Disciplinary Counsel v. Deters (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Deters, Slip Opinion No. 2021-Ohio-2706.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2021-OHIO-2706

DISCIPLINARY COUNSEL v. DETERS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Deters, Slip Opinion No.

2021-Ohio-2706.]

Unauthorized practice of law—Permanent injunction issued and civil penalty

imposed.

(No. 2020-1497—Submitted March 3, 2021—Decided August 10, 2021.)

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

of the Supreme Court, No. UPL 19-03.

_______________________

Per Curiam.

{¶ 1} Respondent, Eric C. Deters, of Independence, Kentucky, was

admitted to the Ohio bar in 1987 and permanently retired from the practice of law

in Ohio on September 17, 2014, following the suspension of his Kentucky law

license. Following Deters’s Ohio retirement, he transferred ownership of his law

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firm, Deters & Associates, P.S.C. (“Deters Law”), to his father and continued to

work as the office manager and a client liaison for the firm.

{¶ 2} In an April 5, 2019 complaint, relator, Disciplinary Counsel, charged

Deters with engaging in the unauthorized practice of law by giving legal advice to

Clinton and Jillian Pangallo, who had retained Deters Law to represent them

regarding an Ohio-based personal-injury claim.

{¶ 3} A three-member panel of the Board on the Unauthorized Practice of

Law conducted a hearing during which it heard testimony from Deters and the

Pangallos. In an October 2020 report, the panel found that Deters had engaged in

four instances of the unauthorized practice of law by giving the Pangallos legal

advice about their case: three during a meeting in which he persuaded them not to

terminate his firm’s representation and one in a subsequent telephone call.

{¶ 4} The panel recommended that Deters be permanently enjoined from

engaging in the unauthorized practice of law and that we impose a civil penalty of

$6,500. The board adopted the panel’s findings and recommendation that Deters

be enjoined from engaging in the unauthorized practice of law, but it

recommended that the civil penalty be doubled to $13,000.

{¶ 5} For the reasons that follow, we find that Deters engaged in a single

instance of the unauthorized practice of law by giving case-specific legal advice

to clients of the law firm that employed him. We therefore permanently enjoin

him from engaging in further acts of the unauthorized practice of law and order

him to pay a civil penalty of $6,500.

Deters’s Conduct

{¶ 6} On September 8, 2017, Clinton Pangallo was injured in an auto

accident while driving his employer’s car. Recalling that years earlier he had

heard Deters speak on a radio program and had liked his demeanor, Clinton called

Deters Law to schedule a consultation. On September 22, 2017, Clinton and his

wife, Jillian, met with Chuck Holbrook, an investigator employed by the firm.

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Clinton signed a contingent-fee contract, agreeing to pay the firm one-third of the

gross recovery in his personal-injury case.

{¶ 7} In early October, Stephanie Collins, an attorney with Deters Law,

informed the Pangallos that she would be handling their case. Collins left Deters

Law the following month and informed the Pangallos that Dominick Romeo

would be their attorney going forward. They later learned that Romeo was not

licensed in Ohio.

{¶ 8} On January 28, 2018, Clinton emailed Romeo to terminate the firm’s

representation. Deters emailed Jillian several times that night and asked to meet

with her and Clinton in an effort to persuade them to stay with the firm. In those

emails, he stated, “I can make sure everything is not only done right. But over the

top.” He also claimed, “We have a whole gang on cases. Ky. Ohio. Lawyers.

Staff. Records requesters. Paralegals. Me. I just want to grab file tomorrow.

See what has been done. And talk. * * * If we have droppedball [sic] I swear. I’ll

tell you we have.”

{¶ 9} The next day, the Pangallos met with Deters and Holbrook. No

attorney was present. During Deters’s panel hearing, the Pangallos and Deters

offered differing accounts of what had transpired at the meeting.

{¶ 10} The Pangallos testified that they did not know that Deters was not

licensed to practice law when they met him, that he never said that he was or was

not an attorney, and that they therefore assumed he was an attorney.1 Jillian

stated that Deters referred to himself by his nickname, “The Bulldog,”—a

moniker that he has long used on the radio and in social media—and told them

that he would take care of things and get things done. In addition to discussing

the value of their case, the Pangallos recalled, Deters advised them about the

1. The board found that Jillian knew that Deters was not a lawyer, at least not an Ohio lawyer,

prior to the January 29 meeting, but the testimony it cites to support that finding shows only that

Dominick Romeo had informed Jillian that Romeo was not licensed in Ohio and that the firm did

not have an Ohio-licensed personal-injury attorney at that time.

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“stacking” of insurance policies, the differences between Ohio and Kentucky law

on that issue, and how those differences could affect their recovery. Both Jillian

and Clinton testified that Deters advised them to file a claim against Clinton’s

employer because it had higher insurance limits—and that he called their refusal

to do so “stupid.”

