Cowgill, In re
| Citation | 66 O.O.2d 237,37 Ohio App.2d 121,307 N.E.2d 919 |
| Parties | , 181 U.S.P.Q. 103, 66 O.O.2d 237 In re COWGILL. * |
| Decision Date | 11 May 1973 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
The state of Ohio may prevent one who is neither licensed by the federal government to practice before the United States Patent Office, nor licensed as an attorney at law within the state from holding himself out as one capable of performing the functions of a legally qualified expert in the area of patent law, or exercising such functions, and such regulation does not infringe upon the authority of the federal government to determine who shall practice before its tribunals.
Robert M. Draper, Columbus, and Eldon H. Young, Toledo, for appellant, Francis Cowgill.
Robert E. Albright and John R. Welch, Columbus, for appellees, Robert E. Albright and Ohio State Bar Association.
In 1959, the Ohio State Bar Association's unauthorized practice of law committee brought an action in the Court of Common Pleas of Marion County to enjoin one Francis Cowgill from doing certain acts constituting the practice of law. That cause terminated in the issuance by that court (in this numbered case) of the following judgment:
'This day this cause came on to be heard for consideration by the court upon the issuance of an order to respondent, Francis Cowgill, to show cause why he should not be restrained from the practice of law, and upon the consent of respondent to having judgment entered against him on the pleadings, statements of all counsel and the evidence.
'WHEREFORE, the court finds that Francis Cowgill does consent to a decree being entered against him restraining the said Francis Cowgill from practicing law in any of its phase, directly or indirectly.
'It is therefore ordered, adjudged and decreed that Francis Cowgill, dba Universal Invention Sales, be and he hereby is, permanently enjoined from performing and rendering either directly or indirectly, for a fee or gratuitously, any of the following services; which the Court finds to be the practice of law:
'In holding himself out as being legally qualified to render opinions, counsel and advice concerning the legal effect and requirements of law concerning the preparation, filing and prosecuting of patent applications for letters patent, amendments to applications for letters patent, drafting of contracts, affidavits, assignments and determining the patentability of inventions; counseling or advising customers on matters of law; preparing and drafting patent applications, amendments to patent applications, contracts for the sale of inventions, affidavits of assignment; or advising on the law of taxation, the legal requirements necessary in protecting inventions from others; acting as an intermediary in selecting counsel for his customers; or otherwise engaging in the practice of law by rendering of legal services for others.
'Enforcement of this decree to be effective January 1, 1959.'
On March 29, 1971, a 'complaint' was filed in the same action by Francis Cowgill, aka Maurice J. Francill, against the present members of the Ohio State Bar Association's unauthorized practice of law committee to set aside the judgment entry on the ground that that court had no jurisdiction to issue such a judgment and, hence, it was void. On April 26, 1971, the defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, after having withdrawn an answer previously filed. The court on February 15, 1972, issued an opinion granting the motion and on December 11, 1972, a journal entry was filed dismissing the complaint. A motion for rehearing was also denied on December 11, 1972. An appeal was thereafter taken from the order dismissing the complaint dated December 11, 1972.
The sole error assigned by the appellant is that the trial court erred in sustaining the motion to dismiss the complaint and in denying his application for rehearing.
Although in his brief appellant attempts to extend his complaint to cover other problems, the sole ground for the relief urged in his complaint is that the court which issued the original injunction was without jurisdiction over the subject matter of that action because the United States statutes have preempted the field of regulation of practice in the U.S. Patent Office. It is urged that both lawyers and nonlawyers may be admitted to practice before this office. However, at no place does it appear that the appellant is now or has ever been admitted to practice before that office under the appropriate regulations of the Commissioner of Patents and it is not alleged that the appellant is now or ever has been an attorney authorized to practice in Ohio.
Initially a procedural problem arises. There is no authority for the filing of a second complaint in an action under the rules of civil procedure. Under Civ.R. 60, it is provided that relief after judgment is invoked by motion. Although a question as to jurisdiction may undoubtedly be raised in a second action by a complaint where the sole claim is that an existing judgment is void for want of jurisdiction, here the appellant has chosen to raise this issue in the same action. In our opinion, the so-called complaint must be treated as a motion for relief after judgment and the motion to dismiss the 'complaint' as a reply to that motion. The judgment of the trial court then is simply a judgment denying relief after judgment.
There is no question that the state of Ohio has a very real interest in the regulation of the practice of law. In Sperry v. Florida (1963), 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428, Justice Warren, in dealing with a related problem, states at page 383, 83 S.Ct. at page 1325:
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