Mahoning Cnty. Bar Assn. v. Amatore
| Decision Date | 08 March 2021 |
| Docket Number | 2020-1572 |
| Citation | 164 N.E.3d 458 (Table),161 Ohio St.3d 1459 |
| Parties | MAHONING CTY. BAR ASSN. v. AMATORE |
| Court | Ohio Supreme Court |
CASE ANNOUNCEMENTS
DISCIPLINARY CASES
On Final Report by the Board on the Unauthorized Practice of Law, No. UPL 19-05. Anthony J. Amatore and Amatore & Company enjoined from engaging in the unauthorized practice of law in Ohio.
DeWine, J., dissents, with an opinion joined by Kennedy, J.
{¶ 1} I concur in the decision to approve the proposed consent decree reached between relator, Mahoning County Bar Association, and respondents, Anthony J. Amatore and his company, Amatore & Company, L.L.C. (collectively, "Amatore"), as recommended by the Board on the Unauthorized Practice of Law. There is no doubt in my mind that Amatore engaged in the unauthorized practice of law by advertising some services that could be properly performed only by an attorney and when he prepared legal documents on behalf of clients and then filed those documents with the Ohio Secretary of State. I write separately to address some concerns raised by the dissenting opinion.
{¶ 2} This court has sole jurisdiction to determine who may practice law in this state. Article IV, Section 2(B)(1)(g), Ohio Constitution. This jurisdiction includes the regulation of the unauthorized practice of law. Disciplinary Counsel v. Schwab , ––– Ohio St.3d ––––, 2021-Ohio-283, ––– N.E.3d ––––, ¶ 10. The purpose of regulating the unauthorized practice of law is not only to protect those whom have been granted the right to practice law, see Land Title Abstract & Trust Co. v. Dworken , 129 Ohio St. 23, 34, 193 N.E. 650 (1934), but much more importantly "to protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation," Cleveland Bar Assn. v. CompManagement, Inc. , 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 40.
{¶ 3} We have defined the practice of law expansively. Cincinnati Bar Assn. v. Foreclosure Solutions, L.L.C. , 123 Ohio St.3d 107, 2009-Ohio-4174, 914 N.E.2d 386, ¶ 21. A decision, I believe, that best protects the public. The unauthorized practice of law includes "both the ‘rendering of legal services for another’ and the ‘[h]olding out to the public or otherwise representing oneself as authorized to practice law in Ohio’ by any person who is not authorized to practice law under our rules." Schwab at ¶ 11, quoting Gov.Bar R. VII(2)(A)(1) and (4).
{¶ 4} Over 100 years ago in Dworken , this court astutely held that "[t]he practice of law is not limited to the conduct of cases in court," but rathe r "[i]t embraces * * * the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." Id. at paragraph one of the syllabus. Since that pronouncement, this court has consistently held that the practice of law encompasses "the preparation of legal documents and instruments upon which legal rights are secured or advanced." Lorain Cty. Bar Assn. v. Kocak , 121 Ohio St.3d 396, 2009-Ohio-1430, 904 N.E.2d 885, ¶ 17 ; see also Schwab at ¶ 11.
{¶ 5} However, when the preparation of legal documents is merely clerical in nature—i.e., recording basic information not requiring the exercise of legal skill—then no unauthorized practice of law has occurred. See Gustafson v. V.C. Taylor & Sons , 138 Ohio St. 392, 397, 35 N.E.2d 435, (1941) ().
{¶ 6} The dissenting opinion takes issue with this court's approval of the proposed consent decree because Amatore is being sanctioned for filling out and filing on behalf of others preprinted forms that are available on the secretary of state's website. Under a different set of facts, the dissenting opinion may be correct. However, Amatore's "filling out and filing basic forms," dissenting opinion at ¶ 18, for someone else constituted the unauthorized practice of law due to his participation in the creation of a corporation.