{¶ 11} Deters admitted that he gave the Pangallos his opinion regarding

the value of their case based on his experience as an attorney and that they

discussed the possibility that Clinton might be entitled to an award equal to the

tortfeasor’s policy limits. He also admitted that they discussed the possibility of

pursuing a recovery from Clinton’s employer—though he denied giving the

Pangallos any advice on that issue and claimed that the issue of stacking

insurance policies “never came up” in their discussions.

{¶ 12} Deters also testified that after the Pangallos told him that they were

experiencing financial difficulties, he offered to arrange a presettlement loan

through Barrister Capital and told them how the loan would work. According to

the Pangallos, Deters advised them that the repayment of the loan would be

contingent on winning their case and that they would not have to pay much

interest, because their case would be settled within one month. They testified—

and Deters acknowledged—that they relied on that advice in deciding to accept

the loan.

{¶ 13} By the time the meeting ended, Deters (purportedly with his

father’s approval) had agreed to reduce the Pangallos’ contingent fee to 28

percent of their recovery and the Pangallos had agreed to allow Deters Law to

continue representing them.

{¶ 14} After the meeting, the Pangallos obtained a $3,000 loan from

Barrister Capital. Jillian and Deters exchanged several emails discussing

Clinton’s medical treatment and the efforts being made to determine the limits of

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the tortfeasor’s insurance policy. Deters opined that an insurer’s refusal to state

the limits of its policy “usually means high limits.”

{¶ 15} On April 24, 2018, Jillian emailed a letter from Clinton to Deters

terminating the firm’s representation. In an emailed response, Deters asserted that

he had not “handled” the Pangallos’ case and identified three other lawyers who

had purportedly worked on the case. However, Jillian testified that she had never

heard of two of those attorneys and that the third attorney had told her that he was

not working on her case. She also testified that shortly after she received that

email, Deters called to tell her that she and Clinton would still owe the full

contingent fee to Deters Law on top of any fee they paid to a new attorney—

which she understood to mean that they would owe Deters Law the full

contingent fee in addition to any fee they would owe their new attorney.

{¶ 16} As of January 2020, Clinton’s case had not settled and the amount

the Pangallos owed on their $3,000 loan had increased to more than $10,000.

The Board Found that Deters Engaged in the Unauthorized Practice of Law

{¶ 17} The board found that Deters engaged in four instances of the

unauthorized practice of law by (1) giving the Pangallos his opinion regarding the

value of their personal-injury case, (2) advising them about the practice of

stacking insurance policies and recommending that they sue Clinton’s employer,

(3) giving them his analysis of how quickly their case would settle, and (4)

advising them that Deters Law would exert a lien for the full contingent fee on

their final settlement if they terminated the firm’s representation.

Deters’s Objections to the Board’s Findings

{¶ 18} Deters objects to the board’s findings that he engaged in the

unauthorized practice of law by giving legal advice to the Pangallos. Although he

has admitted that he made some of the statements that the board found to

constitute the unauthorized practice of law, he characterizes his actions with

regard to most of those statements as “passing on information” and steadfastly

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maintains that he did not provide legal services or render legal advice to the

Pangallos. In fact, he asserts that any staff member of a law firm could make the

statements he made to the Pangallos without committing the unauthorized practice

of law and that trial consultants, paralegals, and other law-firm staff engage in this

type of conduct every day. For the reasons that follow, we find that Deters’s

objections are without merit.

Deters Engaged in the Unauthorized Practice of Law

{¶ 19} This court has original jurisdiction over the admission to the

practice of law in Ohio, the discipline of persons so admitted, and “all other

matters relating to the practice of law,” Article IV, Section 2(B)(1)(g), Ohio

Constitution, which includes the regulation of the unauthorized practice of law,

Greenspan v. Third Fed. S. & L. Assn., 122 Ohio St.3d 455, 2009-Ohio-3508, 912

N.E.2d 567, ¶ 16. The purpose of that regulation is to “protect the public against

incompetence, divided loyalties, and other attendant evils that are often associated

with unskilled representation.” Cleveland Bar Assn. v. CompManagement, Inc.,

104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 40.

{¶ 20} We have defined the unauthorized practice of law to include both

the “[h]olding out to the public or otherwise representing oneself as authorized to

practice law in Ohio” and the “rendering of legal services for another” by any

person who is not authorized to practice law under our rules. Gov.Bar R.

VII(2)(A)(1) and (4). We have held, “The practice of law is not restricted to

appearances in court; it also encompasses giving legal advice and counsel.”

