Cleveland Bar Assn. v. CompManagement, Inc., ___ Ohio St. 3d ___ (OH 12/15/2004)

• Decision Date: 15 December 2004
• Docket Number: Case No. 2004-0817.
• Citation: ___ Ohio St. 3d ___,2004 Ohio 6506
• Parties: Cleveland Bar Association, v. CompManagement, Inc., et al.
• Court: Ohio Supreme Court

Page 1

___ Ohio St. 3d ___

2004 Ohio 6506

Cleveland Bar Association, v. CompManagement, Inc., et al.

Case No. 2004-0817.

In the Supreme Court of Ohio.

Submitted August 17, 2004.

Decided December 15, 2004.

ON CERTIFIED REPORT by the Board of Commissioners on the Unauthorized Practice of Law, No. UPL 02-04.

Willacy, LoPresti & Marcovy and Aubrey B. Willacy; Michael P. Harvey Co., L.P.A., and Michael P. Harvey, for relator.

Baker & Hostetler, L.L.P., Robert M. Kincaid Jr., Elizabeth A. McNellie and Rodger L. Eckelberry, for respondents CompManagement, Inc., Robert J. Bossart, and Jonathan Wagner.

Hanna, Campbell & Powell, L.L.P., Douglas N. Godshall, Timothy C. Campbell and John R. Chlysta, for respondent Bobbijo Christensen.

Eugene P. Whetzel, in support of relator, for amicus curiae Ohio State Bar Association.

Downs, Hurst & Fishel, Marc A. Fishel and David A. Riepenhoff, in support of respondents, for amici curiae County Commissioners Association of Ohio, Ohio School Boards Association, and Ohio Public Employer Labor Relations Association.

Michael H. Cochran, in support of respondents, for amicus curiae Ohio Townships Association.

Vorys, Sater, Seymour & Pease, L.L.P., and Jonathan R. Vaughn, in support of respondents, for amicus curiae Ohio Library Council.

Philip J. Fulton Law Office and Philip J. Fulton, in support of respondents, for amicus curiae Ohio Academy of Trial Lawyers.

Squire, Sanders & Dempsey, L.L.P., Steven M. Loewengart and Greta M. Kearns, in support of respondents, for amicus curiae Council of Smaller Enterprises.

Schottenstein, Zox & Dunn and Kevin R. McDermott, in support of respondents, for amicus curiae the Service Association of Ohio, Inc.

Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor and Robin Obetz, in support of respondents, for amicus curiae the Ohio Council of Retail Merchants.

Garvin & Hickey, L.L.C., Preston J. Garvin and Michael J. Hickey, in support of respondents, for amicus curiae Ohio Chamber of Commerce.

Bricker & Eckler, L.L.P., and Thomas R. Sant, in support of respondents, for amici curiae Ohio Chapter of the National Federation of Independent Business, Ohio Farm Bureau Federation, and Ohio Manufacturers' Association.

Zeiger, Tigges, Little & Lindsmith, L.L.P., John W. Zeiger, Steven W. Tigges and Stuart G. Parsell, in support of respondents, for amici curiae Greater Akron Chamber of Commerce, Canton Regional Chamber of Commerce, Greater Cincinnati Chamber of Commerce, city of Cincinnati, Greater Columbus Chamber of Commerce, Dayton Area Chamber of Commerce, Lake County Chambers of Commerce, Springfield & Clark County Chamber of Commerce; Ohio Grocers Association, American Electric Power Service Corporation, the Ohio College Association, Inc., Ohio Newspaper Association, Ohio Association of Broadcasters, Ohio Automobile Dealers Association, Ohio Home Builders Association, Columbus Medical Association, Ohio Health Care Association, Ohio Dental Association, Ohio Restaurant Association, Ohio Wholesale Marketers Association, North Eastern Storeowners, Inc., Dayton Tooling and Manufacturing Association, Inc., American Council of Engineering Companies of Ohio, Ohio-Michigan Equipment Dealers Association, Ohio Association of McDonald's Operators, Ohio Ready Mixed Concrete Association, Ohio Lawn Care Association, Ohio Turfgrass Foundation, Ohio Pest Control Association, Ohio Association of Health Underwriters, the East Central Ohio Food Dealers Association, Community Bankers Association of Ohio, Alvan Motor Freight, Inc., American Rental Association of Ohio, Automotive Service Association of Ohio, Inc., Ohio Savings Bank, Ohio Forestry Association, Inc., Professional Insurance Agents Association of Ohio, Inc., Associated General Contractors of Ohio, Bowling Centers Association of Ohio, the Employers' Association, R. T. Lambert & Associates for Ohio Auto & Truck Recyclers, Ohio Council of Retail Merchants, the Wholesale Beer & Wine Association of Ohio, Allied Construction Industries, National Retail Hardware Association, Ohio Automatic Merchandising Association, Ohio Optometric Association, the E. W. Scripps Company, Ohio Association of Convenience Stores, Ohio Bakers Association, Great Lakes Petroleum Retailers & Allied Trade Association, Ohio Trucking Association, Ohio Veterinary Medical Association, Shepherd of the Valley Lutheran Retirement Services, Inc., Ohio Pork Producers Council, Ohio Association of Plumbing-Heating-Cooling Contractors, Inc., Subcontractors Association of Northeast Ohio, North American Employers' Council, Inc., Builders Exchange of East Central Ohio, the Ohio Nursery & Landscape Association, National Employers Network Alliance, Ohio Land Title Association, Ohio Florists' Association, Associated Builders & Contractors, Ohio Valley Chapter, National Electrical Contractors Association, Greater Cleveland Chapter, Air Conditioning Contractors of America, Ohio Chapter, and Ohio Tire Dealers and Retreaders Association.

