Cleveland Metropolitan Bar Ass'n v. McGinnis

[Cite as Cleveland Metro. Bar Assn. v. McGinnis, 137 Ohio St.3d 166, 2013-Ohio-4581.]

CLEVELAND METROPOLITAN BAR ASSOCIATION v. MCGINNIS.

[Cite as Cleveland Metro. Bar Assn. v. McGinnis, 137 Ohio St.3d 166,

2013-Ohio-4581.]

Unauthorized practice of law—Preparing documents for court proceeding and

distributing flyer advertising legal services—Injunction issued and civil

penalty imposed.

(No. 2013-0111—Submitted April 10, 2013—Decided October 22, 2013.)

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

Supreme Court, No. UPL 11-05.

_______________________

Per Curiam.

{¶ 1} Relator, Cleveland Metropolitan Bar Association, charged

respondent, Forrestine E. McGinnis of Lakewood, Ohio, with the unauthorized

practice of law for preparing two court documents and distributing a flyer

advertising legal services. McGinnis is not, and never has been, admitted to the

practice of law in Ohio.

{¶ 2} Even though McGinnis had initially met and communicated with

relator regarding the allegations against her, she did not answer the complaint, and

relator moved for an entry of default. Based on the affidavits submitted with

relator’s motion, a three-member panel of the Board on the Unauthorized Practice

of Law issued findings of fact and conclusions of law and determined that

McGinnis had violated Ohio’s licensure requirements. The panel recommended

that we enjoin McGinnis from committing further illegal acts and assess a

$20,000 civil penalty. The board adopted the panel’s findings and recommended

penalty, and no objections have been filed to the board’s report.

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

law and that an injunction is warranted. However, consistent with our precedent

in comparable unauthorized-practice-of-law cases, we assess a $6,000 civil

penalty.

McGinnis’s Unauthorized Practice of Law

{¶ 4} Based on the sworn affidavits in the record, the board found that

McGinnis had prepared an answer on behalf of grievant, Stephen Johnson, for an

eviction action in the Cleveland Municipal Court, prepared a notice of appeal on

Johnson’s behalf for his appeal in that eviction case, and accepted $40 from

Johnson for transportation and parking fees to attend hearings with him. In

addition, McGinnis gave Johnson a flyer reading: “Forrestine’s Law, Inc. Avoid

expensive attorney fees 216-351-XXXX.” Johnson claims that he also saw the

flyer posted at a local library. Based on these findings, the board determined that

McGinnis had engaged in the unauthorized practice of law.

{¶ 5} We agree. The unauthorized practice of law is defined 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. The rendering of legal

services includes “the drafting and preparation of pleadings filed in the courts of

Ohio.” Lorain Cty. Bar Assn. v. Kocak, 121 Ohio St.3d 396, 2009-Ohio-1430,

904 N.E.2d 885, ¶ 17; see also Geauga Cty. Bar Assn. v. Haig, 129 Ohio St.3d

601, 2011-Ohio-4271, 955 N.E.2d 352, ¶ 2 (unauthorized practice of law includes

“the preparation of legal documents for others”). In addition, the unauthorized

practice of law includes “[h]olding out to the public or otherwise representing

oneself as authorized to practice law in Ohio by a person not authorized to

practice law.” Gov.Bar R. VII(2)(A)(4). The term “holding out” means the use

of “law” or “law office” by any person who is not licensed to practice law in

connection with a sign, advertisement, circular, or other document, “the evident

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purpose of which is to induce others to believe that person to be an attorney.”

R.C. 4705.07(B)(1).

{¶ 6} McGinnis did not possess the qualifications necessary to practice

law in this state, yet a preponderance of the evidence shows that she prepared two

legal pleadings for filing in court and distributed a flyer advertising her services

as “Forrestine’s Law, Inc.” Accordingly, we accept the board’s findings that

McGinnis has engaged in the unauthorized practice of law.

Sanction

{¶ 7} Having found that McGinnis engaged in the unauthorized practice

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

prohibiting her from preparing legal documents for others, holding herself out as

authorized to practice law, and engaging in all other acts constituting the practice

of law.

{¶ 8} We also accept the recommendation that we impose a civil penalty.

Under Gov.Bar R. VII(19)(D)(1)(c), we may 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 $5,000 civil penalty for each pleading that McGinnis prepared and the $10,000

maximum penalty for McGinnis’s flyer, for a total of $20,000. Based on

McGinnis’s misconduct here, the relevant factors in Gov.Bar R. VII(8)(B), and

our precedent, we find that McGinnis should be fined $1,000 for each pleading

and $4,000 for the flyer, for a total of $6,000.

