disciplining non-attorneys located in Indiana for the unauthorized practice of law
How later courts described this case
- disciplining non-attorneys located in Indiana for the unauthorized practice of law
- “Drafting and preparing testamentary and trust documents is clearly the practice of law.”
Written by the judges who cited it.
The opinion
ATTORNEYS FOR RELATOR ATTORNEY FOR RESPONDENT NORTHOUSE
Wilford A. Hahn Kevin McGoff
Huntington, Indiana Indianapolis, Indiana
Jeffrey B. Kolb ATTORNEY FOR RESPONDENT RAMER
Vincennes, Indiana Robert E. Kabisch
Fort Wayne, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 94S00-0505-MS-205
STATE OF INDIANA EX REL. INDIANA STATE BAR ASSOCIATION,
Relator,
v.
GARY L. NORTHOUSE AND MICHAEL E. RAMER,
Respondents.
_________________________________
On Petition To Enjoin The Unauthorized Practice Of Law
_________________________________
June 6, 2006
Per Curiam.
This is an original action brought by the Indiana State Bar Association (“Relator”)
in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule
24. 1 Relator seeks an order enjoining Respondents Gary L. Northouse (“Northouse”)
and Michael E. Ramer (“Ramer”) from the unauthorized practice of law. This Court has
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Rule 24 states, in part: “Original actions . . . to restrain or enjoin the unauthorized practice of
law in this state may be brought in this court by the attorney general . . . the Indiana State Bar
Association or any duly authorized committee thereof, without leave of court . . . .”
original jurisdiction over matters involving the unauthorized practice of law. See IND.
CONST. art. 7, § 4. The Court finds Northouse and Ramer have engaged in the
unauthorized practice of law and concludes an injunction is appropriate and necessary.
Procedural Background
On May 2, 2005, Relator filed a verified petition alleging that Northouse and
Ramer engaged in the unauthorized practice of law. Specifically, the petition alleged
Northouse engaged in the unauthorized practice of law when he: (1) not being admitted to
practice law in Indiana or any other state, consulted with one of his insurance clients and
provided legal advice regarding the client’s need for a will, a living trust, and a power of
attorney; (2) directed Ramer to prepare such legal documents for the client; (3) obtained
the client’s signature on those documents without having them reviewed or approved by
an attorney; and (4) had other clients sign similar documents. The petition alleged Ramer
engaged in the unauthorized practice of law when he, not being admitted to practice law
in Indiana, prepared the aforementioned documents for Northouse’s clients, among other
things. The petition asks for an injunction permanently prohibiting Northouse and Ramer
from engaging in the unauthorized practice of law in Indiana and for all other appropriate
relief.
Northouse and Ramer each filed a verified return to the petition. The returns
admitted many of the petition’s factual allegations but denied others. The Court
appointed the Honorable James E. Harris, retired Judge of the Morgan Circuit Court, to
serve as Commissioner to hear the evidence and provide the Court with findings of fact.
After receiving stipulations from the parties, the Commissioner filed his findings of fact,
which we approve and adopt. The Court then received legal briefs from the Relator,
Northouse, and Ramer.
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Findings Of Fact
Northouse is a registered securities representative and an insurance agent who
operates an Indiana business, Northouse Insurance and Financial Services, Inc.
Northouse is not admitted to practice law in Indiana or any other state. Ramer is the
president of Security Trust Corporation (“STC”), which is located in Fort Wayne,
Indiana. Ramer is not an attorney and is not admitted to practice law in Indiana or
anywhere else. Ramer contacted Northouse in 2000 about selling trusts through STC.
Ramer represented that an attorney would be involved in preparing the trust documents.
Between 2000 and 2002, Northouse sold a total of eight “Financial Organization” books
that included trust documents prepared by STC. Northouse sold the last such book in
December 2002.
