Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. ( 2006 )

[Cite as Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio
St.3d 107, 2006-Ohio-6511.]
OHIO STATE BAR ASSOCIATION, v. BURDZINSKI, BRINKMAN, CZARZASTY &
LANDWEHR, INC., ET AL.
[Cite as Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr,
Inc., 112 Ohio St.3d 107, 2006-Ohio-6511.]
Unauthorized practice of law — Labor-relations consultants — It is the
unauthorized practice of law to draft a contract on behalf of another that
is intended to create a legally binding relationship between an employer
and a union, even if the contract is copied from a form book or previously
prepared by a lawyer.
(No. 2006-0839 – Submitted August 8, 2006 – Decided December 27, 2006.)
ON FINAL REPORT by the Board on the Unauthorized
Practice of Law, No. UPL 04-05.
__________________
SYLLABUS OF THE COURT
1. It is not the unauthorized practice of law for a nonlawyer to represent another
in union-election matters or in the negotiation of a collective-bargaining
agreement when the activities of the nonlawyer are confined to providing
advice and services that do not require legal analysis, legal conclusions, or
legal training.
2. It is the unauthorized practice of law for a nonlawyer to draft or write a
contract or other legal instrument on behalf of another that is intended to
create a legally binding relationship between an employer and a union,
even if the contract is copied from a form book or was previously prepared
by a lawyer.
__________________
MOYER, C.J.
{¶ 1} In this matter, on objections to the final report of the Board on the
Unauthorized Practice of Law, we are asked to determine whether consultations
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and other services by nonlawyers in labor negotiations are the unauthorized
practice of law.
I
{¶ 2} Respondent Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., is
a management-side labor consulting firm incorporated in 1988. Respondents
Bernard Burdzinski II and Connie Brinkman-Burdzinski are shareholders and
directors of the respondent corporation.
{¶ 3} As labor-relations consultants, respondents assist their clients in
interactions with their clients’ employees regarding union organizing.
Respondents provide advice on how to prevent, conduct, and defeat a union
election. Respondents gather information, develop a strategy, coach their clients
on information-dissemination and the elimination of problems, and finally, make
all arrangements for an election. Additionally, in the event the election to
unionize is successful or a collective-bargaining agreement is already in place,
respondents serve as both negotiators and drafters on behalf of their clients
regarding labor agreements. Also, the respondents assist their clients in
responding to charges of unfair labor practices before the National Labor
Relations Board (“NLRB”).
{¶ 4} Relator, the Ohio State Bar Association, filed a complaint with the
Board on the Unauthorized Practice of Law averring that respondents’ activities
constitute the unauthorized practice of law. A hearing was conducted before a
three-commissioner panel, after which the board adopted the panel’s findings of
fact and conclusions of law. The board concluded that two of the respondents had
engaged in the unauthorized practice of law when they negotiated the settlement
of election issues, served as lead negotiator in collective bargaining, and drafted
collective-bargaining agreements on behalf of others. The board found that
Connie Burdzinski was involved only in the drafting of collective-bargaining
agreements. The board recommended that the Supreme Court enjoin the
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respondents from the same or similar conduct and that respondents reimburse the
costs and expenses incurred by the board and relator.
II
{¶ 5} The threshold issue is whether the federal government has
preempted the field of labor negotiations. Respondents assert that we are
preempted from regulating this area by the National Labor Relations Act.
{¶ 6} But even in an area as federally regulated as labor relations,
“Congress * * * has never exercised authority to occupy the entire field in the
area of labor legislation. Thus the question whether a certain state action is pre-
empted by federal law is one of congressional intent. ‘ “The purpose of Congress
is the ultimate touchstone.” ’ ” Allis-Chalmers Corp. v. Lueck (1985), 471 U.S.
202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206, quoting Malone v. White Motor Corp.
(1978), 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443, quoting Retail Clerks
v. Schermerhorn (1963) 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179.
{¶ 7} The United States Supreme Court has consistently held that it was
never the intent of Congress to preempt the field of labor relations: “We cannot
declare pre-empted all local regulation that touches or concerns in any way the
complex interrelationships between employees, employers, and unions; obviously,
much of this is left to the States.” Amalgamated Assn. of Street, Elec. Ry. &
Motor Coach Emps. of Am. v. Lockridge (1971), 403 U.S. 274, 289, 91 S.Ct.
1909, 29 L.Ed. 2d 473; see, also, San Diego Bldg. Trades Council, Millmen's
Union v. Garmon (1959), 359 U.S. 236, 243-244, 79 S.Ct. 773, 3 L.Ed.2d 775(“However, due regard for the presuppositions of our embracing federal system,
including the principle of diffusion of power not as a matter of doctrinaire
localism but as a promoter of democracy, has required us not to find withdrawal
from the States of power to regulate where the activity regulated was a merely
peripheral concern of the Labor Management Relations Act”).
