Ohio State Bar Assn. v. Doheny (Slip Opinion) , 2019 Ohio 3326 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ohio
State Bar Assn. v. Doheny, Slip Opinion No. 2019-Ohio-3326.]
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. 2019-OHIO-3326
OHIO STATE BAR ASSOCIATION v. DOHENY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ohio State Bar Assn. v. Doheny, Slip Opinion No.
2019-Ohio-3326.]
Unauthorized practice of law—Permanent injunction issued and civil penalty
imposed.
(No. 2019-0245—Submitted March 27, 2019—Decided August 21, 2019.)
ON FINAL REPORT by the Board on the Unauthorized Practice of Law
of the Supreme Court, No. UPL 17-02.
_______________________
Per Curiam.
{¶ 1} Respondent, Donald A. Doheny Jr., whose last known address is in
St. Louis, Missouri, is an attorney who is or has been licensed to practice law in
Indiana, Virginia, and the District of Columbia, but he is not—nor has he ever
been—licensed to practice law in Ohio.
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{¶ 2} In a March 7, 2017 complaint filed before the Board on the
Unauthorized Practice of Law, relator, Ohio State Bar Association, charged
Doheny with 11 instances of engaging in the unauthorized practice of law. The
complaint alleged that Doheny held himself out as an attorney in Ohio, provided
legal advice to more than six Ohio residents and attempted to negotiate the
resolution of some of their legal matters, drafted purchase agreements and quitclaim
deeds for real property located in Ohio, and collected approximately $70,000 in
fees for those services.
{¶ 3} Although Doheny initially participated in relator’s investigation, his
counsel withdrew from representing him in June 2016 following an unsuccessful
effort to negotiate a consent decree. Doheny has not answered relator’s complaint
or otherwise appeared in the proceeding.
{¶ 4} A panel of the board considered the matter on relator’s June 5, 2017
motion for default judgment and the attached evidentiary materials, consisting of
five affidavits and various documents incorporated therein. Doheny did not file a
response to relator’s motion. The panel granted the motion with respect to ten
counts alleging the unauthorized practice of law and declined to consider an
additional alleged violation for which relator presented no evidence.
{¶ 5} The board issued a report finding that Doheny practiced law in
violation of Ohio licensure requirements on ten occasions and recommending that
we enjoin him from committing further illegal acts and assess a $25,000 civil
penalty—$2,500 for each instance of the unauthorized practice of law. We agree
that Doheny engaged in the unauthorized practice of law in Ohio and that an
injunction and $25,000 civil penalty are warranted.
Findings of Fact
{¶ 6} Doheny earned his undergraduate and law degrees from the
University of Notre Dame in 1977 and 1981, respectively.
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{¶ 7} According to Frederick Hogan, a close friend of Doheny, Doheny
suffered a serious head injury in a 1993 auto accident that left him unable to
maintain steady work. Doheny maintained his license to practice law in Indiana
but surrendered his licenses (or was suspended based on his disability) in Virginia
and the District of Columbia.1 In 1998, Doheny moved from the District of
Columbia to live with his mother in St. Louis. After his mother was admitted to a
nursing home in 2006, Doheny was essentially homeless. Doheny then moved to
Ohio, where he lived with Hogan or Hogan’s brother Clifford in their homes in the
Hamilton area until sometime in 2015.
Doheny’s Conduct
The Hogan Matters
{¶ 8} In 2010, Frederick Hogan and his brother Thomas (collectively, “the
Hogans”) received a letter from Butler County alleging that they had violated their
lease with the county airport by placing certain signage on the side and roof of their
rented hangar. Doheny researched the county’s claim and met with county officials
on the Hogans’ behalf to argue that the county commissioners had never approved
the signage requirements that it claimed were incorporated in the Hogans’ lease.
As a result of Doheny’s actions, the county abandoned its demand that the Hogans
remove the signage.
{¶ 9} Doheny also represented the Hogans at a public meeting of the county
commissioners in July 2010, when he unsuccessfully sought to amend the Hogans’
airport lease so that they would qualify for a Small Business Administration loan
to build a new hangar at the airport. In addition, Doheny provided legal advice to
the Hogans regarding the building permits required to construct the new hangar and
1. Notably, the copy of Doheny’s resume that his counsel furnished to relator states that Doheny’s
Virginia license was “restored in 2010 upon completion of 200 hours of [continuing legal education]
and other testing.”
