Ohio State Bar Assn. v. Miller

[Cite as Ohio State Bar Assn. v. Miller, 138 Ohio St.3d 203, 2014-Ohio-515.]

OHIO STATE BAR ASSOCIATION v. MILLER.

[Cite as Ohio State Bar Assn. v. Miller, 138 Ohio St.3d 203, 2014-Ohio-515.]

Unauthorized practice of law—Preparation of deeds, trusts agreements,

affidavits, powers of attorney, and promissory notes for another and filing

pleadings and motions for another in court constitute unauthorized

practice of law—Respondent enjoined and fined.

(No. 2013-0647—Submitted June 5, 2013—Decided February 18, 2014.)

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

Supreme Court, No. UPL 10-08.

____________________

Per Curiam.

{¶ 1} On November 15, 2010, relator, Ohio State Bar Association, filed a

six-count complaint with the Board on the Unauthorized Practice of Law against

respondent, Paul-Eugene Miller. The complaint alleged that Miller, who is not

admitted to practice law in Ohio, on multiple occasions prepared trust agreements,

deeds, affidavits, powers of attorney, promissory notes, and other legal documents

and filed motions and pleadings on behalf of his company, Diversified Benefits

Group, Ltd., in common pleas court.1 Miller filed an answer that did not

affirmatively deny relator’s allegations but merely “acknowledge[d]” the

substantive allegations and prayer for relief. As shown below, Miller filed

answers in court on behalf of himself and Diversified in court actions involving

his business of purchasing homes. In those answers, Miller specifically denied

allegations in the complaints, so he knew how to deny allegations but elected not

1. Diversified Benefits Group was not made a party to the proceeding, because the company was

no longer in business by the time the complaint in this matter was filed.

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to do so here. In light of Miller’s failure to deny the allegations in relator’s

complaint, they are deemed admitted. Civ.R. 8(D).

{¶ 2} Relator filed a motion for summary judgment, to which Miller

responded with a memorandum in opposition and purporting to be in support of a

cross-motion for summary judgment.2 In that filing, Miller provided no

substantive legal argument or evidence contrary to that presented by relator. The

panel granted relator’s motion and later issued its report finding that Miller had

engaged in the unauthorized practice of law in each of the six counts of the

complaint and that he had engaged in court representation of his own

organization, Diversified, for several years. The panel recommended that a civil

penalty of $1,000 for each of the seven offenses would be an appropriate

balancing of the aggravating and mitigating factors. The board voted to approve

the panel’s report and adopt its findings of fact, conclusions of law, and

recommendations.

{¶ 3} We adopt the board’s findings of fact, conclusions of law, and

recommended sanction. For the reasons that follow, we find that Miller engaged

in the unauthorized practice of law, and we impose a $1,000 penalty for each of

the seven offenses, totaling $7,000, for that conduct.

Improper Conduct

{¶ 4} Miller was a “managing member” of Diversified and served as its

agent throughout the activities enumerated here. He is not, and has never been, an

attorney admitted to the practice of law in Ohio pursuant to Gov.Bar R. I,

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

or XI.

{¶ 5} In 2006 and 2007, Miller provided legal representation to

individuals, some of whom had responded to an advertisement stating that he was

2. Although Miller refers to his cross-motion in his memorandum, the record does not reflect that

he ever filed such a motion.

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in the business of purchasing homes. And from 2004 to 2008, Miller filed with

the county recorder’s office multiple documents that he had created for and on

behalf of the homeowners he was assisting. Last, from at least February 2006 to

December 2009, Miller filed motions and pleadings in court on behalf of

Diversified, each occasion of which constituted the practice of law.

{¶ 6} Each of the six counts in the complaint involved a homeowner or

homeowners who owned real property in Ohio that was subject to a mortgage.3

The facts are similar in each count, with the homeowner entering into an

agreement with Miller, who acted as an agent for Diversified for the sale of the

real property, and Miller drafting variously a general warranty deed, a trust,

and/or a “land trust beneficial assignment” for each.

{¶ 7} Craig and Heidi Stevens owned property in Howard, Ohio, in

2007. That year, they decided to relocate, and they responded to an advertisement

by Miller who, upon meeting with them, explained that he would prepare all of

the paperwork for them to sell their property to him. Miller told the Stevenses

that once the paperwork was signed, he would be responsible for all expenses

related to the property and the Stevenses would not have to worry about the

property thereafter. Miller produced and had the Stevenses sign a purchase

contract, a limited power of attorney, a trust agreement, a deed conveying their

property to a trustee, and a “Land Trust Beneficial Interest Assignment,”

assigning their interests to Diversified. Miller said that the trustee of the trust

“would act as a neutral party to make sure that everyone’s interests were

protected.” The Stevenses also paid Miller $3,000 as part of the transaction.

{¶ 8} At some later point, Mr. Stevens discovered that neither

Diversified nor Miller was making regular payments on the mortgage. He tried to

3. Uncontested documents in the record reflect that Diversified Benefits Group prepared and filed

deeds and affidavits in the Knox County Recorder’s Office on behalf of at least four additional

clients who were not mentioned in the complaint.

