Cleveland Bar Assn. v. Picklo

[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 195.]

CLEVELAND BAR ASSOCIATION v. PICKLO.

[Cite as Cleveland Bar Assn. v. Picklo, 2002-Ohio-3995.]

Unauthorized practice of law—Person not licensed to practice law in Ohio filed

complaints in the Cleveland Municipal Court, Housing Division, for

forcible entry and detainer, as well as for recovery of past due rents on

behalf of a property owner—Engagement in the unauthorized practice of

law enjoined.

(No. 2001-2276—Submitted February 27, 2002—Decided August 21, 2002.)

ON FINAL REPORT of the Board of Commissioners on the Unauthorized Practice

of Law, No. 01-04.

__________________

PER CURIAM.

{¶1} Since 1999, respondent, Lynn Picklo, has been filing complaints in the

Cleveland Municipal Court, Housing Division, for forcible entry and detainer, as

well as for the recovery of past due rents. Respondent is not licensed to practice

law in the state of Ohio, but she nevertheless filed these claims and appeared in

court on behalf of the property owner.

{¶2} On July 2, 2001, relator, Cleveland Bar Association, filed a complaint

alleging that respondent had engaged in the unauthorized practice of law. The

Board of Commissioners on the Unauthorized Practice of Law considered the cause

on the parties’ Agreed Stipulations and Waiver of Notice and Hearing and found

that respondent’s filings and appearances constituted the practice of law by an

unlicensed layperson and, therefore, were prohibited. See R.C. 4705.01 (No person

may commence or conduct a court action on another’s behalf unless admitted to the

bar). The board accordingly recommended that respondent be enjoined from filing

pleadings and appearing in court on behalf of others.

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{¶3} As authority for her actions, respondent cites R.C. 1923.01(C)(2),

which defines “landlord” for the purpose of invoking a county, municipal, or

common pleas court’s jurisdiction in most forcible entry and detainer actions as

“the owner, lessor, or sublessor of premises [or] the agent or person the landlord

authorizes to manage premises or to receive rent from a tenant under a rental

agreement.” She also cites R.C. 5321.01(B), which, with respect to landlord-tenant

remedies in general, similarly defines “landlord” as “the owner, lessor, or sublessor

of residential premises, the agent of the owner, lessor, or sublessor, or any person

authorized by the owner, lessor, or sublessor to manage the premises or to receive

rent from a tenant under a rental agreement.” The board reviewed these statutes

for conformity with this court’s exclusive original jurisdiction under Section

2(B)(1)(g), Article IV, Ohio Constitution, and concluded that the definitions in R.C.

1923.01(C)(2) and 5321.01(B) represented unconstitutional invasions of our power

to define the practice of law. We agree.

{¶4} “The principle of separation of powers is embedded in the

constitutional framework of our state government. The Ohio Constitution applies

the principle in defining the nature and scope of powers designated to the three

branches of the government. State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564

N.E.2d 18, 31. See State v. Harmon (1877), 31 Ohio St. 250, 258, 1877 WL 19. It

is inherent in our theory of government ‘ “that each of the three grand divisions of

the government, must be protected from the encroachments of the others, so far that

its integrity and independence may be preserved. * * * ” ’ S. Euclid v. Jemison

(1986), 28 Ohio St.3d 157, 159, 28 OBR 250, 252, 503 N.E.2d 136, 138, quoting

Fairview v. Giffee (1905), 73 Ohio St. 183, 187, 76 N.E. 865, 866.” State v.

Hochhausler (1996), 76 Ohio St.3d 455, 463, 668 N.E.2d 457.

{¶5} Our authority to define the practice of law is inherent, Judd v. City

Trust & Sav. Bank (1937), 133 Ohio St. 81, 10 O.O. 95, 12 N.E.2d 288, paragraph

one of the syllabus, and the legislative branch has no right to limit the inherent

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January Term, 2002

powers of the judicial branch of the government. Hale v. State (1896), 55 Ohio St.

210, 45 N.E. 199. Exercising this authority, we have said that the practice of law

includes appearing in court on another’s behalf and conducting another’s case in

court. Land Title Abstract & Trust v. Dworken (1934), 129 Ohio St. 23, 1 O.O.

313, 193 N.E. 650, paragraph one of the syllabus. Thus, to the extent that R.C.

1923.01(C)(2) and 5321.01(B) purport to enlarge the class of persons who may

legitimately engage in conduct defined as the practice of law, we must strike these

statutes as unconstitutional.

{¶6} In reaching this result, we must also contend with the implications of

our decision in George Shima Buick v. Ferencak (2001), 91 Ohio St.3d 1211, 741

N.E.2d 138, wherein we sua sponte dismissed an appeal and certified conflict

raising another separation-of-powers issue because we lacked jurisdiction. There,

the defendant challenged the constitutionality of a statute allowing certain lay

employees to represent their corporate employers in small claims court. But

because no one had served the Ohio Attorney General with notice of the

constitutional attack, we found a jurisdictional defect, based on Cicco v.

Stockmaster (2000), 89 Ohio St.3d 95, 728 N.E.2d 1066. Today we find that we

applied Cicco too zealously in dismissing Ferencak.

