State ex rel. State Bar Ass'n v. Northouse, 94S00-0505-MS-205.

• Decision Date: 06 June 2006
• Docket Number: No. 94S00-0505-MS-205.,94S00-0505-MS-205.
• Citation: 848 N.E.2d 668
• Parties: STATE of Indiana ex rel. INDIANA STATE BAR ASSOCIATION, Relator, v. Gary L. NORTHOUSE and Michael E. Ramer, Respondents.
• Court: Indiana Supreme Court

Page 668

848 N.E.2d 668

STATE of Indiana ex rel. INDIANA STATE BAR ASSOCIATION, Relator, v. Gary L. NORTHOUSE and Michael E. Ramer, Respondents.

No. 94S00-0505-MS-205.

Supreme Court of Indiana.

June 6, 2006.

Wilford A. Hahn, Huntington, Jeffrey B. Kolb, Vincennes, Attorneys for Relator.

Kevin McGoff, Indianapolis, Attorney for Respondent Northouse.

Robert E. Kabisch, Fort Wayne, Attorney for Respondent Ramer.

On Petition To Enjoin The Unauthorized Practice Of Law.

PER CURIAM.

This is an original action brought by the Indiana State Bar Association ("Relator") in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24.¹ Relator seeks an order enjoining Respondents Gary L. Northouse ("Northouse") and Michael E. Ramer ("Ramer") from the unauthorized practice of law. This Court has original jurisdiction over matters involving the unauthorized practice of law. See IND. CONST. art. 7, § 4. The Court finds Northouse and Ramer have engaged in the unauthorized practice of law and concludes an injunction is appropriate and necessary.

Procedural Background

On May 2, 2005, Relator filed a verified petition alleging that Northouse and Ramer engaged in the unauthorized practice of law. Specifically, the petition alleged Northouse engaged in the unauthorized practice of law when he: (1) not being admitted to practice law in Indiana or any other state, consulted with one of his insurance clients and provided legal advice regarding the client's need for a will, a living trust, and a power of attorney; (2) directed Ramer to prepare such legal documents for the client; (3) obtained the client's signature on those documents without having them reviewed or approved by an attorney; and (4) had other clients sign similar documents. The petition alleged Ramer engaged in the unauthorized practice of law when he, not being admitted to practice law in Indiana, prepared the aforementioned documents for Northouse's clients, among other things. The petition asks for an injunction permanently prohibiting Northouse and Ramer from engaging in the unauthorized practice of law in Indiana and for all other appropriate relief.

Northouse and Ramer each filed a verified return to the petition. The returns admitted many of the petition's factual allegations but denied others. The Court appointed the Honorable James E. Harris, retired Judge of the Morgan Circuit Court, to serve as Commissioner to hear the evidence and provide the Court with findings of fact. After receiving stipulations from the parties, the Commissioner filed his findings of fact, which we approve and adopt. The Court then received legal briefs from the Relator, Northouse, and Ramer.

Findings Of Fact

Northouse is a registered securities representative and an insurance agent who operates an Indiana business, Northouse Insurance and Financial Services, Inc. Northouse is not admitted to practice law in Indiana or any other state. Ramer is the president of Security Trust Corporation ("STC"), which is located in Fort Wayne, Indiana. Ramer is not an attorney and is not admitted to practice law in Indiana or anywhere else. Ramer contacted Northouse in 2000 about selling trusts through STC. Ramer represented that an attorney would be involved in preparing the trust documents. Between 2000 and 2002, Northouse sold a total of eight "Financial Organization" books that included trust documents prepared by STC. Northouse sold the last such book in December 2002.

D.D., an eighty-nine year old who lived in an independent retirement facility in Huntington, Indiana, purchased one of those books. Previously, D.D. had worked with her attorney, David L. Brewer, to plan her estate. As part of that planning, D.D. signed a power of attorney in 1995 making Brewer her health care representative. In 1999, she signed a living will, and in 2000, she executed a will that had been drafted by Brewer and which made Brewer the personal representative of her estate upon her death.

Beginning in 1975, Northouse served as D.D.'s insurance agent. In 1995, Northouse began handling her investments, too. Although D.D. was satisfied with her estate planning, Northouse met with D.D. sometime prior to the end of April 2002 at D.D.'s residence, reviewed her will, and discussed her estate plan and the benefits of a living trust. On or about April 30, 2002, Northouse again met with D.D. at her residence, collected information concerning her estate plan, and discussed with her the creation of a living trust, a power of attorney, and a will with provisions consistent with those in her 2000 will. Northouse told D.D. that because such a trust would be revocable, she could make changes to it as often as she believed necessary. D.D. then gave Northouse a check for $1,295 made payable to STC.

