Legal Research

"Ohio Unauthorized Practice "Right of Action" Prior to Sept. 2004"

Posted by Chuck Kallendorf: "The Ohio Supreme Court last Thursday held that 'there was no legal basis for a private lawsuit based on a claim of unauthorized law practice in Ohio prior to September 2004, when the General Assembly amended R.C. 4705.07 to expressly recognize such a cause of action.'
(Holding) (Court's Summary)

The case was one evolving out of a homeowner's seeking to recover civil damages from a mortgage company for allegedly using non-attorneys in 2002 to perform legal services, such as the drafting of promissory notes & similar documents, for which it then charged "document preparation fees." Citing prior court decisions that held that a non-attorney was not entitled to payment for any service that constitutes the unauthorized practice of law, Plaintiff Gary Greenspan had asked the trial court to order the lender to refund the $300 he had paid for document preparation services. He hadn't filed a grievance with the Ohio Supreme Court's Board on the Unauthorized Practice of Law or a local bar association regarding the lender's actions, nor did he obtain a ruling by the board that the lender's actions constituted the unauthorized practice of law. Defendant lender had filed a pretrial motion to dismiss asserting that prior to the adoption of amendments to Revised Code 4705.07 in 2004, there was no legal basis for a civil lawsuit in Ohio. That motion, granted by the trial court, was appealed to the 8th. District Court of Appeals in Cuyahoga County.

"While Greenspan's appeal was pending before the 8th District," the Supreme Court recounted, " that court issued a decision in a virtually identical case, Crawford v. FirstMerit Mortgage Corp, in which it held that that plaintiff could not sue to recover document preparation fees he paid to a mortgage lender prior to September 2004 because a private cause of action for unauthorized practice of law did not exist in Ohio prior to the 2004 amendment of R.C. 4705.07. Despite its holding in Crawford, a different panel of in the 8th District overruled the trial court in Greenspan's case and reinstated his suit. The court held that because the unauthorized practice of law was available as a defense to breach-of-contract and fee-collection actions, it "inexorably" followed that it was also available as an affirmative cause of action. The appellate court did acknowledged that its decision now conflicted with Crawford, but declared that Crawford was "simply in error."
...

Greenspan v. Third Federal S. & L. ( Appeals Court decision )

ORC 4705.07(C)(2)HB 38 {adding §4705.07 (C); effective Sept. 15, 2004}
[ Legislative Service analysis ]"

Full text and active links are available at the source site listed below.

Source: Cincinnati Law Library Blog, 27 July 2009

Full post as published by Stark County Law Library Blawg on July 28, 2009 (boomark / email).