Ohio State Bar Ass'n v. Beem

• Court: Ohio Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Ohio State Bar Ass'n v. Beem, 166 Ohio St.3d 230, 185 N.E.3d 31 (Ohio 2021)
• Decision Date: 19 August 2021
• Docket Number: 2020-1580
• Parties: OHIO STATE BAR ASSOCIATION v. BEEM.

166 Ohio St.3d 230

185 N.E.3d 31

OHIO STATE BAR ASSOCIATION

v.BEEM.

No. 2020-1580

Supreme Court of Ohio.

Submitted March 3, 2021

Decided August 19, 2021

Henderson, Mokhtari & Weatherly Co., L.P.A., and Alvand A. Mokhtari ; and J. Desiree Blankenship, Bar Counsel, for relator.

Kimberly R. Beem, pro se.

Per Curiam.

{¶ 1} In a December 2017 complaint, relator, Ohio State Bar Association, charged respondent, Kimberly R. Beem, with engaging in the unauthorized practice of law. The complaint alleged that Beem, who is not licensed to practice law in Ohio, rendered legal advice, counsel, and assistance to Charles McCoy with regard to a pro se prosecutorial-misconduct complaint that he had filed in the Licking County Court of Common Pleas. On March 10, 2018, Beem sent an email to relator and the secretary for the Board on the Unauthorized Practice of Law in which she generally denied the allegations contained in the complaint.

{¶ 2} A three-member panel of the board was appointed to hear the case. The panel chair granted relator's motion for leave to file a motion for summary judgment instanter. The motion for summary judgment alleged that there were no genuine issues of material fact and that relator was entitled to judgment as a matter of law. Beem opposed the motion for summary judgment, arguing that her conduct did not constitute the unauthorized practice of law.

{¶ 3} In March 2020, the panel issued a report finding that Beem's conduct constituted one egregious instance of the unauthorized practice of law. The panel therefore recommended that we grant relator's motion for summary judgment, enjoin Beem from engaging in additional acts of the unauthorized practice of law, and order her to pay a civil penalty of $10,000. The board adopted the panel's findings and recommendations. No objections have been filed.

{¶ 4} After reviewing the record, we agree that Beem's conduct constitutes a single offense of the unauthorized practice of law in Ohio and that an injunction is warranted. However, we find that a $5,000 penalty is more appropriate.

Beem's Conduct

{¶ 5} While reviewing this court's docket in April or May 2014, Beem noticed that Charles McCoy had filed several cases in this court regarding events that had occurred in Licking County, Ohio. After learning that McCoy was incarcerated at the London Correctional Institution, she began to communicate with him through a company that offers email, videoconferencing, and other services to incarcerated persons.

{¶ 6} McCoy informed Beem that he had commenced an action to have the Licking County prosecutor removed from office. Beem, who believed that the prosecutor had helped two of her siblings deprive her of her inheritance and orchestrated the prosecution of harassment charges against her, decided to help McCoy. She offered him information about the prosecutor that she had obtained through public records.

{¶ 7} Beem communicated with McCoy about his case against the prosecutor by email and videoconference from May through August 2014. She performed legal research on McCoy's behalf, transmitted that research to him, and monitored the online docket in his case. She also gave McCoy advice regarding his rights, which legal arguments he should make and when he should make them, and which evidence he should submit to the court.

{¶ 8} Although Beem was not a party to McCoy's lawsuit against the prosecutor, in June 2014, she prepared and filed a document in that case entitled, "Documentation in Support of Affidavit of Kimberly R. Beem," along with a flash drive containing audio, video, and written documentation in support of McCoy's case—none of which had been reviewed by McCoy.

{¶ 9} At McCoy's request, Beem also researched the law regarding a party's right to be present during depositions. She reviewed the websites hosted by relator and this court and discussed with McCoy whether, based on what she had found, he should be permitted to participate in depositions related to his case via videoconference. On June 23, 2014, she filed a motion on McCoy's behalf to permit videoconferencing for all depositions, to reserve McCoy's right to examine all deponents, and to assess all costs of the videoconferencing against the prosecutor. In the final paragraph of the motion, Beem stated, "Due to the time sensitivity of this matter, Mr. McCoy has requested that Kimberly R. Beem, a layperson, who has filed an affidavit in support of this case, file this motion on his behalf." In the signature block, she typed, "Respectfully submitted on behalf of and at the direction of Charles McCoy," and signed her name. In a judgment entry filed later that day, the trial judge ordered the motion stricken and stated that he was notifying the board of Beem's conduct.