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{¶ 8} The United States Supreme Court has identified two categories of
cases that hold state authority to be preempted by federal labor law: “(1) those
that reflect the concern that ‘one forum would enjoin, as illegal, conduct which
the other forum would find legal’ and (2) those that reflect the concern ‘that the
[application of state law by] state courts would restrict the exercise of rights
guaranteed by the Federal Acts.’ ” Lodge 76, Internatl. Assn. of Machinists &
Aerospace Workers, AFL-CIO v. Wisconsin Emp. Relations Comm. (1976), 427
U.S. 132, 138, 96 S.Ct. 2548, 49 L.Ed.2d 396, quoting Internatl. Union, Unified
Auto., Aircraft & Agricultural Implement Workers of Am. v. Russell (1958), 356
U.S. 634, 644, 78 S.Ct. 932, 2 L.Ed.2d 1030. Neither of those concerns is
applicable here.
{¶ 9} Our determination as to whether respondents may represent
employers in the circumstances described herein would not enjoin conduct in one
forum that is legal in another, nor would we limit rights guaranteed by Congress.
Our disposition of this case will not affect the ability of employers or unions to
represent themselves in these matters; rather, this case is limited to third-party,
nonemployee, or nonunion persons. The federal labor laws address the
relationship between employees and employers, not the authority of nonlawyers
to act as consultants during union-authorization elections. Brown v. Hotel &
Restaurant Emps. & Bartenders Internatl. Union Local 54 (1984) 468 U.S. 491,
505, 104 S.Ct. 3179, 82 L.Ed.2d 373.
{¶ 10} The United States Supreme Court has been especially deferential
to concerns of the states: “Federal labor policy as reflected in the National Labor
Relations Act, as amended, has been construed not to preclude the States from
regulating aspects of labor relations that involve ‘conduct touch[ing] interests so
deeply rooted in local feeling and responsibility that * * * we could not infer that
Congress had deprived the States of the power to act.’ ” Lodge 76, 427 U.S. at
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136, 96 S.Ct. 2548, 49 L.Ed.2d 396, quoting San Diego Bldg. Trades Council,
Millmen’s Union, 359 U.S. at 244, 79 S.Ct. 773, 3 L.Ed.2d 775.
{¶ 11} There are few interests more deeply rooted in local responsibility
than the governance of the bar. “We recognize that the States have a compelling
interest in the practice of professions within their boundaries, and that as part of
their power to protect the public health, safety, and other valid interests they have
broad power to establish standards for licensing practitioners and regulating the
practice of professions. * * * The interest of the States in regulating lawyers is
especially great since lawyers are essential to the primary governmental function
of administering justice, and have historically been ‘officers of the courts.’ ”
Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 792, 95 S.Ct. 2004, 44
L.Ed.2d 572. See, also, Leis v. Flynt (1979), 439 U.S. 438, 442, 99 S.Ct. 698, 58
L.Ed.2d 717 (“the licensing and regulation of lawyers has been left exclusively to
the States * * * within their respective jurisdictions”).
{¶ 12} The overwhelming body of case law shows that Congress has not
intended to preempt the field of labor relations and that there is ample room for
state regulation of matters of local concern and responsibility. This case does not
affect the rights of employers or employees, but rather concerns the ability of the
state to regulate the practice of law, a historically state function. There is no risk
that our determination today will conflict with the intent of Congress; we
therefore hold that we are not preempted by federal labor law and may properly
regulate the actions of nonlawyers in labor-related matters.
III
A
{¶ 13} “This court has exclusive power to regulate, control, and define the
practice of law in Ohio * * *. The power to regulate includes the authority to
grant as well as the authority to deny * * *.” Cleveland Bar Assn. v.
CompManagement Inc., 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E. 2d 1181,
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¶ 39. In the seminal case regarding the unauthorized practice of law, we held,
“The practice of law is, ‘as generally understood, the doing or performing services
in a court of justice, in any matter depending therein, throughout its various
stages, and in conformity with the adopted rules of procedure. But in a larger
sense it includes legal advice and counsel, and the preparation of legal
instruments and contracts by which legal rights are secured, although such matter
may or may not be depending in a court.’ ” Land Title Abstract & Trust Co. v.
Dworken (1934), 129 Ohio St. 23, 28, 1 O.O. 313, 193 N.E. 650, quoting 49
Corpus Juris 1313.
{¶ 14} This case presents three distinct activities in which respondents
have engaged: advising an employer regarding labor-election matters, negotiating
on behalf of an employer on labor issues, and preparing labor agreements on
behalf of an employer.
