Cincinnati Bar Assn. v. Jansen

[Cite as Cincinnati Bar Assn. v. Jansen, 138 Ohio St.3d 212, 2014-Ohio-512.]

CINCINNATI BAR ASSOCIATION v. JANSEN ET AL.

[Cite as Cincinnati Bar Assn. v. Jansen, 138 Ohio St.3d 212, 2014-Ohio-512.]

Unauthorized practice of law—Violation of prior consent decree by continuing to

solicit debtors as clients and to negotiate the resolution of their debts—

New consent decree approved.

(No. 2009-1663—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 06-07.

____________________

Per Curiam.

{¶ 1} This matter is before the court on relator Cincinnati Bar

Association’s September 13, 2011 motion for an order to show cause why

respondents Stuart Jansen and American Mediation & Alternative Resolutions

(“AMAR”) should not be found in contempt for their failure to abide by the terms

of this court’s January 26, 2010 order. That order approved the parties’ proposed

consent decree and enjoined Jansen and AMAR, neither of whom is licensed to

practice law in the state of Ohio, from engaging in the unauthorized practice of

law. Cincinnati Bar Assn. v. Jansen, 124 Ohio St.3d 272, 2010-Ohio-133, 921

N.E.2d 639 (“Jansen I”).

{¶ 2} The parties submitted a waiver of hearing, proposed findings of

fact, and a proposed consent decree and moved for their adoption and approval.

The panel of the Board on the Unauthorized Practice of Law assigned to hear the

matter adopted the parties’ proposed findings of fact and found that Jansen and

AMAR had violated the terms of the 2010 consent decree by continuing to solicit

debtors as clients and negotiate the resolution of their debts. Stating, however,

that the board did not have authority under the Rules for the Government of the

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Bar to recommend the approval of the parties’ proposed consent decree, the panel

simply stated that it did not object to its terms. The board adopted the panel’s

findings of fact and conclusions of law and recommends that we issue an order

finding that respondents violated the terms of the 2010 consent decree.

{¶ 3} For the reasons that follow, we find that Jansen and AMAR

engaged in the unauthorized practice of law in violation of the January 26, 2010

consent decree and approve the proposed consent decree submitted to the board

on September 10, 2012.

The 2010 Consent Decree

{¶ 4} In August 2006, relator filed a complaint against Jansen and

AMAR alleging that they had engaged in the unauthorized practice of law by

agreeing to represent a debtor by effecting a settlement with her creditor.

{¶ 5} On January 26, 2010, this court accepted the board’s

recommendation and approved a consent decree proposed by the parties to resolve

the pending unauthorized-practice-of-law claim. In that consent decree, the

parties acknowledged that Jansen and AMAR had attempted to effectuate

settlements between their clients and their clients’ creditors. Jansen I, 124 Ohio

St.3d 272, 2010-Ohio-133, 921 N.E.2d 639, at ¶ 9-10. The parties stipulated that

this conduct constituted the unauthorized practice of law, id. at ¶ 11, and agreed:

“1. The Respondents permanently shall cease and desist

from sending on behalf of any client of the Respondents located in

the State of Ohio any correspondence, email message,

memorandum or any other written or oral communication to any

creditor of such client which communication disputes or otherwise

calls into question the validity or amount of the creditor’s claim

against such client (except only to the extent any such creditor has

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or may have incorrectly computed the amount of its claim then

due).

“2. The Respondents shall not otherwise ‘represent debtors

in Ohio by advising, counseling or negotiating resolution of their

debts with creditors or creditors’ counsel’ (per Ohio State Bar

Assn. v. Kolodner (2004), 103 Ohio St.3d 504, 2004-Ohio-5581,

[817 N.E.2d 25]) and shall not otherwise engage in the

unauthorized practice of law.”

Id. at ¶ 15 and 16, quoting the consent decree approved by the court in 2010.

Consent Decree Proposed to Resolve

Relator’s Motion for an Order to Show Cause

{¶ 6} After relator moved for an order to show cause why Jansen and

AMAR should not be held in contempt of court for violating the 2010 consent

decree as adopted by this court in Jansen I, the parties submitted stipulations of

fact, and eventually entered into a proposed consent agreement, which provides:

THIS CONSENT DECREE AND JUDGMENT ENTRY

AND WAIVER OF HEARING (this “Consent Decree”)

concerning the Cincinnati Bar Association (“Relator”), and Stuart

Jansen (“Jansen”) and American Mediation & Alternative

Resolutions (“AMAR” and, together with Jansen, “Respondents”)

is as follows:

A. WHEREAS, on January 26, 2010, the Ohio Supreme

Court accepted the recommendations of the Board on the

Unauthorized Practice of Law in this case and approved and

entered the Consent Decree submitted by Relator and Respondents

(the “2010 Consent Decree”). Cincinnati Bar Association v.

