Disciplinary Counsel v. Hernandez (Slip Opinion) , 2014 Ohio 5486 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Hernandez, Slip Opinion No. 2014-Ohio-5486.]
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. 2014-OHIO-5486
DISCIPLINARY COUNSEL v. HERNANDEZ.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Hernandez,
Slip Opinion No. 2014-Ohio-5486.]
Unauthorized practice of law—Advertising oneself as a lawyer and giving legal
advice for a fee—injunction and civil penalty.
(No. 2014-0517—Submitted May 28, 2014—Decided December 23, 2014.)
ON FINAL REPORT by the Board on the Unauthorized Practice of Law of the
Supreme Court, No. UPL 13-02.
____________________
Per Curiam.
{¶ 1} Relator, disciplinary counsel, charged Mary E. Hernandez of
Cincinnati, Ohio, with the unauthorized practice of law for distributing business
cards representing herself as an attorney practicing in the areas of criminal,
family, juvenile, and immigration law, and for preparing documents and
correspondence on behalf of Miguel Galan-Rubio regarding immigration matters
before the Department of Homeland Security, United States Citizenship and
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Immigration Services (“USCIS”), and the Executive Office for Immigration
Review Cleveland Immigration Court (“Immigration Court”). Hernandez is not
admitted to the practice of law in Ohio or any other state.
{¶ 2} Hernandez received relator’s initial letter of inquiry and left a
voicemail message for relator the following day, stating that she was experiencing
several health problems and that her daughter would call at a later time to discuss
the letter of inquiry in more detail. And after receiving a hand-delivered copy of
relator’s draft complaint, she called relator’s office to deny most of the allegations
in the complaint and attempt to explain her conduct. Relator advised her to
respond to the allegations through proper channels—by providing a response to
the draft complaint and filing an answer to the formal complaint. Although
Hernandez was served with the formal complaint by certified mail, she never filed
an answer. Consequently, relator moved for an entry of default.
{¶ 3} Based on the affidavits and sworn or certified documents 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 Hernandez had engaged in the unauthorized practice of law. The panel
recommended that we enjoin Hernandez from engaging in further acts of the
unauthorized practice of law and assess a $15,000 civil penalty.
{¶ 4} The board adopted the panel’s findings of fact with some minor
modifications and, in addition to the sanctions recommended by the panel,
recommended that we require Hernandez to make restitution to Galan-Rubio and
to the Department of Homeland Security, Office of Inspector General.
{¶ 5} We agree that Hernandez engaged in the unauthorized practice of
law and adopt the board’s recommendation that she be enjoined from engaging in
further acts of the unauthorized practice of law and that a civil penalty of $15,000
be assessed against her.
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Hernandez’s Unauthorized Practice of Law
{¶ 6} The sworn affidavits submitted with relator’s motion for default
demonstrate that in late January or early February 2011, Miguel Galan-Rubio
picked up Hernandez’s business card at a local Hispanic grocery store. Bearing
her name and “Hernandez Law,” the card indicated that she practiced criminal,
family, juvenile, and immigration law and that she spoke Spanish. Hernandez,
however, is not licensed to practice law in Ohio or any other state.
{¶ 7} Galan-Rubio has a family and three young children who are United
States citizens, but he faces possible deportation because he illegally entered the
United States from Mexico in or about 1999. He met with Hernandez in late
January or early February 2011 to discuss his pending immigration matters,
including a March 16, 2011 hearing before the United States Immigration Court
in Cleveland. She told Galan-Rubio that she had a personal relationship with a
high-level employee with United States Citizenship and Immigration Service
(“USCIS”) who would assist her with his case for a fee and that her personal and
direct contacts with the immigration judge presiding over his case, the Ohio
governor, and an Ohio senator would also help.
{¶ 8} Over the course of several weeks, Galan-Rubio spoke regularly with
Hernandez by phone. She advised him that she had spoken to the judge and her
contact at USCIS and everything was “fine” and told him that he did not need to
appear for his March 16, 2011 hearing. She asked him to pay certain fees, a
portion of which she claimed would be forwarded to the judge and her USCIS
contact for their services.
{¶ 9} Hernandez also met with Galan-Rubio in person on several
occasions and presented him with several documents pertaining to his case
including (1) an I-485 Application to Register Permanent Residence or Adjust
Status that she had prepared on his behalf, (2) several letters that she had prepared
and claimed to have sent to the judge and her USCIS contact, (2) a forged letter
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purporting to be from the judge acknowledging receipt of Galan-Rubio’s
paperwork, and (3) a letter detailing the breakdown of her fees. Some of these
documents identify Hernandez as Galan-Rubio’s lawyer.
