[Cite as Cleveland Metro. Bar Assn. v. McGinnis, 137 Ohio St.3d 166, 2013-Ohio-4581.]




        CLEVELAND METROPOLITAN BAR ASSOCIATION v. MCGINNIS.
     [Cite as Cleveland Metro. Bar Assn. v. McGinnis, 137 Ohio St.3d 166,
                                   2013-Ohio-4581.]
Unauthorized practice of law—Preparing documents for court proceeding and
        distributing flyer advertising legal services—Injunction issued and civil
        penalty imposed.
    (No. 2013-0111—Submitted April 10, 2013—Decided October 22, 2013.)
   ON FINAL REPORT by the Board on the Unauthorized Practice of Law of the
                           Supreme Court, No. UPL 11-05.
                             _______________________
        Per Curiam.
        {¶ 1} Relator, Cleveland Metropolitan Bar Association, charged
respondent, Forrestine E. McGinnis of Lakewood, Ohio, with the unauthorized
practice of law for preparing two court documents and distributing a flyer
advertising legal services. McGinnis is not, and never has been, admitted to the
practice of law in Ohio.
        {¶ 2} Even though McGinnis had initially met and communicated with
relator regarding the allegations against her, she did not answer the complaint, and
relator moved for an entry of default. Based on the affidavits submitted with
relator’s motion, a three-member panel of the Board on the Unauthorized Practice
of Law issued findings of fact and conclusions of law and determined that
McGinnis had violated Ohio’s licensure requirements. The panel recommended
that we enjoin McGinnis from committing further illegal acts and assess a
$20,000 civil penalty. The board adopted the panel’s findings and recommended
penalty, and no objections have been filed to the board’s report.
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       {¶ 3} We agree that McGinnis engaged in the unauthorized practice of
law and that an injunction is warranted. However, consistent with our precedent
in comparable unauthorized-practice-of-law cases, we assess a $6,000 civil
penalty.
                  McGinnis’s Unauthorized Practice of Law
       {¶ 4} Based on the sworn affidavits in the record, the board found that
McGinnis had prepared an answer on behalf of grievant, Stephen Johnson, for an
eviction action in the Cleveland Municipal Court, prepared a notice of appeal on
Johnson’s behalf for his appeal in that eviction case, and accepted $40 from
Johnson for transportation and parking fees to attend hearings with him. In
addition, McGinnis gave Johnson a flyer reading: “Forrestine’s Law, Inc. Avoid
expensive attorney fees 216-351-XXXX.” Johnson claims that he also saw the
flyer posted at a local library. Based on these findings, the board determined that
McGinnis had engaged in the unauthorized practice of law.
       {¶ 5} We agree. The unauthorized practice of law is defined as “[t]he
rendering of legal services for another by any person not admitted to practice in
Ohio.” Gov.Bar R. VII(2)(A)(1); Cleveland Bar Assn. v. Pearlman, 106 Ohio
St.3d 136, 2005-Ohio-4107, 832 N.E.2d 1193, ¶ 7.          The rendering of legal
services includes “the drafting and preparation of pleadings filed in the courts of
Ohio.” Lorain Cty. Bar Assn. v. Kocak, 121 Ohio St.3d 396, 2009-Ohio-1430,
904 N.E.2d 885, ¶ 17; see also Geauga Cty. Bar Assn. v. Haig, 129 Ohio St.3d
601, 2011-Ohio-4271, 955 N.E.2d 352, ¶ 2 (unauthorized practice of law includes
“the preparation of legal documents for others”). In addition, the unauthorized
practice of law includes “[h]olding out to the public or otherwise representing
oneself as authorized to practice law in Ohio by a person not authorized to
practice law.” Gov.Bar R. VII(2)(A)(4). The term “holding out” means the use
of “law” or “law office” by any person who is not licensed to practice law in
connection with a sign, advertisement, circular, or other document, “the evident