{¶7} Cicco recognizes that R.C. 2721.12 imposes a notice requirement on

parties contesting the constitutionality of a statute in a declaratory judgment action

filed pursuant to R.C. Chapter 2721. That statute requires that the Attorney General

be notified in every such action by service of the pleading in accordance with Civ.R.

4.1. Neither Ferencak nor this case is a declaratory judgment action filed pursuant

to R.C. Chapter 2721. Ferencak began as a small claims action to recover damages

stemming from a customer’s decision to stop payment on a check for automobile

repairs. And this case is an action to enforce our constitutional responsibility to

oversee the practice of law in this state. Cicco, therefore, does not require service

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on the Attorney General as a prerequisite to invoking our jurisdiction. For this

reason, Ferencak is overruled.

{¶8} Accordingly, we adopt the findings, conclusion, and recommendation

of the board. Respondent is hereby enjoined from any further filings and

appearances in court that constitute the unauthorized practice of law. Costs are

taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,

concur.

LUNDBERG STRATTON, J., dissents.

__________________

LUNDBERG STRATTON, J., dissenting.

{¶9} I do not agree that the prosecution of a forcible entry and detainer case

by a landlord’s agent constitutes the unauthorized practice of law. In addition, I

would not overturn a state statute without giving notice to the Attorney General in

accordance with Cicco v. Stockmaster (2000), 89 Ohio St.3d 95, 728 N.E.2d 1066,

and George Shima Buick, Inc. v. Ferencak (2001), 91 Ohio St.3d 1211, 741 N.E.2d

138.

{¶10} In Land Title Abstract & Trust Co. v. Dworken (1934), 129 Ohio St.

23, 1 O.O. 313, 193 N.E. 650, this court defined the practice of law as follows:

{¶11} “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.” Id. at paragraph one of the

syllabus.

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January Term, 2002

{¶12} The actions so defined require specialization, particularized training,

and knowledge. Consequently, we have enjoined the unauthorized practice of law

when laypersons encroach upon those areas. However, there are certain procedures

recognized by the General Assembly that laypersons may lawfully conduct within

the judicial system. A board or corporate officer may file a complaint challenging

the tax valuation or assessment of the corporation’s real property. R.C. 5715.19.

A corporate officer may file and present a claim on behalf of a corporation in small

claims court. R.C. 1925.17. A landlord may bring an action for forcible entry and

detainer. R.C. Chapter 1923; Miele v. Ribovich (2000), 90 Ohio St.3d 439, 739

N.E.2d 333. A “landlord” is being defined to include “the owner, lessor, or

sublessor of premises, [or] the agent or person the landlord authorizes to manage

premises.” R.C. 1923.01.

{¶13} Here, respondent was the recognized agent of the landlord authorized

to bring a forcible entry and detainer action. At no time did respondent hold herself

out as an attorney. She completed a preprinted complaint form. The form required

her to fill in the blanks with the name and address of the plaintiff and defendant,

the current date, address of the property in question and the amount of the rent past

due. I do not believe that such activity constitutes the preparation of pleadings, the

managing of litigation, the preparation of a legal instrument or the giving of legal

advice. It is a routine, almost rote, procedural mechanism to enforce a statutory

remedy for restitution and nonpayment of rent. It requires no legal analysis and no

special legal knowledge but merely an ability to read a form and complete the

blanks with facts.

{¶14} The ability of laypersons to file and prosecute forcible entry and

detainer cases is not unique to Ohio. Other states likewise authorize nonattorneys,

including landlords, the agents of landlords, and lessors to file these actions. Tex.

Prop.Code Ann. 24.011; Mo. Rev. Stat. 534.070.

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{¶15} I also object to the majority’s limitation upon the constraints of Cicco

v. Stockmaster, 89 Ohio St.3d 95, 728 N.E.2d 1066, in a constitutional challenge of

a statute. For the reasons set forth in my concurring opinion in George Shima Buick

v. Ferencak, 91 Ohio St.3d at 1212, 741 N.E.2d 138, I do not believe that Cicco

should be limited to formal declaratory judgment actions. No matter what the

circumstances, whenever the constitutionality of a state statute is challenged, I

believe the court is being asked to enter a declaratory judgment. A majority of this

court is now, in a case involving the alleged unauthorized practice of law, declaring

unconstitutional portions of two statutes that affect all landlords in Ohio without

giving proper notice or an opportunity for interested persons to be heard. Our state

statutes are entitled to a strong presumption of constitutionality. State v. Gill

(1992), 63 Ohio St.3d 53, 55, 584 N.E.2d 1200. Despite this principle, and without

any debate, this court has struck down the statutes at issue.

{¶16} I believe that today’s opinion will result in needless additional

expense and burden upon landlords and others enumerated in R.C. 1923.01(C)(2)

and R.C. 5321.01(B). Landlords must now retain the services of an attorney in all

forcible entry and detainer cases. I do not believe that it is necessary nor is it what

the General Assembly intended. Instead I see the court continuing its trend toward

monopolizing the legal business in areas where a layperson is qualified as well as

statutorily authorized to proceed. I respectfully dissent.

__________________

Michael P. Harvey Co., L.P.A., and Michael P. Harvey; and Robert H.

Gillespy, for relator.

Spiros E. Gonakis, for respondent.

__________________

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