D.D., an eighty-nine year old who lived in an independent retirement facility in
Huntington, Indiana, purchased one of those books. Previously, D.D. had worked with
her attorney, David L. Brewer, to plan her estate. As part of that planning, D.D. signed a
power of attorney in 1995 making Brewer her health care representative. In 1999, she
signed a living will, and in 2000, she executed a will that had been drafted by Brewer and
which made Brewer the personal representative of her estate upon her death.
Beginning in 1975, Northouse served as D.D.’s insurance agent. In 1995,
Northouse began handling her investments, too. Although D.D. was satisfied with her
estate planning, Northouse met with D.D. sometime prior to the end of April 2002 at
D.D.’s residence, reviewed her will, and discussed her estate plan and the benefits of a
living trust. On or about April 30, 2002, Northouse again met with D.D. at her residence,
collected information concerning her estate plan, and discussed with her the creation of a
living trust, a power of attorney, and a will with provisions consistent with those in her
2000 will. Northouse told D.D. that because such a trust would be revocable, she could
make changes to it as often as she believed necessary. D.D. then gave Northouse a check
for $1,295 made payable to STC.
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On May 1, 2002, Northouse gave Ramer D.D.’s check, along with information
regarding D.D.’s desired estate plan to allow Ramer to prepare a will, a living trust, a
power of attorney, and other documents for D.D. Then, beginning with forms that had
been created by an attorney, Ramer or his staff prepared documents specifically for
execution by D.D. Although Northouse made certain decisions on D.D.’s behalf
regarding which provisions of the “form” documents needed to be modified to suit D.D.’s
personal wishes relating to the disposition of her property upon her death, those
modifications were never actually incorporated into the documents prepared for D.D.
Ramer did not have any of the documents prepared for D.D. reviewed by an attorney
once they were completed.
On May 3, 2002, Northouse returned to D.D.’s residence with a loose-leaf
“Financial Organization” book. Northouse met with D.D. alone and obtained D.D.’s
signatures on several documents in the book, including: (1) a will that appointed
Northouse as personal representative; (2) a revocable living trust appointing Northouse as
successor trustee; and (3) a power of attorney/appointment of healthcare representative
appointing Northouse as her attorney-in-fact and as her healthcare representative and
revoking all previous powers of attorney. The will and trust that Northouse had D.D.
sign did not include any dispositive provision or designate the desired beneficiary of her
property upon her death. The will simply gave the “residue” of her estate to the trustee
for distribution under the trust, but the trust itself did not include any instructions
regarding how property was to be distributed after her death. The provisions of the trust
were not consistent with the provision of the will she had executed in 2000. Northouse
then left with the book.
Later that day, Ramer notarized the trust, will, and power of attorney documents
that were in the book and had been signed by D.D. On the same day, at the STC office,
Cristina J. Ramer and Stephen W. Foster signed as “witnesses” to the execution of D.D.’s
will even though they were not present at D.D.’s residence when she signed it.
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D.D. did not see the documents in the book again until Northouse provided them
to her in March or early April 2003. After realizing what she had signed and that those
documents would not dispose of her property as she wished, D.D. became upset. She
later met with Brewer and requested his help in revoking the appointments of Northouse
in the various documents and to correct the dispositive provisions in the will and trust.
Northouse and Ramer now represent that they have no intention of selling such
documents in the future or giving what may be construed as legal advice regarding estate
planning in the future.
Unauthorized Practice Of Law
This Court’s authority to set standards for and supervise the practice of law
emanates from the need to protect the public from those who are not properly licensed or
otherwise qualified to act as attorneys. See State ex rel. Disciplinary Comm’n v. Owen,
486 N.E.2d 1012, 1014 (Ind. 1986). It is the province of this Court to determine what
acts constitute the practice of law. In re Mittower, 693 N.E.2d 555, 558 (Ind. 1998).