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contact Miller but was unable to reach him, and the Stevenses lost their home to

foreclosure in April 2009, suffering damage to their credit rating as well.

{¶ 9} In 2006, Randall Wells and his wife Debra owned a residence in

Mt. Vernon, Ohio. In October 2006, the Wellses decided to relocate and

responded to an advertisement by Miller stating that his company, Diversified,

was in the business of purchasing homes. Miller later explained that the property

would be held in trust and leased to prospective purchasers who were unable to

qualify for mortgages and that the rental payments made by the lessees would be

collected by Diversified and used to pay the mortgage. Miller further explained

that after making steady payments, the buyers/lessees would qualify for a

mortgage loan, which would then enable them to purchase the property. Miller

informed the Wellses that he would prepare all the necessary documents, which

he later provided to them.

{¶ 10} The documents that Miller provided to the Wellses and had them

sign were a real estate purchase contract, a promissory note, a trust agreement,

and a trust-beneficiary assignment. Miller told the Wellses that the trustee would

“make sure that everyone was protected under the agreements.” As part of the

transaction, the Wellses paid Miller $4,000.

{¶ 11} A few months after signing the documents, Mr. Wells discovered

that neither Miller nor Diversified had made regular payments on the mortgage.

A foreclosure complaint regarding the property was filed in August 2008, and

because Mr. Wells was unable to resolve payment issues with the lender, the

home was sold at a foreclosure sale. As a direct result of Miller’s conduct, the

Wellses lost their home, were forced to file for bankruptcy, and suffered serious

damage to their credit rating. Mr. Wells suffered the further embarrassment of

having his wages garnished by his creditor.

{¶ 12} Miller, in a similar approach, prepared and filed deeds and trust-

related documents for additional clients during this same period, resulting in four

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more counts charging misconduct. These six matters and Miller’s representation

of Diversified in court constituted the seven violations found by the panel and

board.

{¶ 13} The Ohio Constitution, Article IV, Section 2(B)(1)(g) gives this

court original jurisdiction over all matters relating to the practice of law, including

the unauthorized practice of law. Ohio State Bar Assn. v. Martin, 118 Ohio St.3d

119, 2008-Ohio-1809, 886 N.E.2d 827, ¶ 31. Pursuant to this authority, we have

defined the unauthorized practice of law as “[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.

{¶ 14} The rendering of legal services includes more than just the

handling of cases in court. We have held that it also includes “giving legal advice

and counsel and the preparation of legal instruments and contracts by which legal

rights are preserved.” Ohio State Bar Assn. v. Allen, 107 Ohio St.3d 180, 2005-

Ohio-6185, 837 N.E.2d 762, ¶ 7. The rendering of legal services also

encompasses “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, citing Richland

Cty. Bar Assn. v. Clapp, 84 Ohio St.3d 276, 278, 703 N.E.2d 771 (1998);

Cincinnati Bar Assn. v. Estep, 74 Ohio St.3d 172, 173, 657 N.E.2d 499 (1995).

Accord Cleveland Bar Assn. v. Picklo, 96 Ohio St.3d 195, 2002-Ohio-3995, 772

N.E.2d 1187, at ¶ 5. In other words, it includes “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. See also Dayton Bar Assn. v. Stewart, 116 Ohio St.3d 289, 2007-Ohio-

6461, 878 N.E.2d 628 (a nonattorney’s advising another person in corporate-

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structuring strategies and preparing incorporation documents constitute the

unauthorized practice of law).

{¶ 15} Here, Miller, in a letter to disciplinary counsel attached to his

answer, attempts to excuse his conduct by claiming that the legal documents

prepared for the homeowners were “templates” drafted by an attorney, in which

he merely inserted the parties’ names. However, we have consistently held that

drafting contracts or legal instruments on behalf of another constitutes the practice

of law. Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr,

Inc., 112 Ohio St.3d 107, 2006-Ohio-6511, 858 N.E.2d 372, ¶ 22, citing Land

Title Abstract at 28-29. “The fact that respondents may copy the contracts or use

forms from a form book does not change the nature of the act. * * * The drafting

or writing of a contract or other legal instrument on behalf of another is the

practice of law, even if the contract is copied from a form book or a contract

previously prepared by a lawyer.” Id. at ¶ 23. Miller’s defense on this point is

unavailing.

{¶ 16} Moreover, Miller on numerous occasions filed procedural motions,

dispositive motions, and other pleadings in state-court lawsuits on behalf of

Diversified and four trusts for which he served as trustee. Miller continued to file

papers in other cases, even after a court denied a motion filed by him on the

ground that he was not a licensed attorney and was not permitted to represent a

corporation before the court of common pleas. He was also disqualified in at least

one other case from representing a trust, and the responsive pleading he had filed

as trustee for the trust was stricken. And the record is replete with filings of deeds

and affidavits in the county recorder’s office that were prepared and filed by

Miller on behalf of multiple other clients. This collective misconduct falls

squarely in our precedent, noted above, concerning the rendering of legal services.

