Report of the Task Force on the Unauthorized Practice of Law

Transcription

1 113 Report of the Task Force on the Unauthorized Practice of Law To the Council of Delegates: In 2000, the American Bar Association House of Delegates approved a resolution reaffirming the important role of the organized Bar in addressing the issue of the unauthorized practice of law ( UPL ). Shortly thereafter the Ohio State Bar Association (OSBA) s Unauthorized Practice of Law Committee was expanded, and its role in protecting the public from individuals and entities engaged in the unauthorized practice of law was reemphasized. Protection of the public is a goal shared by the Office of Disciplinary Counsel and by unauthorized practice of law committees of numerous bar associations, both large and small, throughout Ohio. The need to address issues created by the unauthorized practice of law also appeared to be growing. The public and the organized bar were confronted with unauthorized practice of law matters in arenas ranging from the Internet to the local courthouse. Likewise, the resources necessary to address the unauthorized practice of law, and the harm to the public it might engender, were of growing concern to the organized bar. The Supreme Court of Ohio and the Board of Commissioners on the Unauthorized Practice of Law were also aware of the difficulties associated with enforcing the prohibition against engaging in the unauthorized practice of law. To address these concerns, the Court adopted, in 2003, an amendment to Gov. Bar R. VII that allows the imposition of civil penalties in addition to injunctions in UPL cases. Also in 2003, then OSBA President Keith Ashmus appointed a trust mill committee to examine the narrow question of how the OSBA can best protect the public from persons or entities selling prepackaged intervivos trusts. In 2004, the Court undertook consideration of comprehensive revision of Gov. Bar R. VII. In addition to devoting greater court resources to combating UPL, the amendments would change the composition and some of the procedures of the Board. In the summer of 2004, the OSBA, metropolitan bar associations, and the Office of Disciplinary Counsel met at the Columbus Bar Association to discuss the Court s proposed amendments to Gov. Bar R. VII and to develop, if possible, a considered and consistent set of comments to the proposed changes. It was also apparent at that time that many significant issues concerning the unauthorized practice of law would not be addressed directly by the proposed rule changes. As these activities were occurring, three of the seven metropolitan bar associations in Ohio either ceased accepting new UPL complaints or their UPL committees simply ceased functioning. Following the enactment of new Gov. Bar Rule VII effective January, 2005, all

2 114 Ohio State Bar Association Council of Delegates May 2005 Meeting but one of these associations resumed UPL enforcement activities. The fact that bar associations felt the need to withdraw from this effort even for a limited period of time was of concern to OSBA leaders. In August of 2004, OSBA President Heather G. Sowald appointed this UPL Task Force to explore the key issues related to the process or system of UPL enforcement existing beyond the scope of the proposed changes to Gov. Bar Rule VII. The UPL Task Force Chaired by OSBA President-elect E. Jane Taylor, the task force is comprised of representatives of the Ohio Supreme Court, the Office of Disciplinary Counsel, the Office of Attorney General, metropolitan bar associations, OSBA committees and sections, and paralegals. (A complete list of the task force members is attached as Appendix A.) The role of the task force was to examine the following issues: 1. What are the risks and benefits for bar associations to continue to investigate and prosecute UPL matters? 2. Should there be a central intake agency for all UPL complaints, which could then assign them appropriately? 3. Should bar associations continue to investigate and prosecute all UPL complaints received by them? Or, should bar associations continue to investigate and prosecute just the smaller matters, such as mom-and-pop operations? 4. What resources are, or should be, available to be devoted to the UPL effort? 5. Should all UPL cases, or just some larger UPL cases, such as against companies and corporations, be solely investigated and prosecuted by either the Ohio Disciplinary Counsel and/or the Ohio Attorney General s office (Office of Consumer Advocacy)? The task force was divided into two working groups. The first, chaired by Jeffrey J. Fanger, Esq., was charged, generally, with developing recommendations concerning who should investigate and/or prosecute UPL complaints. The second, chaired by Robert J. Gehring, Esq., was charged, generally, with developing recommendations concerning how to investigate and/or prosecute UPL complaints. The working groups met by conference call on several occasions and the entire task force met to review the work of the working groups. In January 2005, John Berry, Esq., executive director of the State Bar of Michigan, and former member of the American Bar Association Task Force on the Model Definition of the Practice of Law, made a presentation to the task force and facilitated working group discussions

