? How do I know what it is?

11 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. Back to the Rules for the Government of the Bar Rule VII = UPL Rule A bare bones definition…

12 Rendering of legal services
for another by any person Not admitted to practice in Ohio What is “rendering of legal services?” “For another”– shows pro se representation OK Where else to look for guidance? Case law approach to defining tasks in Ohio No list of acceptable activities like in some jurisdictions – no laundry list here

13 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) Land mark UPL case… almost always quoted by the Court… from 1934 Does not have to be in court--- some attorneys still have this view

14 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) Second-most quoted case… expands on Dworken What do these cases tell us?

15 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 General categories of UPL– Dworken and Judd

16 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 Court has identified other tasks that = UPL through subsequent cases--- again all case law definitions

17 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 These are permissible behaviors Likewise, exceptions also carved out in case law Third party admins / BWC: must be in accordance with Industrial Commission regs IDEA / Parent pro se: because parents have their own rights under IDEA (Indiv. w/ Disab. Education Act) Board of Revision: no cross-exam or advocacy Jailhouse lawyers: if prison does not provide a reasonable alternative to jailhouse lawyers Company officer in small claims: no cross-exam or advocacy Exceptions are not consistent among the states

18 UPL: What about Paralegals?

19 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 Good document to look at for general explanation of the paralegal’s role and responsibility (also the attorney’s roles and responsibility) Might be helpful for new paralegals if they do not already get this Available on ABA website Fundamental concept = delegation by the atty and then supervision by the atty Like many UPL issues, fact-specific inquiries– will look to whether paralegal acting w/n scope of delegation– dual responsibility--- atty to properly supervise, paralegal to act w/n scope

20 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

21 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 nonlawyers Partnerships with nonlawyers Nonlawyers’ direction of lawyers’ professional judgment

22 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

23 Paralegal Canons and Ethical Considerations
Canon 6: A paralegal title shall be fully disclosed Canon 7: A paralegal shall not engage in UPL

24 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

25 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

26 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

27 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

28 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

29 BCGD Opinions Opinion 2009-6 Opinion 2002-4
Outsourcing of legal or support services domestically or abroad, to lawyers or nonlawyers, is permissible but rules of supervision apply Opinion 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

30 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

31 UPL Board Procedure

32 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

33 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

34 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

35 Civil Penalties 2009 $6,651,490 in 8 cases

36 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

37 Other UPL Remedies R.C ; 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

38 UPL Case Law Update

39 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

40 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

41 UPL Decisions 2009 Cincinnati Bar Assn. v. Foreclosure Solutions
Foreclosure mill Serviced 12,000-14,000 Ohioans $50,000 civil penalty

42 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

43 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

44 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

45 UPL Board: Recent Developments

46 Advisory Opinions UPL : Lawyer and Nonlawyer Representation of Labor Organizations in Collective Bargaining and Labor Grievance Arbitration UPL : Nonattorney Completion of Mortgage Instruments UPL : Legal Document Preparation by Online Services

47 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

48 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

49 Handouts Gov.Bar R. VII UPL Regs UPL Flowchart Gov.Bar R. XII
Advisory Opinions , 02, 03 R.C , , Prof. Cond. R. 5.3, 5.4, 5.5 BCGD Opinions ,

50 Annual UPL Seminar Friday, November 5, 2010 Ohio Judicial Center
Columbus, Ohio

51 Contact Information Michelle A. Hall, Secretary Board on the Unauthorized Practice of Law Supreme Court of Ohio 65 South Front Street Columbus, Ohio 43215

52 UPL Board Website
Board Final Reports Consent Decrees and Settlement Agreements Rules, Regulations, Statutes, Advisory Opinions Supreme Court Decisions FAQs How to file a complaint

53 Questions?

54 Thank you PACO

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