Disciplinary Counsel v. Deters (Slip Opinion) , 2021 Ohio 2706 ( 2021 )

[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-2706DISCIPLINARY 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
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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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