Cincinnati Bar Assn. v. Telford, 85 Ohio St.3d 111, 112, 707 N.E.2d 462 (1999),

citing Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 259, 695 N.E.2d 244

(1998).

{¶ 21} One key element of the practice of law is the tailoring of legal

advice to the needs of a specific person. See, e.g., Green v. Huntington Natl.

Bank, 4 Ohio St.2d 78, 80, 212 N.E.2d 585 (1965) (holding that giving specific

6

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legal information in relation to the specific facts of a particular person’s case for

the purpose of obtaining a more beneficial condition “represent[s] the giving of

legal advice”); Disciplinary Counsel v. Palmer, 115 Ohio Misc.2d 70, 74, 761

N.E.2d 716 (Bd.Unauth.Prac.2001) (dismissing an unauthorized-practice-of-law

complaint filed against a layman who published general legal advice or opinions

on a website, because there was insufficient evidence to establish that he gave

legal advice customized to the particularized needs of any individual).

{¶ 22} In this case, relator has proved by a preponderance of the evidence

that Deters offered the Pangallos legal advice and counsel tailored to the specific

facts and circumstances of their case.

{¶ 23} First, Deters gave the Pangallos his own opinion of the value of

their case and how long it would take to settle. Deters argues that stating the

value of a case does not constitute legal advice, because trial consultants make a

living by offering the same kinds of opinions. But, as the board noted, a trial

consultant gives an opinion regarding the value of a case to a lawyer—not the

client. The lawyer then takes that opinion, applies the lawyer’s own knowledge

and experience, and chooses which parts of the consultant’s opinion—if any—to

incorporate into the lawyer’s own advice to the client.

{¶ 24} Deters did not convey his opinion to an attorney assigned to the

Pangallos’ case, nor did he relay the opinion of the Pangallos’ attorney to them.

Instead, he told them what he thought the case was worth based on his years of

experience as a lawyer. At the time that he gave them that legal advice, it had

been more than three years since he had been licensed to practice law in Ohio.

{¶ 25} Second, according to the Pangallos, Deters informed them that the

practice of stacking insurance policies is permitted under Kentucky law but not

under Ohio law. He also recommended that the Pangallos sue Clinton’s employer

in addition to suing the tortfeasor, in an effort to increase their potential recovery.

Although Deters generally denied that he had said these things, the hearing panel

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found that the Pangallos’ testimony was more credible. We defer to that

determination because the panel members saw and heard the witnesses firsthand

and the record does not weigh heavily against it. See, e.g., Cuyahoga Cty. Bar

Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.

{¶ 26} Third, Deters gave the Pangallos general information about how a

presettlement loan works, assured them that their case would settle within one

month considering the facts of the matter, and explained that a quick settlement

would limit the amount of interest they would have to pay for the loan. Although

giving a general explanation of how such a loan works does not amount to giving

legal advice, Deters’s providing the Pangallos with his analysis of the facts of

their case, his assessment of the timeline for settlement, and his opinion regarding

the anticipated length of the loan all constituted giving legal advice. And both of

the Pangallos testified—and Deters admitted—that they relied on Deters’s advice

in deciding to accept the presettlement loan.

{¶ 27} Finally, when the Pangallos informed Deters that they were

terminating his law firm’s representation, Deters gave them the erroneous legal

advice that the firm would still be entitled to its entire contracted fee.

{¶ 28} Although Deters asserts that paralegals and other law-firm

employees engage in this type of conduct every day, his speculative argument—

even if true—is not a valid defense to the charge of the unauthorized practice of

law. Laymen may assist lawyers in preparing legal documents and managing

pending client matters, but their activities must be carefully supervised and

approved by a licensed practitioner. Columbus Bar Assn. v. Thomas, 109 Ohio

St.3d 89, 2006-Ohio-1930, 846 N.E.2d 31, ¶ 14. “A paralegal who, without the

supervision of an attorney, advises and represents a claimant in a personal injury

matter is engaged in the unauthorized practice of law.” Columbus Bar Assn. v.

Purnell, 94 Ohio St.3d 126, 760 N.E.2d 817 (2002), citing Cincinnati Bar Assn. v.

Cromwell, 82 Ohio St.3d 255, 695 N.E.2d 243 (1998).

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{¶ 29} Deters suggested that four different attorneys worked on the

Pangallos’ case after Collins left the firm. However, the Pangallos had never

heard of two of those attorneys and one had told Jillian that he was not working

on the case. The fourth attorney, Romeo, was the only attorney who appears to

have had any communication with the Pangallos following Collins’s departure.

But he was not licensed in Ohio. In short, there is no evidence that any Ohio-

licensed attorney was assigned to the Pangallos’ case after Collins left the firm.