Gov.Bar R. VII(8)(B) factors

{¶ 9} Gov.Bar R. VII(8)(B) requires us to consider the following five

factors in imposing a civil penalty.

{¶ 10} (1) Degree of cooperation. McGinnis initially communicated and

even met with relator during the early stages of its investigation. But after

agreeing to a deposition date, she failed to appear, and she later failed to

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participate in the board proceedings. In addition, McGinnis’s communications

with relator were not always coherent and included many astrological references

that were not directly responsive to relator’s inquiries. For example, in one

correspondence, she declared that she had received relator’s letter “when two

planets were in opposition to my North Node.” In another letter, she stated that

she had forwarded relator’s communications to her “tribunal for a diagnoses of

any and all infarctions [sic] that I’ve committed against the United Nations

declarations on human, indigenous, and stateless people rights.” And in response

to relator’s request for documents relating to her research, she submitted a

document entitled “Perpetual Universal Charter of the Moabite Nation.”

{¶ 11} (2) Number of violations. As explained above, McGinnis

committed three acts constituting the unauthorized practice of law: (1) the

preparation of an answer for filing in court, (2) the preparation of a notice of

appeal for filing in court, and (3) holding herself out in a flyer as authorized to

practice law. The acts were not widespread, as all three related to one

individual—grievant Johnson—and the two pleadings were filed in his eviction

action.

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

In its analysis, the board considered these two factors particularly relevant,

finding that McGinnis “continued to market her services as a person qualified to

practice law in Ohio even after commencement of this action,” “Johnson’s legal

rights were undoubtedly affected when [McGinnis] prepared pleadings on his

behalf,” and “[McGinnis] may have at least one other client on whose behalf she

engages in the unauthorized practice of law.” In reaching these conclusions, the

board did not cite the record, and we are unable to find conclusive evidence in the

record demonstrating that McGinnis continued her illegal acts after

commencement of this action or that she has another “client.” Based on the

sworn record evidence, McGinnis’s offenses affected only Johnson, and his

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affidavit states that McGinnis handled his appeal, “which she did wrong.” But

Johnson did not further explain how McGinnis’s actions harmed him or affected

his legal rights. Without more evidence, it is difficult for us to weigh these two

factors in considering either a harsher or a more lenient civil penalty.

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

aggravating and mitigating factors that may be used in weighing Gov.Bar R.

VII(8)(B)’s final catchall factor. UPL Reg. 400(F). We find that in aggravation,

McGinnis prepared two legal instruments for filing with a court and allowed

others to mistakenly believe that she was admitted to practice law. See UPL Reg.

400(F)(3)(f) and (g). In mitigation, in McGinnis’s letters, she admitted to the

conduct under review by acknowledging that she had prepared Johnson’s answer

for his municipal court case. See UPL Reg. 400(F)(4)(b). However, we do not

give much weight to this mitigating factor as McGinnis also declared that “[t]he

practice of law can not be licensed by any State.”

Applicable precedent

{¶ 14} We generally reserve the $10,000 maximum civil penalty for the

most egregious acts constituting the unauthorized practice of law. For example,

in Disciplinary Counsel v. Pratt, 127 Ohio St.3d 293, 2010-Ohio-6210, 939

N.E.2d 170, we imposed the maximum penalty for each of six acts occurring over

a two-year period, including the respondent’s representations to multiple people

that he was a licensed attorney, his acceptance of over $72,000 in legal fees, and

his performance of various legal services, including drafting and reviewing

contracts and negotiating a settlement. Id. at ¶ 4-15, 19. In Ohio State Bar Assn.

v. Dalton, 124 Ohio St.3d 514, 2010-Ohio-619, 924 N.E.2d 821, we imposed the

maximum penalty of $10,000—$20,000 for two acts—on a title agent who, in

addition to refusing to cooperate in the board proceedings, prepared and filed two

deeds and forged an attorney’s name on one. And in Cleveland Metro. Bar Assn.

v. Boyd, 121 Ohio St.3d 36, 2009-Ohio-305, 901 N.E.2d 795, we imposed the

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maximum penalty of $10,000—$20,000 for two acts—for preparing and filing

complaints in two separate domestic-relations actions, receiving a fee for those

services, and failing to participate in the board proceedings. And Boyd was a

repeat offender; the fact that he “flagrantly continued to engage in the

unauthorized practice of law despite our order enjoining [his] conduct”

contributed to the assessment of the maximum $20,000 penalty. Id. at ¶ 8.