{¶ 10} By the end of February 2011, Galan-Rubio had become suspicious
of Hernandez, in part because she could not provide him with proof that he was
not required to attend his March 16, 2011 immigration hearing or that she was, in
fact, an attorney. After he called the immigration court directly and learned that,
contrary to Hernandez’s representations, his hearing had not been canceled, he
retained attorney Marilyn Zayas-Davis to represent him in his immigration
matters.
{¶ 11} Not only did attorney Zayas-Davis handle Galan-Rubio’s
immigration matter, but she also notified numerous agencies, including the
Department of Homeland Security, Office of Inspector General (“OIG”) of
Hernandez’s actions. The OIG initiated an investigation, focusing on whether the
immigration judge and Hernandez’s purported contact at the USCIS had accepted
bribes from Hernandez in exchange for taking favorable actions in Galen-Rubio’s
case. As part of that investigation, and with Galen-Rubio’s consent, the OIG
monitored his communication with Hernandez.
{¶ 12} During a monitored March 24, 2011 telephone call, Hernandez told
Galen-Rubio that she had completed all of the necessary paperwork in his case
and that she had spoken with the judge about the proceedings on several
occasions. She asked Galen-Rubio for an additional $600, which she stated was
for the judge to “finish up the case.”
{¶ 13} At a March 30, 2011 meeting, monitored by the OIG, Galan-Rubio
gave Hernandez $600 provided to him by the OIG. Hernandez stated that the
money was for the judge assigned to his case and gave Galan-Rubio a letter,
purporting to be from the judge, which stated that the judge had received $1,550
from Hernandez. And in an April 6, 2011 monitored telephone call, Hernandez
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January Term, 2014
once again claimed to have spoken with the judge, advised Galan-Rubio that he
did not have to attend any court proceedings and instructed him not to call the
court directly, because the judge had already taken care of everything. She also
requested more money from Galen-Rubio for the services she had performed on
his behalf. Galan-Rubio did not speak to Hernandez after that telephone
conversation, but she wrote to him on at least two occasions demanding payment
of $2,500 for her services. She threatened to contact immigration officials or “file
papers at the courthouse against [him] for nonpayment,” which she asserted
would lead to his deportation—and which she claimed she could not stop a
second time.
{¶ 14} After interviewing the immigration judge and the USCIS employee
implicated by Hernandez, the OIG determined that they had not engaged in any
misconduct. And although the OIG reported Hernandez’s conduct to federal and
local prosecutors, it appears that both entities declined to prosecute her.
{¶ 15} Because Hernandez held herself out as an attorney on the business
cards she used to advertise her legal services, in her conversations with Galan-
Rubio, and in the documents and correspondence that she had prepared for the
Immigration Court on Galan-Rubio’s behalf, the board determined that Hernandez
had engaged in the unauthorized practice of law.
{¶ 16} 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 unauthorized practice of law
includes, but is not limited to, the drafting and preparation of pleadings filed in
the courts of Ohio and includes the preparation of legal documents and
instruments upon which legal rights are secured and advanced. Akron Bar Assn.
v. Greene, 77 Ohio St. 3d 279, 280, 673 N.E.2d 1307 (1997); Land Title Abstract
& Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 (1934), syllabus. We
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have also held that nonlawyers engage in the unauthorized practice of law when
they accept legal fees for providing legal representation and advice. Disciplinary
Counsel v. Brown, 121 Ohio St. 3d 423, 2009-Ohio-1152, 905 N.E.2d 163, ¶ 28.
{¶ 17} A person who is not licensed to practice law in this state is
prohibited from holding himself or herself out as an attorney at law, by using the
words “lawyer,” “attorney at law,” “counselor at law,” “law,” “law office,” or
equivalent words along with the person’s own name, or any sign, card, letterhead,
or other document when the evident purpose is to induce others to believe that the
person is an attorney. Gov.Bar R. VII(2)(A)(4); R.C. 4705.07(A)(1) and (B)(1).
Moreover, a nonlawyer is also prohibited from representing orally or in writing,
directly or indirectly, that he or she is authorized to practice law. R.C.
4705.07(A)(2).
