Columbus Bar Association v. Verne

• Decision Date: 16 May 2003
• Docket Number: No. 2003-0259.,2003-0259.
• Citation: 2003 Ohio 2463,788 N.E.2d 1064
• Parties: COLUMBUS BAR ASSOCIATION v. VERNE.
• Court: Ohio Supreme Court

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COLUMBUS BAR ASSOCIATIONv.

VERNE.

No. 2003-0259.

Supreme Court of Ohio.

Submitted April 16, 2003.

Decided May 16, 2003.

Unauthorized practice of law — Certified public accountant not licensed to practice law in Ohio drafts articles of organization to establish a business as a limited liability company on another's behalf — Engagement in the unauthorized practice of law enjoined.

ON FINAL REPORT of the Board of Commissioners on the Unauthorized Practice of Law of the Supreme Court, No. UPL02-03.

D. Allan Asbury, Bruce Campbell, Bar Counsel, and Jill Snitcher McQuain, Assistant Bar Counsel.

Alan L. Bolen, for respondent.

Blaugrund, Herbert & Martin, Steven A. Martin and Teri G. Rasmussen, for amicus curiae Ohio Society of Certified Public Accountants,

Eugene P. Whetzel, for amicus curiae Ohio State Bar Association.

Per Curiam.

{¶ 1} Respondent, Leonard P. Verne Jr., is a certified public accountant ("CPA"). In 1997, two men who were operating a power-washing company discussed with respondent how best to structure their business. Although respondent has never been admitted to the practice of law in Ohio or any other jurisdiction, he drafted articles of organization, using forms available from the Secretary of State's office as a baseline, to establish the business as a limited liability company ("LLC").

{¶ 2} In early 2000, after the partners had a falling out, one of the them consulted an attorney who was also a CPA, about how to structure the company's future business transactions. The attorney reviewed the documents of organization that respondent had prepared and filed. He discovered that no operating agreement had been executed between the two partners, an omission that commentators caution against. Henning & McQuown, Ohio Limited Liability Company: Forms and Practice Manual (December 2001) Section 3.5 (written operating agreements "minimize disputes, prevent fraud, protect the legitimate expectations of the members, and avoid or minimize problems with disregard of the entity for liability purposes").

{¶ 3} The attorney asked his client who had assisted in forming the LLC, and the client directed him to respondent. When the attorney realized respondent was not licensed to practice law, he filed a grievance with relator, the Columbus Bar Association. On March 27, 2002, relator issued a formal complaint charging respondent with having engaged in the unauthorized practice of law and seeking to enjoin this conduct. The Board of Commissioners on the Unauthorized Practice of Law heard the cause, found the facts as stated, and recommended that we issue the injunction together with an order for reimbursement of costs and expenses.

{¶ 4} We adopt the board's findings and recommendation. For a layperson to draft documents creating a business entity on another's behalf is unquestionably the unauthorized practice of law. Cincinnati Bar Assn. v. Davis, 62 Ohio Misc.2d 64, 590 N.E.2d 916. Accord Florida Bar v. Mills (Fla. 1981), 398 So.2d 1368; and Knight v. Day, 343 Ark. 402, 36 S.W.3d 300. And although respondent argues that as a CPA he is also capable of competently advising clients in the creation of these documents, his argument actually makes relator's case against him.

{¶ 5} While we recognize that certified public accountants perform a valuable function in...