3 115 Based upon its study of these issues, the task force reports as follows: Findings 1. In addition to the Office of Disciplinary Counsel, there are approximately thirty local or metropolitan bar associations and the Ohio State Bar Association, which have UPL committees of varied membership size and experience; 2. The majority of UPL investigations and prosecutions come from three sources: the Office of Disciplinary Counsel, the metropolitan bar associations, and the Ohio State Bar Association; 3. While the number of UPL complaints is not dramatically increasing, the matters being investigated have grown in complexity and in some cases involve multi-state issues and entities; 4. There is no formal mechanism for information sharing among those entities which investigate and/or prosecute UPL complaints; 5. The civil remedy under RC requires a prior finding by the Supreme Court that an entity or person has engaged in the unauthorized practice of law before civil liability for any alleged wrong may attach, which may adversely affect the prosecution of related civil claims; 6. It is premature to judge the impact that the funding provisions in recently amended Gov. Bar R. VII will have on UPL investigations/prosecutions; 7. The issue of immunity from civil liability for UPL investigations/prosecutions in Gov. Bar R. VII requires clarification; 8. There are no minimum operational standards for UPL committees. Recommendations The OSBA UPL task force submits the following recommendations for submission to the Supreme Court of Ohio: 1. That a central registry be established by the Board on the Unauthorized Practice of Law and that UPL committees and the Office of Disciplinary Counsel be required to register all complaints alleging UPL. UPL committee chairs, bar counsel, and the Office of Disciplinary Counsel should be authorized to access the registry. Rules and procedures should be promulgated to insure that the information shared through the register be confidential and not subject to discovery or other public disclosure. 2. That minimum standards similar to those found in Gov. Bar R. V for certified grievance committees be established for UPL committees

4 116 Ohio State Bar Association Council of Delegates May 2005 Meeting 3. That UPL committees and the Office of Disciplinary Counsel be authorized to investigate and prosecute all UPL matters that come to their attention regardless of the type of complaint or the target of the complaint. 4. That UPL committees and the Office of Disciplinary Counsel be encouraged to conduct joint UPL investigations and/or prosecutions. 5. That an educational vehicle similar to The Miller Institute be established for UPL committees, the Office of Disciplinary Counsel, and the Office of the Attorney General. 6. That the Supreme Court adopt a uniform pro hac vice rule for all Ohio courts and administrative agencies, with a centralized repository of the names, addresses, and cases of those so admitted, and that the Court impose an appropriate registration fee. 7. That the Supreme Court adopt rules for the coordination of UPL prosecutions and actions arising under R.C That the Supreme Court protect investigation and prosecution of UPL matters as a judicial function so that all available immunities apply. 9. That the Supreme Court adopt a rule providing procedures for resolving UPL complaints by consent agreements or orders, central registration of consent agreements and orders, and enforcement of consent agreements and orders. Conclusion The Chair acknowledges with appreciation the work of the Task Force members, who devoted many hours of thoughtful deliberation to these proceedings. In the opinion of the Chair, the dedication of the members of the Task Force is an illustration of the reason why the investigation and prosecution of the unauthorized practice of law in the State of Ohio has succeeded to the extent it has, despite scarce resources and a somewhat low public profile. The true beneficiaries of this devotion to service are the citizens of the State of Ohio. The Chair also acknowledges, with gratitude, the contribution of John T. Berry, Esq., Executive Director of the State Bar of Michigan. Respectfully submitted, E. Jane Taylor, Esq., Akron Chair

5 117 Task Force Chair: E. Jane Taylor, Esq., Akron Ohio Supreme Court Representative: Susan B. Christoff, Esq., Columbus Office of Disciplinary Counsel Representative: Amy C. Stone, Esq., Columbus Ohio Attorney General Representative: Sandra L. Lynskey, Esq., Columbus Ohio Metropolitan Bar Associations Representatives: Robert J. Gehring, Esq., Cincinnati David A. Kutik, Esq., Cleveland Christopher F. Parker, Esq., Toledo Jill M. Snitcher McQuain, Esq., Columbus OSBA Representatives: John N. MacKay, Esq., Toledo Jeffrey J. Fanger, Esq., Cleveland Appendix A Unauthorized Practice of Law OSBA Task Force Roster Quentin R. Haines, Esq., Delaware Paralegal Member: Ms. Katharine L. Essex, Columbus Ex-Officio Member: Heather G. Sowald, Esq., Columbus OSBA Staff: Eugene P. Whetzel, Esq., Columbus