Mahoning Cty. Bar Assn. v. Rector

Decision Date10 September 1992
Docket NumberNo. UPL-92-2,UPL-92-2
Citation608 N.E.2d 866,62 Ohio Misc.2d 564
CourtOhio Board of Unauthorized Practice
PartiesMAHONING COUNTY BAR ASSOCIATION v. RECTOR. Ohio Board of Commissioners on the Unauthorized Practice of Law

Friedman & Rummell Co., L.P.A., Carl D. Raforth and James Dietz, Youngstown, for relator.

Joseph O'Leary, Akron, for respondent.

KENNETH F. SEIBEL, Chairman.

This matter came before the Board of Commissioners on the Unauthorized Practice of Law ("board") on May 1, 1992 in Columbus, Ohio, on the formal complaint filed March 6, 1992. Members of the board present and participating in this decision were Kenneth F. Seibel, Chairman, John J. Carney, Jeffrey L. Maloon, Paul M. Greenberger, John W. Waddy, Jr., and D. John Travis.

Relator Mahoning County Bar Association was represented by Carl D. Raforth and James Dietz of Friedman & Rummell Co., L.P.A., Youngstown, Ohio. Respondent H. Brian Rector, while initially filing a pro se answer to relator's complaint, was represented by Joseph O'Leary, Akron, Ohio. Both respondent and his counsel failed to appear at the hearing. The board considered the pleadings and documents filed and relator's witness testimony and exhibits.

At the time of the activities alleged in the complaint, respondent served as Executive Vice President of Niles Manufacturing & Finishing, Inc., Niles, Ohio. The charges concerned respondent's conduct at the depositions of Robert K. Hendrick and Duane Stalnaker at the offices of attorney Richard T. Bush in Youngstown, Ohio. These depositions were taken as part of discovery in Dobrilovic v. Niles Mfg. & Finishing Co., case No. 4:91-CV-0550, filed in the United States District Court for the Northern District of Ohio, Eastern Division. Bush served as counsel for plaintiff Dobrilovic. Hendrick and Stalnaker were President and employee, respectively, of defendant Niles Manufacturing, for whom Joseph O'Leary served as counsel.

At the deposition of Hendrick, attorney Bush asked the people in the room to identify themselves. When respondent identified himself, Bush asked if he was to serve as co-counsel, to which respondent replied in the affirmative. Respondent also objected to several questions posed by Bush during the course of the deposition and once instructed the deponent not to answer a question.

Relator's complaint alleged that respondent is not an attorney at law, and that he engaged in the unauthorized practice of law, by:

a. Rendering legal services for others, to wit, representation of Niles Manufacturing & Finishing Co., and by holding himself out to be an attorney for that particular corporation in the case of Dobrilovic v. Niles Mfg. & Finishing Co.

b. Representing Niles Manufacturing & Finishing Co. as co-counsel during the deposition on July 23, 1991.

In his pro se answer, respondent (1) denied each and every allegation in the complaint; (2) stated that he appeared at the deposition of Hendrick as the "employer"; (3) alleged that the complaint was false and fraudulent and designed to coerce a settlement in the Dobrilovic case; (4) denied that he represented himself as an attorney in the Dobrilovic case; (5) stated that he was previously present at a pretrial conference for the Dobrilovic case, at which time his appearance was not objected to; (6) noted that the same matter was brought before the Akron Bar Association, which did not pursue the complaint; and (7) conversed with attorney O'Leary at the deposition of Hendrick as a matter of right. Attached to the answer was an affidavit of attorney O'Leary, in which he averred that he made all objections during the Hendrick deposition and that Rector never represented himself as co-counsel.

Attorney O'Leary then filed, on April 29, a motion to quash notice of hearing, subpoena, and subpoena duces tecum, on the grounds that the board lacked authority to discipline conduct in a federal court case. The motion was found not well taken and was overruled. Also on May 5, 1992, after failing to appear at the hearing, respondent filed a notice of removal, pursuant to Section 1446, Title 28, U.S.Code, to the United States District Court for the Northern District of Ohio, Eastern Division. The board held that the notice of removal was ineffective as its hearings are not subject to removal to the federal courts. See In the Matter of Registration of Edudata Corp. (D.Minn.1984), 599 F.Supp. 1089, 1091; Cty. of Nassau v. Cost of Living Council (Em.App.1974), 499 F.2d 1340, 1343; Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction (1976), Section 3721. While the board may be part of the disciplinary process, this hearing merely determines if a complaint should be filed in a court of common pleas. A proceeding before this board generally becomes a civil action removable under Section 1441, Title 28, U.S.Code only after it is appealed. See Edudata, at 1091; see, also, Range Oil Supply Co. v. Chicago, Rock Island & Pacific RR. Co. (C.A.8, 1957), 248 F.2d 477. On June 1, relator filed a motion to dismiss or, in the alternative, to remand, in the district court. By order dated June 22, 1992, the relator's motion was sustained and the matter was dismissed by the federal court.

