2017 All-Ohio Legal Forum. How to Avoid UPL for the Paralegal

Transcription

1 2017 All-Ohio Legal Forum How to Avoid UPL for the Paralegal Paralegals Committee 1.5 General CLE Hours August 23 August 25, 2017 Cleveland

2 Speaker Biographies Tonya McCreary Williams, Esq. Contracts Manager (Commercial/SLED/FED), Legal Veeam Software Corporation Columbus, Ohio Ms. McCreary Williams received her AAS from Columbus State Community College, her BA from Capital University, her JD from The Ohio State University Michael E. Moritz College of Law, and her MBA from Franklin University. She is a member of the Ohio State Bar Association (Past Chair, Paralegals Committee; OSBA Leadership Academy (2017 Member); New Lawyers Committee; Futures Commission) Columbus Bar Association, and John Mercer Langston Bar Association. From 1989 to 2014, Ms. McCreary Williams worked as a multi-practice and litigation paralegal for several corporations and law firms in Columbus, Ohio, including Bricker and Eckler LLP, and Squire, Sanders, & Dempsey LLP (now Patton Boggs). After three years in private practice as a trial attorney, she went to work as Contracts Manager for Veeam Software Corporation s Legal Department in July In March 2016, Ms. McCreary Williams was elected to serve as the Central Committee member in Columbus s Ward 61 for the Franklin County Democratic Party. She has been an adjunct instructor of law, legal technology and ethics in the Paralegal Studies Program at Columbus State Community Colleges since 2009.

3 How to Avoid UPL for the Paralegal Tonya McCreary Williams Contracts Manager (Commercial/SLED/FED), Legal Veeam Software Corporation Columbus, Ohio Table of Contents Topic... 1 The Unauthorized Practice of Law... 1 Ohio Rules of Professional Conduct... 1 Supervising Attorney s Responsibility for Non-Lawyers... 1 Non-Lawyer Representation of Client Before an Administrative Agency... 2 Information About Legal Services... 2 Case Law... 3 Non-Lawyer Representation in violation of UPL... 3 Cleveland Metropolitan Bar Association v. Davie et al... 3 Cleveland Bar Association v. Compmanagement, Inc., et al The Land Title Abstract & Trust Co. v. Dworken Et Al Cincinnati Bar Association v. Kathman... 4 Pharmaceutical Licensing Process... 6 Attorney General Administrative Law Handbook (2016)... 7 Legal Documentation Preparation by Online Services... 8 Ohio Board of Pharmacy Laws and Rules... 9 Law Review Law Consultants How to Avoid UPL for the Paralegal i

4 ii How to Avoid UPL for the Paralegal

5 How to Avoid UPL for the Paralegal Tonya McCreary Williams Contracts Manager (Commercial/SLED/FED), Legal Veeam Software Corporation Columbus, Ohio Topic Unauthorized Practice of Law (UPL) and lawyer-enabled UPL occurs when a company that offers consulting services to pharmaceutical companies whereby the company non-lawyers to advise pharmaceutical companies about which state agencies the pharmaceutical company should acquire licenses from, which of the agency s applications the pharmaceutical company should apply for, which documentation satisfies application requirements, and which corporate structure and drug distribution model meets agency requirements. The consulting company also violates UPL when it uses non-lawyers to draft licensing applications, and to represent pharmaceutical companies before the state licensing agencies, including forms of appeal when license is denied or revoked. The Unauthorized Practice of Law Section 2(B)(1)(g), Article IV, of the Ohio Constitution confers on the Ohio Supreme Court original jurisdiction over the admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. Ohio Rules of Professional Conduct Section 5.5(a) of the Ohio Rules of Professional Conduct provides that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Supervising Attorney s Responsibility for Non-Lawyers With respect to a nonlawyer who is employed by, retained by, or associated with a lawyer, Rule 5.3(a) of the Ohio Rules of Professional Conduct requires a lawyer who individually or together with other lawyers possesses managerial authority in a law firm or government agent to make reasonable efforts to ensure that the firm or government agency has in effect measures giving reasonable assurance that the person s conduct is compatible with the professional obligations of the lawyer. How to Avoid UPL for the Paralegal 1