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purpose of which is to induce others to believe that person to be an attorney.”
R.C. 4705.07(B)(1).
          {¶ 6} McGinnis did not possess the qualifications necessary to practice
law in this state, yet a preponderance of the evidence shows that she prepared two
legal pleadings for filing in court and distributed a flyer advertising her services
as “Forrestine’s Law, Inc.” Accordingly, we accept the board’s findings that
McGinnis has engaged in the unauthorized practice of law.
                                       Sanction
          {¶ 7} Having found that McGinnis engaged in the unauthorized practice
of law, we accept the board’s recommendation that we issue an injunction
prohibiting her from preparing legal documents for others, holding herself out as
authorized to practice law, and engaging in all other acts constituting the practice
of law.
          {¶ 8} We also accept the recommendation that we impose a civil penalty.
Under Gov.Bar R. VII(19)(D)(1)(c), we may impose a civil penalty “for an
amount greater or less than the amount recommended by the Board, but not to
exceed ten thousand dollars per offense.” The board recommends that we impose
a $5,000 civil penalty for each pleading that McGinnis prepared and the $10,000
maximum penalty for McGinnis’s flyer, for a total of $20,000.            Based on
McGinnis’s misconduct here, the relevant factors in Gov.Bar R. VII(8)(B), and
our precedent, we find that McGinnis should be fined $1,000 for each pleading
and $4,000 for the flyer, for a total of $6,000.
                            Gov.Bar R. VII(8)(B) factors
          {¶ 9} Gov.Bar R. VII(8)(B) requires us to consider the following five
factors in imposing a civil penalty.
          {¶ 10} (1) Degree of cooperation. McGinnis initially communicated and
even met with relator during the early stages of its investigation. But after
agreeing to a deposition date, she failed to appear, and she later failed to




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participate in the board proceedings. In addition, McGinnis’s communications
with relator were not always coherent and included many astrological references
that were not directly responsive to relator’s inquiries. For example, in one
correspondence, she declared that she had received relator’s letter “when two
planets were in opposition to my North Node.” In another letter, she stated that
she had forwarded relator’s communications to her “tribunal for a diagnoses of
any and all infarctions [sic] that I’ve committed against the United Nations
declarations on human, indigenous, and stateless people rights.” And in response
to relator’s request for documents relating to her research, she submitted a
document entitled “Perpetual Universal Charter of the Moabite Nation.”
          {¶ 11} (2)   Number of violations.     As explained above, McGinnis
committed three acts constituting the unauthorized practice of law:          (1) the
preparation of an answer for filing in court, (2) the preparation of a notice of
appeal for filing in court, and (3) holding herself out in a flyer as authorized to
practice law.      The acts were not widespread, as all three related to one
individual—grievant Johnson—and the two pleadings were filed in his eviction
action.
          {¶ 12} (3) and (4) Flagrancy of the violations and harm to third parties.
In its analysis, the board considered these two factors particularly relevant,
finding that McGinnis “continued to market her services as a person qualified to
practice law in Ohio even after commencement of this action,” “Johnson’s legal
rights were undoubtedly affected when [McGinnis] prepared pleadings on his
behalf,” and “[McGinnis] may have at least one other client on whose behalf she
engages in the unauthorized practice of law.” In reaching these conclusions, the
board did not cite the record, and we are unable to find conclusive evidence in the
record     demonstrating   that   McGinnis    continued   her   illegal   acts   after
commencement of this action or that she has another “client.” Based on the
sworn record evidence, McGinnis’s offenses affected only Johnson, and his




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affidavit states that McGinnis handled his appeal, “which she did wrong.” But
Johnson did not further explain how McGinnis’s actions harmed him or affected
his legal rights. Without more evidence, it is difficult for us to weigh these two
factors in considering either a harsher or a more lenient civil penalty.
       {¶ 13} (5)     Other relevant factors.        The board’s regulations list
aggravating and mitigating factors that may be used in weighing Gov.Bar R.
VII(8)(B)’s final catchall factor. UPL Reg. 400(F). We find that in aggravation,
McGinnis prepared two legal instruments for filing with a court and allowed
others to mistakenly believe that she was admitted to practice law. See UPL Reg.
400(F)(3)(f) and (g). In mitigation, in McGinnis’s letters, she admitted to the
conduct under review by acknowledging that she had prepared Johnson’s answer
for his municipal court case. See UPL Reg. 400(F)(4)(b). However, we do not
give much weight to this mitigating factor as McGinnis also declared that “[t]he
practice of law can not be licensed by any State.”
                               Applicable precedent
       {¶ 14} We generally reserve the $10,000 maximum civil penalty for the
most egregious acts constituting the unauthorized practice of law. For example,
in Disciplinary Counsel v. Pratt, 127 Ohio St.3d 293, 2010-Ohio-6210, 939
N.E.2d 170, we imposed the maximum penalty for each of six acts occurring over
a two-year period, including the respondent’s representations to multiple people
that he was a licensed attorney, his acceptance of over $72,000 in legal fees, and
his performance of various legal services, including drafting and reviewing
contracts and negotiating a settlement. Id. at ¶ 4-15, 19. In Ohio State Bar Assn.
v. Dalton, 124 Ohio St.3d 514, 2010-Ohio-619, 924 N.E.2d 821, we imposed the
maximum penalty of $10,000—$20,000 for two acts—on a title agent who, in
addition to refusing to cooperate in the board proceedings, prepared and filed two
deeds and forged an attorney’s name on one. And in Cleveland Metro. Bar Assn.
v. Boyd, 121 Ohio St.3d 36, 2009-Ohio-305, 901 N.E.2d 795, we imposed the




