Ohio State Bar Assn. v. Martin

Decision Date20 July 1994
Docket NumberNo. UPL-93-2,UPL-93-2
Citation66 Ohio Misc.2d 15,642 N.E.2d 75
PartiesOHIO STATE BAR ASSOCIATION et al. v. MARTIN, d.b.a. Kensington Estate Services. Ohio Board of Commissioners on the Unauthorized Practice of Law
CourtOhio Board of Unauthorized Practice

Lee Clarke Davies, Albert Bell, General Counsel, and Charles Simpson, for relator OH State Bar Ass'n.

Mary L. Cibella, for relator Cleveland Bar Ass'n.

J. Warren Bettis, Disciplinary Counsel, and Sally Ann Steuk, Disciplinary Counsel, for relator Office of Disciplinary Counsel.

Monroe & Zucco and W.T. Bill Monroe, and Will Halker, for respondent Reed Martin, d.b.a. Kensington Estate Services, a.k.a. Kensington Trust Preparation.

JOHN W. WADDY, Jr., Chairman.

This matter came on for hearing before the Board of Commissioners on the Unauthorized Practice of Law ("board") on October 4, 1993 in Columbus, Ohio, on the formal complaint filed April 20, 1993. Members of the board present and participating in this decision were John W. Waddy, Jr., Chairman, Paul M. Greenberger, Jack R. Baker, Craig D. Barclay, and Paul D. Frankel.

Relator Ohio State Bar Association was represented by Lee Clarke Davies, Akron, Ohio; Albert Bell, General Counsel of the Ohio State Bar Association, Columbus, Ohio; and Charles Simpson, Vandalia, Ohio. Relator Cleveland Bar Association was represented by Mary L. Cibella, Cleveland, Ohio. Relator J. Warren Bettis, Disciplinary Counsel, was represented by Sally Ann Steuk, Assistant Disciplinary Counsel, Columbus, Ohio. Respondent Reed Martin, d.b.a. Kensington Estate Services, a.k.a. Kensington Trust Preparation, was represented by W.T. Bill Monroe of Monroe and Zucco, Cleveland, Ohio, and Will Halker, Sacramento, California.

Relators' complaint alleged that Kensington Estate Services was a corporation with its principal place of business located in the state of California and that it was also known as Kensington Trust Preparation. Through discovery, relators learned that Kensington Estate Services is not incorporated and that both Kensington Estate Services and Kensington Trust Preparation are merely names used by Reed Martin ("Martin") in transacting business in Ohio and elsewhere. Relators moved to amend the complaint to name Martin as respondent. The motion was not opposed. The motion was granted pursuant to Gov. Bar R. VII(17), which states that "Amendments to any complaint * * * may be made at any time prior to final order of the Board. The party affected by such amendment shall be given reasonable opportunity to meet any new matter presented thereby." Hereinafter, respondent shall mean Reed Martin, individually, and Reed Martin, d.b.a. Kensington Estate Services, a.k.a. Kensington Trust Preparation.

Relators' complaint, as amended, alleged that respondent is not an attorney at law. The complaint also alleged that respondent engaged in the unauthorized practice of law by rendering legal advice to Ohio residents concerning the need and advisability of various types of trusts; prepared trust documents for Ohio residents; and charged and collected fees from Ohio residents in exchange for legal services rendered to or on behalf of those individuals.

At the hearing before the board, counsel for the parties waived their right to an evidentiary hearing. Relators moved for the admission into evidence of the depositions taken of Jeffrey L. Terbeek, Julian Nagy, James B. Driscoll, Glenn Fort, and Michael Phillips. The motion was not opposed and, therefore, the depositions were admitted. Additionally, the parties stipulated to the following facts:

"1. Relators, Ohio State Bar Association and Cleveland Bar Association, are regularly organized Bar Associations in the State of Ohio as is referred to in Section 5 of Rule VII of the Supreme Court Rules for the Government of the Bar of Ohio.

"2. At the time the complaint was filed, Relator, J. Warren Bettis, was the Disciplinary Counsel of the Supreme Court of Ohio as provided for by Rule V(3) of the Supreme Court Rules for the Government of the Bar of Ohio.

"3. The Respondent is Reed Martin and he does business as Kensington Estate Services, also known as Kensington Trust. Respondent has employees who since at least July 31, 1991, have maintained an office in Franklin County, Ohio. Through his employees and agents, Respondent has engaged in activities constituting unauthorized practice of law since at least July 31, 1991, in over forty counties in Ohio, including but not limited to Allen, Ashland, Ashtabula, Athens, Butler, Champaign, Clark, Columbiana, Cuyahoga, Defiance, Erie, Fairfield, Franklin, Greene, Hamilton, Hancock, Hardin, Henry, Knox, Licking, Logan, Lucas, Madison, Mahoning, Marion, Meigs, Montgomery, Morgan, Morrow, Muskingum Ottawa, Perry, Pickaway, Preble, Putnam, Richland, Seneca, Stark, Trumbull, Union, Van Wert, Warren, Washington, and Wood Counties.