{¶ 7} Amatore's website indisputably advertised estate-planning services. Those services included helping individuals define their estate-planning goals; preparing, organizing, and reviewing estate-planning documents; and arranging for the management of the estate. In addition to estate planning, Amatore advertised under the "New Business Formation" page that the company helped "[s]elect a business structure that best fits [the customer's] needs by evaluating tax advantages, legal exposures , ease of operation and portability should [the customer] need to relocate." (Emphasis added.) Additionally, Amatore advertised that the company would help the customer " [c]omply with employment laws " and "[d]evelop a solid Partnership Agreement" as it "is an extremely important document for all new partnerships * * *." (Emphasis added.) In fact, in an about-the-author page in a chapter he wrote in a book, Amatore held himself out to be an individual who is "approved to represent clients in the local probate courts."
{¶ 8} In the current matter, Doris L. Dickerhoof sought out Amatore for his ability to aid her in developing her estate plan. As stated in the consent decree, Amatore Amatore issued L.L.C. membership certificates to Mrs. Dickerhoof and her two children. Subsequently, Amatore sold Mrs. Dickerhoof's son an annuity, which was transferred to Salem Organ Company, L.L.C., the company that Amatore created.
{¶ 9} Indeed, Amatore did more than simply fill out basic forms or complete work that is considered clerical in nature, which would have been permitted under Gustafson , 138 Ohio St. at 397, 35 N.E.2d 435. In filling out these forms, Amatore selected the domestic limited-liability form from the secretary of state's website, specified that the company was a for profit corporation, and then nominated himself as the statutory agent. It was Amatore's decision to create Salem Organ Company, L.L.C., and to select the specific form to create it. As stated by relator in the complaint, Mrs. Dickerhoof "had no knowledge regarding the benefits and risks of limited liability companies" and did not know how to form such a company in Ohio. Further, Amatore's creation of the company benefitted him, as he sold the annuity that would be placed in the company he created. Amatore's misconduct is similar to the misconduct at issue in Miami Cty. Bar Assn. v. Wyandt & Silvers, Inc. , 107 Ohio St.3d 259, 2005-Ohio-6430, 838 N.E.2d 655, in which we found that the respondent had engaged in the unauthorized practice of law.
{¶ 10} In Wyandt & Silvers , an accountant gave legal advice to and prepared legal documents for clients who inquired about setting up various businesses under Ohio law. Id. at ¶ 4. For each corporation he assisted, the accountant "filled out and perhaps filed basic forms available from the Ohio Secretary of State to establish articles of incorporation and appoint a statutory agent." Id. This court determined that the accountant had engaged in the unauthorized practice of law by drafting documents to create a business entity for the clients. Id. at ¶ 11. We recognized that there are many issues in choosing a business structure, which "ordinarily requires a significant amount of legal judgment" in addition to other considerations. Id. at ¶ 12.
{¶ 11} If the record demonstrated that Amatore simply filled out basic forms, as was the situation in Gustafson , and thereby performed a purely clerical task, we may be in a different situation. However, the consent decree, though vague, when read in light of the pleadings, illustrates that Amatore's actions in filling out forms on the secretary of state's website and filing those forms to create a limited-liability company for Mrs. Dickerhoof's estate plan constituted the unauthorized practice of law.
{¶ 12} The parties in this case drafted a consent decree for this court's review. As I stated earlier, I believe that the consent decree is a bit vague and could certainly be clearer. It appears that many of the issues were resolved with Amatore's modification of the website and that most of the facts and vague references in the consent decree, as agreed to by relator, were heavily negotiated to avoid further damage to Amatore's reputation and business. Nevertheless, the consent decree is supported by the record.
{¶ 13} I disagree with the dissenting opinion's assertion that this court's approval is merely a rubber stamp. Dissenting opinion at ¶ 35. In my experience, each member of this court takes the time to carefully read and review the record, research the relevant law, and make decisions accordingly. Under these circumstances, the record and law are clear that Amatore engaged in the unauthorized practice of law.
{¶ 14} This type of decision is important to Ohioans. This court has the "unique and complete responsibility, as designated by Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution, to regulate all matters related to the practice of law." State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance...
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