{¶ 18} Hernandez did not possesses the requisite qualifications to practice
law in this state, but a preponderance of the evidence shows that she advertised
legal services by distributing business cards for “Hernandez Law,” bearing her
name and the words “Criminal, Family, Juvenile, and Immigration,” suggesting
that she had skills or knowledge regarding those areas of the law. She met with
Galan-Rubio, told him—both orally and in writing—that she was a lawyer, and
advised him regarding his pending immigration matters. Although we recognize
that the Code of Federal Regulations permits nonlawyers to represent parties to
immigration proceedings in certain, limited circumstances, see 8 C.F.R. 1292.1,
those circumstances are not relevant here, because Hernandez falsely held herself
out as a lawyer throughout her representation of Galan-Rubio.
{¶ 19} Accordingly, we accept the board’s findings that Hernandez has
engaged in the unauthorized practice of law.
Sanction
{¶ 20} Because we find that Hernandez engaged in the unauthorized
practice of law, we adopt the board’s recommendation that we enjoin her from
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January Term, 2014
engaging in further acts of the unauthorized practice of law. Pursuant to Gov.Bar
R. VII(19)(D)(1)(c), we may also impose civil penalties in an amount greater or
less than the amount recommended by the board, but not to exceed $10,000 per
offense. In determining whether to impose a civil penalty, Gov.Bar R. VII(8)(B)
directs us to consider
(1) The degree of cooperation provided by the respondent in the
investigation;
(2) The number of occasions that unauthorized practice of law was
committed;
(3) The flagrancy of the violation;
(4) Harm to third parties arising from the offense;
(5) Any other relevant factors.
{¶ 21} Hernandez did not cooperate during relator’s investigation and did
not answer the formal complaint filed against her. The board found that she had
engaged in two instances of the unauthorized practice of law—first by using
business cards to advertise her legal services and then by advising Galan-Rubio
on his immigration matters and preparing documents and correspondence on his
behalf.
{¶ 22} With regard to the flagrancy of the violations, the board found that
despite the fact that she is not licensed to practice law in any state, Hernandez
engaged in a pattern of deceit. She falsely claimed to have personal relationships
with real federal employees, forged letters that purported to be from the
immigration judge presiding over Galan-Rubio’s case, and alleged that they were
her coconspirators, willing to engage in ex parte communications and accept
bribes in exchange for a favorable outcome in a pending case. As a result of her
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actions, the federal employees she identified suffered damage to their professional
reputations and became the subjects of an investigation conducted by the OIG.
{¶ 23} The board found that Hernandez’s fraud was particularly heinous
because, in addition to affecting official government proceedings, it also preyed
on vulnerable, unwitting victims who are unfamiliar with the immigration process
and who may be accustomed to the practice of bribing government officials to
obtain favorable results in their countries of origin. The consequences of such
schemes are enormous. Here, not only did Hernandez take $2,650 from Galan-
Rubio ($2,050 of his own money plus $600 provided by the OIG as part of its
investigation), but Galan-Rubio’s attorney averred that if her client had heeded
Hernandez’s advice and failed to appear at his March 16, 2011 immigration
hearing, the immigration court would have issued an order for him to be
“removed in absentia.” And if deported pursuant to that order, Galan-Rubio
would have had to wait ten years before he could return to the United States.
Because Hernandez failed to cooperate in the proceedings, there is no way to
know how many others may have fallen victim to her scheme.
{¶ 24} Therefore, we agree with the board’s recommendation that we
enjoin Hernandez from engaging in further acts of the unauthorized practice of
law, impose the maximum $10,000 civil penalty for Hernandez’s acts against
Galan-Rubio and an additional $5,000 civil penalty for her distribution of
business cards to advertise her legal services. See Cleveland Metro. Bar Assn. v.
McGinnis, 137 Ohio St. 3d 168, 2013-Ohio-4581, 998 N.E.2d 474 (imposing a
$6,000 civil penalty against a respondent who posted and circulated fliers
advertising her legal services and prepared two legal documents on behalf of the
defendant in an eviction action). Although we do not order restitution at this time,
we note that a victim of the unauthorized practice of law can seek redress by
suing an unlicensed practitioner directly to recover fees and other damages
pursuant to R.C. 4705.07(C)(2).
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{¶ 25} Accordingly, we enjoin Hernandez from engaging in any further
acts that constitute the unauthorized practice of law. We also impose a civil
penalty of $10,000 against Hernandez for her representation of Galan-Rubio and
$5,000 for her advertisement of legal services, for a total of $15,000. Costs and
expenses are taxed to Hernandez.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
______________________
Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
______________________
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