Cleveland Metro. Bar Ass'n v. Davie

• Decision Date: 27 September 2012
• Docket Number: No. 2011–1681.,2011–1681.
• Citation: 133 Ohio St.3d 202,977 N.E.2d 606
• Parties: CLEVELAND METROPOLITAN BAR ASSOCIATION v. DAVIE et al.
• Court: Ohio Supreme Court

133 Ohio St.3d 202

977 N.E.2d 606

CLEVELAND METROPOLITAN BAR ASSOCIATION

v.DAVIE et al.

No. 2011–1681.

Supreme Court of Ohio.

Submitted Jan. 18, 2012.

Decided Sept. 27, 2012.

John A. Hallbauer and Heather M. Zirke, Assistant Bar Counsel, for relator.

Donald R. Murphy, for respondents.

PER CURIAM.

[Ohio St.3d 202]{¶ 1} On December 23, 2009, relator, Cleveland Metropolitan Bar Association, filed a three-count complaint with the Board on the Unauthorized Practice of Law against respondents, Michael D. Davie and his company, Alpha Legal Services, Inc. (“ALS”).¹ The complaint alleged that Davie, a paralegal who is not licensed to practice law in the state of Ohio, prepared pleadings and other legal documents for three persons in separate cases, appeared at an Ohio Parole Board Hearing on behalf of another, and twice received financial compensation for his services.

{¶ 2} After conducting a hearing, the panel submitted a report to the board finding that while doing business as ALS, Davie engaged in the unauthorized practice of law as alleged in the first two counts. But citing the insufficiency of the evidence, the panel voted to dismiss Count Three of relator's complaint. The panel recommended that we enjoin the illegal acts of respondents, impose a civil penalty of $2,000 for each of the two violations, require respondents to refund all fees received in connection with these matters, and further require Davie to notify the Cleveland Municipal Court in writing that the judgments he obtained against the affected clients have been satisfied.

{¶ 3} The board adopted the panel's findings of fact and conclusions of law, but citing numerous aggravating factors, modified the sanction to recommend that we impose the maximum civil penalty of $10,000 for each of respondents' offenses.

[Ohio St.3d 203]{¶ 4} Relator objects to the recommendation that Count Three be dismissed and asks us to find that respondent engaged in the unauthorized practice of law with respect to that count. Despite having stipulated to an extension of time to file a response to the objections, neither Davie nor ALS has responded. Relator argues that despite Davie's admission at the parole board hearing that he was not an attorney, the memorandum he submitted prior to that hearing was designed to give the impression that he was an attorney representing the inmate seeking parole. Therefore, relator contends that we should find that Davie and ALS engaged in the unauthorized practice of law with respect to Count Three.

{¶ 5} We adopt the board's findings of fact, conclusions of law, and recommended sanction with respect to Counts One and Two of relator's complaint, with the exception that we do not order restitution. And for the reasons that follow, we sustain relator's objections and find that respondents engaged in the unauthorized practice of law as alleged in Count Three. Therefore, in addition to the sanction recommended by the board, we impose a $10,000 civil penalty for that conduct.

Davie and ALS

{¶ 6} In 1992, Davie began serving a 33– to 75–year sentence following his convictions for an array of offenses, including attempted murder, aggravated burglary, and aggravated robbery. While in prison, he took paralegal correspondence courses from Blackstone School of Law. In 2006, after serving 14 years of his sentence, Davie received parole. At all times relevant to this matter, he was registered with the Ohio State Bar Association as a paralegal, with the registration number 101919.

{¶ 7} ALS is an Ohio corporation formed, owned, operated, and controlled by Davie for the purpose of “provid[ing] legal consulting and ancillary services to Attorneys, Organizations, pro se and indigent litigants.” Following his release from prison, respondent Davie began doing business as ALS in Shaker Heights, Ohio. Respondents, Davie and ALS, are not, nor have they ever been, attorneys admitted to the practice of law in Ohio pursuant to Gov.Bar R. I, registered pursuant to Gov.Bar R. VI, or certified pursuant to Gov.Bar R. II, IX, or XI. Nor are they admitted to the practice of law in any other state.

The Brown/Stephens Matter

{¶ 8} On March 1, 2008, Tiona Brown executed a written contract with respondents in which she agreed to pay $1,500 for services, including “interviews, legal research & preparation of pretrial motion to suppress” for her incarcerated boyfriend, DeCharles Stephens. The records produced by Davie show that on June 2, 2008, Brown paid him $100.

