Cleveland Bar Association v. Misch
| Citation | 695 N.E.2d 244,82 Ohio St.3d 256 |
| Decision Date | 24 June 1998 |
| Docket Number | No. 97-2501,97-2501 |
| Court | United States State Supreme Court of Ohio |
| Parties | CLEVELAND BAR ASSOCIATION v. MISCH. |
On February 13, 1996, relator, Cleveland Bar Association, filed a complaint charging that respondent, Paul M. Misch of Wadsworth, Ohio, an attorney admitted to practice law in Illinois, had engaged in the unauthorized practice of law in Ohio. The complaint alleged that respondent counseled an Ohio client with respect to its Ohio tax obligations and represented that client before the Board of Tax Appeals, drafted buy-sell agreements for Ohio companies, and acted as legal counsel to corporations located in Ohio. Respondent answered that he was employed as an independent contractor by the Cleveland law firm of Sindell, Rubenstein, Einbund, Pavlik, Novak & Celebrezze ("Sindell") from 1989 to 1993 to render advice on federal matters including federal tax advice, and he denied the allegations of the complaint.
The matter was heard by the Board of Commissioners on the Unauthorized Practice of Law of the Supreme Court ("board") on December 13, 1996, January 15, 1997, and March 7, 1997. The board found that respondent was admitted to practice in Illinois and in the United States District Court for the Northern District of Ohio. It also found that he had never been admitted to the practice of law in Ohio. From 1989 through 1993, respondent was employed by the Evergreen Environmental Group ("Evergreen") in Cleveland. During a part of that time, respondent was listed among the executive officers in the Evergreen internal telephone directory as "Attorney."
The board found that in 1989, respondent began working for the Sindell law firm, and in 1990 the firm entered into an agreement with respondent whereby respondent was to provide advice and counsel to some of Sindell's clients with respect to mergers and acquisitions, refinancing, and related corporate matters as a "consultant," under the supervision of Sindell partner Thomas C. Pavlik. The board further found that respondent used the offices of Sindell, met with the clients of Sindell, wrote letters to Sindell's clients using the firm letterhead without designating that he was not licensed to practice law in Ohio, and communicated by telephone with Sindell's clients. On its bills, Sindell designated respondent as "Federal Court Counsel" and charged his time at $160 per hour.
Respondent, working out of his office at Evergreen, represented Sindell client Better Meat Products Company ("Better Meat") in labor negotiations and in meetings with potential buyers. In conjunction with the sale of Better Meat assets to Best Country Meats, Inc., respondent prepared asset purchase agreements and negotiated with the Ohio Department of Development. A financing application, which he prepared for Best Country Meats and filed with the Cuyahoga County Department of Development in December 1990, was signed by respondent as "General Counsel" for the applicant. That same month he also signed the "Information Record" filed with the Ohio Department of Development, as "General Counsel" for Best Country Meats.
The time which respondent devoted to Better Meat and Best Country Meats from September 1990 through April 1991 was billed to Better Meat on Sindell's letterhead. These billings show that respondent engaged in numerous conferences and drafted contracts and applications for both companies. The billings for this seven-month period indicate that respondent charged 110.2 hours to Better Meat. They also show 7.3 hours charged by Pavlik to Better Meat, but none of Pavlik's hours relates to the review of respondent's work.
The board also found that respondent acted on behalf of Elizabeth D. Kasper (a.k.a. Elizabeth Reed) and another troubled Sindell client, Kasper Foundry Company, owned by Kasper's parents. Respondent, while at Evergreen, provided Kasper with advice about the restructuring of the foundry, met with banks, and arranged for the transfer of the foundry stock to a new corporation owned by her. The foundry then continued to operate as E.D.K. Ironworks. In addition, respondent negotiated terms, drafted contracts, and advised Kasper with respect to the sale of her residence.
Finally, the board found that respondent provided state tax advice to Sindell client, Manfredi Motor Transit Company, represented it before the Ohio Department of Taxation, and drafted a notice of appeal for Manfredi to the Board of Tax Appeals.
Since 1993, respondent has refrained from activities similar to those recited in the complaint, and at the time of the hearings served as president of a Brunswick, Ohio corporation.
The board concluded that this activity of respondent from 1989 to 1993 constituted the unauthorized practice of law and recommended that he be prohibited from engaging in such practices in the future.
Apicella & Trapp, F.M. Apicella and Mary Jane Trapp, Cleveland; and K. Ann Zimmerman, Cleveland, for relator.
Kaufman & Cumberland Co., L.P.A., and William W. Jacobs, Cleveland, for respondent.
"No person shall be permitted to practice as an attorney and counselor at law * * * unless he has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules." R.C. 4705.01. Rendering legal services for another in Ohio by a person not admitted to practice in Ohio is the unauthorized practice of law. Gov.Bar R. VII(2)(A).
Admission to the bar of Ohio may be accomplished through examination under Gov.Bar R. I(1-7) or, if the applicant has been admitted as an attorney in the highest court of another state or the District of Columbia, without examination under Gov.Bar R. I(9). Additionally, a lawyer admitted in another state or the District of Columbia, but not in Ohio, may register for corporate status under Gov.Bar R. VI(4) and perform legal services in Ohio solely for a nongovernmental Ohio employer, as long as the lawyer is a full-time employee of that employer. The lawyer, however, may not practice before a court or agency in Ohio on behalf of the lawyer's employer or any person except himself or herself, unless granted leave by the court or agency. Also, a lawyer admitted and with an office in another state, but not in Ohio, may, pursuant to Gov.Bar R. I(9)(H), appear in a cause being litigated in Ohio with leave of the judge hearing such...
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