{¶ 10} At McCoy's request, Beem traveled to Newark, Ohio, the next day to speak with his mother and sister. As named plaintiffs in McCoy's case, they were scheduled to be deposed that morning. Beem instructed them to tell the truth. McCoy's mother inquired about Beem's stricken motion, and Beem told her that they could ask the prosecutor to delay the matter until the issue of McCoy's participation could be resolved. Then they went to the prosecutor's office, where Beem made that request.

{¶ 11} In a series of emails Beem sent to McCoy on July 8, she referred him to a provision of the Ohio Constitution relevant to the issue of deposition testimony, asked who he had identified as his witnesses, and told him that she wished he had waited until he had addresses before filing his witness list. She asked McCoy to remind the trial court that he had filed his complaint before having had any contact with Beem. She also told him:

Maybe it's time to file a motion to ask [the trial judge] to disqualify himself due to his conflict of interest.

* * *

I am not sure but I think you want your motion to say that you want [the trial judge] to disqualify himself. It's called recusing but I think technically he would need to disqualify himself. If he doesn't agree, I looked up the statute to use for the Supreme Court—not legal advice—a simple Google search then copy and paste.

{¶ 12} A couple days later, Beem suggested various arguments that McCoy could make to get the depositions of his mother and sister thrown out. She also told McCoy that he needed to be prepared to file an affidavit of disqualification in this court on about August 7 if the trial judge did not recuse himself at least seven days before the scheduled non-oral hearing on the prosecutor's motion to dismiss McCoy's case.

{¶ 13} On July 11, Beem told McCoy that she was going to do some research on hearings and non-oral hearings and offered to prepare an affidavit in case he needed to "go to the Supreme Court to have [the trial judge] disqualified." She suggested concepts and arguments regarding the "key" issues of bias, prejudice, and ex parte communications. She reminded McCoy to address the trial judge's potential bias toward his key witnesses and identified at least one example of that alleged bias. Beem also suggested arguments in opposition to the prosecutor's motion to dismiss and sent McCoy the text of R.C. 309.05, which governs the removal of a prosecuting attorney for neglect or misconduct.

{¶ 14} Several days later, Beem offered her opinion regarding what would happen if the trial judge recused himself and she stated that she believed that the appointment of a Franklin County judge to replace him would result in the best outcome for McCoy's lawsuit. On July 18, she wrote that she had found "the Pengov case." Pengov v. White , 146 Ohio App.3d 402, 2001-Ohio-1668, 766 N.E.2d 228. She attempted to distinguish the facts in Pengov from the facts of McCoy's case, explaining that Pengov involved a single instance of misconduct, whereas McCoy had alleged ongoing prosecutorial misconduct. She also noted that Pengov addressed the need for the misconduct to have occurred during the prosecutor's current term—an issue that the prosecutor had raised in his motion to dismiss McCoy's case.

{¶ 15} In the following days, she repeatedly advised McCoy about the importance of the timing of the filing of his affidavit of disqualification in this court. On July 23, Beem told McCoy, "After you file for recusal with the Supreme Court, [the trial judge] can't rule on any motions until that is resolved. So then the ball will be in [the chief justice's] court. I don't see how she can say no based on what [the trial judge] has already done but you never know." A few days later, she wrote, "Let me see how this plays out but I think we need to invite Special Agent [J.J.] to testify as to how he became involved in the felony falsification in support of the criminals and [C.P.]" McCoy responded, "Ok, I won't do anything till you let me know." Beem replied, "Let's wait until BCI [the Bureau of Criminal Investigation] Superintendent [T.S.] has an opportunity to respond. If he doesn't, then we need to add [C.P., S.F., and J.J.]."

{¶ 16} On July 30, McCoy sent Beem an email stating that he had written a letter inviting BCI to review and investigate the case but that he would not send it until he got her advice. In her response, Beem stated, "As far as the BCI, you can't invite them to investigate. They only get involved at the request of law enforcement or prosecutors." She then described the evidence that she had submitted to the court regarding other cases in which she believed there had been prosecutorial misconduct and stated that the special prosecutor had to look at all of it.

Beem Engaged in the Unauthorized Practice of Law

{¶ 17} This court has original jurisdiction over the admission to the practice of law in Ohio, the discipline of persons so admitted, and "all other matters relating to the practice of law," Article IV, Section 2(B)(1)(g), Ohio Constitution, which includes the regulation of the unauthorized practice of law, Greenspan v. Third Fed. S. & L. Assn. , 122 Ohio St.3d 455, 2009-Ohio-3508, 912 N.E.2d 567, ¶ 16. The...