On May 1, 2002, Northouse gave Ramer D.D.'s check, along with information regarding D.D.'s desired estate plan to allow Ramer to prepare a will, a living trust, a power of attorney, and other documents for D.D. Then, beginning with forms that had been created by an attorney, Ramer or his staff prepared documents specifically for execution by D.D. Although Northouse made certain decisions on D.D.'s behalf regarding which provisions of the "form" documents needed to be modified to suit D.D.'s personal wishes relating to the disposition of her property upon her death, those modifications were never actually incorporated into the documents prepared for D.D. Ramer did not have any of the documents prepared for D.D. reviewed by an attorney once they were completed.

On May 3, 2002, Northouse returned to D.D.'s residence with a loose-leaf "Financial Organization" book. Northouse met with D.D. alone and obtained D.D.'s signatures on several documents in the book, including: (1) a will that appointed Northouse as personal representative; (2) a revocable living trust appointing Northouse as successor trustee; and (3) a power of attorney/appointment of healthcare representative appointing Northouse as her attorney-in-fact and as her healthcare representative and revoking all previous powers of attorney. The will and trust that Northouse had D.D. sign did not include any dispositive provision or designate the desired beneficiary of her property upon her death. The will simply gave the "residue" of her estate to the trustee for distribution under the trust, but the trust itself did not include any instructions regarding how property was to be distributed after her death. The provisions of the trust were not consistent with the provision of the will she had executed in 2000. Northouse then left with the book.

Later that day, Ramer notarized the trust, will, and power of attorney documents that were in the book and had been signed by D.D. On the same day, at the STC office, Cristina J. Ramer and Stephen W. Foster signed as "witnesses" to the execution of D.D.'s will even though they were not present at D.D.'s residence when she signed it.

D.D. did not see the documents in the book again until Northouse provided them to her in March or early April 2003. After realizing what she had signed and that those documents would not dispose of her property as she wished, D.D. became upset. She later met with Brewer and requested his help in revoking the appointments of Northouse in the various documents and to correct the dispositive provisions in the will and trust.

Northouse and Ramer now represent that they have no intention of selling such documents in the future or giving what may be construed as legal advice regarding estate planning in the future.

Unauthorized Practice Of Law

This Court's authority to set standards for and supervise the practice of law emanates from the need to protect the public from those who are not properly licensed or otherwise qualified to act as attorneys. See State ex rel. Disciplinary Comm'n v. Owen, 486 N.E.2d 1012, 1014 (Ind.1986). It is the province of this Court to determine what acts constitute the practice of law. In re Mittower, 693 N.E.2d 555, 558 (Ind.1998). This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law because of the infinite variety of fact situations. See Miller v. Vance, 463 N.E.2d 250, 251 (Ind.1984). Nevertheless [t]he core element of practicing law is the giving of legal advice to a client and the placing of oneself in the very sensitive relationship wherein the confidence of the client, and the management of his affairs, is left totally in the hands of the attorney. The undertaking to minister to the legal problems of another creates an attorney-client relationship without regard to whether the services are actually performed by the one so undertaking the responsibility or are delegated or subcontracted to another.

In re Perrello, 270 Ind. 390, 398, 386 N.E.2d 174, 179 (1979).

Preparing and drafting a will and giving advice as to the contents and legal effect of a will constitute the practice of law. State ex rel. Pearson v. Gould, 437 N.E.2d 41, 42 (Ind.1982); State ex rel. Indiana State Bar Ass'n v. Osborne, 241 Ind. 375, 172 N.E.2d 434, 435 (1961). Similarly, it has been held that persons engage in the practice of law when they advise others regarding the legal consequences of specific decisions relating to the creation of living trusts and powers of attorney and prepare such documents for others. See, e.g., People v. Cassidy, 884 P.2d 309, 311 (Colo.1994); Comm. on Prof'l Ethics & Conduct of the Iowa State Bar Ass'n v. Baker, 492 N.W.2d 695, 703 (Iowa 1992); In re Mid-America Living Trust Assocs., Inc., 927 S.W.2d 855, 860-61 (Mo.1996); Cleveland Bar Ass'n. v. Sharp Estate Servs., Inc., 107 Ohio St.3d 219, 837 N.E.2d 1183, 1186 (2005); Dayton Bar Ass'n v. Addison, 107 Ohio St.3d 153, 837 N.E.2d 367, 369 (2005); In re Deddish, 347 S.C. 614, 557 S.E.2d 655, 656 (2001).

The fact that attorney-drafted forms were used as the starting point for the documents D.D. signed does not insulate Northouse or Ramer...