February 25, 2014
Legal Brief Assignment No. 2
Dan is a trained paralegal who works for Erie Bank in Lakewood, Ohio. One day, Mary walks into the bank to apply for a mortgage loan to purchase a new house. She and Dan have a long conversation about Mary taking out a mortgage. Mary is concerned that were she to default on her loan, her credit would be destroyed. In response, Dan tells her: Don’t worry about it. If you don’t pay your loan, the only remedy the bank has is to foreclose on the house. The bank cannot go after you personally and your credit score will be unaffected. I’ve been dealing with this issue for years and I’m telling you that this is the Ohio law on the matter. Unfortunately, it turns out that Dan was incorrect. When Mary defaults on her loan the next year, her credit is badly hurt. ISSUE:
Whether, under Ohio Law, is Dan subject to a civil liability to Mary for his legal advice regarding her default on her mortgage loan, foreclosure, and bad credit rating? Did Dan practice unauthorized practice of law? RULE:
R.C. §4705.07 Unauthorized Practice:
(A) No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the Supreme Court as being the unauthorized practice of law. (C) (2) Any person who is damaged by another person who commits a violation of division (A) (3) of this section may commence a civil action to recover actual damages from the person who commits the violation, upon a finding by the supreme court that the other person has committed an act that is prohibited by the supreme court as being the unauthorized practice of law in violation of that division. The court in which that action for damages is commenced is bound by the determination of the Supreme Court regarding the unauthorized practice of law and shall not make any additional determinations regarding the unauthorized practice of law. The court in which the action for damages is commenced shall consider all of the following in awarding damages to a person under division (C) (2) of this section: (a) The extent to which the fee paid for the services that constitute the unauthorized practice of law in violation of division (A)(3) of this section exceeds the reasonable fees charged by licensed attorneys in the area in which the violation occurred; (b) The costs incurred in paying for legal advice to correct any inadequacies in the services that constitute the unauthorized practice of law in violation of division (A)(3) of this section; (c) Any other damages proximately caused by the failure of the person performing the services that constitute the unauthorized practice of law to have the license to practice law in this state that is required to perform the services; (d) Any reasonable attorney's fees that are incurred in bringing the civil action under division (C)(1) or (2) of this section. (3) Divisions (C)(1) and (2) of this section apply, and may be utilized, only regarding acts that are the unauthorized practice of law in violation of division (A)(3) of this section and that occur on or after the effective date of this amendment.
In the case of Ohio State Bar Assn. v. Martin, 118 Ohio St.3d 119, 886 N.E.2d 827, (Ohio, 2008). The State Bar Association charged two non-attorneys, their closely held corporation, their business, their current franchisor, and their former franchisor with engaging in unauthorized practice of law. These two non-attorneys were giving advice to people about their legal rights, including aid in preparing and completing legal documents, and charging fees for such services, constituted the unauthorized practice of law. The Ohio State Bar Association, charged respondents, Terry and Eva Martin, their corporation (TELLR Corporation), their...
Please join StudyMode to read the full document