And the only evidence that there was any attorney supervision of Deters was (1)

his own testimony that his father approved the reduction of the Pangallos’

contingent fee and (2) the response he sent to Jillian—just two minutes after she

emailed him to inquire about the availability of other insurance coverage for

Clinton’s accident—claiming, “Lawyers here confirmed. Only policy can seek

liability coverage on is the car that hit you.”

{¶ 30} Although Deters was not charged with engaging in the

unauthorized practice of law by holding himself out as an attorney, it appears that

that is exactly what he did. Though he never went so far as to affirmatively state

that he was an attorney, he made no effort to clarify to the Pangallos his role in

the firm or to inform them that he was no longer licensed to practice law in Ohio

or any other jurisdiction. Instead, as a representative of a firm that bore his

surname, he met with the Pangallos outside the presence of any attorney, referred

to himself as “The Bulldog,” and urged them to have confidence in him

personally, even though he was not licensed to represent them. Furthermore, he

gave them legal advice based on his own legal knowledge and years of experience

that was tailored to the facts of their particular case. Simply stated, his actions

were not those of a paralegal conveying general information or relaying case-

specific information under the supervision of an attorney—they were the actions

of a nonlawyer engaging in the practice of law.

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{¶ 31} On these facts, we overrule Deters’s objections and accept the

board’s findings that Deters engaged in the unauthorized practice of law by giving

legal advice to the Pangallos. Because we find that that legal advice was, for the

most part, given in a single conversation, we find that it constitutes a single

instance of the unauthorized practice of law.

An Injunction and Civil Penalty Are Warranted

{¶ 32} Having found that Deters engaged in the unauthorized practice of

law, the board recommends that we permanently enjoin him from engaging in

further acts of the unauthorized practice of law in Ohio.

{¶ 33} The panel recommended that we impose a civil penalty of $6,500

for the four instances of the unauthorized practice of law that it found ($1,500 for

each of the first three violations and $2,000 for his final violation), but the board

recommends that that penalty be doubled to $13,000.

{¶ 34} In determining the appropriate sanction, Gov.Bar R. VII(8)(B)

instructs us to consider (1) the degree of the respondent’s cooperation during the

investigation, (2) the number of times the respondent engaged in the unauthorized

practice of law, (3) the flagrancy of the respondent’s violations, (4) any harm that

the violations caused to third parties, and (5) any other relevant factors, which

may include the aggravating and mitigating circumstances identified in UPL Reg.

400(F). See also Disciplinary Counsel v. Ward, 155 Ohio St.3d 488, 2018-Ohio-

5083, 122 N.E.3d 168, ¶ 13.

{¶ 35} Deters fully cooperated with relator’s investigation, though the

board noted that his cooperation declined somewhat after relator filed his

complaint. And although the board found four instances of the unauthorized

practice of law, we have found that Deters engaged in a single offense. While

that offense was flagrant, it does not appear that the Pangallos have suffered any

lasting harm as a result of Deters’s misconduct. Indeed, there is no evidence that

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Deters delayed their case or that they had any alternative but to accept the

recommended loan to alleviate their acute financial distress.

{¶ 36} Ultimately, we are most troubled by Deters’s struggle to accept his

diminished role in the legal profession following his Kentucky suspension and his

Ohio retirement. That struggle was evident at the panel hearing when he testified,

“You know, I’m a litigator,” nearly six years after he was last licensed to practice

law in any jurisdiction. We believe that the imposition of an injunction and a

$6,500 civil penalty will serve as an appropriate deterrent to future acts of the

unauthorized practice of law.

Conclusion

{¶ 37} Accordingly, we permanently enjoin Eric C. Deters from engaging

in acts constituting the unauthorized practice of law in Ohio. We also order

Deters to pay a civil penalty of $6,500 for his single offense of the unauthorized

practice of law. Costs are taxed to Deters.

Judgment accordingly.

DEWINE, DONNELLY, and STEWART, JJ., concur.

O’CONNOR, C.J., concurs, with an opinion joined by FISCHER, J. (except

that he would impose a $13,000 penalty) and BRUNNER, J.

KENNEDY, J., concurs in judgment only, with an opinion.

_________________

O’CONNOR, C.J., concurring.

{¶ 38} I fully concur in the majority’s reasoning and judgment, but I write

separately to respond to the suggestion in the concurring-in-judgment-only

opinion that we should apply an unnecessary “professional-judgment” standard

when determining whether a nonlawyer has engaged in the unauthorized practice

of law. Adopting the standard proposed by the concurring-in-judgment-only

opinion would not provide clarity in this area of the law and would be potentially

harmful.

