finding that a practitioner of chiropractic medicine exceeded limits on the representation that a nonlawyer may provide in workers’ compensation cases by “arguing statutory provisions and case law, construing the text to advance his patient’s case, and interpreting the weight, significance, and credibility of evidence presented”
How later courts described this case
- finding that a practitioner of chiropractic medicine exceeded limits on the representation that a nonlawyer may provide in workers’ compensation cases by “arguing statutory provisions and case law, construing the text to advance his patient’s case, and interpreting the weight, significance, and credibility of evidence presented”
Written by the judges who cited it.
The opinion
[Cite as Ohio State Bar Assn. v. Chiofalo, 112 Ohio St.3d 113, 2006-Ohio-6512.]
OHIO STATE BAR ASSOCIATION v. CHIOFALO ET AL.
[Cite as Ohio State Bar Assn. v. Chiofalo, 112 Ohio St.3d 113, 2006-Ohio-
6512.]
Unauthorized practice of law — Arguing application of law on behalf of patient
during administrative hearing — Gov.Bar R. VII(8)(B) — No civil penalty
imposed.
(No. 2006-0840 — Submitted June 20, 2006 — Decided December 27, 2006.]
ON FINAL REPORT by the Board on the Unauthorized
Practice of Law, No. UPL 03-01.
__________________
Per Curiam.
{¶ 1} On January 6, 2003, relator, Ohio State Bar Association, charged
that respondents John D. Chiofalo, D.C., DABCO,1 and his employer, County
Chiropractic Clinic of Orrville, had practiced law without a license when Chiofalo
appeared before the Industrial Commission of Ohio (“IC”) on behalf of a patient
seeking workers’ compensation benefits. Respondents answered the complaint,
admitting most of the allegations, but denying any unauthorized practice of law.
{¶ 2} Chiofalo later conceded in an affidavit that he had practiced law
without a license. Based on that affidavit and the affidavit of the employer’s
counsel who defended against the patient’s workers’ compensation claim, relator
moved for summary judgment pursuant to Civ.R. 56. Respondents did not oppose
the motion.
{¶ 3} A panel of the Board on the Unauthorized Practice of Law
ultimately granted summary judgment for relator, but not until the board had
1
“DABCO” refers to Chiofalo’s accreditation as a Diplomate of the American Board of
Chiropractic Orthopedists.
SUPREME COURT OF OHIO
completed review on remand, as ordered in Cleveland Bar Assn. v.
CompManagement, Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181.
The panel held its ruling on the motion, per the board’s instruction, to ensure
consistency with the CompManagement standards establishing the extent to
which nonlawyers may act in a representative capacity before the Ohio Bureau of
Workers’ Compensation (“BWC”) and the IC. The board ultimately adopted the
panel’s findings that respondents had engaged in the unauthorized practice of law
and recommendation that the unlawful conduct be enjoined.
{¶ 4} In practicing chiropractic medicine for the County Chiropractic
Clinic of Orrville, Chiofalo evaluates and treats injured workers who are or may
be entitled to benefits under Ohio’s Workers’ Compensation laws. Chiofalo is not
a lawyer.
{¶ 5} On May 9, 2002, Chiofalo attended an adjudicatory IC hearing,
intending to appear as a witness to support his patient’s claim for compensation
against an industrial employer. The patient was at that time receiving assistance
in his claim from a union representative. During his testimony, Chiofalo
challenged the credibility of the defense’s medical expert and admittedly “cited,
quoted, and argued definitions, meanings and application of legal terms from a
legal text” to support his patient’s claim.
{¶ 6} The employer’s counsel objected to Chiofalo’s advocacy during
the hearing, but the IC hearing officer overruled her objections. In her affidavit,
defense counsel reported that respondent was permitted to continue asserting the
validity of his patient’s claim, even to the extent of making a closing statement on
the injured workers’ behalf. She recalled Chiofalo’s argument that his patient’s
claim “should be allowed as an ‘aggravation of a pre-existing condition,’ which is
a legal term of art in Ohio’s Workers’ Compensation law.” That legal conclusion
may entitle the claimant to workers’ compensation benefits. See Swanton v.
Stringer (1975), 42 Ohio St.2d 356, 359-360, 71 O.O.2d 325, 328 N.E.2d 794.
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January Term, 2006
{¶ 7} We possess the power to regulate, control, and define the practice
of law in Ohio. Section 2(B)(l)(g), Article IV, Ohio Constitution;
CompManagement, 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 39.
We have held that the practice of law “includes conducting cases in court,
preparing and filing legal pleadings and other papers, appearing in court cases,
and managing actions and proceedings on behalf of clients before judges, whether
before courts or administrative agencies.” Cleveland Bar Assn. v. Coats, 98 Ohio
St.3d 413, 2003- Ohio-1496, 786 N.E.2d 449, ¶ 3. Indeed, engaging in such
activity before an administrative agency generally constitutes the practice of law.
Columbus Bar Assn v. Smith, 100 Ohio St.3d 278, 2003-Ohio-5751, 798 N.E.2d
592, ¶ 4.
{¶ 8} In CompManagement, however, we clarified one of the exceptions
to this rule. We held that nonlawyers who act in a representative capacity before
the IC and BWC do not engage in the unauthorized practice of law as long as their
conduct conforms to the standards in Industrial Commission Resolution No. R04-
1-01. See CompManagement, 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d
1181, syllabus. Section (A) of the resolution specifies acts in which lay
representatives may engage; Section (B) sets forth acts requiring the specialized
skill of a licensed lawyer and that nonlawyers may not perform. To this end,
Sections (B)(2), (3), and (4) state that a nonlawyer cannot “[c]ite, file or interpret
statutory or administrative provisions, administrative rulings or case law,”
“[m]ake and give legal interpretations with respect to testimony, affidavits,
medical evidence in the form of reports or testimony,” or “[c]omment upon or
give opinions with respect to the evidence, credibility of witnesses, the nature and
weight of the evidence, or the legal significance of the contents of the claims file.”
{¶ 9} By arguing statutory provisions and case law, construing the text to
advance his patient’s case, and interpreting the weight, significance, and
credibility of evidence presented, Chiofalo acted well beyond the standards for
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SUPREME COURT OF OHIO
nonlawyer representation during the underlying IC proceeding. The board
therefore found that Chiofalo and, by virtue of his employment, County
Chiropractic Clinic of Orrville had engaged in the unauthorized practice of law
and recommended that both be enjoined from this conduct in the future.
{¶ 10} The board did not, however, recommend imposition of a civil
penalty pursuant to Gov.Bar R. VII(8)(B). Citing two of the factors for
determining the propriety of imposing a civil penalty, Gov.Bar R. VII(8)(B)(1)
and (2), the board found that Chiofalo had committed only one offense and that he
had participated cooperatively in the board proceedings. That Chiofalo had not
misrepresented himself as an attorney, plans to attend professional training as to
the appropriate role of a chiropractor during IC and BWC hearings, and has
promised never to repeat his transgressions also weighed against a civil penalty.
{¶ 11} On review, we adopt the board’s finding that respondents exceeded
limits on the representation that a nonlawyer may provide in workers’
compensation cases and that an injunction is appropriate. Respondents are
therefore enjoined from violating Industrial Commission Resolution No. R04-1-
01 (B)(2), (3), and (4) while testifying for claimants in proceedings before the IC
or BWC and from engaging in any other act constituting the practice of law.
Costs are taxed to respondents.
Judgment accordingly.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL and LANZINGER, JJ., concur.
__________________
Young, Reverman & Mazzei Co., L.P.A., and Stephen S. Mazzei; and
Eugene P. Whetzel, Bar Counsel, for relator.
Philip J. Fulton Law Office and William A. Thorman III, for respondent.
______________________
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