cbaReport-Nov12 - page 8

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November 2012 CBA REPORT
feature article
T
T
he Unauthorized Practice of Law
Committee is empowered by
Supreme Court rule to investigate,
refer or prosecute instances of the un-
authorized practice of law.
1
Pursuant to
Gov. Bar R. VII, the CBA’s UPL Commit-
tee, like all such committees, possesses
authority to investigate and take steps
to halt instances of the unauthorized
practice of law. Succinctly stated, the
unauthorized practice of law “is the
rendering of legal services for another by
any person not admitted to practice in
Ohio.”
2
Further, O.R.C. §4705.07 states,
in pertinent part:
(A) No person who is not licensed to
practice law in this state shall do any
of the following:
1. Hold that person out in any man-
ner as an attorney at law;
2. Represent that person orally or in
writing, directly or indirectly, as
being authorized to practice law;
3. Commit any act that is prohibited
by the Supreme Court as being
the unauthorized practice of law.
The unauthorized practice of law has
been treated seriously by the legislature,
as O.R.C. § 4705.99 renders a violation of
the statute a first degree misdemeanor.
State law also confers a cause of action to
those damaged by another’s violation of
the UPL prohibition.
3
Ohio Rule of Professional Conduct
5.5 prohibits attorneys from engag-
ing in the unauthorized practice of
law, or assisting another in doing so.
4
Ohio attorneys may not practice law
in a jurisdiction in which they are not
licensed, where doing so would violate
that jurisdiction’s rules governing prac-
tice.
5
Similarly, an Ohio attorney may
not assist another to violate Ohio’s rules
of practice.
6
Ohio’s professional conduct
rule concerning UPL also prohibits
lawyers not licensed to practice in Ohio
from establishing an office or otherwise
representing they are licensed in this
jurisdiction.
7
While some instances of UPL are
easily identifiable, the CBA’s UPL Com-
mittee evaluates potential instances of
the unauthorized practice of law taking
several forms. During recent years, the
CBA’s UPL Committee has taken action
to cease a variety of violations from elab-
orate business endeavors that have run
afoul of the rules in foreclosure cases,
8
as
well as non-lawyer negotiation of injury
claims on behalf of injured persons.
9
Statistics from the Ohio Supreme Court
demonstrate the CBA’s UPL Committee
has been the most active local bar UPL
committee since 2008 in investigations
undertaken and decisions rendered by
the Supreme Court.
Many instances of potential UPL
involve activities that test the bright-line
rules. In 2008, for example, the board
on the unauthorized practice of law for
the Supreme Court of Ohio issued an
advisory opinion in which it concluded
that an individual not licensed to prac-
tice law in Ohio, working for an online
legal document service, may not draft or
prepare legal documents and pleadings,
nor select and complete legal forms for
an Ohio resident.
10
Whether and to what
extent this conclusion applies to online
“self-help” services, however, remains
largely outstanding. Indeed, it has long
been established in Ohio that a non-
lawyer’s completion of blanks for dates,
price and parties in a “simple instru-
ment,” such as a real estate sale contract,
do not necessarily implicate the practice
of law.
11
Where such activities merge
into impermissible territory constituting
“legal services” can be a factually and le-
gally complex analysis. As online services
like “LegalZoom.com” gain in popularity
and scope, our UPL committee, as well as
the State Board of Commissioners on the
unauthorized practice of law, are likely to
be contending with such broader issues
for years to come.
The Cincinnati Bar Association’s UPL
committee is available to our bar and the
community to review activities potential-
ly involving the unauthorized practice
of law. When a complaint alleging the
By Gregory A. Napolitano
UPL Committee Continues
Important Work
The Cincinnati Bar Association’s
UPL Committee has pursued a total of
21 cases in the past five years.
1,2,3,4,5,6,7 9,10,11,12,13,14,15,16,17,18,...36
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