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{¶ 39} The concurring-in-judgment-only opinion cites a litany of foreign

cases and law-review articles for the uncontroversial proclamation that there is no

universally accepted definition of “practice of law.” Indeed, rather than

attempting the impossible—enunciating an inclusive list of activities that

constitute the practice of law—we have broadly defined the “unauthorized

practice of law” by rule as the “rendering of legal services for another by any

person not admitted to practice [law] in Ohio.” Gov.Bar R. VII(2)(A)(1). The

practice of law includes providing legal advice and counsel to clients. Land Title

Abstract & Trust Co. v. Dworken, 129 Ohio St.23, 28, 193 N.E. 650 (1934). And

as the majority opinion notes, we have recognized that a key element of practicing

law is tailoring that advice to the needs of a specific person. Majority opinion at

¶ 21, citing Green v. Huntington Natl. Bank, 4 Ohio St.2d 78, 80, 212 N.E.2d 585

(1965). The concurring-in-judgment-only opinion, however, suggests that more is

needed.

{¶ 40} The concurring-in-judgment-only opinion feigns concern that this

court will overstep its bounds and find the unauthorized practice of law anytime a

nonlawyer shares general legal knowledge that the person has acquired while

going through life. Under that guise, it suggests that this court clarify for the

public and the bar that a layperson who gives tailored legal advice to another

engages in the unauthorized practice of law only when the layperson “exercise[s]

professional judgment” in doing so. Opinion concurring in judgment only at ¶ 47.

Not only does the concurring-in-judgment-only opinion’s description of the

proposed professional-judgment standard fail to clarify the contours of the

practice of law, but its attempt to clarify the meaning of “practice of law” is

wholly unwarranted in this case, because this case involves conduct that the

members of this court unanimously agree constitutes the unauthorized practice of

law.

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{¶ 41} This court has exclusive jurisdiction to regulate the unauthorized

practice of law, Toledo Bar Assn. v. VanLandingham, 143 Ohio St.3d 328, 2015-

Ohio-1622, 37 N.E.3d 1195, ¶ 5, and we undertake that task in a common-sense

manner for the purpose of protecting the public, Henize v. Giles, 22 Ohio St.3d

213, 218, 490 N.E.2d 585 (1986), citing Cowern v. Nelson, 207 Minn. 642, 647,

290 N.W. 795 (1940). Common sense demands consideration of context when

determining whether particular conduct constitutes the practice of law. See

Henize at 219 (allowing lay representation in the “limited setting” of an

administrative hearing before the Unemployment Compensation Board of

Review).

{¶ 42} The relevant context here includes Deters’s background (his

education and legal experience) and the circumstances under which he gave

advice to Clinton and Jillian Pangallo (as a representative of Deters & Associates,

P.S.C. while it was engaged to provide legal representation to the Pangallos).

Although Deters is not licensed to practice law in Ohio, he is not a “layperson,” as

that word is commonly understood. See https://dictionary.cambridge.org/us/

dictionary/english/layperson (accessed July 13, 2021) [https://perma.cc/C9KD-

VDSB] (defining “layperson” as “someone who is not an expert in or does not

have a detailed knowledge of a particular subject”). It cannot be said that Deters

lacks detailed knowledge of the law. He successfully completed the formal legal

education required to obtain admission to the bar, and he practiced law in Ohio

for more than 25 years before resigning his license. Resignation of his Ohio law

license and suspension of his Kentucky law license surely did not eradicate his

legal acumen.

{¶ 43} Also part of the relevant context here is that Deters continues to

work for the law firm that bears his surname, purportedly as office manager and

client liaison. In that capacity, Deters met with the Pangallos and discussed their

legal needs outside the presence of a licensed lawyer. When the Pangallos

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attempted to terminate their relationship with the law firm, it was Deters—not one

of the licensed attorneys who were supposedly responsible for their case—who

responded and, at least initially, persuaded them to remain clients of the firm. His

advice to the Pangallos—including his opinions on whom they should sue, the

value of their case, how long it would take to settle their case, and the viability of

stacking insurance policies in Kentucky and Ohio—was given in the context of

the firm’s legal representation of the Pangallos, was based on Deters’s own legal

experience, and was tailored to the Pangallos’ legal needs. When Deters’s

conduct is viewed in this context, it is clear that this is not a case about a

layperson who has innocently shared passively acquired knowledge of the law—

the type of conduct the concurring-in-judgment-only opinion purportedly seeks to

safeguard.

