Transcript Unauthorized practice of law update

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
Topics
UPL Rules and Regulations
Definitions of UPL
UPL Considerations for Paralegals
UPL Board Procedure
Case Law Update
UPL Board Developments
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
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Section 17: This rule… shall be liberally
construed for the protection of the public,
the courts, and the legal profession…
Supreme Court View
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“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)
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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.
Definition of Practice of Law
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“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
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“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
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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
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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
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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
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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
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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
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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
Ohio Rules of Professional Conduct
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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
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Potential Paralegal Issues
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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
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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
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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
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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
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Cleveland Bar Assn. v. McKissic (2005)
 Dba
Vel’s Professional Services
 Selected and completed legal forms
 Gave legal advice
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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
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Columbus Bar Assn. v. Purnell (2002)
 Filings
in probate court in personal injury claim of a
minor
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Cincinnati Bar Assn. v. Cromwell (1998)
 Business
called “Paralegal Service Group” which
operated without the supervision of an attorney
 Negotiated settlements, prepared settlement agreement
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Akron Bar Assn. v. Greene (1997)
 Drafted
court
and filed a complaint for divorce, appeared in
BCGD Opinions
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Opinion 2009-6
 Outsourcing
of legal or support services domestically
or abroad, to lawyers or nonlawyers, is permissible but
rules of supervision apply
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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
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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
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Created 1976
11 Attorneys, 1 Nonattorney
Referrals for Investigation
Adjudicates formal complaints of UPL
 Three-member
panels
 Hearings
 Settlement Agreements
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and Consent Decrees
Recommendations to the Supreme Court
Advisory Opinions
Supreme Court Review
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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
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Civil Penalties
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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?
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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
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Fund report available on Court’s website
Other UPL Remedies
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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
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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
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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
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Cincinnati Bar Assn. v. Foreclosure Solutions
 Foreclosure
mill
 Serviced 12,000-14,000 Ohioans
 $50,000 civil penalty
UPL Decisions 2009
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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
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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
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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
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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
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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
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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
Handouts
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
Annual UPL Seminar
Friday, November 5, 2010
Ohio Judicial Center
Columbus, Ohio
Contact Information
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
[email protected]
UPL Board Website
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
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Questions?
THANK YOU PACO