608 N.E.2d 872 (Ohio Bd.Unauth.Prac. 1993), UPL-92-1, Mahoning Cty. Bar Assn. v. Harpman

Docket Nº:UPL-92-1.
Citation:608 N.E.2d 872, 62 Ohio Misc.2d 573
Opinion Judge:KENNETH F. SEIBEL, Chairman.
Party Name:MAHONING COUNTY BAR ASSOCIATION v. HARPMAN.
Attorney:Matthew T. Fekete, Youngstown, for relator., McLaughlin, McNally & Carlin, Richard P. McLaughlin and Robert Herberger, Youngstown, for respondent., KENNETH F. SEIBEL, Chairman. [62 Ohio Misc.2d 574] Matthew T. Fekete, Youngstown, for relator. McLaughlin, McNally & Carlin, Richard P. McLaughlin a...
Case Date:January 21, 1993
Court:Ohio Board of Commissioners on the Unauthorized Practice of Law
 
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Page 872

608 N.E.2d 872 (Ohio Bd.Unauth.Prac. 1993)

62 Ohio Misc.2d 573

MAHONING COUNTY BAR ASSOCIATION

v.

HARPMAN.

No. UPL-92-1.

Ohio Board of Commissioners on the Unauthorized Practice of Law.

January 21, 1993

[62 Ohio Misc.2d 574] Matthew T. Fekete, Youngstown, for relator.

McLaughlin, McNally & Carlin, Richard P. McLaughlin and Robert Herberger, Youngstown, for respondent.

KENNETH F. SEIBEL, Chairman.

This matter came on for hearing before the Board of Commissioners on the Unauthorized Practice of Law on December 11, 1992 in Columbus, Ohio, on the formal complaint filed February 24, 1992. Members of the board present and participating in this decision were Kenneth F. Seibel, Chairman, Paul M. Greenberger, Jeffrey L. Maloon, D. John Travis, and John W. Waddy, Jr.

Page 873

Relator Mahoning County Bar Association was represented by Matthew T. Fekete, Boardman, Ohio. Respondent Webster B. Harpman was present, represented by Richard P. McLaughlin and Robert Herberger of McLaughlin, McNally & Carlin, Youngstown, Ohio. Attorney Harvey B. Jacobson, Jr., of Washington, D.C., appeared as a witness for relator; John Conrad of Westlake Village, California, appeared on behalf of respondent.

Relator's complaint alleged that Harpman is not an attorney at law, and that he engaged in the unauthorized practice of law by rendering legal services to John Conrad on matters related to a petition for reexamination of the GPAC/Natale patent between April 22, 1987 and late December 1991.

At the close of relator's evidence, relator moved to amend the complaint to conform to the evidence submitted; respondent objected to the motion. The motion was granted pursuant to Gov.Bar. R. VII(17), which states that [62 Ohio Misc.2d 575] "Amendments to any complaint * * * may be made at any time prior to final order of the Board. The party affected by such amendment shall be given reasonable opportunity to meet any new matter presented thereby." Respondent did not request a continuance.

In his second amended answer filed December 3, 1992, respondent admitted "that he represented John Conrad regarding a petition for reexamination before the United States Patent and Trademark Office," but denied that this representation constituted the unauthorized practice of law. Respondent also asserted the defense that this board lacks jurisdiction because his activities before the patent office are permitted and regulated by federal law, since he is a registered patent attorney and was granted a registration to practice before the United States Patent and Trademark Office.

Addressing first respondent's defense of lack of jurisdiction, which was reasserted at the hearing by way of a motion to dismiss, 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 1324, 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 Marion County Court of Appeals ruled that state regulation imposed no burden or restraint upon the authority of the federal government in patent matters.

We conclude that the state of Ohio has the authority to regulate conduct by a federally registered patent attorney in matters outside the scope of authority granted by federal law. Ohio thus joins other...

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