Cleveland Bar Assn. v. Compmanagement, Inc.
| Decision Date | 06 December 2006 |
| Docket Number | No. 2004-0817.,2004-0817. |
| Citation | 857 N.E.2d 95,2006 Ohio 6108,111 Ohio St.3d 444 |
| Parties | CLEVELAND BAR ASSOCIATION v. COMPMANAGEMENT, INC., et al. |
| Court | Ohio Supreme Court |
Willacy, LoPresti & Marcovy and Aubrey B. Willacy; Michael P. Harvey Co., L.P.A., and Michael P. Harvey, Cleveland, for relator.
Baker & Hostetler, L.L.P., Robert M. Kincaid Jr., Elizabeth A. McNellie, and Rodger L. Eckelberry, Columbus, for respondent CompManagement, Inc.
Hanna, Campbell & Powell, L.L.P., Douglas N. Godshall, Timothy C. Campbell, and John R. Chlysta, Akron, for respondent Bobbijo Christensen.
Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and Melissa A. Warheit Assistant Solicitor, in support of neither party, for amicus curiae the state of Ohio.
Eugene P. Whetzel, Columbus, in support of relator, for amicus curiae Ohio State Bar Association.
Philip J. Fulton Law Office and Philip J. Fulton, Columbus, in support of respondents, for amicus curiae Ohio Academy of Trial Lawyers.
Stewart, Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, Columbus, in support of respondents, for amicus curiae Ohio AFL-CIO.
Garvin & Hickey, L.L.C., Preston J. Garvin, Michael J. Hickey, and Sandee E.B. Reim; Bricker & Eckler, L.L.P. and Thomas R. Sant; Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor, and Robin Obetz; Squire, Sanders & Dempsey, L.L.P., Steven M. Loewengart and Greta M. Kearns, Columbus, in support of respondents, for amici curiae Ohio Chamber of Commerce, Ohio Chapter of the National Federation of Independent Business, the Ohio Farm Bureau Federation, Ohio Manufacturers Association, Ohio Self-Insurers' Association, and Council of Smaller Enterprises.
Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Steven W. Tigges, and Stuart G. Parsell, Columbus, in support of respondents, for amici curiae Service Association of Ohio, Ohio Association of Better Business Bureaus, Ohio Newspaper Association, Dayton Area Chamber of Commerce, Findlay-Hancock County Chamber of Commerce, Springfield-Clark County Chamber of Commerce, Southeastern Franklin County Chamber of Commerce, Youngstown/Warren Regional Chamber, St. Marys Area Chamber of Commerce, Columbus Medical Association, Columbus Chamber of Commerce, County Commissioners Association of Ohio, Cincinnati USA Regional Chamber, Greater Akron Chamber of Commerce, Ohio School Boards Association, National Employers Network Alliance, Ohio Home Builders Association, Ohio Small Business Association, the Ohio Automobile Dealers Association, the Employers' Association, Ohio Contractors Association, Ohio Restaurant Association, Ohio Dental Association, Independent Insurance Agents of Ohio, Inc., Ohio Pharmacists Association, Ohio Association of Public Treasurers, Builders Exchange, Inc., Ohio Association of Convenience Stores, Builders Exchange of East Central Ohio, Ohio Savings Financial Corporation, Consulting Services Employee Benefits Agency of Ohio, Inc., Dayton Tooling and Manufacturing Association, Poly-Foam International, Inc., Ohio Pawnbrokers Association, Ohio Ready Mixed Concrete Association, National Electrical Contractors Association Ohio Conference L.L.C., National Retail Hardware Association, North American Employers' Council, Inc., Ohio Council of Retail Merchants, Ohio Grocers Association, Ohio Health Care Association, Ohio Association of Health Underwriters, Ohio Optometric Association, Ohio Land Title Association, Workers' Compensation Forum, Ohio-Michigan Equipment Dealers Association, East Central Ohio Food Dealers Association, Ohio Petroleum Retailers & Repair Association, Ohio Hospitals Group Rated Workers' Compensation, Inc., Ohio Tire Dealers and Retreaders Association, Ohio Township Association, Ohio Trucking Association, Professional Insurance Agents Association of Ohio, Inc., Ohio Nursery and Landscape Association, Inc., Ohio Wholesale Marketers Association, Community Bankers Association of Ohio, Ohio Library Council, Ohio Lawn Care Association, Ohio Auto & Truck Recylcers Association, Union Metal Corporation, Association of Philanthropic Homes, Housing and Services for the Aging, Ohio Construction Suppliers Association, American Rental Association of Ohio, Air Conditioning Contractors of America — Ohio Chapter, Ohio Automatic Merchandisers Association, Wholesale Beer and Wine Association of Ohio, Allied Construction Industries, Ohio Association of McDonald's Operators, Ohio Veterinary Medical Association, Ohio Bakers Association, Ohio Counsel of Behavioral Healthcare Providers, Ohio Golf Course Owners Association, Greater Cleveland Chapter of National Electrical Contractors Association, Ohio Association of Plumbing Heating Cooling Contractors, Inc., Associated Builders and Contractors Ohio Valley Chapter, Bowling Centers Association of Ohio, National Association of Theatre Owners of Ohio, Miami Valley Risk Management Association's Workers' Compensation Group Rating Plan, American Council of Engineering Companies of Ohio, and Ohio Association of School Business Officials.