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Jansen, et al., 124 Ohio St.3d 272, 2010-Ohio-133[, 921 N.E.2d

639]; and

B. WHEREAS, following the Supreme Court’s approval

and entry of the Consent Decree, Respondents continued in

business using, in general, the following practices:

(a) Respondents sent solicitation letters to prospective

clients, typically identified by Respondents searching the court

index and/or docket in Ohio for named defendants in recently-filed

collection cases, * * *.

(b) As to those defendants who responded positively to the

Solicitation Letters, Respondents asked them to sign and return a

Limited Power of Attorney Appointment, * * *.

(c) As to each defendant who signed and returned the

Limited Power of Attorney Appointment, Respondents then sent a

letter to the creditor which had filled the collection case against the

defendant, and which letter contained a “proposed resolution,”

* * *.

(d) As to those creditors which responded positively to the

Proposed Resolution Letters, Respondents then attempted to

facilitate a resolution of the collection case by transmitting

settlement proposals between the defendant and the creditor.

Those efforts were mostly successful; sometimes they were not;

and

C. WHEREAS, with respect to those collection cases as to

which Respondents were able to facilitate a settlement, the creditor

prepared a settlement agreement or an agreed judgment entry. The

creditor typically sent the agreement or judgment entry directly to

the debtor. Occasionally, Respondents acted as an intermediary

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and mailed or emailed the agreement to the debtor on behalf of the

creditor. The debtor was responsible for sending money to the

creditor or returning the signed judgment entry to the creditor.

Respondents were not involved in dismissal of the collection case;

and

D. WHEREAS, Relator contends the foregoing business

practices constituted the continued unauthorized practice of law by

Respondents in violation of, inter alia, the 2010 Consent Decree.

Respondents contend the foregoing business practices did not

constitute the continued unauthorized practice of law but, instead,

constituted the conduct of a bona-fide mediation service; and

E. WHEREAS, on September 13, 2011 Relator filed in this

case a Motion for an Order to Show Cause in connection with

Respondents’ foregoing business practices; and

F. WHEREAS, in February, 2012, in response to Relator’s

Motion for an Order to Show Cause, Respondents: (a) started

using a modified Solicitation Letter * * *; (b) stopped using the

Limited Power of Attorney Appointment form; and (c) started

using a Mediation Agreement * * *; and

G. WHEREAS, between January 26, 2010 and the date

hereof, Respondents have: (a) sent approximately 35,000

Solicitation Letters to defendants; (b) received approximately 467

signed Limited Power of Attorney Appointments from defendants;

(c) sent approximately 459 Proposed Resolutions Letters to

creditors; and (d) facilitated the settlement of approximately 434

collection cases; and

H. WHEREAS, throughout this period of time,

Respondents typically have charged those debtors which agreed to

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engage Respondents a fee of $250 per case. In the more complex

cases, Respondents sometimes have charged a slightly higher fee,

but rarely any more than $295 per case; and

I. WHEREAS, in order to eliminate the need for

contentious, costly and time-consuming litigation of their dispute,

the outcome of which is uncertain, and to amicably settle their

disagreements and differences, Relator and Respondents have

agreed to enter into this Consent Decree; and

J. WHEREAS, Relator and Respondents hereby waive a

hearing before the Board on the Unauthorized Practice of Law of

the Supreme Court of Ohio (the “Board”).

NOW, THEREFORE, it hereby is agreed, decreed, and

ordered that:

1. Upon their execution of this Consent Decree

Respondents shall entirely and permanently cease and desist,

whether as an owner, principal, officer, employee, consultant,

independent contractor, agent, representative or otherwise, from

directly or indirectly soliciting, procuring, conducting,

participating in, supervising or otherwise engaging in any

arbitration, mediation or alternative dispute resolution of any kind

for profit. Nothing in this paragraph shall prohibit Respondent

Jansen from engaging in any activity in which he is permitted to

engage by reason of obtaining a securities license or license to

practice law. Nothing in this paragraph shall prohibit Respondent

Jansen from participating in a mediation, arbitration, or other

dispute resolution as a party.

2. If Respondents are determined by the Board to be in

violation of this Consent Decree, then there shall be imposed

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against them, jointly and severally, a monetary sanction in the

minimum amount of $50,000 plus any other sanctions (monetary

or otherwise) which may be imposed on them by the Board or the

Supreme Court of Ohio.

3. Nothing in this Consent Decree shall be deemed to

amend or modify in any respect any prior stipulations, decrees,

order or judgments in this case.

(Capitalization sic.)