This Court has not attempted to provide a comprehensive definition of what constitutes
the practice of law because of the infinite variety of fact situations. See Miller v. Vance,
463 N.E.2d 250, 251 (Ind. 1984). Nevertheless,
[t]he core element of practicing law is the giving of legal advice to a
client and the placing of oneself in the very sensitive relationship
wherein the confidence of the client, and the management of his
affairs, is left totally in the hands of the attorney. The undertaking to
minister to the legal problems of another creates an attorney-client
relationship without regard to whether the services are actually
performed by the one so undertaking the responsibility or are
delegated or subcontracted to another.
In re Perrello, 270 Ind. 390, 398, 386 N.E.2d 174, 179 (1979).
Preparing and drafting a will and giving advice as to the contents and legal effect
of a will constitute the practice of law. State ex rel. Pearson v. Gould, 437 N.E.2d 41, 42
(Ind. 1982); State ex rel. Indiana State Bar Ass'n v. Osborne, 241 Ind. 375, 172 N.E.2d
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434, 435 (1961). Similarly, it has been held that persons engage in the practice of law
when they advise others regarding the legal consequences of specific decisions relating to
the creation of living trusts and powers of attorney and prepare such documents for
others. See, e.g., People v. Cassidy, 884 P.2d 309, 311 (Colo. 1994); Comm. on Prof’l
Ethics & Conduct of the Iowa State Bar Ass’n v. Baker, 492 N.W.2d 695, 703 (Iowa
1992); In re Mid-America Living Trust Assocs., Inc., 927 S.W.2d 855, 860-61 (Mo.
1996); Cleveland Bar Ass’n. v. Sharp Estate Servs., Inc., 837 N.E.2d 1183, 1186 (Ohio
2005); Dayton Bar Ass’n v. Addison, 837 N.E.2d 367, 369 (Ohio 2005); In re Deddish,
557 S.E.2d 655, 656 (S.C. 2001).
The fact that attorney-drafted forms were used as the starting point for the
documents D.D. signed does not insulate Northouse or Ramer from the charge of
unauthorized practice of law. On at least three occasions, this Court has addressed
whether the filling out of documents with legal ramifications constitutes the practice of
law. In State ex rel. Indiana State Bar Association v. Indiana Real Estate Association, the
Court stated:
Generally, it can be said that the filling in of blanks in legal
instruments, prepared by attorneys, which require only the use of
common knowledge regarding the information to be inserted in said
blanks, and general knowledge regarding the legal consequences
involved, does not constitute the practice of law. However, when the
filling in of such blanks involves considerations of significant legal
refinement, or the legal consequences of the act are of great
significance to the parties involved, such practice may be restricted to
members of the legal profession.
244 Ind. 214, 220, 191 N.E.2d 711, 715 (1963). The Court held the execution of deeds is
restricted to attorneys but real estate brokers and salespersons may fill in the forms of
other legal instruments prepared by attorneys, including listing agreements, offers to
purchase, purchase agreements, and short form leases. See id. at 226, 191 N.E.2d at 717.
This Court later considered whether the preparation of a mortgage instrument by a
bank employee who was not an attorney constituted the unauthorized practice of law in
Miller v. Vance, 463 N.E.2d at 251. This Court reasoned that a bank employee
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performing “the routine service of filling in information on standard real estate mortgage
forms . . . incidental to and directly connected with the bank’s regular business of making
loans” did not constitute the practice of law. Id. at 252. However, the Court cautioned:
[T]here are certain limitations which apply to bank employees similar
to those placed upon real estate brokers. . . . The lay bank employee
may not give advice or opinions as to the legal effects of the
instruments he prepares or the legal rights of the parties.
Id. at 253. Thus, in both Indiana Real Estate and Miller, the Court permitted non-lawyers
to fill out legal forms in situations in which the chance for legal error was low. The
forms were used in routine transactions in the course of the jobs for which the non-
lawyers were trained in Miller and for which the non-lawyers were both trained and
licensed in Indiana Real Estate, and the forms were prepared by lawyers for use in such
transactions.