6 With respect to a nonlawyer who is employed by, retained by, or associated with a lawyer, Rule 5.3(b) of the Ohio Rules of Professional Conduct requires a lawyer having direct supervisory authority over the nonlawyer to make reasonable efforts to ensure that the person s conduct is compatible with the professional obligations of the lawyer. With respect to a nonlawyer who is employed by, retained by, or associated with a lawyer, Rule 5.3(c)(1) of the Ohio Rules of Professional Conduct requires a lawyer to be responsible for a nonlawyer assistant s conduct that would be a violation of the Ohio Rules of Professional conduct if engaged in by a lawyer if the lawyer orders, or with the knowledge of the specific conduct, ratifies the conduct involved. Section 5.5(a) of the Ohio Rules of Professional Conduct provides that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Non-Lawyer Representation of Client Before an Administrative Agency An administrative agency meets the definition of a tribunal. A tribunal is defined to include an administrative agency, or other body acting in an adjudicative capacity. An administrative agency acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party s interest in a particular matter. Gov.Bar R. XII Section 1. A Respondent may be represented by an attorney at law licensed to practice in Ohio or other person lawfully permitted to practice before the agency in question. R.C Most cases, a party may be represented by only an attorney at law licensed to practice in Ohio; however, unless the nonlawyer accepts compensation, a nonlawyer may represent a respondent at hearings before the state personnel board of review under R.C R.C Information About Legal Services Rule 7.5 of the Ohio Rules of Professional Conduct (Firm Names and Letterhead) requires that a lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under the name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or association, legal clinic, limited liability company, or limited liability partnership shall contain symbols indicating the nature of the organization as required by Gov. Bar R. III. Rule 7.3 of the Ohio Rules of Professional Conduct (Solicitation of Clients) states that (a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment when a significant motive for the lawyer s doing so is the lawyer s pecuniary gain, unless either of the following applies: (1) the person contacted is a lawyer; (2) the person contacted has a family, close personal, or prior professional relationship with the lawyer. 2 How to Avoid UPL for the Paralegal

7 Case Law Non-Lawyer Representation in violation of UPL An applicant for a license has the initial burden of producing facts sufficient to demonstrate satisfaction of the minimum requirements for issuance of the license. See St. Augustine Catholic Church v. Attorney General, 67 Ohio St.2d 133, 138 (1981). See also, In re Application of Gram, 53 Ohio Law Abs. 470 (C.P. 1948) (person who claims he passed a licensing examination that the agency maintains he failed, has the burden of proving he passed the examination). Individual non-attorney members of an LLC improperly filed a notice of appeal on behalf of the LLC. Court dismissed the appeal even though later an attorney made an appearance on behalf of the LLC and filed a memo contra the motion to dismiss. The court noted that filing a notice of appeal is considered the practice of law. Campus Pitt Stop, L.L.C. v. Ohio Liquor Control Comm., 10th Dist. Franklin No. 13AP-622, 2014-Ohio N.E.2d 606 (Ohio 2012) 133 Ohio St.3d 202, 2012-Ohio-4328 Cleveland Metropolitan Bar Association v. Davie et al. No Supreme Court of Ohio. September 27, 2012 Although laypersons may assist lawyers in preparing legal documents to be filed in court and managing pending client matters, their activities must be carefully supervised and approved by a licensed practitioner. Columbus Bar Assn. v. Thomas, 109 Ohio St.3d 89, 2006-Ohio-1930, 846 N.E.2d 31, 14. In Thomas, we held that a paralegal s conduct in drafting pleadings and other legal documents for litigants and providing them with legal advice without a licensed attorney s supervision constituted the unauthorized practice of law. 857 N.E.2d 95 (Ohio 2006) 111 Ohio St.3d 444, 2006-Ohio-6108 Cleveland Bar Association v. Compmanagement, Inc., et al. No Supreme Court of Ohio December 6, 2006 Gov.Bar R. VII(2)(A) defines the unauthorized practice of law as the rendering of legal services for another by any person not admitted to practice in Ohio, and this court retains broad authority to define the practice of law. See Shimko v. Lobe, 103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, 15; Section 2(B)(1)(g), Article IV of the Ohio Constitution. Any definition of How to Avoid UPL for the Paralegal 3

