Mahoning Cty. Bar Assn. v. The Senior Serv. Group, Inc.

• Citation: 642 N.E.2d 102,66 Ohio Misc.2d 48
• Decision Date: 23 September 1994
• Docket Number: No. UPL-93-4,UPL-93-4
• Parties: MAHONING COUNTY BAR ASSOCIATION v. THE SENIOR SERVICES GROUP, INC. Ohio Board of Commissioners on the Unauthorized Practice of Law
• Court: Ohio Board of Commissioners on the Unauthorized Practice of Law

Page 48

66 Ohio Misc.2d 48

642 N.E.2d 102

MAHONING COUNTY BAR ASSOCIATION v. THE SENIOR SERVICES GROUP, INC.

No. UPL-93-4.

Ohio Board of Commissioners on the Unauthorized Practice of Law.

Decided Sept. 23, 1994.

Louis E. Katz, Poland, for relator.

Reminger & Reminger Co., L.P.A., and Lawrence A. Sutter, Cleveland, for respondent.

JOHN W. WADDY, Jr., Chairman.

Pursuant to Gov.Bar R. VII(7), a formal hearing was held in this matter on March 23, 1994 in Columbus, Ohio. Members of the Board of Commissioners on the Unauthorized Practice of Law participating in the hearing and decision were John W. Waddy, Jr., Chairman, Jack R. Baker, Craig D. Barclay, John J. Carney, Paul D. Frankel, and D. John Travis.

Appearing on behalf of relator was Louis E. Katz, Poland, Ohio, and on behalf of respondent was Lawrence A. Sutter, Reminger & Reminger Co., L.P.A., Cleveland, Ohio.

The complaint of relator Mahoning County Bar Association alleges, inter alia, that respondent The Senior Services Group, Inc. has engaged in the unauthorized practice of law by furnishing legal advice and transacting various activities, including the conducting of seminars on estate planning, trusts, probate matters, and tax considerations, together with the preparation of trusts, powers of attorney, and deeds. The complaint further alleges that the actions of The Senior Services Group, Inc., which is not an attorney or a legal professional association, amount to the furnishing of legal advice and the unauthorized practice of law by:

"a. advising and counseling various persons with respect to the laws of Ohio governing wills, descent and distribution, estates, and probate matters;

"b. advising and counseling various persons regarding the nature, effect, and implications of the Ohio and Federal estate taxes;

"c. advising and counseling various persons that a specific type of trust would be suitable for their needs and should be established; and "d. preparing and drafting trust and other instruments for various persons and in assisting in the execution of these documents into legal effect in furtherance of the advice and counsel rendered."

The answer of respondent admitted that The Senior Services Group, Inc. is neither an attorney at law nor a legal professional association. Respondent further admitted that it has on prior occasions conducted seminars on "various estate planning devices" but denied that the seminars and its activities constituted the furnishing of legal advice or the unauthorized practice of law. Various motions and discovery orders having been issued and ruled upon during the pendency of this matter, formal hearing before the board proceeded upon reasonable notice, with a transcript of the hearing being prepared pursuant to Gov.Bar R. VII(7).

Testimony of witnesses called by relator, and evidence presented by exhibits, revealed that respondent was incorporated for the purpose of marketing living trusts and investment products. In 1993, it disseminated and mailed a document entitled "Private Invitation" for a "free one hour lecture" and "free seminar" on the subject of revocable living trusts. This brochure identified James A. Mosteller, Jr. as a "nationally known lecturer" who would present the seminar and information on the benefits of a living trust. The brochure further described living trusts as the "fail proof way to pass along your estate to your heirs and loved ones without the courts, or probate system," and stated that living trusts avoided publicly probated wills, eliminated capital gains from estates, avoided will contest actions, and permitted the retention of full asset control while at the same time being revocable. The recommendation was that "everyone" with an estate over $50,000 should have a living trust. The brochure showed a return address of respondent, at 55 South Miller Road, Suite 203, Akron, Ohio.

A witness called on behalf of relator attended the free seminar/lecture on May 5, 1993 in Youngstown, Ohio. The audience was described as generally elderly and the speaker was introduced as an employee of respondent who, while not an attorney, was an expert on matters involving living trusts. A one-hour presentation ensued, with a number of individual questions and answers occurring after the formal presentation. The speaker provided advice to relator's witness on specific issues involving transfers of assets by deed and payable-on-death accounts. In addition, attendees at the seminar/lecture were provided with documents representing that The Senior Services Group, Inc. was founded by James A. Mosteller, Jr., with the head of its "living trust operations" being an attorney who was "nationally prominent" and who was also vice president of respondent. The literature further described features of the living trust, which would be prepared by respondent, as including numerous documents, such as abstract of trust, final instructions, living will, and powers of attorney, among others.

The written outline used by the speaker at the seminar/lecture, submitted by counsel for respondent, covered a variety of diverse topics, such as history of living trusts, information regarding wills, probate costs and expenses, testamentary trusts, benefits of living trusts, estate and probate information, and taxation matters.

The president of respondent, James A. Mosteller, Jr., testified that The Senior Services Group, Inc. conducted approximately forty seminars in the year 1993, and identified the May 5, 1993 seminar in Youngstown as being conducted by a nonattorney. Mosteller, also not an attorney, made presentations at various seminars for respondent and answered questions of participants regarding living trusts, and on occasion provided to attendees general information on state and federal taxes and guardianships. These seminars also involved the providing of information as to (1) how the use of revocable living trusts could avoid probate, (2) direct transfer of assets to beneficiaries after death, and (3) how to eliminate expenses such as court costs.

Information obtained at the seminars, including identity of attendees, would be used in having an "independent representative" of respondent make personal calls at the homes of prospective clients. The particular "independent representative" referred to at the hearing, also not an attorney, acted as an agent for respondent, was licensed to sell annuities and life insurance, and was compensated by respondent based upon revenue generated. In May 1993, respondent employed approximately six "independent representatives," who provided similar information to prospective clients as was provided at the seminars. They also answered questions of prospective clients of respondent and gave advice on the legal effects and ramifications of living trusts.

Andrew P. Bodnar of Akron, an attorney identified by respondent as a member of the corporation and involved in its trust operations, also testified. While serving as an incorporator of respondent, he denied present knowledge as having served as an officer of respondent, but agreed that h...