By contrast, an injunction preventing the unauthorized practice of law was issued
in State ex rel. Indiana State Bar Association v. Diaz, 838 N.E.2d 433 (Ind. 2005), where
Diaz, a non-attorney, was performing immigration-related services that “went far beyond
the use of forms.” Id. at 445. Diaz’s services included advising her clients on many
aspects of immigration law, including which forms to use and what information to
provide in the blanks, writing motions and appeals to immigration officials on behalf of
clients, and accompanying her clients to the immigration office. Id. Immigration
services cannot be considered routine transactions, the Court reasoned, because each case
is unique and the procedures can be complex. Id. Further, the Court added,
“Incompetence in the complexities of immigration law can have disastrous results
because filing the wrong document, missing a deadline, or misjudging the relief available
to a client can mean the difference between legal status and deportation[.]” Id. at 446.
Drafting and preparing testamentary and trust documents is clearly the practice of
law. Northouse and Ramer crossed the line of permissible non-lawyer services and
engaged in the unauthorized practice of law, as alleged in the petition. Indeed, the briefs
filed by Northouse and Ramer do not deny that they engaged in the unauthorized practice
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of law. Instead, they take the position that this Court need not address that issue because
this case is moot and, even if the case is not moot, an injunction is not proper.
Should Relief Be Granted?
A case is moot when no effective relief can be rendered to the parties before the
court. In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). Northouse and Ramer insist this
Court should dismiss this proceeding for injunctive relief because their conduct in
question ended in December 2002 and they both represent they do not intend to sell such
documents or give what may be construed as legal advice regarding estate planning in the
future. For similar reasons, they argue that even if this case is not moot, the Court should
exercise its discretion not to issue an injunction under these circumstances. They cite
United States v. W.T. Grant Co., 345 U.S. 629 (1953), which upheld a district court’s
exercise of discretion in denying an injunction to prevent interlocking corporate
directorates where each defendant engaged in no more than one alleged violation of law,
the violations ceased after the filing of the lawsuit, and no threatened future violations
were alleged.
This proceeding is not moot, and an injunction should be issued. 2 Under
appropriate circumstances, mootness may warrant dismissal of an action to enjoin the
unauthorized practice of law. See State ex rel. Steers v. Meyer, 249 Ind. 493, 233 N.E.2d
242 (1968) (noting the respondent moved to dismiss the proceeding as moot and the
Attorney General and Indiana State Bar Association agreed). No such agreement exists
here. Moreover, the respondents’ representations—made after the institution of this
original action—that they do not intend to engage in unauthorized practice of law in the
future does not render this proceeding moot. See W.T. Grant, 345 U.S. at 897 (noting
“voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to
hear and determine the case, i.e., does not make the case moot[,]” in part, because “the
2
The Relator argues, in part, that even if this case is moot, this Court should address the issue
under an exception to the mootness doctrine that allows an appellate court to address an issue,
though moot, if it is a matter of great public importance and may be repeated. See Horseman v.
Keller, 841 N.E.2d 164, 170 (Ind. 2006). Because this case is not moot, we need not address
whether this case would qualify for that exception.
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defendant is free to return to his old ways”). Given that Northouse and Ramer’s conduct
was not isolated but involved the sale of eight “Financial Organization” books over the
course of several years, an injunction is warranted. Accord Owen, 486 N.E.2d at 1014
(granting injunction prohibiting non-lawyer legal researcher from engaging in
unauthorized practice law despite his apology for any misunderstanding and his
agreement not to practice law by giving legal advice).