[Ohio St.3d 204]{¶ 9} Davie visited Stephens in jail to discuss his criminal case, advised him about his plea, and performed legal research for a motion to suppress evidence that he filed on Stephens's behalf. Although Stephens was represented by a public defender, Davie claimed that his own work was supervised by another attorney, Sebraien Haygood. And although Davie admitted that he had contracted to draft a pretrial motion to suppress evidence, he testified that it was Haygood who had actually prepared that motion.

{¶ 10} Davie admitted that Haygood was not present during his initial meeting with Brown, did not accompany him to visit Stephens in jail, and, to Davie's knowledge, never had any communications with Brown. Haygood's name does not appear in Davie's contract with Brown or in any other document that Davie has provided to relator. Davie claimed that the relevant documentation was lost when ALS was evicted from its office. But the testimony of Davie's father-in-law, Bishop David Lee Owens, placed the eviction in 2007—the year before respondents undertook the Brown/Stephens representation. Although Owens shared office space with respondents at all times relevant herein, he testified that he had not heard Haygood's name prior to the panel hearing and had never met him or seen him in the office. Haygood died on June 26, 2008, and therefore was unavailable to either confirm or deny claims that he supervised Davie's paralegal work.

{¶ 11} When Brown refused to pay for his services, Davie filed a breach-of-contract action in the Cleveland Municipal Court. He averred in his complaint that he had “worked to bring forth favorable results in the criminal matter of Charles [sic, DeCharles] Stephens,” but did not mention Haygood. Davie obtained a $1,400 judgment against Brown.

The Singleton Matter

{¶ 12} In April 2008, Katina and Anthony Singleton contracted with respondents for legal assistance in a custody dispute involving their son, who resided in Michigan. Their written agreement provided that in exchange for $3,500, ALS would assist in the preparation of an answer to a motion for full custody and a motion for continuance. Although the agreement stated that the work would be performed under the direction of a licensed legal professional, it did not identify Haygood or any other attorney, and further provided that the agreement was “not in any way conditioned upon an attorney agreeing to have [ALS's] assistance.”

{¶ 13} Davie filed “Defendant's Answer and Motion for MCR 2.116(C)(8) Dismissal of Plaintiff's Motion for Full Legal and Physical Custody” and a motion for continuance, both signed by Katina Singleton, in a Michigan court. He testified that he did the research for the documents, but that attorney Haygood [Ohio St.3d 205]had prepared the documents and their attachments. Haygood's name, however, does not appear on any of the documents.

{¶ 14} The Singletons paid Davie $500, but when they failed to pay a $3,000 invoice for his services, Davie filed suit against them. In his complaint, Davie stated that “Plaintiff rendered Defendant the requested services and worked to bring forth favorable results in the custody matter of Prude v. Singleton 98–836323–DM, State of Michigan, Third Judicial Circuit, Wayne County.” Davie did not mention Haygood in his complaint, either as his supervisor or a third-party beneficiary of the collection litigation, and testified that the action was for his own benefit alone. Furthermore, Davie averred, “Defendants represented that they could not meet the expense that an attorney would charge but could meet Plaintiff's billing costs at a reduced rate of $125.00 per hour having totaled 20 hours including other out of pocket expenses.”

{¶ 15} The magistrate presiding over the collection action issued, and the court adopted, a decision finding that Davie was practicing law without a license and granting a judgment in favor of Katina Singleton.² After Davie objected on the ground that the issue of the unauthorized practice of law was not properly before the court, the court vacated the judgment, and Davie later obtained a $3,000 judgment against Katina Singleton.

{¶ 16} The panel and board found that Davie had presented conflicting explanations regarding the identity of the attorneys allegedly supervising his work. In his objections to the magistrate's decision, Davie stated, “In the present case, Plaintiff's [sic] was supervised in the Defendant's administrative-custody matter by Donald R. Murphy, Esq.” At his deposition, however, he claimed that this was a “typo” and that it was Haygood who had supervised his work. And in his objections to the magistrate's decision, Davie stated that he assists pro se parties, which directly contradicts his testimony that he works under the supervision of various attorneys. The panel and board, however, found that there was no credible evidence that Attorney Haygood had supervised Davie in either the Brown or the Singleton matters and ultimately concluded that “Davie took advantage of the untimely death of Attorney Sebraien M. Haygood and fabricated testimony in an attempt to establish that Mr. Haygood was supervising him in the Brown and Singleton matters.”

Respondents' Unauthorized Practice of Law

with Respect to the Stephens/Brown and Singleton Matters

{¶ 17} The panel and board found that respondents had not been supervised by an attorney and that no attorney had delegated the tasks performed by respondents[Ohio St.3d 206]in...