{¶ 44} Moreover, adoption of a professional-judgment standard would

afford no more clarity with respect to the bounds of the practice of law than our

existing precedent, which holds that a person engages in the practice of law when

the person provides legal advice that is specifically tailored to another person’s

particular needs, Green, 4 Ohio St.2d at 80, 212 N.E.2d 585. In most cases,

giving such legal advice will satisfy the concurring-in-judgment-only opinion’s

proposed requirement that to engage in the unauthorized practice of law, a

nonlawyer must determine the issues and apply to them the nonlawyer’s

knowledge of the law. And the concurring-in-judgment-only opinion cites no

example of this court’s finding the unauthorized practice of law based on a

nonlawyer’s merely providing “general legal information and advice,” opinion

concurring in judgment only at ¶ 58. In fact, the Board of Commissioners on the

Unauthorized Practice of Law has dismissed complaints alleging violations for

such conduct. See Disciplinary Counsel v. Palmer, 115 Ohio Misc.2d 70, 74, 761

N.E.2d 716 (Bd.Unauth.Prac.2001) (“publication of general legal advice * * * is

not of itself the unauthorized practice of law”).

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{¶ 45} Not only is the concurring-in-judgment-only opinion’s proposed

professional-judgment standard unclear, but, if this court were to adopt the

standard as it is described in that opinion, we would unjustifiably limit the pool of

people subject to censure for the unauthorized practice of law. The opinion states

that “exercising professional judgment ‘ “require[s] more than the most

elementary knowledge of the law, or more than that which [a layperson] may be

deemed to possess.” ’ ” (Brackets added in opinion concurring in judgment only.)

Opinion concurring in judgment only at ¶ 52, quoting Lukas v. Montgomery Cty.

Bar Assn., 35 Md. App. 442. 448, 371 A.2d 669 (1977), quoting Annotation,

What Amounts to Practice of Law, 111 A.L.R. 19, 24-25 (1937). Were we to

adopt that standard, at what point would a nonlawyer’s knowledge of the law tip

the scale such that he or she would be deemed to possess enough legal knowledge

to be able to exercise professional judgment and thus able to engage in the

unauthorized practice of law? The proposed standard would insulate people from

the prohibition on the unauthorized practice of law simply because they lack a

sufficient but undefined quantum of legal training. Deters had a formal legal

education and decades of experience as a practicing lawyer before he surrendered

his license, but those requirements cannot be prerequisites to engaging in the

unauthorized practice of law if we are to fulfill our objective of “protect[ing] the

public against incompetence, divided loyalties, and other attendant evils that are

often associated with unskilled representation,” Cleveland Bar Assn. v.

CompManagement, Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E.2d 1181,

¶ 40.

{¶ 46} Despite its stated goal of providing additional guidance to the

public and the bar, the concurring-in-judgment-only opinion does not clarify the

bounds of the practice of law, and its proposed standard would limit the pool of

people subject to censure for the unauthorized practice of law. I cannot agree that

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such a limitation is in the public interest. For these reasons, I fully concur in the

majority opinion.

FISCHER, J., concurs in the foregoing opinion except that he would impose

a $13,000 penalty.

BRUNNER, J., concurs in the foregoing opinion.

_________________

KENNEDY, J., concurring in judgment only.

{¶ 47} I concur in the judgment of the majority but write separately to

assert that the focus of our inquiry in matters in which a layperson, that is, a

person who lacks a valid Ohio law license, is charged with engaging in the

unauthorized practice of law by providing legal advice to others should be on

whether the person exercised professional judgment in giving the legal advice.

Most people acquire some legal knowledge throughout their lives, but in general,

they are not engaging in the unauthorized practice of law if they share this

information with others. Rather, it should be only if the layperson has exercised

professional judgment about a specific legal issue that they should be found to

have engaged in the unauthorized practice of law. When respondent Eric Deters’s

behavior is viewed through this lens, he engaged in the unauthorized practice of

law when he gave Jillian and Clinton Pangallo advice about their legal issues that

drew upon his professional knowledge and judgment.

{¶ 48} There is no universally accepted definition of “the practice of law.”

Buhai, Act Like a Lawyer, Be Judged Like a Lawyer: the Standard of Care for the

Unlicensed Practice of Law, 2007 Utah L.Rev. 87, 94. And formulating a

comprehensive definition has proved to be elusive. See In re Opinion No. 26 of

Commt. on the Unauthorized Practice of Law, 139 N.J. 323, 341, 654 A.2d 1344

(1995), quoting Auerbacher v. Wood, 142 N.J.Eq. 484, 485, 59 A.2d 863

(E.&A.1948) (“ ‘What constitutes the practice of law does not lend itself to

precise and all inclusive definition’ ”); Utah State Bar v. Summerhayes &

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Hayden, Pub. Adjusters, 905 P.2d 867, 869 (Utah 1995) (noting that it is “difficult

to define precisely” the practice of law); State ex rel. Frieson v. Isner, 168 W.Va.