We pause to consider the type of relief available in this proceeding. The purpose
of a proceeding under Admission and Discipline Rule 24 is not to find fault or assess
liability but to protect the public from those not properly licensed or otherwise qualified
to act as attorneys. State ex rel. Disciplinary Comm’n v. Crofts, 500 N.E.2d 753, 756
(Ind. 1986). Although the rule uses the terms “enjoin” and “injunction” when referring to
the relief available and “injunctions typically order those to whom they are directed to
refrain from doing something, the relief afforded by equity may be extended to compel
affirmative action when necessary.” Ferrell v. Dunescape Beach Club Condos. Phase I,
Inc., 751 N.E.2d 702, 713 (Ind. Ct. App. 2001); see 16 I.L.E. Injunction § 1 (1999) (“An
injunction is a formal command of the court, directing the person named therein to refrain
from doing certain specified acts . . . or, where the relief is mandatory in form, directing
such persons to take certain steps to undo the wrong or injury with which they are
charged.”).
In addition to being prohibited from engaging in future acts of unauthorized
practice of law, Northouse and Ramer should be prohibited from retaining the fees that
they have collected from the sale of the eight “Financial Organization” books containing
trusts prepared by STC; in other words, they should refund those fees (if they have not
already done so) to those who purchased the books. 3 Such refunds are appropriate to
deter similar conduct in the future and, ultimately, to protect the public. “A review of the
fees charged in various cases indicates that trust marketers have much to gain by advising
3
In an analogous setting, our appellate courts have long held that a plaintiff who was not
admitted to practice law may not, as a plaintiff, recover a fee for rendering legal services. See
Fink v. Penden, 214 Ind. 584, 17 N.E.2d 95 (1938); Harris v. Clark, 81 Ind. App. 494, 142 N.E.
881 (1924).
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their clients to purchase living trust documents.” In re Mid-America, 927 S.W.2d at 863
(reviewing fees typically charged for preparation of trust documents). It would send a
much less effective message if this Court were to prohibit non-lawyers from engaging in
future acts of unauthorized practice of law but, in effect, allow them to retain fees for
unauthorized legal services that they have already collected.
Finally, we stress that the availability of injunctive relief under Admission and
Discipline Rule 24 does not preclude, and should not discourage, the State from filing
criminal charges in appropriate cases against those who violate the prohibition on the
unauthorized practice of law. See Levy v. State, 799 N.E.2d 71 (Ind. Ct. App. 2003),
trans. denied. “A person who: (1) professes to be a practicing attorney; (2) conducts the
trial of a case in a court in Indiana; or (3) engages in the business of a practicing lawyer;
without first having been admitted as an attorney by the supreme court commits a Class B
misdemeanor.” Ind. Code § 33-43-2-1 (2004).
Conclusion, Injunction, and Costs
The evidence establishes that Northouse and Ramer have engaged in the
unauthorized practice of law. Northouse and Ramer are ORDERED not to engage in acts
that would constitute the unauthorized practice of law, including, but not limited to,
advising others regarding the effect and/or appropriateness of a particular will, trust, or
power of attorney, and preparing such documents for execution by others. This
injunction does not prevent Northouse and Ramer from performing non-legal services for
their clients.
Additionally, Northouse and Ramer are ORDERED to: (1) return the fees they
collected for the unauthorized legal services in connection with the sale of the “Financial
Organization” books mentioned in this opinion; and (2) provide a copy of this opinion to
the purchaser of each such book. Within thirty days of the date of this opinion, counsel
for Northouse and Ramer are ORDERED to file with this Court verified statements
detailing how their respective clients have complied with the requirements in this
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paragraph. Those statements should include, at a minimum, identification (including
name, address, and telephone number) of the purchasers to whom refunds and copies of
this opinion have been provided and a specification of the amount of the refund.
The requirement that Northouse and Ramer provide the purchasers with a copy of
this opinion is intended to allow each purchaser an occasion to consider whether to
consult with a duly licensed lawyer of his or her choice to assess whether the documents
sold as part of the book are suitable and appropriate for that purchaser.
The costs of the hearing in this matter are assessed against Northouse and Ramer
and will be fixed by a separate order.
SHEPARD, C.J., and DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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