Unauthorized Practice of Law in Cuyahoga County, In re

• Decision Date: 10 July 1963
• Docket Number: No. 37942,37942
• Citation: 23 O.O.2d 445,175 Ohio St. 149,192 N.E.2d 54
• Parties: , 2 A.L.R.3d 712, 23 O.O.2d 445 In re UNAUTHORIZED PRACTICE OF LAW IN CUYAHOGA COUNTY. In re BROWN, WEISS AND WOHL et al., Respondent-Appellants.
• Court: Ohio Supreme Court

Page 149

175 Ohio St. 149

192 N.E.2d 54, 2 A.L.R.3d 712, 23 O.O.2d 445

In re UNAUTHORIZED PRACTICE OF LAW IN CUYAHOGA COUNTY In re BROWN, WEISS AND WOHL et al., Respondent-Appellants.

No. 37942.

Supreme Court of Ohio.

July 10, 1963.

Syllabus by the Court

1. Section 35, Article II of the Ohio Constitution, does not confer upon the Industrial Commission the authority to determine the qualifications of persons engaged in the practice of law before the Industrial Commission.

2. No person may practice law in this state who has not been admitted to the bar by order of the Supreme Court of Ohio in accordance with its rules and who is not in good standing at the bar.

3. No person, other than an attorney in good standing, may hold himself out as being qualified to render service to those who may have claims for compensation arising under the Workmen's Compensation Laws of Ohio or as being able to render services in the preparation and presentation of such claims nor may such person render such advice or services if a fee for such advice or services is to be received from or charged against the one having such a claim.

4. A party who does not claim his constitutional privilege against self-incrimination when called as upon cross-examination pursuant to law but voluntarily testifies, although objecting on other grounds, waives his privilege.

5. A trial court does not abuse its discretion with respect to the separation of witnesses, where it excludes a person who is only technically a party because a docket entry adverse to such party has not been journalized and where there is no assurance that such person will not be called as a witness in the proceeding.

This matter originated with the filing of a petition by a court-approved committee against Brown, Weiss and Wohl as a partnership and as individuals and against two of the employees of the partnership, alleging that none of them were admitted to practice law in Ohio, and that they are engaged in the practice of law, and praying for an order restraining them from practicing law.

After trial, the Common Pleas Court by its judgment ordered Brown, Weiss and Wohl to cease and desist from doing certain things which they had been doing and which the court found amounted to the practice of law, and they were enjoined from doing certain specified acts.

That judgment was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals and pursuant to allowance of a motion to certify the record.

Robert B. Loeb and Sindell, Sindell, Bourne & Markus, Cleveland, for respondent appellants.

Gilbert Weil, Richard F. Patton, Benesch, Friedlander, Mendelson & Caplan, Cleveland, and Merritt W. Green, Toledo, for appellee committee.

TAFT, Chief Justice.

Respondents contend that the courts of this state have no jurisdiction over the subject matter of this case. In doing so, they rely upon Section 35, Article II, Ohio Constitution, which provides in part:

'For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. * * * Laws may be passed establishing a board which may be empowered * * * to collect, administer and distribute such fund, and to determine all rights of claimants thereto. * * *' It is argued that the Industrial Commission, having been created by the General Assembly pursuant to this constitutional authority, has exclusive power under existing statutes to determine by rule the qualifications of those who may practice before it and before the Bureau of Workmen's Compensation. However, under Section 1, Article IV, Ohio Constitution, the judicial power of the state is vested in the courts; and this court has indicated that it has inherent power to regulate, control and define the practice of law. Judd v. City Trust & Savings Bank (1937), 133 Ohio St. 81, 12 N.E.2d 288; Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St. 23, 193 N.E. 650. See State, ex rel. Green, v. Brown, Secy. of State (1962), 173 Ohio St. 114, 180 N.E.2d 157.

Therefore we conclude that Section 35, Article II of the Ohio Constitution, does not confer upon the Industrial Commission the authority to determine the qualifications of persons engaged in the practice of law before the Industrial Commission.