{¶ 17} Miller also advised the Wellses and the Stevenses that the purpose

of holding their properties in trust was to “make sure that everyone was protected

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under the agreements.” In advising them as to what documents were needed and

the legal effects of the documents, Miller provided legal advice to these

individuals.

{¶ 18} Our role in cases involving the unauthorized practice of law is to

conduct an independent review of the alleged misconduct, the evidence adduced

at the panel hearing, the findings of fact and conclusions of law, and the

recommendations of the panel and board. From those, we determine whether the

conduct constituted the unauthorized practice of law. Cleveland Metro. Bar Assn.

v. Davie, 133 Ohio St.3d 202, 2012-Ohio-4328, 977 N.E.2d 606, ¶ 33.

{¶ 19} The panel and board found by a preponderance of the evidence

presented that Miller had engaged in the unauthorized practice of law in each of

the six counts of the complaint by performing the following services for another:

drafting contracts, deeds, trust agreements, affidavits, powers of attorney, and

promissory notes, and preparing and filing pleadings in court on behalf of

Diversified. The panel and board also found that when Miller advised both the

Stevenses and the Wellses regarding what documents were needed and the legal

effect of those documents, he provided legal services that constituted the

unauthorized practice of law. We adopt the board’s findings.

Sanction

{¶ 20} We turn now to the board’s recommendation that civil penalties be

imposed against Miller. Gov.Bar R. VII(8)(B) authorizes the imposition of such

penalties in an amount up to $10,000 per offense based upon consideration of four

specific factors and one catchall: “[a]ny other relevant factors.”

{¶ 21} 1. Degree of cooperation in the investigation (Gov.Bar R.

VII(8)(B)(1)). The panel and board found that Miller fully participated in the

process even though he had moved to another state and suffered the loss of his

wife after a lengthy battle with cancer during these proceedings. Miller also

assured relator that he would not continue the conduct at issue.

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{¶ 22} 2. Number of violations (Gov.Bar R. VII(8)(B)(2)). The panel

and board found that Miller committed the unauthorized practice of law in his

work with multiple clients. In addition, Miller also engaged in the unauthorized

practice of law when he filed pleadings in court on behalf of Diversified.

{¶ 23} 3. Flagrancy of the violations (Gov.Bar R. VII(8)(B)(3)). The

panel and board found that Miller continued to file papers in court after being

notified by a court that his conduct was improper.

{¶ 24} 4. Harm to third parties arising from the offense (Gov.Bar R.

VII(8)(B)(4)). The panel and board found that Miller advertised that his company

would purchase homes and relieve the homeowners of their financial obligations,

but because he did not pay the mortgages in the Stevens and Wells transactions,

they lost their homes in foreclosure sales. The Wellses also filed for bankruptcy.

The Stevenses and the Wellses paid Miller $3,000 and $4,000, respectively, for

his services.

{¶ 25} 5. Any other relevant factors (Gov.Bar R. VII(8)(B)(5)). Miller

moved to Texas during the pendency of these proceedings. His organization,

Diversified, is defunct, and he assured relator that he no longer would engage in

this conduct.

{¶ 26} The board recommends that we issue an order finding that Miller

engaged in the unauthorized practice of law, that we issue an order prohibiting

him from engaging in the unauthorized practice of law in the future, and that we

impose a civil penalty against him in the amount of $7,000.

{¶ 27} Having found that Miller engaged in the unauthorized practice of

law, we accept the board’s recommendations. We also accept the

recommendation that we impose civil penalties and in doing so, we weigh the

factors listed in Gov.Bar R. VII(8)(B) and UPL Reg. 400(F).

{¶ 28} The board found in mitigation that Miller had ceased engaging in

the conduct under review, had admitted that the conduct constituted the

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unauthorized practice of law, and had not had other penalties imposed for the

conduct at issue. But the record does not reflect that Miller affirmatively admitted

that his conduct constituted the unauthorized practice of law. And the board did

not find that Miller “has engaged in a timely good faith effort to make restitution

or to rectify the consequences of the unauthorized practice of law,” pursuant to

UPL Reg. 400(F)(4)(f).

{¶ 29} Aggravating factors found by the board include that Miller

benefited from his misconduct by collecting fees from two clients and that he

prepared and filed legal documents in court on behalf of clients and his own

organization. In doing so, Miller ignored court orders that precluded him from

filing papers on behalf of others.

{¶ 30} In light of the aggravating factors present in this case, we adopt the

board’s recommendation and impose civil penalties of $7,000 in accordance with

that recommendation.

Conclusion

{¶ 31} For the foregoing reasons, Paul-Eugene Miller is enjoined from

further acts constituting the unauthorized practice of law. Additionally, we

impose a civil penalty of $7,000 against Miller.

{¶ 32} Costs are taxed to Miller.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

____________________

Eugene P. Whetzel, Bar Counsel; and Thrasher, Dinsmore & Dolan and

Heidi M. Cisan, for relator.

Paul-Eugene Miller, pro se.

_________________________

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