Cincinnati Bar Assn. v. Sershion ( 2010 )

[Cite as Cincinnati Bar Assn. v. Sershion, 126 Ohio St. 3d 393, 2010-Ohio-3803.]
CINCINNATI BAR ASSOCIATION v. SERSHION ET AL.
[Cite as Cincinnati Bar Assn. v. Sershion,
126 Ohio St. 3d 393, 2010-Ohio-3803.]
Unauthorized practice of law — Attempt to negotiate settlement of personal-
injury claim — Consent decree accepted — Injunction imposed.
(No. 2010-0794 ⎯ Submitted May 26, 2010 ⎯ Decided August 24, 2010.)
ON FINAL REPORT by the Board on the Unauthorized Practice of Law of the
Supreme Court, No. UPL 10-02.
__________________
Per Curiam.
{¶ 1} Pursuant to Gov.Bar R. VII(5b), the Board on the Unauthorized
Practice of Law has recommended our approval of a consent decree proposed by
relator, Cincinnati Bar Association, and respondents, Terry A. Sershion and
Fiduciary One, L.L.C. We accept the board’s recommendation and approve the
proposed consent decree submitted by the parties, as follows:
{¶ 2} “Stipulated Findings of Fact and Conclusions of Law:
{¶ 3} “1. Relator, Cincinnati Bar Association, is duly authorized to
investigate and prosecute activities which may constitute the unauthorized
practice [of] law in the State of Ohio.
{¶ 4} “2. Respondent, Terry A. Sershion, is an individual and sole
member of Fiduciary One, LLC, a Limited Liability Company organized under
the laws of Ohio.
{¶ 5} “3. Respondent Sershion individually and as the sole member of
Fiduciary One, LLC held himself out as being able to negotiate and settle
insurance claims for (sic) including claims for bodily injury and extra-contractual
damages or ‘bad faith.’
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{¶ 6} “4. Respondent Sershion is an Ohio licensed public insurance
adjuster.
{¶ 7} “5. Respondent Sershion has never been admitted to the practice
of law in Ohio or any other state.
{¶ 8} “6. These proceedings identified one Ohio resident for whom
respondent attempted to negotiate the settlement of a claim for bodily injury. In
that matter Respondent Sershion engaged in the negotiation of a claim for bodily
injury to a minor arising out of a motor vehicle accident.
{¶ 9} “7. Sershion published an advertisement on the internet claiming
to have expertise in the resolution of claims for ‘bad faith.’
{¶ 10} “8. Shortly after the commencement of formal discovery in the
within matter, Respondent Sershion agreed to cease and desist from activities
constituting the unauthorized practice of law.
{¶ 11} “9. 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. Section 2(B)(1)(g), Article IV, Ohio
Constitution; Royal Indemnity Co. v. J.C. Penney Co. (1986), 27 Ohio St. 3d 31,
27 OBR 447, 501 N.E.2d 617.
{¶ 12} “10. The unauthorized practice of law consists of rendering legal
services for another by a person not admitted to practice in Ohio. Gov.Bar R.
VII(2)(A).
{¶ 13} “11. The practice of law includes the negotiation and settlement of
claims of bodily injury, Cincinnati Bar Assn. v. Fehler-Schultz (1992), 64 Ohio
St.3d 452, 597 N.E.2d 79, and the giving of legal advice. Land Title Abstract &
Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 Ohio Op. 313, 193 N.E. 650.
{¶ 14} “12. Ohio’s licensed public insurance adjuster statute, R.C.
3951.01 et seq., only permits public adjusters to represent clients in claims for
loss or damage under a policy of insurance covering real or personal property.
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January Term, 2010
{¶ 15} “13. Respondent’s presentation of claims of bodily injury under
liability policies is the unauthorized practice of law. The assertion of claims for
extra-contractual damages under other policies of insurance would also be the
unauthorized practice of law.
{¶ 16} “14. Respondent Sershion’s presentation of a claim on behalf of
the minor * * * and her parents in and after October 2007 constituted the
unauthorized practice of law.
{¶ 17} “15. Each of the above acts is found to constitute the unauthorized
practice of law and is based upon specific evidence or an admission that contains
sufficient information to demonstrate the specific activities upon which the
conclusions are drawn in compliance with Gov.Bar R. VII(7)(H); and Cleveland
Bar Assn. v. CompManagement, Inc., 111 Ohio St. 3d 444, 2006-Ohio-6108, 857
N.E.2d 95, at ¶ 24-26.
{¶ 18} “Waiver of Civil Penalty
{¶ 19} “For the following reasons, Relator recommends that civil
penalties not be issued in this case:
{¶ 20} “1. Relator’s investigating counsel reports to the Board that he
received an initial inquiry from counsel to an insurance company regarding
Respondent’s involvement as the presenter of a claim for injury to a minor arising
out of a motor vehicle accident. Relator’s Investigative counsel sought further
information from the individuals upon whose behalf Respondent was allegedly
functioning. Repeated contacts to those persons produced no response and no
cooperation.
{¶ 21} “2. Relator’s investigating counsel also presented inquiry to the
Ohio Department of Insurance under whose authority Respondent exercised the
privileges of a licensed Ohio Insurance Public Adjustor. The organization
conducted its own confidential investigation and did not find any issues regarding
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Respondent’s conduct. The Department of Insurance did not sanction or penalize
Respondent.
{¶ 22} “3. Counsel reviewed references to other matters described on
Respondent’s web site and found that Respondent’s claims of expertise had been
applied to matters in which he was involved as a party or where he was
functioning in a non-litigation capacity, asserting claims arising under first party
policies of insurance on property. These activities are within the scope of his
authority as a licensed Ohio Public Insurance Adjustor.
{¶ 23} “4. Upon commencement of formal Discovery in the instant case,
Respondent contacted counsel for Relator and timely responded to documentary
discovery requests. Respondent promptly retained counsel who has confirmed
that only one instance of representation of bodily injury claim has arguably
occurred and that Respondent will cease and desist all other activities constituting
the Unauthorized Practice of Law.
{¶ 24} “5. Respondent has also agreed to modify his company web site so
that it explicitly states that he is not a lawyer and does not offer legal advice.
{¶ 25} “6. In view of Respondent’s cooperative attitude, the lack of any
discernible financial gain, and the absence of cooperation by the involved ‘client,’
Relator does not recommend the imposition of a Civil Penalty.
{¶ 26} “Consent Decree
{¶ 27} “Based upon the foregoing, the following decree is [entered]:
{¶ 28} “1. By negotiating claims for bodily injury and soliciting
employment in the negotiation of claims for extra contractual damages in Ohio,
Terry Sershion and his alter ego, Fiduciary One LLC, engaged in the unauthorized
practice of law.
{¶ 29} “2. Terry Sershion and Fiduciary One LLC, its successors and
assigns, officers, members, agents, representatives, and employees are
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January Term, 2010
permanently enjoined from advertising, soliciting, or marketing advice regarding
claims for personal injury.
{¶ 30} “3. Terry Sershion and Fiduciary One LLC, its successors and
assigns, officers, members, agents, representatives, and employees are
permanently enjoined from providing legal services or legal advice to Ohio
residents or otherwise engaging in the unauthorized practice of law in the State of
Ohio.
{¶ 31} “4. A civil penalty will not be imposed in this matter. Respondent
to bear all costs.”
{¶ 32} Costs are taxed to respondents.
So ordered.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Brian N. Stretcher, Albert T. Brown Jr., and Maria C. Palermo, for relator.
Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, for
respondents.
______________________
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