Disciplinary Counsel v. Furtado. ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Furtado, Slip Opinion No. 2017-Ohio-9109.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2017-OHIO-9109DISCIPLINARY COUNSEL v. FURTADO.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Furtado, Slip Opinion No.
2017-Ohio-9109.]
Unauthorized practice of law―Preparing or modifying multiple estate-planning
documents after resigning from practice of law with disciplinary action
pending—Respondent permanently enjoined from practice of law—
Maximum civil penalty imposed.
(No. 2017-0542—Submitted June 7, 2017—Decided December 20, 2017.)
ON FINAL REPORT by the Board on the Unauthorized Practice of Law of the
Supreme Court, No. UPL 16-02.
____________________
Per Curiam.
{¶ 1} On April 19, 2016, relator, disciplinary counsel, filed a complaint
with the Board of Commissioners on the Unauthorized Practice of Law alleging
that respondent, Lorraine Theresa Furtado, of Columbus, Ohio, engaged in the
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unauthorized practice of law by preparing or modifying multiple estate-planning
documents for a single client in 2012 and 2013. In accordance with Gov.Bar R.
VII(6), a copy of the complaint along with notice of the right to file an answer was
sent to Furtado by certified mail on April 21, 2016. At that time, the complaint was
also sent to Furtado by regular mail. Although the certified mail to Furtado was
returned to the board “unclaimed” on May 23, 2016, the regular mail was not
returned. Therefore, pursuant to Gov.Bar R. VII(10), service is deemed complete.
However, Furtado has failed to answer the complaint or otherwise appear in the
proceedings.
{¶ 2} We agree that Furtado engaged in the unauthorized practice of law
and that an injunction and civil penalties are warranted.
Furtado’s Conduct
{¶ 3} Furtado is a former Ohio attorney. She was admitted to the practice
of law in November 1986 and, in 1994, we suspended her license for two years
based on her federal conviction for embezzling government funds in violation of
18 U.S.C. 641. Disciplinary Counsel v. Furtado, 71 Ohio St.3d 20, 641 N.E.2d 184(1994). We reinstated her license in October 1997. Disciplinary Counsel v.
Furtado, 80 Ohio St.3d 1210, 686 N.E.2d 522 (1997). And on May 3, 2000, we
accepted Furtado’s affidavit of resignation with disciplinary action pending. In re
Resignation of Furtado, 89 Ohio St.3d 1206, 728 N.E.2d 1083 (2000). That
resignation is unconditional, final, and irrevocable. See Gov.Bar R.
VI(11)(A)(1)(c).
{¶ 4} Beginning in May 2012, Furtado drafted multiple estate-planning
documents for Corlyss Richards, including a durable power of attorney, a durable
healthcare power of attorney and living will, a memorandum of trust, an
amendment to a family trust agreement, and a last will and testament. She also
counseled Richards on several issues with regard to the trust of Richards’s father.
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Richards paid Furtado $8,670 for her services through August 2013. This money
has not been returned despite Richards’s demands for a refund.
Furtado Engaged in the Unauthorized Practice of Law
{¶ 5} The Supreme Court of Ohio has original jurisdiction regarding
admission to the practice of law, the discipline of persons so admitted, and all other
matters relating to the practice of law in Ohio. Article IV, Section 2(B)(1)(g), Ohio
Constitution; Royal Indemn. Co. v. J.C. Penney Co., Inc., 27 Ohio St.3d 31, 34, 501
N.E.2d 617 (1986). Accordingly, this court has exclusive jurisdiction to regulate
the unauthorized practice of law in Ohio. Greenspan v. Third Fed. S. & L. Assn.,
122 Ohio St.3d 455, 2009-Ohio-3508, 912 N.E.2d 567, ¶ 16; Lorain Cty. Bar Assn.
v. Kocak, 121 Ohio St.3d 396, 2009-Ohio-1430, 904 N.E.2d 885, ¶ 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.
{¶ 6} The unauthorized practice of law is the rendering of legal services for
another by any person not admitted or otherwise certified to practice law in Ohio.
Gov.Bar R. VII(2)(A)(1). This includes the “ ‘preparation of pleadings and other
papers incident to actions and special proceedings and the management of such
actions and proceedings on behalf of clients before judges and courts.’ ” Land Title
Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 28, 193 N.E. 650 (1934),
quoting People v. Alfani, 227 N.Y. 334, 337-338, 125 N.E. 671 (1919).
{¶ 7} An individual whose affidavit of resignation with disciplinary action
pending has been accepted by this court is no longer authorized to practice law in
this state. See Gov.Bar R. VI(11)(A) through (C). And an individual who is not
authorized to practice law in this state who gives legal advice and prepares wills,
trusts, and powers of attorney is engaged in the unauthorized practice of law. See
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Disciplinary Counsel v. Goetz, 107 Ohio St.3d 22, 2005-Ohio-5830, 836 N.E.2d
556, ¶ 9.
{¶ 8} Because relator submitted sworn or certified documentary prima facie
evidence demonstrating that Furtado modified and drafted estate-planning
documents after resigning from the practice of law with disciplinary action pending,
the board found that she engaged in the unauthorized practice of law. See Gov.Bar
R. VII(2)(A)(2)(b). We adopt the board’s findings of fact and agree that Furtado
engaged in the unauthorized practice of law.
An Injunction and Civil Penalties Are Warranted
{¶ 9} Because we have found that Furtado engaged in the unauthorized
practice of law, we adopt the board’s recommendation that we issue an injunction
prohibiting her from performing additional legal services in the state of Ohio.
{¶ 10} Relator has requested and the board recommends that we impose a
civil penalty of $10,000 against Furtado for continuing to practice law after she
resigned with disciplinary action pending. As factors supporting this sanction, the
board found that Furtado failed to cooperate in relator’s investigation and
prosecution of this case, knowingly led Richards to believe that she was authorized
to practice law despite having tendered the resignation of her license, and knew or
should have known that her actions constituted the unauthorized practice of law.
See Gov.Bar R. VII(8)(B)(1) and (5) and UPL Reg. 400(F)(3)(g). There is no
evidence that any of the mitigating factors set forth in UPL Reg. 400(F)(4)(a)
through (g) are present. We adopt the board’s findings and agree that Furtado’s
conduct warrants the imposition of the maximum civil penalty for the unauthorized
practice of law. See Gov.Bar R. VII(8)(B).
{¶ 11} Accordingly, Lorraine Theresa Furtado is permanently enjoined
from performing all legal services in the state of Ohio and ordered to pay a civil
penalty of $10,000. Costs are taxed to Furtado.
Judgment accordingly.
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January Term, 2017
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
Scott J. Drexel, Disciplinary Counsel, and Stacy Solochek Beckman,
Assistant Disciplinary Counsel, for relator.
_________________
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