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maximum penalty of $10,000—$20,000 for two acts—for preparing and filing
complaints in two separate domestic-relations actions, receiving a fee for those
services, and failing to participate in the board proceedings. And Boyd was a
repeat offender; the fact that he “flagrantly continued to engage in the
unauthorized practice of law despite our order enjoining [his] conduct”
contributed to the assessment of the maximum $20,000 penalty. Id. at ¶ 8.
       {¶ 15} In contrast, we routinely assess a lower penalty when the acts are
less frequent, less flagrant, or involve fewer victims—even in cases in which the
respondent does not appear or fully cooperate in the board proceeding. For
example, in Lorain Cty. Bar Assn. v. Kocak, 121 Ohio St.3d 396, 2009-Ohio-
1430, 904 N.E.2d 885, the respondent prepared, filed, and signed numerous legal
documents in a debt-collection action, in both the trial court and the appellate
court, and he continued to engage in this conduct despite admonitions from those
courts. Id. at ¶ 20. Nonetheless, we reduced the board’s recommended maximum
penalty of $20,000 to $10,000—$5,000 for his appearances and copious filings in
each court—because the respondent’s actions were on behalf of his fiancée and
not likely to be repeated. Id. at ¶ 21. In Ohio State Bar Assn. v. Heath, 123 Ohio
St.3d 483, 2009-Ohio-5958, 918 N.E.2d 145, the respondent prepared documents
threatening legal action on behalf of a friend and also prepared, filed, and signed a
series of legal papers in municipal court for this friend. The respondent defended
himself against the relator’s charges with “unfounded and often nonsensical
arguments,” such as referring to his name as a “fiction.” Id. at ¶ 2, 32. We
nonetheless reduced the board’s recommended penalty of $15,000 to $1,000
because the respondent was merely trying to help a friend, he had not charged the
friend, and he stated that he had ceased all unlicensed practice of law. Id. at ¶ 30-
33. Similarly, in Disciplinary Counsel v. Kafele, 108 Ohio St.3d 283, 2006-Ohio-
904, 843 N.E.2d 169, the respondent filed and signed numerous “irregular” legal
documents in a mortgage-foreclosure action on behalf of a limited-liability




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company. The respondent participated in the board proceeding but refused to
testify and argued mistaken identity. Id. at ¶ 8, 13. We reduced the board’s
recommended penalty of $10,000 to $1,000 based on the relatively few acts of
unauthorized legal practice and the little harm caused by his conduct, and because
the respondent did not perform the acts for profit. Id. at ¶ 18-20.
       {¶ 16} Finally, it must be noted that even in default proceedings, we have
not always imposed a civil penalty for the unauthorized preparation of legal
pleadings. For example, in Geauga Cty. Bar Assn. v. Haig, 129 Ohio St.3d 601,
2011-Ohio-4271, 955 N.E.2d 352, a loan officer prepared four answers and three
motions on behalf of customers in two foreclosure cases. We refrained from
imposing a penalty because the respondent’s actions did not cause any harm and
in a letter to the relator, he had admitted his actions and explained that he was
unaware that he was violating the law. Id. at ¶ 6-9.
                                    Conclusion
       {¶ 17} Having reviewed the record, the Gov.Bar R. VII(8)(B) factors, and
the penalties imposed in comparable unauthorized-practice-of-law cases, we find
that the board’s recommended penalty is too high and inconsistent with our
precedent. Unlike the respondents in many of the cases cited above, McGinnis
engaged in relatively few acts constituting the unauthorized practice of law. She
prepared only two legal documents, and they were both for the same person in his
eviction action. And it does not appear that she completed the documents for
profit, because she received only $40 to cover her transportation and parking
costs. Consistent with Heath and Kafele, we find that a $1,000 penalty for each
pleading is appropriate. McGinnis’s flyer, however, suggests that she attempted
to commit illegal acts on behalf of others, and a harsher penalty is warranted to
discourage this kind of conduct. We find that a $4,000 penalty is appropriate for
this act of unauthorized practice of law.




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          {¶ 18} Accordingly, we enjoin McGinnis from engaging in any further
acts that constitute the unauthorized practice of law, and we also impose a civil
penalty against McGinnis in the amount of $6,000. Costs and expenses are taxed
to McGinnis.
                                                               Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
          O’DONNELL, J., concurs in judgment only.
          O’NEILL, J., concurs in part and dissents in part.
                            _________________________
          O’NEILL, J., concurring in part and dissenting in part.
          {¶ 19} I concur with the majority except I would impose a civil penalty of
$3,000 instead of $6,000.
                            _________________________
          John A. Hallbauer, Michael P. Harvey, and Heather M. Zirke, for relator.
                            _________________________




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