8 the practice of law inevitably includes representation before a court, as well as the preparation of pleadings and other legal documents, the management of legal actions for clients, all advice related to law, and all actions taken on behalf of clients connected with the law. Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650, at paragraph one of the syllabus. In regard to corporations, a layperson generally may not represent the corporation or take any legal action on behalf of the corporation before a court or administrative agency. 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; Cleveland Bar Assn. v. Woodman, 98 Ohio St.3d 436, Ohio-1634, 786 N.E.2d Ohio St. 23 (Ohio 1934) 193 N.E. 650 The Land Title Abstract & Trust Co. v. Dworken Et Al. Nos , 23817, Supreme Court of Ohio November 27, 1934 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. Since forming a corporation for the purpose of carrying on the practice of any profession is precluded, a corporation is not authorized to perform the acts which constitute the practice of a profession. 748 N.E.2d 1091 (Ohio 2001) 92 Ohio St.3d 92, 2001-Ohio-157 Cincinnati Bar Association v. Kathman No Supreme Court of Ohio June 13, 2001 When the attorney affiliates himself or herself with nonattorneys who sell trusts, the attorney s interests are divided between working for or receiving referrals from the nonattorney, and attempting to represent the nonattorney s clients. See Iowa State Bar Assn. Commt. on Professional Ethics & Conduct v. Baker (Iowa 1992), 492 N.W.2d 695, 703; People v. Volk (Colo.1991), 805 P.2d 1116, A review attorney reviewed trust documents prepared by nonattorneys. The court offered several reasons why this does not cure and, in fact, aids the unauthorized practice of law by the nonattorney. First, the review attorney enters the 4 How to Avoid UPL for the Paralegal

9 relationship too late--the nonattorney has already given legal advice to the client regarding the client s legal matters, has gathered important information, and has recommended and sold a trust instrument. 927 S.W.2d at 867. In the eyes of the public, the review attorney lends credibility and a facade of legality to the product the nonattorney offers, but the attorney does not make the critical decisions necessary for the creation of the trust or provide disinterested advice. See People v. Cassidy (Colo.1994), 884 P.2d 309, 311. [T]he mere perfunctory approval of supposedly disinterested counsel does not cure the fact that interested nonlawyers had prepared trust documents. Mid-America, 927 S.W.2d at 867 (quoting State ex rel. Miller v. St. Louis Union Trust Co. [1934], 335 Mo. 845, 870, 74 S.W.2d 348, 360). By the time the attorney enters the transaction, the unauthorized practice of law has already occurred and anything the attorney does thereafter aids the prohibited conduct. How to Avoid UPL for the Paralegal 5

10 Pharmaceutical Licensing Process 1. Licensing Agency created by state law 2. Executive Director of the Board of Pharmacy (or Department of Agriculture, or Department of Health, Department of Licensure, etc.) 3. Licensing documents, process, rules and regulations set forth by state and federal laws and agency rules and regulations 4. A person/entity (US or foreign) plans to make and sell a drug in the US 5. Contact a licensing consulting company (typically, a non-lawyer LLC or non-lawyer sole proprietor) a. Consultant LLC enters into a master services agreement or engagement letter as an independent contractor, non-employee to determine which licenses are necessary and to apply for licenses on its behalf. 6. Consultant LLC is not a law firm and uses non-lawyers (sometimes identified as licensing specialists), or non-law firm with a supervising attorney that uses paralegals with minimal or no legal supervision. a. Minimal lawyer supervision weekly team meeting where non-lawyer provides customer licensing status update b. No lawyer supervision non-lawyer paralegal/licensing specialist advises customer regarding all aspects of individualized licensing plan 7. Based upon entity s business structure and type of drug, non-lawyers advise person/entity a. Which states person/entity must be licensed in; b. Which states person/entity is not required to hold a license in; and c. What documentation must accompany each state licensing application. 8. Non-lawyer completes paper- and online-state licensing applications on behalf of the person/entity a. Arranges and attends closing to ensure documents are properly executed and notarized; b. Send letter to state licensing agencies with applications that state that the Consultant LLC represents 9. Non-lawyer employs exception management on behalf of person/entity a. Consultant s letter instructs states to contact them if additional documentation is necessary; i. Except CA, agencies inform consultant that license is not/will not be granted until information or documentation is confirmed or supplied. b. Consultant appeals denials of licenses on behalf of entity 10. Consultant LLC receives licenses directly from agency 11. Consultant LLC sends granted licenses to person/entity 6 How to Avoid UPL for the Paralegal

11 Attorney General Administrative Law Handbook (2016) (click the image to open the document) How to Avoid UPL for the Paralegal 7

12 Legal Documentation Preparation by Online Services (click the image to open the document) 8 How to Avoid UPL for the Paralegal

13 Ohio Board of Pharmacy Laws and Rules (click image to link to site) (click image to open application) How to Avoid UPL for the Paralegal 9

14 (click image to open application) 10 How to Avoid UPL for the Paralegal

15 Law Review Law Consultants (click the image to open the document) 75 Fordham L. Rev ( ) The Emergence of Law Consultants Tanina Rostain How to Avoid UPL for the Paralegal 11