{¶ 1} On December 15, 2004, we determined that "[n]onlawyers who appear and practice in a representative capacity before the Industrial Commission and the Bureau of Workers' Compensation in conformity to Industrial Commission Resolution No. R04-1-01 are not engaged in the unauthorized practice of law." Cleveland Bar Assn. v. CompManagement, Inc. ("CompManagement I"), 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, syllabus. We are asked to clarify Industrial Commission Resolution No. R04-1-01 and its effect on lay representation in workers' compensation claims.
{¶ 2} Relator, Cleveland Bar Association ("CBA"), filed a complaint with the Board of Commissioners on the Unauthorized Practice of Law pursuant to Gov.Bar R. VII(5) in April 2002. The initial complaint alleged that respondents CompManagement, Inc. ("CMI"), Jonathon Wagner, Robert Bossart, and Bobbijo Christensen1 engaged in the unauthorized practice of law by representing employers in workers' compensation claims before the Bureau of Workers' Compensation ("the BWC") and the Industrial Commission ("the IC").
{¶ 3} Following extensive discovery and a hearing, the board issued its final report recommending that this court find that CMI and Christensen had engaged in the unauthorized practice of law. The board based its recommendation partly upon a general definition of the practice of law. It further recognized that it was ill-equipped to consider whether public policy considerations warrant a less aggressive approach.2 Both relator and respondents filed objections to the board's report.
{¶ 4} On review, this court rejected the recommendation of the board, instead holding that any acts permitted under IC Resolution No. R04-1-01 did not constitute the unauthorized practice of law. CompManagement I, 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, at syllabus. We remanded the cause to the board "with instructions to consider any allegations by relator that the respondents failed to act in accordance with standards now set forth in Resolution No. R04-1-01."3 Id. at ¶ 71.
{¶ 5} On remand, the board considered six separate areas of activity that allegedly constitute the unauthorized practice of law when performed by a layperson on behalf of another: (1) preparing, signing, and filing documents with the BWC and the IC, (2) negotiating settlements and filing settlement paperwork, (3) examining witnesses through either direct or indirect examination, including cross-examination, at hearings, (4) engaging in advocacy at hearings, including stating employer concerns, preparing and making arguments, determining the legal import of facts, commenting upon the evidence, and giving an evidentiary summation or closing statement, (5) giving recommendations as to whether to appeal or pursue other legal action, and (6) making recommendations to retain counsel. The board's final report found that CMI had committed the unauthorized practice of law in four areas: settlement, examination of witnesses, hearing-room advocacy, and recommendations to appeal or take other legal action. The board also determined that Christensen had engaged in the unauthorized practice of law through advocacy in the hearing room and recommendations regarding whether to appeal or take other legal action. The board, however, decided that there was insufficient evidence to prove that respondents had engaged in prohibited activities in the first and last areas, i.e., preparing, signing, and filing documents and recommending retention of counsel. Finding no evidence that respondents Bossart and Wagner had personally committed any act constituting the practice of law, the board dismissed them from the suit.
{¶ 6} After the board filed its final report, this court issued an order to respondents to show cause why the report should not be confirmed. Gov.Bar R. VII(9)(A). CBA, CMI, and Christensen have all filed objections to the report.4
{¶ 7} Before considering the merits of the board's recommendations, we must first address an overarching objection raised by CBA to our decision in CompManagement I, 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181.5 CBA insists that we should overturn CompManagement I and hold that all acts committed by respondents as alleged in this case constitute the unauthorized practice of law. CBA apparently believes that by adopting IC Resolution No. R04-1-01 as the standard for determining whether a third-party administrator has engaged in the unauthorized practice of law, CompManagement I created a confusing and unclear standard of conduct. "[R]elator respectfully suggests that the most prudent action for this Court to take is to abandon [CompManagement I] * * * thereby returning uniformity, clarity, consistency and equality of application, predictability, and `practical...
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