Disciplinary Counsel v. Schwab (Slip Opinion) , 2021 Ohio 283 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Schwab, Slip Opinion No. 2021-Ohio-283.]
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
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-283DISCIPLINARY COUNSEL v. SCHWAB.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Schwab, Slip Opinion No.
2021-Ohio-283.]
Unauthorized practice of law—Nonlawyer holding self out as lawyer and preparing
legal documents for others—Permanent injunction issued and civil penalty
imposed.
(No. 2020-0987—Submitted January 13, 2021—Decided February 4, 2021.)
ON FINAL REPORT by the Board on the Unauthorized Practice of Law
of the Supreme Court, No. UPL 19-02U.
_______________________
Per Curiam.
{¶ 1} In an April 2019 complaint, relator, Disciplinary Counsel, charged
respondent, Erica L. Schwab, with engaging in the unauthorized practice of law in
Ohio by holding herself out as an attorney and preparing various legal documents
on behalf of two other people.
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{¶ 2} The Board on the Unauthorized Practice of Law attempted to serve
relator’s complaint on Schwab by certified mail and ordinary mail, the latter
evidenced by a certificate of mailing. Although the certified mail was returned by
the postal service marked “RETURN TO SENDER[,] UNCLAIMED[,] UNABLE
TO FORWARD[,]” the ordinary-mail envelope was not returned. (Capitalization
sic.) Therefore, service is deemed complete. See Gov.Bar R. VII(6) and (10).
{¶ 3} On November 14, 2019, relator filed a motion for default with
supporting evidence and a brief in support and certified that those documents had
been sent to Schwab by certified mail and ordinary mail. However, Schwab has
not answered the complaint or responded to the motion for default.
{¶ 4} In a report submitted to the board on March 3, 2020, a three-member
panel of the board found that Schwab was in default and that relator had proved by
a preponderance of the evidence that Schwab engaged in the unauthorized practice
of law. The panel recommended that Schwab be enjoined from engaging in
additional acts of the unauthorized practice of law and ordered her to pay a civil
penalty of $5,000 for each of the two violations. The board adopted the panel’s
findings and recommendations.
{¶ 5} After reviewing the record, we agree with the board that Schwab
engaged in the unauthorized practice of law in Ohio and that an injunction and civil
penalty are warranted.
Schwab’s Conduct
{¶ 6} The evidence submitted with relator’s motion for default shows that
Schwab, an Ohio resident, has never been admitted to the practice of law in Ohio
and that she has not applied for or been granted pro hac vice status in this state.
{¶ 7} In January 2018, Schwab advised her then-fiancé, James J. Gudaitis,
that she was an attorney and could assist him in legal matters and serve as the
attorney for his church. That month, she prepared a minor-flight agreement on
behalf of Gudaitis to waive liability, assume risk, and indemnify. In that document,
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January Term, 2021
she identified herself as “Erica L. Deberadinis-Schwab, Esq.” and “Pilot’s Legal
Counsel.”
{¶ 8} In March 2018, Gudaitis visited his mother in Ohio after she had
suffered a stroke. During the visit, Gudaitis introduced Schwab to his stepfather,
Ray E. Baker. Schwab told Baker that she was a lawyer and agreed to prepare on
his behalf a living-will advanced-healthcare directive, a last will and testament, and
a self-proving affidavit. She prepared those documents and identified herself as
“Erica L. Schwab, Esq.” on the signature page of the living will. On March 13,
2018, Baker signed the documents and Schwab notarized his signatures.
{¶ 9} The board found by a preponderance of the evidence that Schwab
engaged in conduct constituting at least two instances of the unauthorized practice
of law by holding herself out as an attorney and preparing legal documents on
behalf of Gudaitis and Baker.
Schwab Engaged in the Unauthorized Practice of Law
{¶ 10} 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, Royal Indemn. Co. v.
J.C. Penney Co., Inc., 27 Ohio St.3d 31, 34, 501 N.E.2d 617 (1986); 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.
{¶ 11} We have defined the unauthorized practice of law 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 authorized to practice law under our rules. Gov.Bar R. VII(2)(A)(1) and
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(4). In Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650(1934), paragraph one of the syllabus, we held:
The practice of law is not limited to the conduct of cases in
court. It embraces 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, and in addition conveyancing, the preparation of legal
instruments of all kinds, and in general all advice to clients and all
action taken for them in matters connected with the law.
We have consistently held that the preparation of wills, powers of attorney, and
other legal documents by an individual not admitted to the practice of law
constitutes the unauthorized practice of law. See, e.g., Disciplinary Counsel v.
Goetz, 107 Ohio St.3d 22, 2005-Ohio-5830, 836 N.E.2d 556, ¶ 9, citing Chelsea
Title Agency of Dayton, Inc., 100 Ohio St.3d 356, 2003-Ohio-6453, 800 N.E.2d 29,
¶ 7; Akron Bar Assn. v. Miller, 80 Ohio St.3d 6, 8-9, 684 N.E.2d 288 (1997);
Trumbull Cty. Bar Assn. v. Hanna, 80 Ohio St.3d 58, 59, 61, 684 N.E.2d 329(1997).
{¶ 12} The board found by a preponderance of the evidence that Schwab
engaged in conduct constituting at least two instances of the unauthorized practice
of law by holding herself out as an attorney and preparing legal documents on
behalf of Gudaitis and Baker.
{¶ 13} Based on our independent review of the record, we accept the
board’s finding that Schwab engaged in the unauthorized practice of law.
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January Term, 2021
An Injunction and Civil Penalty Are Warranted
{¶ 14} Because we have found that Schwab engaged in the unauthorized
practice of law, we adopt the board’s recommendation that we issue an injunction
prohibiting her from further engaging in the unauthorized practice of law in Ohio.
{¶ 15} The board also recommends that we impose a civil penalty of $5,000
for each of Schwab’s two instances of the unauthorized practice of law pursuant to
Gov.Bar R. VII(8)(B), which instructs us to consider (1) the degree of a
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.
{¶ 16} The board noted that although several attempts were made to
communicate with Schwab regarding this matter, she failed to move, plead, or
otherwise respond to the allegations in the grievance, relator’s correspondence, and
the complaint. Relator’s evidence shows that Schwab engaged in the unauthorized
practice of law on at least two separate occasions by holding herself out as an
attorney and preparing legal documents for Gudaitis and Baker. Based on
Gudaitis’s averments that Schwab had falsely represented herself as an attorney on
two forms of social media and Baker’s averment that Schwab had contacted his
insurance agent to request a copy of his wife’s life-insurance policy and claimed
that she was handling all the family’s legal matters, the board found that Schwab’s
conduct was flagrant. The board also noted that Schwab was indicted in August
2018 on one count of receiving stolen property from Baker’s residence near the
time of his wife’s death. Schwab pleaded guilty to the charge and was sentenced
to three years of community control in December 2018.
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{¶ 17} In light of these aggravating factors, the board found and we agree
that a civil penalty of $5,000 is warranted for each of Schwab’s two instances of
the unauthorized practice of law, for a total civil penalty of $10,000.
Conclusion
{¶ 18} Accordingly, we enjoin Erica L. Schwab from engaging in further
acts constituting the unauthorized practice of law in Ohio. We also order Schwab
to pay a civil penalty of $10,000 ($5,000 for each of the two instances of the
unauthorized practice of law). Costs are taxed to Schwab.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Stacy Solochek Beckman,
Assistant Disciplinary Counsel, for relator.
_________________
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