B
{¶ 15} The record suggests and respondents stated at oral argument that
the NLRB prepares brochures, pamphlets, and other documents to assist
employers and employees in their understanding of their respective
responsibilities and rights regarding a union election. Respondents argue that
there is no interpretation regarding these regulations; rather, they are exhaustive
lists of allowed and prohibited actions.
{¶ 16} The panel found that respondents gather information that indicates
the reasons employees may want a union, and they develop strategies to respond
to that information. Gathering information, even on a matter that may come
before a tribunal, is not the practice of law. The strategies developed appear to be
business-oriented, such as how to communicate with employees. Strategic
planning of this nature is not the practice of law.
{¶ 17} The panel also found that respondents coached management on
what topics to discuss and how to discuss them with employees, how to eliminate
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problems identified by employees, and how to arrange and conduct a union
election.
{¶ 18} Normally, advising a client on how to comply with a regulatory
scheme would be the practice of law, but in this case, the NLRB has already
performed that function. Here, respondents use NLRB-prepared writings, rather
than their own analysis or training, to advise their clients. Despite the use of
words like “challenge,” “objection,” and “settlement” in the record regarding
election matters, these terms are not used as legal terms in this context. Rather,
respondents follow a strict set of guidelines published by the NLRB, without
analysis or interpretation. Presenting prepackaged legal advice of this nature is
not the practice of law.
{¶ 19} Accordingly, we hold that respondents’ actions on behalf of their
customers related to a union election are not the practice of law.
C
{¶ 20} Respondents also serve as negotiators on behalf of their clients.
Respondents may serve as a member of a negotiating committee or as lead
negotiator. The panel found that the NLRB publishes a list of mandatory,
permissible, and prohibited subjects for bargaining. While we have previously
found negotiating on behalf of another to be the practice of law, our precedent is
distinguishable from the facts of this case. Land Title Abstract, 129 Ohio St. at
29, 1 O.O. 313, 193 N.E. 650. See, also, Cleveland Bar Assn. v. Henley (2002),
95 Ohio St.3d 91, 766 N.E.2d 130. Respondents here are not negotiating the
settlement of a legal dispute, nor are they negotiating a business or real-estate
contract in which all elements of the contract are negotiable. Rather, there is a
clearly defined scope of allowable subjects for negotiation. Because of the close
federal regulation and the limited subjects for negotiation, we conclude that
respondents’ conducting of negotiations on behalf of their clients with employees
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or employees’ representatives during collective bargaining is not the practice of
the law.
D
{¶ 21} Lastly, respondents draft employment contracts and collective-
bargaining agreements based upon the previous negotiations. Sometimes
respondents simply copy and fill in the blanks of previously used contracts,
sometimes they write contracts themselves, and sometimes they use a
combination of efforts.
{¶ 22} We have consistently held that drafting contracts or legal
instruments on behalf of another is the practice of law. Land Title Abstract, 129
Ohio St. at 28-29, 1 O.O 313, 193 N.E. 650, and at syllabus. (“The greater, more
responsible, and delicate part of a lawyer’s work is in other directions. Drafting
instruments creating trusts, formulating contracts, drawing wills and negotiations,
all require legal knowledge and power of adaptation of the highest order”).
{¶ 23} The fact that respondents may copy the contracts or use forms
from a form book does not change the nature of the act. In Geauga Cty. Bar Assn.
v. Canfield (2001), 92 Ohio St.3d 15, 748 N.E.2d 23, the respondent argued that
simply copying a form contract was not the practice of law. We rejected that
argument: “Although he copied the documents from a form book, the fact is that
respondent completes those forms not for himself, but for the benefit of another.”
Id. The drafting or writing of a contract or other legal instrument on behalf of
another is the practice of law, even if the contract is copied from a form book or
contract previously prepared by a lawyer.
IV
{¶ 24} It is not the unauthorized practice of law for a nonlawyer to
represent another in union-election matters or in the negotiation of a collective-
bargaining agreement when the activities of the nonlawyer are confined to
providing advice and services that do not require legal analysis, legal conclusions,
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or legal training. It is the unauthorized practice of law for a nonlawyer to draft or
write a contract or other legal instrument on behalf of another that is intended to
create a legally binding relationship between an employer and a union, even if the
contract is copied from a form book or was previously prepared by a lawyer.
{¶ 25} Respondents are therefore enjoined from the further drafting or
writing of contracts. Costs are taxed to respondent.
Judgment accordingly.
RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL and
LANZINGER, JJ., concur.
__________________
Chernesky, Heyman & Kress, P.L.L., Thomas P. Whelley II, and Rachael
L. Rodman, for respondents.
Fitch, Kendall, Cecil, Robinson & Barry Co., L.P.A., and Ian Robinson;
and Eugene Whetzel, for relator.
Frost Brown Todd L.L.C., George E. Yund, and Christine L. Robek, for
amicus curiae, Ohio Management Lawyers Association.
______________________
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