758, 767, 285 S.E.2d 641 (1981), fn. 2 (“Arriving at a concise definition of what

constitutes the practice of law has proven difficult for most courts”); Washington

State Bar Assn. v. Great W. Union Fed. S. & L. Assn., 91 Wash.2d 48, 54, 586

P.2d 870 (1978) (“The ‘practice of law’ does not lend itself easily to precise

definition”); Michigan State Bar v. Cramer, 399 Mich. 116, 133, 249 N.W.2d 1

(1976), quoting Grand Rapids Bar Assn. v. Denkema, 290 Mich. 56, 64, 287 N.W.

377 (1939) (“any attempt to formulate a lasting, all encompassing definition of

‘practice of law’ is doomed to failure ‘for the reason that under our system of

jurisprudence such practice must necessarily change with the everchanging

business and social order’ ”); Denver Bar Assn. v. Pub. Util. Comm., 154 Colo.

273, 279, 391 P.2d 467 (1964) (“There is no wholly satisfactory definition as to

what constitutes the practice of law”).

{¶ 49} The reason it is so difficult to formulate a universal definition for

“the practice of law” is that “ ‘[l]aw permeates so many aspects of [our] personal

lives and commercial affairs that * * * most individuals, whether or not they are

lawyers, are knowingly or unknowingly encountering and interpreting laws on a

daily basis * * *.’ ” (Brackets and ellipses sic.) Zurek, The Limited Power of the

Bar to Protect Its Monopoly, 3 St. Mary’s J. Legal Mal. & Ethics 242, 248-249

(2013), quoting Luppino, Multidisciplinary Business Planning Firms: Expanding

the Regulatory Tent Without Creating a Circus, 35 Seton Hall L.Rev. 109, 131

(2004). As stated by one of our sister supreme courts:

The practice of law is not subject to precise definition. It is not

confined to litigation but often encompasses “legal activities in

many non-litigious fields which entail specialized knowledge and

ability.” Therefore, the line between permissible business and

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professional activities and the unauthorized practice of law is often

blurred.

In re Opinion No. 24 of Commt. on Unauthorized Practice of Law, 128 N.J. 114,

122, 607 A.2d 962 (1992), quoting In re Application of the New Jersey Soc. of

Certified Pub. Accountants, 102 N.J. 231, 236, 507 A.2d 711 (1986).

{¶ 50} We have fared no better. This court has never provided an all-

inclusive definition for “the practice of law.” Rather, we have enunciated broad,

general statements as to what constitutes the practice of law, such as, “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, and “the practice of law is not limited to

appearances in court, but also includes giving legal advice and counsel,”

Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 259, 695 N.E.2d 244 (1998).

And our definition of what constitutes the unauthorized practice of law is just as

broad. Gov.Bar R. VII(2)(A)(1) states that, with six noted exceptions, the

unauthorized practice of law is the “rendering of legal service for another by any

person not admitted to practice in Ohio.”

{¶ 51} In this matter, the majority finds that Deters crossed the line into

the unauthorized practice when he gave legal advice that was tailored to the needs

of the Pangallos. But is this truly when the line was crossed? As the

Pennsylvania Supreme Court has recognized, there are times when laypersons

have the knowledge “to appreciate the legal problems and consequences involved

in a given situation and the factors which should influence necessary decisions.”

Dauphin Cty. Bar Assn. v. Mazzacaro, 465 Pa. 545, 553, 351 A.2d 229 (1976).

And in those situations, the advice given by the layperson is not of such a nature

so as to violate the policies supporting regulation of the unauthorized practice of

law. See id. (“No public interest would be advanced by requiring these lay

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judgments to be made exclusively by lawyers”). And the giving of advice in

those situations is not seen as the practice of law, because in those situations, it is

recognized that the relationship between the person giving the advice and the

person receiving the advice “is not based on the reasonable expectation that

learned and authorized professional legal advice is being given,” Commentary to

D.C. Ct. App.R. 49(b)(2) (the rule defining “practice of law”). In other words, the

layperson did not exercise professional judgment.

{¶ 52} “[P]rofessional judgment lies at the core of the practice of law.”

Iowa State Bar Assn. Commt. on Professional Ethics & Conduct v. Baker, 492

N.W.2d 695, 701 (Iowa 1992). And exercising professional judgment

“ ‘require[s] more than the most elementary knowledge of the law, or more than

that which [a layperson] may be deemed to possess,’ ” Lukas v. Montgomery Cty.

Bar Assn., 35 Md.App. 442, 448, 371 A.2d 669 (1977), quoting Annotation, What

Amounts to Practice of Law, 111 A.L.R. 19, 24-25 (1937). Moreover, exercising

professional judgment is an art that requires “lawyers [to] determine what the

issues are and use their knowledge of the law to solve them in an ethical way.”