No person may practice law in this state who has not been admitted to the bar by order of the Supreme Court of Ohio in accordance with its rules and who is not in good standing at the bar.

The question remains whether the activities of Brown, Weiss and Wohl constituted the practice of law.

Admittedly, no one, other than an attorney, may appear in court as a representative of another, whether or not such representative is to receive a fee for his services. Also in Goodman v. Beall et al., Industrial Commission (1936), 130 Ohio St. 427, 200 N.E. 470, this court held that only an attorney could appear in the former rehearing proceedings before the Industrial Commission, because those proceedings then involved preparation of the record for all subsequent court proceedings with respect to the claim involved. (The court record is not now prepared in any comparable proceedings before the Industrial Commission.) Furthermore, this court has held that the practice of law is not limited to the conduct of cases in court and has indicated that advice to clients and action taken for them in matters connected with the law may constitute the practice of law where a fee is paid for such advice and action. Land Title Abstract & Trust Co. v. Dworken, supra, 129 Ohio St. 23, 193 N.E. 650.

However, where an appearance in court or the preparation of papers to be filed in court or the preparation of a court record is not involved, there are relatively few precedents which can serve as a guide in determining what conduct amounts to the practice of law. There is, therefore, a substantial danger that reasons given by this court for its decision in this case may be interpreted as prejudging controversies which may later arise in determining whether other kinds of conduct not in or related to court cases amount to the practice of law. Thus, the briefs filed in this case on behalf of amici curiae emphasize how important it is that this court should avoid broad generalizations in giving its reasons for holding that what the respondents did in the instant case amounted to the practice of law.

The findings of the trial court and the record fully sustain the conclusions that each respondent in the instant case held himself out as being qualified to render advice to those who might have claims for compensation arising under the Workmen's Compensation Laws of Ohio and as being able to render services in the preparation and presentation of such claims, that each respondent did render such advice and such services, and that a fee was to be directly received from or charged against one having such a claim for workmen's compensation for such advice or services with respect to his claim. In our opinion, this conduct would clearly constitute the practice of law even if it only involved advice or services prior to the original decision of the Administrator of the Bureau of Workmen's Compensation. See Dayton Bar Association v. Herzog (1962), 173 Ohio St. 313, 181 N.E.2d 880; Cleveland Bar Association v. Fleck (1961), 172 Ohio St. 467, 178 N.E.2d 782. Protecting members of the public from being induced to pay for such advice and services of nonlawyers is just as important as protecting the public from being induced to pay for advice and services of those nonlawyers at later stages in the administrative processing of claims for workmen's compensation.

The findings of fact of the trial court state that respondents 'would do all these acts not as a voluntary service but charged a stipulated fee based upon the percentage of compensation awarded, which the claimant received as a result of their efforts.' However, the judgment of the trial court enjoins respondents from doing those acts instead of, as it probably should have, merely enjoining them from doing them for a fee. Cf. Coodman v. Beall, supra, 130 Ohio St. 427, 200 N.E. 470. To this extent, that judgment should probably be modified. Also, to the extent that the injunction is against advice and activities, other than advice to and activities for claimants for workmen's compensation, it is probably not supported by the findings and the record, and it should probably be modified accordingly.

Respondents contend also that they were deprived of legal rights when they were required to take the stand and testify as under cross-examination about matters which could incriminate them.

There is no indication in the record that any of the individual respondents claimed a privilege against self-incrimination when called to testify as a witness. Objection was made to being called as for crossexamination and, in support of that objection, it was stated that there was no right of the committee to call a respondent to the stand as a witness unless such respondent was called as the committee's own witness.

A party who does not claim his constitutional privilege against self-incrimination when called as upon cross-examination pursuant to law but voluntarily testifies, although objecting on other grounds, waives his privilege. See Burke v. State (1922), 104 Ohio St. 220, 135 N.E. 644.

Respondents contend also that they were deprived of a fair hearing by reason of the exclusion from the courtroom of Ostrovsky, their agent and a party in the same case. At the time when this occurred, no order had been entered on the journal of the trial court as to Ostrovsky although apparently the court had...