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participated in numerous discussions with city officials on the Hogans’ behalf
regarding compliance with those permits.
{¶ 10} Doheny ultimately advised the Hogans to file a lawsuit against the
county. He told them that he could not represent them in that litigation, but after
they retained Ohio counsel, Doheny asked to “be part of the[ir] legal team.” The
Hogans’ attorney rejected his request.
{¶ 11} In addition, Doheny filed an application on behalf of the Hogans
with the Federal Aviation Administration (“FAA”) requesting that the agency
include the name “Hogan Field” in the county airport’s registered name. After the
FAA denied the application, he filed a request for documents on behalf of the
Hogans under the Freedom of Information Act and stated that the Hogans were his
“clients.” He then engaged in discussion and legal argument with FAA
representatives regarding the substance of the Hogans’ records request. Frederick
Hogan averred that from 2010 through 2012, he paid Doheny approximately
$64,000 for his services.
{¶ 12} Doheny also prepared purchase agreements in connection with
Clifford Hogan’s sale of Ohio real property in August 2012 and March 2013.
Doheny billed $1,150 for those services.
The Fishwick Matters
{¶ 13} Doheny provided legal services to Stephen K. Fishwick and his son,
Douglas, in two separate matters. First, Doheny prepared a quitclaim deed
transferring real property located in Hamilton, Ohio, from Douglas to Stephen;
Stephen paid Doheny approximately $300 for his services. That deed stated that it
had been prepared by Doheny from an office at 19257 Collier Ridge Road,
Guilford, Indiana.
{¶ 14} Doheny also represented Douglas after Douglas was arrested.
Doheny went to the Butler County Jail with Stephen, where Doheny told law-
enforcement officials that he was the “family lawyer” and attempted to negotiate
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January Term, 2019
Douglas’s release from the jail by representing that Douglas could serve as a
confidential informant. Stephen paid Doheny $2,000 for that representation.
The Gerdes Matter
{¶ 15} In an April 17, 2013 letter to relator, Doheny’s counsel admitted that
Doheny had prepared a quitclaim deed for Patricia Gerdes in connection with real
property located in Butler County. That deed stated that it had been prepared by
“Donald A. Doheny, Jr., Esq.[,] Attorney at Law,” at 19257 Collier Ridge Road,
Guilford, Indiana.
Holding Himself Out as Being Authorized to Practice Law
{¶ 16} Doheny held himself out as being authorized to practice law in the
state of Ohio. In communicating with the FAA on behalf of the Hogans, he used
“Doheny & Doheny” letterhead indicating firm locations in Los Angeles,
California, St. Louis, Missouri, Washington, D.C., and Cincinnati, Ohio. Although
the letterhead described the firm as “Consultants and Lobbyists,” Doheny’s
signature block identified him as “Donald A. Doheny, Jr., Esq.” above the word
“Principal,” followed by a Hamilton, Ohio address.
{¶ 17} Frederick Hogan averred that to his knowledge, Doheny was not a
member of Doheny & Doheny, had not lived in St. Louis since 2006, and had no
office there. Frederick further averred that he owned the property located at the
Hamilton, Ohio address stated on the firm’s letterhead and that Doheny did not
have an office at that location or have permission to use that address for business
purposes.
Doheny Engaged in the Unauthorized Practice of Law
{¶ 18} This court has original jurisdiction to define and regulate the practice
of law in Ohio. Article IV, Section 2(B)(1)(g), Ohio Constitution; Disciplinary
Counsel v. Casey, 138 Ohio St. 3d 38, 2013-Ohio-5284, 3 N.E.3d 168, ¶ 9.
Our jurisdiction extends to the regulation of the unauthorized practice of law,
which is necessary to protect the public from agents “who have not been qualified
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to practice law and who are not amenable to the general discipline of the court,”
Union Savs. Assn. v. Home Owners Aid, Inc., 23 Ohio St. 2d 60, 64, 262 N.E.2d 558
(1970). We regulate who may practice law in Ohio 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.
{¶ 19} We have defined the unauthorized practice of law in Ohio to include
both the “rendering of legal services for another” and the “[h]olding out to the
public or otherwise representing oneself as authorized to practice law in Ohio” by
any person who is not admitted or otherwise certified to practice law in Ohio.