Stewart Jaffy & Assoc. Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, in support of respondents, for amicus curiae Ohio AFL-CIO.

Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Michael L. Close and Dale D. Cook, in support of respondents, for amicus curiae American International Companies.

Jim Petro, Attorney General, and Christopher D. Stock, Deputy Attorney General, for amicus curiae state of Ohio.

William E. Kovacic, Maureen K. Ohlhausen, James C. Cooper, and Brenda W. Doubrava, for amicus curiae Federal Trade Commission.

ALICE ROBIE RESNICK, J.

{¶ 1} On April 15, 2002, 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). The complaint alleged that respondents CompManagement, Inc. ("CMI"), Jonathan R. Wagner, Robert J. Bossart, and Bobbijo Christensen engaged in the unauthorized practice of law as follows:

{¶ 2} (1) "[B]y appearing in person at formal, oral, adjudicatory hearings, scheduled and held by the Industrial Commission of Ohio, upon various disputed workers' compensation matters, in behalf of so-called `clients' of respondent CompManagement, Inc., and, in the course of such appearances, performing such acts as examining and/or cross-examining witnesses; interpreting statutory provisions, case law, and administrative rulings; and making and/or giving legal interpretations with respect to the nature, weight, significance, and credibility of the evidence presented at such hearings and/or theretofore already of record in the Industrial Commission of Ohio's claim file upon the claim then in issue"; and

{¶ 3} (2) By preparing, signing, and filing "various documents of a legal nature, such as notices of appeal, motions, objections to orders of the Administrator of Workers' Compensation, applications for handicap reimbursement, applications for the settlement of individual workers' compensation claims, and requests for continuances, in behalf of respondent CompManagement, Inc.'s so-called `clients.'"¹

{¶ 4} After extensive discovery by the parties, the board held a formal evidentiary hearing pursuant to Gov.Bar R. VII(7)(A) and (14), which was conducted on May 21 and 22, 2003, and adjourned to and completed on August 22, 2003. The board filed its final report on May 18, 2004, recommending that this court issue an order finding that respondents CMI and Bobbijo Christensen have engaged in the unauthorized practice of law, prohibiting them from engaging in the unauthorized practice of law in the future, and providing for reimbursement of costs and expenses incurred by the board and relator.

{¶ 5} In making its recommendation, the board concluded that the following conduct in which CMI and/or Christensen engaged amounts to the unauthorized practice of law: (1) "preparation, signing and filing of documents in handling claims before the Industrial Commission on behalf of employers," (2) "negotiation and involvement with settling claims," (3) "direct and indirect examination [including cross-examination] of witnesses during hearings," (4) "presentation of employer concerns, arguments, summations of evidence, conclusions regarding the import of factual information and/or closing statements on behalf of employers during hearings," (5) "recommendation and advice to employers as to taking appeals and other legal action," and (6) "evaluation, advice or recommendation concerning whether an employer should retain an attorney to handle a claim before the Industrial Commission."

{¶ 6} The board also found that CMI engaged in the unauthorized practice of law generally, by its "representation of employers' interests in handling claims before the Industrial Commission," and that it furnished information to its hearing representatives with regard to "[p]ertinent court decisions and changes in the workers' compensation law * * *, sometimes using a law firm to summarize the legal developments for [its] employees."

{¶ 7} Despite the breadth of its evidentiary review, the board's legal analysis was admittedly less than comprehensive. The board found itself unequipped "to evaluate * * * public interest factors or exercise discretion in applying Rule VII," since it serves only "as an advisory body under the Supreme Court and * * * merely offers recommendations." Accordingly, the board declined to consider that the public interest might warrant restraint in the use of the court's power to suppress lay representation in the workers' compensation field. Instead, the board took the approach that respondents are not authorized to engage in any conduct that corresponds to an activity that has been listed in some generalized definition of the practice of law under "the applicable precedents," while leaving it to this court to "factor[] in public interest considerations and a measure of flexibility" in determining whether "lay representation [would] pose a hazard to the public in this limited setting."

{¶ 8} After the...