{¶ 15} In contrast, we routinely assess a lower penalty when the acts are

less frequent, less flagrant, or involve fewer victims—even in cases in which the

respondent does not appear or fully cooperate in the board proceeding. For

example, in Lorain Cty. Bar Assn. v. Kocak, 121 Ohio St.3d 396, 2009-Ohio-

1430, 904 N.E.2d 885, the respondent prepared, filed, and signed numerous legal

documents in a debt-collection action, in both the trial court and the appellate

court, and he continued to engage in this conduct despite admonitions from those

courts. Id. at ¶ 20. Nonetheless, we reduced the board’s recommended maximum

penalty of $20,000 to $10,000—$5,000 for his appearances and copious filings in

each court—because the respondent’s actions were on behalf of his fiancée and

not likely to be repeated. Id. at ¶ 21. In Ohio State Bar Assn. v. Heath, 123 Ohio

St.3d 483, 2009-Ohio-5958, 918 N.E.2d 145, the respondent prepared documents

threatening legal action on behalf of a friend and also prepared, filed, and signed a

series of legal papers in municipal court for this friend. The respondent defended

himself against the relator’s charges with “unfounded and often nonsensical

arguments,” such as referring to his name as a “fiction.” Id. at ¶ 2, 32. We

nonetheless reduced the board’s recommended penalty of $15,000 to $1,000

because the respondent was merely trying to help a friend, he had not charged the

friend, and he stated that he had ceased all unlicensed practice of law. Id. at ¶ 30-

33. Similarly, in Disciplinary Counsel v. Kafele, 108 Ohio St.3d 283, 2006-Ohio-

904, 843 N.E.2d 169, the respondent filed and signed numerous “irregular” legal

documents in a mortgage-foreclosure action on behalf of a limited-liability

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company. The respondent participated in the board proceeding but refused to

testify and argued mistaken identity. Id. at ¶ 8, 13. We reduced the board’s

recommended penalty of $10,000 to $1,000 based on the relatively few acts of

unauthorized legal practice and the little harm caused by his conduct, and because

the respondent did not perform the acts for profit. Id. at ¶ 18-20.

{¶ 16} Finally, it must be noted that even in default proceedings, we have

not always imposed a civil penalty for the unauthorized preparation of legal

pleadings. For example, in Geauga Cty. Bar Assn. v. Haig, 129 Ohio St.3d 601,

2011-Ohio-4271, 955 N.E.2d 352, a loan officer prepared four answers and three

motions on behalf of customers in two foreclosure cases. We refrained from

imposing a penalty because the respondent’s actions did not cause any harm and

in a letter to the relator, he had admitted his actions and explained that he was

unaware that he was violating the law. Id. at ¶ 6-9.

Conclusion

{¶ 17} Having reviewed the record, the Gov.Bar R. VII(8)(B) factors, and

the penalties imposed in comparable unauthorized-practice-of-law cases, we find

that the board’s recommended penalty is too high and inconsistent with our

precedent. Unlike the respondents in many of the cases cited above, McGinnis

engaged in relatively few acts constituting the unauthorized practice of law. She

prepared only two legal documents, and they were both for the same person in his

eviction action. And it does not appear that she completed the documents for

profit, because she received only $40 to cover her transportation and parking

costs. Consistent with Heath and Kafele, we find that a $1,000 penalty for each

pleading is appropriate. McGinnis’s flyer, however, suggests that she attempted

to commit illegal acts on behalf of others, and a harsher penalty is warranted to

discourage this kind of conduct. We find that a $4,000 penalty is appropriate for

this act of unauthorized practice of law.

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{¶ 18} Accordingly, we enjoin McGinnis from engaging in any further

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

penalty against McGinnis in the amount of $6,000. Costs and expenses are taxed

to McGinnis.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,

concur.

O’DONNELL, J., concurs in judgment only.

O’NEILL, J., concurs in part and dissents in part.

_________________________

O’NEILL, J., concurring in part and dissenting in part.

{¶ 19} I concur with the majority except I would impose a civil penalty of

$3,000 instead of $6,000.

_________________________

John A. Hallbauer, Michael P. Harvey, and Heather M. Zirke, for relator.

_________________________

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