Gov.Bar R. VII(2)(A)(1) and (4); see also Disciplinary Counsel v. Pratt, 127 Ohio
St.3d 293, 2010-Ohio-6210, 939 N.E.2d 170, ¶ 17.
{¶ 20} The practice of law is not limited to the handling of cases in court;
an individual who prepares legal documents or contracts that affect the legal rights
of others also engages in the practice of law. Cleveland Bar Assn. v. Misch, 82
Ohio St. 3d 256, 259, 695 N.E.2d 244 (1998); see also Toledo Bar Assn. v. Chelsea
Title Agency of Dayton, Inc., 100 Ohio St. 3d 356, 2003-Ohio-6453, 800 N.E.2d 29,
¶ 7 (holding that the practice of law embraces the preparation of deeds that convey
real property).
{¶ 21} We have also held that when an individual who is not licensed to
practice law in Ohio negotiates legal claims on behalf of Ohio residents or advises
Ohio residents of their legal rights or the terms and conditions of settlement, he or
she is engaged in the unauthorized practice of law. Cleveland Bar Assn. v. Henley,
95 Ohio St. 3d 91, 92, 766 N.E.2d 130 (2002).
{¶ 22} A motion for default judgment in an unauthorized-practice-of-law
case must be supported by sworn or certified documentary prima facie evidence in
support of the allegations of the complaint. Gov.Bar R. VII(7)(B)(2). Based on
our precedent and the evidence submitted by relator, the board found that Doheny
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committed ten separate instances of the unauthorized practice of law. He provided
legal advice and representation to the Hogans with regard to three separate legal
matters and negotiated their various disputes with federal, city, and county
representatives. He drafted two real-estate purchase agreements for Clifford
Hogan, one quitclaim deed for Stephen Fishwick, and another quitclaim deed for
Patricia Gerdes. He also negotiated to obtain Douglas Fishwick’s release from the
Butler County Jail and held himself out as an attorney by using the honorific “Esq.”
and using false and misleading letterhead to create the impression that he was an
attorney authorized to practice law in Ohio. We adopt these findings.
An Injunction and Civil Penalty Are Warranted
{¶ 23} Having found that Doheny engaged in the unauthorized practice of
law, we accept the board’s recommendation that an injunction should issue to
prohibit him from engaging in further conduct that constitutes the unauthorized
practice of law in Ohio.
{¶ 24} Upon finding that a person or company has engaged in the
unauthorized practice of law, Gov.Bar R. VII(8)(B) authorizes the board to
recommend and this court to impose a civil penalty in an amount up to $10,000 per
offense. The board considered the factors listed in Gov.Bar R. VII(8)(B) and UPL
Reg. 400(F) and found that several of those factors weigh in favor of imposing a
civil penalty against Doheny, including the degree of his cooperation in the
investigation, the number of occasions that he engaged in the unauthorized practice
of law, the flagrancy of those violations, and the resulting harm to third parties.
{¶ 25} Doheny initially cooperated with relator’s investigation, but he
ceased to cooperate after his counsel withdrew from representing him. The board
found that Doheny flagrantly engaged in ten instances of the unauthorized practice
of law. In some instances, he identified himself as a lawyer and his victims as his
“clients” and he endeavored to legitimize or conceal his conduct by making it
appear that he practiced with a larger, multistate firm or from an office in Indiana.
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Moreover, Doheny charged significant legal fees in connection with his
unauthorized practice of law and actually collected nearly $70,000 of those fees
from Frederick Hogan and Stephen Fishwick. Accordingly, the board
recommended that we impose a civil penalty of $25,000—$2,500 for each
offense—against Doheny.
{¶ 26} On these facts, we agree that a civil penalty of $2,500 for each of
Doheny’s ten instances of the unauthorized practice of law is appropriate.
{¶ 27} Accordingly, we enjoin Donald A. Doheny Jr. from performing legal
services in the state of Ohio unless and until he is admitted or otherwise registered
or certified to practice law in Ohio in accordance with the Rules for the Government
of the Bar of Ohio, and we order him to pay a civil penalty of $25,000. Costs are
taxed to Doheny.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
J. Desiree Blankenship, Bar Counsel, for relator.
_________________
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