Green v. Huntington Nat. Bank

• Decision Date: 15 December 1965
• Docket Number: No. 39312,39312
• Citation: 33 O.O.2d 442,212 N.E.2d 585,4 Ohio St.2d 78
• Parties: , 33 O.O.2d 442 GREEN et al., Appellees, v. The HUNTINGTON NATIONAL BANK of Columbus, Appellant.
• Court: Ohio Supreme Court

Page 78

4 Ohio St.2d 78

212 N.E.2d 585, 33 O.O.2d 442

GREEN et al., Appellees, v.The HUNTINGTON NATIONAL BANK of Columbus, Appellant.

No. 39312.

Supreme Court of Ohio.

Dec. 15, 1965.

Syllabus by the Court

1.A bank or trust company which provides specific legal information in relation to the specific facts of a particular person's estate for the purpose of obtaining a more beneficial estate condition in relation to tax and other legal consequences of death is giving legal advice.

2.One who repeatedly gives legal advice to others with the expectation of being compensated therefor is thereby engaging in the practice of law although such one constantly advises those to whom he gives such advice to consult their attorneys and refuses to draw any legal instruments necessary to give effect to his advice.

3.A bank or trust company does not engage in the practice of law by fully discussing with counsel for a client, who is a customer or a prospective customer of the bank, any and all legal problems involved in the planning or administration of such client's estate.

4.Congress has provided against the practice of law by a national bank while conducting its trust business where such practice by a state bank or trust company would be in contravention of state law.

This action was instituted in the Common Pleas Court of Franklin County by members of the Unauthorized Practice of Law Committee of the Ohio State Bar Association for the purpose of enjoining the defendant, The Huntington National Bank of Columbus, from practicing law.The Common Pleas Court rendered judgment for the defendant.

On appeal on questions of law and fact, the Court of Appeals found that defendant's program called 'Estate Analysis' includes 'the gathering of data on the status of a particular person's estate, providing that person with general information and deducation on the subject of estate planing, selecting predrafted statements considered particularly applicable, and making additional comments and suggestions on the present status and future mangement of such estate'; that the defendant's 'activities in gathering data, and in providing illustrative examples of estate problems, and in providing other general information on the subject of estate planning do not, of themselves, constitute the illegal practice of law' but that 'the providing of specific legal information in relation to the specific facts of a particular person's estate, as well as the providing of specific comments or advice on the form of investments and on management of assets for the purpose of obtaining a more beneficial estate condition in relation to tax and other consequences of death, does constitute the practice of law, regardless of whether any fee or charge is made'; and that 'in the course of its estate analysis program, defendant * * * has engaged in such activity systematically and as a part of its program.'The judgment enjoins defendant'from offering or providing to any person who seeks information or assistance in the analysis or planning of an estate, specific legal information in relation to the specific facts of a particular estate * * * [;] * * * from offering or providing specific comments or advice on the form of investments or on the management of assets in a particular estate for the purpose of obtaining for a particular person or persons a more beneficial estate condition in relation to the tax and other consequences of death upon such estate * * * [; and] * * * from offering, or soliciting inquiry about, its estate analysis program, whether by advertising or otherwise, so long as such program contains, or whenever such program or a similar program contains, a deliberate or a systematic practice of law in the manner enjoined by this order.'

The cause is now before this court on appeal from that judgment as a case involving substantial constitutional questions and pursuant to allowance of a motion to certify the record.

James C. Justice and Robert Albright, Columbus, for appellees.

Wright, Harlor, Morris, Arnold & Glander, Francis J. Wright, C. Emory Glander and Porter, Stanley, Treffinger & Platt, Columbus, for appellant.

TAFT, Chief Justice.

The first question to be decided is whether what defendant does in its 'estate analysis' program amounts to the practice of law.

The Court of Appeals found in substance that, in defendant's conduct of that program, the defendant privides 'specific legal information in relation to the specific facts of a particular person's estate * * * for the purpose of obtaining a more beneficial estate condition in relation to tax and other consequences of death.'We believe that the record fully supports such a finding even if we confine the word 'consequences' to 'legal consequences'; and we believe that such conduct by defendant would represent the giving of legal advice.

This giving of legal advice was not an isolated instance.Such advice was repeatedly given by defendant with the reasonable expectation of receiving full compensation for the giving of such legal advice.Although the bank specifically charged nothing for this legal advice, it admittedly gave that advice with the reasonable expectation of profit from doing so, i. e., the expectation that a substantial number of those whom it gave such advice would name the bank as a fiduciary and thereby enable the bank to receive compensation for its fiduciary services that would in the aggregate fully justify and pay for any and all expenses connected with its estate analysis program.

One who repeatedly gives legal advice to others with the expectation of being compensated therefor is thereby engaging in the practice of law.Land Title Abstract & Trust Co. v. Dworken(1934), 129 Ohio St. 23, 193 N.E. 650(paragraph one of syllabus: 'The practice of law * * * embraces * * * all advice to clients * * * in matters connected with the law.');In re Brown, Weiss and Wohl(1963), 175 Ohio St. 149, 192 N.E.2d 54.

In Judd v. City Trust and Savings Bank(1937), 133 Ohio St. 81, 12 N.E.2d 288, the syllabus reads in part:

'4.* * * A fiduciary, whether an individual or a trust company, may exercise the privilege of completely executing the particular trust in all its details.Such trust companies may, therefore, through their regular attorney-employees, draft papers incident to the administration of the trusts in their hands, and appear in the probate court or other courts in matters pertaining to the execution of such trusts.

'5.This privilege, however, does not operate as a license to render legal services for others.Such companies must adhere to the business of executing the trusts in their control; they have no right or authority through their attorney-employees to give independent legal advice to those beneficially interested * * * or to advise * * * others claiming some interest in the trust estate, where such advice * * * would partake of a legal nature.'

A fortiori, they would have no right to give such advice to those not beneficially interested or not claiming some interest in such trusts.

Although the bank constantly advised those who sought its help and advice to consult their attorneys, and refused to draw any of the instruments necessary to put its suggestions into effect, this would not prevent what the bank was doing in its estate analysis program, as hereinbefore described, from amounting to the practice of law.

As aptly stated in Oregon State Bar v. Miller & Co.(1963), 235 Or. 341, 344, 385 P.2d 181, 182:

'* * * Much of the advice contained in the report to the client could not be given without an understanding of various aspects of the law, principally the law of...