Dayton Bar Ass'n v. Stewart

116 Ohio St. 3d 289
CourtOhio Supreme Court
DecidedDecember 11, 2007
DocketNo. 2007-1481
StatusPublished
Cited by1 cases

This text of 116 Ohio St. 3d 289 (Dayton Bar Ass'n v. Stewart) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dayton Bar Ass'n v. Stewart, 116 Ohio St. 3d 289 (Ohio 2007).

Opinion

Per Curiam.

{¶ 1} Relator, Dayton Bar Association, charged respondents, Ricky L. Stewart, a certified public accountant (“C.P.A.”) in Dayton, Ohio, and Ricky L. Stewart, C.P.A., Inc., an accounting firm, with engaging in the unauthorized practice of law. Relator’s complaint alleged that these respondents had practiced law by seeking corporate status for organizing and, in some cases, dissolving companies on behalf of business owners. The Board on the Unauthorized Practice of Law concluded that respondents had practiced law in Ohio in violation of licensure requirements, and recommends that we enjoin respondents from committing further illegal acts and order $8,200 in civil penalties. We agree that respondents engaged in the unauthorized practice of law and that an injunction and civil penalty are warranted.

{¶ 2} The parties waived their rights to a hearing, see Gov.Bar R. VII(7)(H), and a panel of the board considered this case on the parties’ stipulations of fact. The panel made findings that were consistent with the parties’ stipulation agreement, determined that respondents had engaged in the unauthorized practice of law, and recommended an injunction and a civil penalty under Gov.Bar R. [290]*290VII(8)(B) of $8,200. The board adopted the panel’s findings of fact, conclusions of law, and recommended sanction.

{¶ 3} The parties have not objected to the board’s report.

Respondents Engaged in the Unauthorized Practice of Law

{¶ 4} Stewart is not licensed or otherwise authorized to practice law in Ohio, nor is he admitted to practice in any other jurisdiction. He provides accounting services as an individual and under the name Ricky L. Stewart, C.P.A., Inc., which lost its corporate franchise in 2002. Stewart admits that since 1994, he has individually and in association with Ricky L. Stewart, C.P.A., Inc., engaged in the unauthorized practice of law on numerous occasions.

{¶ 5} Stewart prepared documents to be filed with the Ohio Secretary of State, including articles of incorporation, articles of organization, and certificates of dissolution, for at least 82 business entities. He started this practice by researching the process for incorporating a business under Ohio law. He then repeatedly provided legal advice as to the propriety of incorporation and then drafted supporting legal documents for filing. Business owners paid respondents fees ranging from $250 to $650 for Stewart’s services, which sometimes included his accounting recommendations and preparation of state and federal tax filings. Stewart claims that he did not realize that his actions were illegal.

{¶ 6} Section 2(B)(1)(g), Article IV, Ohio Constitution confers on this court original jurisdiction over the “[ajdmission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law.” Our jurisdiction thus extends to regulating the unauthorized practice of law, which we do to protect the public from agents “who have not been qualified to practice law and who are not amenable to the general discipline of the court.” Union Sav. Assn. v. Home Owners Aid, Inc. (1970), 23 Ohio St.2d 60, 64, 52 O.O.2d 329, 262 N.E.2d 558. As we have said:

{¶ 7} “It is the responsibility of this court to provide effective standards for admission to the practice of law and for the discipline of those admitted to practice. Litigation must be projected through the courts according to established practice by lawyers who are of high character, skilled in the profession, dedicated to the interest of their clients, and in the spirit of public service. In the orderly process of the administration of justice, any retreat from those principles would be a disservice to the public.” Id. Accord Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 40 (“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”).

[291]*291{¶ 8} “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, Rule IX, or Rule XI of the Supreme Court Rules for the Government of the Bar of Ohio.” Gov.Bar R. VII(2)(A). A nonattorney’s advising another person in corporate-structuring strategies and then drawing up the documents to produce incorporated status constitute the unauthorized practice of law. Columbus Bar Assn. v. Verne, 99 Ohio St.3d 50, 2003-Ohio-2463, 788 N.E.2d 1064, ¶ 4; Miami Cty. Bar Assn. v. Wyandt & Silvers, Inc., 107 Ohio St.3d 259, 2005-Ohio-6430, 838 N.E.2d 655, ¶ 11-12. We .thus agree that respondents engaged in the unauthorized practice of law.

An Injunction Is Warranted

{¶ 9} Having found that respondents engaged in the unauthorized practice of law by advising others on how to establish and protect legal interests through incorporation and preparing documents for filing with the secretary of state, we accept the board’s recommendation to issue an injunction prohibiting respondents from engaging in these and all other acts constituting the practice of law.

{¶ 10} Last, we consider the recommendation to impose a civil penalty. Under Gov.Bar R. VII(8)(B), the board may recommend civil penalties of up to $10,000 per offense based on the following factors:

{¶ 11} “(1) The degree of cooperation provided by the respondent in the investigation;

{¶ 12} “(2) The number of occasions that unauthorized practice of law was committed;

{¶ 13} “(3) The flagrancy of the violation;

{¶ 14} “(4) Harm to third parties arising from the offense; [and]

{¶ 15} “(5) Any other relevant factors.”

{¶ 16} UPL Reg. 400(F), which supplements Gov.Bar R. VII(8)(B)(5), lists “other relevant factors”:

{¶ 17} “(1) Whether relator has sought imposition of a civil penalty and, if so, the amount sought.

{¶ 18} “(2) Whether the imposition of civil penalties would further the purposes of Gov.Bar R. VII.

{¶ 19} “(3) Aggravation. The following factors may be considered in favor of recommending a more severe penalty:

{¶ 20} “(a) Whether respondent has previously engaged in the unauthorized practice of law;

[292]*292{¶ 21} “(b) Whether respondent has previously been ordered to cease engaging in the unauthorized practice of law;

{¶ 22} “(c) Whether the respondent had been informed prior to engaging in the unauthorized practice of law that the conduct at issue may constitute an act of the unauthorized practice of law;

{¶ 23} “(d) Whether respondent has benefited from the unauthorized practice of law and, if so, the extent of any such benefit;

{¶ 24} “(e) Whether respondent’s unauthorized practice of law included an appearance before a court or other tribunal;

{¶ 25} “(f) Whether respondent’s unauthorized practice of law included the preparation of a legal instrument for filing with a court or other governmental entity; and

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Cite This Page — Counsel Stack

Bluebook (online)
116 Ohio St. 3d 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dayton-bar-assn-v-stewart-ohio-2007.