"4. Respondent's activities include, but have not been limited to:

"a. providing specified legal advice to individuals concerning the need and advisability of 'living trusts', including 'A/B trust,' 'revocable trusts', 'irrevocable trusts', 'Q-TIP trusts', and 'insurance trusts';

"b. preparation of, inter alia, trust documents, such as those mentioned in (a.) above, using information obtained through Respondent's employees or agents from individuals residing in the State of Ohio; and

"c. charging and collecting fees from individuals residing in the State of Ohio in exchange for legal services rendered to or on behalf of those individuals.

"5. Respondent is not an attorney at law and is not registered under Rule VI or Rule XI of the Supreme Court Rules for the Government of the Bar of Ohio.

"6. The activities of Respondent constitute the furnishing of legal services for others. Respondent has engaged in the unauthorized practice of law." 1

Gov.Bar R. VII(2)(A) states: "The unauthorized practice of law is the rendering of legal services for others by anyone not registered under Rule VI or certified under Rule II, Rule IX, or Rule XI of the Rules for the Government of the Bar of Ohio." Respondent has stipulated, and the record demonstrates, that he is not, and never has been, an attorney registered or certified to practice law in Ohio. Therefore, the issue before this board is whether respondent's conduct constitutes "the rendering of legal services for others" and, therefore, the unauthorized practice of law.

The Supreme Court of Ohio set forth the clearest definition of what constitutes the "unauthorized practice of law" in the case of Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650. In the first paragraph of its syllabus, the court held:

"The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, 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."

The court in McMillen v. McCahan (C.P.1960), 83 Ohio Law Abs. 1, 11, 14 O.O.2d 221, 229, 167 N.E.2d 541, 550, also described the many areas of legal practice:

"It is clear that a licensed attorney in the practice of law generally engages in three principal types of professional activity. These types are legal advice and instructions to clients to inform them of their rights and obligations; preparation for clients of documents and papers requiring knowledge of legal principles which is not possessed by an ordinary layman; and appearance for clients before public tribunals, which possess the power and authority to determine rights of life, liberty and property according to law, in order to assist in the proper interpretation and enforcement of law."

Two of the activities generally included in the practice of law are: (1) preparing legal instruments or documents that affect the legal rights of others; and (2) advising others on their legal rights and responsibilities. ABA/BNA Lawyers' Manual on Professional Conduct (1984), at 21:8004. The uncontroverted evidence before this board establishes that the various trust agreements prepared by respondent for others, for a fee, constitute legal instruments or documents, and significantly affect the legal rights of his clients concerning the taxability, control, and disposition of his clients' assets. The evidence also establishes that respon...

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4 cases
  • Mid-America Living Trust Associates, Inc., In re
    • United States
    • United States State Supreme Court of Missouri
    • August 20, 1996
    ...on the Unauthorized Practice of Law in Ohio has decided cases in accordance. Mahoning, 642 N.E.2d at 105; Ohio State Bar Ass'n v. Martin, 66 Ohio Misc.2d 15, 642 N.E.2d 75, 78 (Bd.Unauth.Prac.1994) ("[A]dvising and counseling residents of Ohio that a specific type of trust agreement would b......
  • Krier v. Franklin Cty. Bd. of Revision, s. 94APH05-679
    • United States
    • United States Court of Appeals (Ohio)
    • December 30, 1994
    .... Page 344. 100 Ohio App.3d 344. 654 N.E.2d 122. KRIER et al., Appellees,. v. FRANKLIN COUNTY ... confronted by the diametrically opposite conclusion reached by the State Board of Commissioners on the Unauthorized Practice of Law in Cleveland r Assn. v. Middleton (1994), 66 Ohio Misc.2d 9, 642 N.E.2d 71. Middleton ......
  • Mahoning Cty. Bar Assn. v. The Senior Serv. Group, Inc.
    • United States
    • Ohio Board of Commissioners on the Unauthorized Practice of Law
    • September 23, 1994
    ...with the board's recent decisions in two other cases relative to the preparation and sale of living trusts. Ohio State Bar Assn. v. Martin (1994), 66 Ohio Misc.2d 15, 642 N.E.2d 75, and Cleveland Bar Assn. v. Yurich (1994), 66 Ohio Misc.2d 22, 642 N.E.2d The board therefore authorizes relat......
  • Cleveland Bar Assn. v. Yurich
    • United States
    • Ohio Board of Commissioners on the Unauthorized Practice of Law
    • September 19, 1994
    ...execution of those documents in Ohio to carry into effect the advice and counsel given, as aforesaid." In Ohio State Bar Assn. v. Martin (1994), 66 Ohio Misc.2d 15, 642 N.E.2d 75, the board followed the court's holding in Berning, supra. The board held that a living trust is a legal instrum......

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