The Board’s Recommendation

{¶ 7} Pursuant to Gov.Bar R. VII(5b)(E)(3), the board issued a report in

which it adopted the facts as set forth by the parties in the consent decree and

determined that respondents had violated the 2010 consent decree by continuing

to solicit debtors as clients and to negotiate the resolution of their debts. The

board noted that respondents had relied on counsel to assist them in modifying

their business practices to comply with the 2010 consent decree but that the

modifications were nevertheless insufficient to bring them into full compliance

with the decree. Therefore, the board concluded that the violation of the 2010

consent decree was unintentional. Interpreting Gov.Bar R. VII(5b)(E)(3)1 as

limiting the board’s jurisdiction to making a determination whether the consent

1. Gov.Bar R. VII(5b)(E)(3) provides:

A motion to show cause alleging a violation of a consent decree and

any memorandum in opposition shall be filed with both the Supreme Court and

the Board. The Board, upon receipt of the motion and memorandum in

opposition, by panel assignment shall conduct either an evidentiary hearing or

oral argument hearing on the motion, and by a majority vote of the Board submit

a final report to the Court with findings of fact, conclusions of law, and

recommendations on the issue of whether the consent decree was violated.

Neither party shall be permitted to file objections to the Board’s report without

leave of Court.

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decree was violated, however, the board did not address the remedial aspects of

the consent decree, other than to state that it did not object to its terms.

Jansen and AMAR Have Continued

to Engage in the Unauthorized Practice of Law

in Violation of the 2010 Consent Decree

{¶ 8} Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants this

court original jurisdiction over all matters relating to the practice of law. The

unauthorized practice of law consists of the rendering of legal services for another

by any person not admitted to practice law in Ohio. Gov.Bar R. VII(2)(A). We

have held that the practice of law includes “making representations to creditors on

behalf of third parties, and advising persons of their rights, and the terms and

conditions of settlement.” Cincinnati Bar Assn. v. Cromwell, 82 Ohio St.3d 255,

256, 695 N.E.2d 243 (1998); see also Ohio State Bar Assn. v. Kolodner, 103 Ohio

St.3d 504, 2004-Ohio-5581, 817 N.E.2d 25, ¶ 15; Cincinnati Bar Assn. v. Telford,

85 Ohio St.3d 111, 707 N.E.2d 462 (1999). It is no defense that respondents

disclosed to their customers that they were not attorneys and could not give legal

advice, or that they obtained powers of attorney executed by their customers. See,

e.g., Columbus Bar Assn. v. Am. Family Prepaid Legal Corp., 123 Ohio St.3d

353, 2009-Ohio-5336, 916 N.E.2d 784, ¶ 76; Telford at 113.

{¶ 9} Respondents’ efforts to characterize their services as those of a

mediator or arbitrator of client debts are likewise unavailing. A mediator is “[a]

neutral person who tries to help disputing parties reach an agreement,” and an

arbitrator is “[a] neutral person who resolves disputes between parties * * *.”

Black’s Law Dictionary 1071, 120 (9th Ed.2009). Respondents initially provided

services only to debtors pursuant to “Limited Power of Attorney Appointments”

authorizing them to “effect a resolution” with the creditor. Later, they used

“Mediation Agreements” that purported to appoint Jansen and AMAR as neutral

mediators of debtor-creditor relationships. While the mediation agreement

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requires the debtor to sign it in order to accept the terms of the agreement and to

authorize the creditor to communicate with Jansen and AMAR, it deems any

communication from the creditor for purposes of discussing the debtor’s

obligation to constitute acceptance of the terms of the agreement by the creditor.

The one-sided nature of this agreement, which also requires the debtor to pay

respondents’ fees in full, reveals that while respondents’ forms may have

changed, their underlying business practices—which constitute the unauthorized

practice of law—have not.

Approval of the Parties’ Proposed Consent Decree

{¶ 10} We adopt the factual findings as set forth in the parties’ proposed

consent decree and adopt the board’s finding that Jansen and AMAR violated the

2010 consent decree. We also find that the proposed consent decree (1) protects

the public from future harm, (2) resolves the material allegations of the

unauthorized practice of law, (3) contains an agreement by Jansen and AMAR to

cease and desist the alleged activities that we have found to constitute the

unauthorized practice of law, and (4) provides that in the event Jansen and AMAR

violate the terms of the consent decree, they will be subject to a minimum

monetary sanction of $50,000—in addition to any other sanctions that may be

warranted. See Gov.Bar R. VII(5b)(C).

{¶ 11} Accordingly, we approve the consent decree in its entirety.

Respondents shall entirely and permanently cease and desist, whether as an

owner, principal, officer, employee, consultant, independent contractor, agent,

representative, or otherwise, from directly or indirectly soliciting, procuring,

conducting, participating in, supervising, or otherwise engaging in any arbitration,

mediation, or alternative dispute resolution of any kind for profit.

{¶ 12} If Jansen or AMAR are determined by this court to be in violation

of this consent decree, then there shall be imposed against them, jointly and

severally, a monetary sanction in the minimum amount of $50,000, plus any other

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sanctions that may be imposed on them by this court. Costs are taxed, jointly and

severally, to Jansen and AMAR.

Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

____________________

Louis F. Solimine; and Maria C. Palermo, for relator.

Montgomery, Rennie & Jonson, George D. Jonson, and Lisa M. Zaring,

for respondents.

__________________________

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