Baker at 701. Professional judgment is called for when an opinion is given that

“requires the abstract understanding of legal principles and a refined skill for their

concrete application.” Dauphin at 553. Laypersons, in contrast, use their legal

knowledge “for informational purposes alone.” Baker at 701. Permitting only

lawyers to act in matters requiring professional judgment best serves the public

interest, Bergantzel v. Mlynarik, 619 N.W.2d 309, 312-313 (Iowa 2000), whereas

permitting only lawyers to express lay judgments would not advance a public

interest, Dauphin at 553.

{¶ 53} Therefore, we should not end our inquiry with whether the

layperson tailored legal advice to the needs of a specific person. Rather, we

should ask whether in doing so the layperson exercised professional judgment.

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{¶ 54} Using the issue Deters confronted in this case as an example, a

layperson with an elementary knowledge of the law could have advised the

Pangallos that they had a personal-injury claim against the driver of the

automobile who rear-ended Clint and should pursue legal action. In offering that

advice, the layperson would have provided legal advice tailored to the needs of

the Pangallos. And it is likely that these types of conversations happen all over

the country on a daily basis. But in imparting this advice, the layperson has not

exercised professional judgment and therefore has not engaged in the practice of

law. Unlike Deters, the layperson in the example did not give advice as to the

types of claims the Pangallos could assert: personal injury, property damage, lost

wages, and loss of consortium; the layperson did not provide a monetary figure

for what the claims were worth; and the layperson did not discuss other potential

insurance policies that may provide coverage and the manner in which different

jurisdictions may handle multiple-insurance-policy coverage. Providing advice

on those topics requires “the abstract understanding of legal principles and a

refined skill for their concrete application,” Dauphin, 465 Pa. at 553, 351 A.2d

229.

{¶ 55} Deters argues that his advising the Pangallos was no different from

what paralegals and legal staff in law offices do every day across Ohio and the

country. Deters is wrong. He was not providing legal advice at the direction of

an attorney, which is what paralegals are permitted to do. See Columbus Bar

Assn. v. Purnell, 94 Ohio St.3d 126, 760 N.E.2d 817 (2002) (“A paralegal who,

without the supervision of an attorney, advises and represents a claimant in a

personal injury matter is engaged in the unauthorized practice of law”).

{¶ 56} Instead, he drew on his legal knowledge and judgment from his

years as an attorney and provided his legal advice to the Pangallos about their

case. Deters met with the Pangallos, learned the facts of their case, drew on his

knowledge of the law, determined what issues the Pangallos faced in pursuing

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their claims, and provided solutions for them. He not only informed them of the

ability to pursue a claim against Clinton’s employer, as Clinton was driving a

company car, but also explained the rationale for pursuing such a claim—higher

insurance limits. He also explained the legal concept of stacking insurance

policies and how Ohio and Kentucky law differed. Deters’s legal knowledge was

neither elementary nor used for informational purposes alone. Rather, he was

exercising professional judgment when he tailored the legal advice to the legal

needs of the Pangallos.

{¶ 57} Deters also utilized his professional judgment when he provided a

valuation of the Pangallos’ claims that was based on his former experiences as a

lawyer. To value the claim, Deters needed to determine the legal liability

involved, the legal rights of the Pangallos, and what damages were legally

compensable. See Green v. Unauthorized Practice of Law Commt., 883 S.W.2d

293, 298 (Tex.App.1994) (layperson engaged in the unauthorized practice of law

by determining clients’ legally compensable damages). This advice was also not

elementary or informational. Deters drew on his years of experience as a

practicing lawyer to provide solutions for legal questions that required the

application of a trained legal mind.

{¶ 58} While “the amorphous nature of the practice of law * * * makes

inquiries into unauthorized practice principles * * * challenging,” Lanctot,

Scriveners in Cyberspace: Online Document Preparation and the Unauthorized

Practice of Law, 30 Hofstra L.Rev. 811 (2002), we must strive to provide as much

guidance as possible to the bar and the public. By providing guidance, we will

not only advance the purpose of protecting the public from the unauthorized

practice of law, Cleveland Bar Assn. v. CompManagement, Inc., 104 Ohio St.3d

168, 2004-Ohio-6506, 818 N.E.2d 1181, ¶ 40, but also “facilitat[e] consumer

choice and enhanc[e] access to justice.” Rhode & Ricca, Protecting the

Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82

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Fordham L.Rev. 2587, 2608 (2014). And by narrowing our focus in cases in

which a layperson has provided legal advice to determining whether the layperson

exercised professional judgment or merely provided general legal information and

advice, we will provide greater direction to the bar and public.

Therefore, I concur in judgment only.

_________________

Joseph M. Caligiuri, Disciplinary Counsel, for relator.

Eric C. Deters, pro se.

_________________

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