Gov.Bar R. VII(2)(A) stated that "[t]he unauthorized practice of law is the rendering of legal services for others by anyone not registered under Rule VI or Rule XI of the Rules for the Government of the Bar of Ohio." Relator submitted a certificate from Marcia J. Mengel, Clerk of the Supreme Court of Ohio, confirming that respondent has never been licensed or registered to practice law in Ohio.

The first issue is whether the board has the authority to authorize the filing of a complaint to enjoin a layman who engages in the unauthorized practice of law in a federal court case. We conclude that this board has that authority.

The United States Supreme Court squarely recognized the broad authority of the states to regulate against the unauthorized practice of law in Sperry v. Florida ex rel. Florida Bar (1963), 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428. In the absence of federal legislation to the contrary, the state has jurisdiction over the protection of its citizens from the practice of law by unauthorized laymen. Id. at 383, 83 S.Ct. at 1325, 10 L.Ed.2d at 431. Furthermore, the United States Supreme Court strictly limited application of the federal supremacy doctrine. "[T]he State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives." Id. at 402, 83 S.Ct. at 1335, 10 L.Ed.2d at 442.

In the case of In re Cowgill (1973), 37 Ohio App.2d 121, 66 O.O.2d 237, 307 N.E.2d 919, the defendant was an unlicensed practitioner of patent law. The Marion County Court of Appeals ruled that state regulation imposed no burden or restraint upon the authority of the federal government. Rather the appeals court found state action seeking merely to regulate those furnishing legal services without a license to do so by either the federal or state authorities. Cowgill at 125, 66 O.O.2d at 239-240, 307 N.E.2d at 921-922. As the state court concluded, "there is no federal purpose to protect those whom [the federal authority] does not license from further regulation by the state." Cowgill at 126, 66 O.O.2d at 240, 307 N.E.2d at 922.

We conclude that the state of Ohio has the authority to discipline unlicensed conduct by a layman before a federal court. The state of Ohio thus joins other states in determining that the unauthorized practice of law falls within the jurisdiction of the state regulating body, whether the source of the law practiced is the state of Ohio, another state of the United States, the United States, or a foreign country. See Kennedy v. Bar Assn. of Montgomery Cty., Inc. (1989), 316 Md. 646, 663, 561 A.2d 200, 208-209 (federally licensed attorney practicing state law subject to disciplinary proceedings before state regulating body). See, also, In the Matter of Perrello (1979), 270 Ind. 390, 386 N.E.2d 174; Indiana ex rel. Disciplinary Comm. of the Supreme Court of Indiana v. Crofts (Ind.1986), 500 N.E.2d 753; Fair v. Givan (N.D.Ind.1981), 509...

To continue reading

Request your trial
2 cases
  • Mahoning Cty. Bar Assn. v. The Senior Serv. Group, Inc.
    • United States
    • Ohio Board of Unauthorized Practice
    • September 23, 1994
    ...of others on their legal rights and responsibilities is generally considered to be the practice of law. Mahoning Cty. Bar Assn. v. Rector (1992), 62 Ohio Misc.2d 564, 608 N.E.2d 866. The practice of law certainly encompasses many areas, but it has been held that in general there are three p......
  • Mahoning Cty. Bar Assn. v. Harpman
    • United States
    • Ohio Board of Unauthorized Practice
    • January 21, 1993
    ...is the state of Ohio, another state of the United States, the United States, or a foreign country. See Mahoning Cty. Bar Assn. v. Rector (1992), 62 Ohio Misc.2d 564, 608 N.E.2d 866, and cases cited Many of the facts surrounding this matter are not in dispute. Relator and respondent stipulat......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT