Disciplinary Counsel v. Bukstein

[Cite as Disciplinary Counsel v. Bukstein, 139 Ohio St.3d 230, 2014-Ohio-1884.]

DISCIPLINARY COUNSEL v. BUKSTEIN.

[Cite as Disciplinary Counsel v. Bukstein, 139 Ohio St.3d 230,

2014-Ohio-1884.]

Unauthorized practice of law—Providing legal advice, preparing documents for

filing in court, and sending communications making legal arguments on

behalf of another—Injunction issued and civil penalty imposed.

(No. 2013-1334—Submitted October 9, 2013—Decided May 7, 2014.)

ON FINAL REPORT by the Board on the Unauthorized Practice of Law of the

Supreme Court, No. UPL 12-03.

____________________

Per Curiam.

{¶ 1} Respondent, Kimberley Bukstein, is not licensed to practice law in

the state of Ohio. On May 21, 2012, relator, disciplinary counsel, filed a

complaint against Bukstein with the Board on the Unauthorized Practice of Law.

That complaint alleged that Bukstein engaged in the unauthorized practice of law

by providing legal advice, drafting a motion for a party to sign pro se, and sending

communications demanding discovery and making legal arguments on behalf of

parties in two domestic-relations cases. In her answer, Bukstein admitted that she

engaged in some of the alleged conduct, but argued that she acted as a “civil

rights advocate,” not as an attorney.

{¶ 2} A panel of the board conducted a hearing on April 11, 2013, but

Bukstein was not present. Based on the testimony of two witnesses, the

deposition testimony of a third witness, and ten exhibits submitted by relator, the

panel issued findings of fact and conclusions of law and determined that Bukstein

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had engaged in the unauthorized practice of law as charged in the complaint. The

panel recommended that we enjoin Bukstein from committing further illegal acts

and assess a $20,000 civil penalty against her. The board adopted the panel’s

findings and recommended penalty. Neither party has filed objections to the

board’s report.

{¶ 3} We agree that Bukstein engaged in the unauthorized practice of law

and that an injunction is warranted. However, we conclude that her conduct does

not warrant the imposition of the maximum civil penalty permitted by Gov.Bar R.

VII(8)(B), and we therefore reduce the board’s recommended penalty of $20,000

to $10,000.

Unauthorized Practice of Law

{¶ 4} The unauthorized practice of law is “[t]he rendering of legal services

for another by any person not admitted to practice in Ohio.” Gov.Bar R.

VII(2)(A)(1); Cleveland Bar Assn. v. Pearlman, 106 Ohio St.3d 136, 2005-Ohio-

4107, 832 N.E.2d 1193, ¶ 7. The practice of law “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 general all advice to clients and all action taken for them

in matters connected with the law.” Land Title Abstract & Trust Co. v. Dworken,

129 Ohio St. 23, 193 N.E. 650 (1934), paragraph one of the syllabus.

{¶ 5} In her answer, Bukstein admitted that she is not an attorney. She is

not admitted to the practice of law in Ohio pursuant to Gov.Bar R. I, nor is she

registered pursuant to Gov.Bar R. VI or certified pursuant to Gov.Bar R. II, IX, or

XI. She described herself as

a Civil Rights Advocate from Minnesota that works on cases all

over the nation. Ms. Bukstein specializes in ethics issues arising in

litigation and government agencies. Finding innovative solutions

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to complex problems, Ms. Bukstein supports the rights of everyone

regardless of position or circumstance and helps legal professionals

and public officials identify and repair problems.

{¶ 6} Although Bukstein identified herself as a civil-rights advocate rather

than an attorney and claimed that she did not receive a fee for her services, the

board found that her activities on behalf of two women in their respective

domestic-relations proceedings crossed the line into the unauthorized practice of

law.

The Melinda Polen Matter

{¶ 7} Judge Thomas J. Capper presided over Melinda Polen’s divorce case

in the Clark County Court of Common Pleas, Domestic Relations Division. Judge

Capper testified that he first met Bukstein in March 2011, when she attended a

postdecree hearing and sat at the counsel table with Polen. He stated that

Bukstein identified herself as a civil-rights advocate and complied with his

request that she move from the counsel table because she was not an attorney.

{¶ 8} Judge Capper testified that Polen’s behavior changed and the case

took a dramatic turn downward after Bukstein got involved. He reported that

Bukstein’s interviews with the parties’ son who has special needs caused the child

to become uncomfortable and distrustful of Polen. He also recalled that Polen’s

attorney withdrew from the case as a result of Bukstein’s interference.

{¶ 9} While Polen filed some pleadings pro se, Judge Capper reported that

she seemed unfamiliar with their content when he questioned her about them in

court. This fact, together with his awareness of Bukstein’s involvement in the

case, led him to believe that it was Bukstein who had drafted the pleadings.

{¶ 10} The board found Judge Capper’s testimony to be credible and

found that Bukstein engaged in the unauthorized practice of law by providing

legal advice; drafting a motion for a party to sign pro se; sending communications

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on behalf of another in which she made legal arguments; and appearing in court,

sitting at the counsel table, and identifying herself to the judge as a civil-rights

advocate.

{¶ 11} In addition to the testimony of Judge Capper, six exhibits relating

to the Polen matter were admitted into evidence, including a copy of a motion for

reallocation of parental rights and responsibilities that had been filed pro se by

Polen. Attached to that motion are at least 19 documents, including the exhibits,

e-mails, letters, and formal complaints that Bukstein had prepared and submitted

on Polen’s behalf to the Ohio Board of Nursing; the superintendent of the

Northwestern School District; the Ohio Counselor, Social Worker and Marriage

& Family Therapist Board; the Ohio auditor of state; and Senator Sherrod Brown,

as well as an annotated list summarizing the content of those documents.

{¶ 12} In her answer to relator’s complaint, Bukstein admitted that she

authored several of those documents and presented a brief summary of their

content. A review of those documents reveals that Bukstein filed a grievance with

the Ohio Board of Nursing against the current wife of Polen’s ex-husband. She

also corresponded with the school district superintendent, demanding that Polen

receive access to her child’s parent-teacher conferences. But rather than simply

stating the facts of the alleged misconduct or inquiring about the school district’s

policies, she made legal arguments in the documents seeking to vindicate Polen’s

statutory and constitutional rights and to advance her custody case by silencing

her critics. These are not the actions of a person seeking systemic reform of the

legal system—they are the actions of a person advising and advocating for

another on issues of law.

{¶ 13} In an affidavit filed with the domestic-relations court just one

minute after Polen’s motion, Bukstein averred that she was assisting Polen’s

access to justice, serving as a neutral third-party observer and a friend of the

court, and bringing attention to situations in which Polen’s rights had been denied.

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Bukstein argued that Polen had been “denied due process and kept from remedy

and resolution,” compared the facts of Polen’s case to the facts giving rise to a

fraud and corruption investigation of California’s family courts, and claimed that

she had “accomplished a great deal” in Polen’s domestic-relations case. Bukstein

also attached an annotated list of exhibits to her affidavit that was identical to the

one that was submitted with Polen’s motion.

{¶ 14} In a later pro se motion, Polen asked the court to dismiss or deny

her ex-husband’s motion for attorney fees and to award her custody of their minor

child on the ground that the court’s prior orders were void ab initio because the

judge’s signatures on them were forged.

{¶ 15} Attached to that motion was a letter on Bukstein’s letterhead and

signed by Bukstein making the same argument and further alleging that Polen’s

ex-husband obtained custody of the child by fraud and a sham legal process, in

violation of R.C. 2921.52 and Polen’s constitutional rights. That letter refers to

complaints that Bukstein filed with the Ohio State Bar Association against the ex-

husband (who is an attorney), Judge Capper, Polen’s former counsel, and Douglas

Geyer, counsel for the ex-husband, and suggests that if any of those attorneys

would support the restoration of Polen’s rights, “I would be inclined to drop the

complaint against that attorney. After all that is something that is well within my

power.”

{¶ 16} Also attached to Polen’s March 15, 2012 motion was an e-mail that

Bukstein had sent to Polen and her counsel, David McNamee, the day before,

stating:

Melinda,

This email is to confirm our conversation just now since

you are at work and this needs to be communicated immediately.

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1. That you are working on putting together a pro se

motion and should have that ready by tomorrow.

2. That McNamee had better not file that continuance

because you do not agree. (if he files that behind your back without

your permission I’ll file yet another BAR complaint about his

stunt)

3. McNamee’s [sic] has not sent you anything yet nor can

we see anything filed from him in the on line docket. I’ll call the

court today and ask if he has. Also let them know McNamee

dumped you as his client and if he files is [sic] notice to with draw

[sic] that’s fine but to not accept that continuance at least not yet.

This is to document.

(Emphasis and boldface sic.)

{¶ 17} Comparing these motions and documents, it is evident that

Bukstein advised Polen, assisted her in preparing the legal arguments in her case,

and advanced those arguments on Polen’s behalf in correspondence intimately

related to her domestic-relations case. Our precedent is clear: “The practice of

law is not limited to appearances in court. It also embraces the preparation of

papers that are to be filed in court on another’s behalf and that are otherwise

incident to a lawsuit.” Toledo Bar Assn. v. Joelson, 114 Ohio St.3d 425, 2007-

Ohio-4272, 872 N.E.2d 1207, ¶ 6. Therefore, we accept the board’s finding that

Bukstein engaged in the unauthorized practice of law in the Polen matter.

The Christine Tibbitts Matter

{¶ 18} Glen Tibbitts testified that in May and June 2011, he began to

receive communications from Bukstein by e-mail, mail, and phone regarding

parenting time and financial issues that had been addressed and resolved by the

Delaware County Court of Common Pleas, Domestic Relations Division, in his

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divorce from his former wife, Christine Tibbitts. One of Bukstein’s written

communications stated that “what had been ordered by the court could not be

done.” According to Mr. Tibbitts, on June 14, 2011, Bukstein called him

“speaking in legalese” and seeking to modify the court-ordered visitation

schedule. Based on her communications, he believed that she was a civil-rights

attorney representing his former wife in an attempt to modify the terms of their

divorce decree. He testified that Bukstein’s actions caused him anxiety, sleepless

nights, nightmares, and emotional distress due to the fear that he would lose sole

custody of his daughter. Mr. Tibbitts contacted his attorney and the Delaware

County prosecutor in an effort to stop Bukstein’s communications. His attorney,

William L. Geary, was not available to testify at the panel hearing, but relator

caused his deposition testimony to be read into the record.

{¶ 19} Geary testified that Bukstein sent him an e-mail on June 9, 2011,

regarding his failure to respond to questions and previous discovery requests

allegedly submitted to him by Ms. Tibbitts. In that e-mail, Bukstein advised

Geary that it was important for him to respond to these requests because he had a

duty to respond to opposing counsel and Ms. Tibbitts was a “pro se attorney of

record.” Bukstein alleged that Geary’s actions raised an attorney-misconduct

issue and stated that as a civil-rights advocate, she addressed such issues by filing

complaints with the bar association. She also informed him that she had already

filed a complaint against the attorney who served as the guardian ad litem for the

Tibbittses’ son. The board found the testimony of Mr. Tibbitts and Geary to be

credible.

{¶ 20} The board determined that by characterizing herself as a civil-rights

advocate, Bukstein held herself out as an expert and person worthy of trust in

matters of law and that this misrepresentation induced Polen and Ms. Tibbitts to

rely on her unauthorized and unqualified legal advice—to their detriment and the

detriment of other parties to the litigation. It also concluded that she engaged in

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the unauthorized practice of law by sending communications that made legal

arguments and demanded discovery on behalf of others and by sending

correspondence threatening to file disciplinary complaints or legal actions on

behalf of others to coerce the recipients to cooperate in legal matters.1 We agree

and accept the board’s finding that Bukstein engaged in the unauthorized practice

of law in the Tibbitts matter.

Sanction

{¶ 21} Having found that Bukstein engaged in the unauthorized practice of

law, we accept the board’s recommendation that we issue an injunction

prohibiting her from giving legal advice to others, preparing or assisting in the

preparation of legal documents for others, sending communications making legal

arguments or demanding discovery on behalf of others, sending correspondence

threatening to file disciplinary complaints or legal actions on behalf of others, and

engaging in all other acts constituting the practice of law.

{¶ 22} We also accept the board’s recommendation that we impose a civil

penalty. Gov.Bar R. VII(8)(B) provides that “[t]he Board may recommend and

the Supreme Court may impose civil penalties in an amount up to ten thousand

dollars per offense.” Gov.Bar R. VII(19)(D)(1)(c) authorizes this court to impose

a civil penalty “for an amount greater or less than the amount recommended by

the Board, but not to exceed ten thousand dollars per offense.” The board

recommends that we impose a $20,000 civil penalty—the maximum penalty of

$10,000 for each of the matters in which Bukstein engaged in the unauthorized

practice of law. Having independently weighed the misconduct here, the relevant

factors in Gov.Bar R. VII(8)(B), and our precedent, however, we conclude that

1. The board also found that Bukstein had identified herself as a “pro se attorney of record” and

had stated that opposing counsel in the Tibbitts matter had a duty to respond to her as “opposing

counsel.” The record shows, however, that Bukstein had identified Christine Tibbitts as pro se

attorney of record and had stated that attorney Geary had a duty to respond to Ms. Tibbitts as

opposing counsel.

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the appropriate civil penalty is $5,000 for each matter—$10,000 total—for

Bukstein’s unauthorized practice of law.

{¶ 23} Gov.Bar R. VII(8)(B) sets forth five factors to consider in imposing

a civil penalty.

{¶ 24} (1) Degree of cooperation. Bukstein initially cooperated with

relator’s investigation. She corresponded with relator and the panel before her

hearing and attempted to answer relator’s pleadings. She has never admitted that

her actions constituted the unauthorized practice of law, nor has she agreed to be

enjoined from engaging in the unauthorized practice of law.

{¶ 25} The board found that Bukstein repeatedly disregarded its

instructions regarding filing and communication with the panel, sent harassing

and potentially threatening e-mails to individual members of the panel, and made

threats to file numerous complaints with various government agencies against the

individual panel members and disciplinary counsel.

{¶ 26} Just before the start of the initially scheduled panel hearing,

Bukstein’s husband requested and received a continuance of the final hearing in

this matter based on her reported hospitalization. Bukstein received by certified

mail a final amended scheduling order stating the date, time, and location of the

new hearing date, which advised the parties that no further continuances would be

granted. Nonetheless, her husband sought another continuance two days before

the hearing date, which the panel denied, and the hearing proceeded in her

absence.

{¶ 27} (2) The number of occasions that the unauthorized practice of law

was committed. Bukstein engaged in multiple acts of the unauthorized practice of

law in each of the two counts charged in this case. The board also found that

there was evidence of persistent, systematic, and continuing occurrences in which

Bukstein held herself out to others as a civil-rights advocate with a special

knowledge of the domestic-relations-court system and ethics laws regarding

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attorneys and judges. But the board cites no specific evidence in support of these

conclusions. And while we acknowledge that Bukstein’s filings and

correspondence at issue in this case claimed that she possessed specialized

knowledge in ethics issues arising in litigation and government agencies and that

she worked in cases all over the nation, we find no evidence that that she solicited

any additional “clients” or held herself out as an expert in legal ethics in any other

matters within this state.

{¶ 28} (3) and (4) Flagrancy of the violations and harm to third parties.

Bukstein offered legal advice to Polen and Ms. Tibbitts but refused to

acknowledge it as such. The board emphasized that Bukstein’s conduct harmed

these two women, who relied on her advice to their detriment, harmed other

parties in the litigation (including Polen’s child) who were distressed and

inconvenienced by her actions, and undermined public confidence in the judicial

system. But from the record before us, it is unclear whether anyone suffered any

lasting harm as a result of Bukstein’s involvement in these matters. Indeed,

neither of the women she attempted to assist has participated in this proceeding.

{¶ 29} (5) Other relevant factors. The board’s regulations list additional

aggravating and mitigating factors that may be considered as part of this final

catchall factor of Gov.Bar R. VII(8)(B). UPL Reg. 400(F). In aggravation, the

board found that (1) both Judge Capper and attorney Geary had separately

notified Bukstein that her actions might constitute the unauthorized practice of

law, (2) she assisted parties in the preparation of legal instruments and filings and

prepared a motion that was filed with the court in the Polen matter, and (3) by

referring to herself as a “civil rights advocate” and by citing statutes, attempting

to interpret legal authority, and contacting opposing counsel, opposing parties,

and the court in a representative fashion, she has allowed others to mistakenly

believe that she was admitted to practice law in this state. See UPL Reg.

400(F)(3)(c) (whether the respondent has been informed prior to engaging in the

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unauthorized practice of law that the conduct at issue might constitute an act of

the unauthorized practice of law), (f) (whether respondent’s conduct included the

preparation of a legal instrument for filing with a court or other governmental

entity), and (g) (whether the respondent has held herself out as being admitted to

the practice of law in the state of Ohio or whether she has allowed others to

mistakenly believe that she was admitted to practice in this state). The only

mitigating factor that the board found applicable was that Bukstein’s conduct

appears to have resulted from motives other than dishonesty or personal benefit.

See UPL Reg. 400(F)(4)(e).

{¶ 30} Having weighed these factors, the board recommends that we

impose the maximum civil penalty of $10,000 for each of the two counts in which

Bukstein has engaged in the unauthorized practice of law. Because Bukstein’s

conduct is not on par with the most egregious acts that we have found to

constitute the unauthorized practice of law, however, we conclude that a lesser

civil penalty is warranted. See, e.g., Cleveland Metro. Bar Assn. v. McGinnis, 137

Ohio St.3d 166, 2013-Ohio-4581, 998 N.E.2d 474, ¶ 14-15. Based on Bukstein’s

multiple acts of unauthorized practice of law in the Polen and Tibbitts matters, we

find that the appropriate civil penalty is $5,000 for each case in which she

engaged in the unauthorized practice of law, for a total of $10,000.

{¶ 31} Accordingly, we enjoin Kimberley Bukstein from engaging in any

further acts that constitute the unauthorized practice of law, and we impose a civil

penalty of $10,000.

{¶ 32} Costs are taxed to Bukstein.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

____________________

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Scott J. Drexel, Disciplinary Counsel, and Stacy Solochek Beckman,

Assistant Disciplinary Counsel, for relator.

Kimberley Bukstein, pro se.

_________________________

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