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‘License Resque’ Service Operator Fined $50,000 For Unauthorized Practice of Law

2005-1930. Cincinnati Bar Assn. v. Bailey, 2006-Ohio-4360.
On Final Report by the Board on the Unauthorized Practice of Law, No. UPL 03-13. Donald L. Bailey, d.b.a. License Resque, is enjoined from conduct that constitutes the unauthorized practice of law, and civil penalty is imposed.
Moyer, C.J., Resnick, Pfeifer, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Lundberg Stratton, J., concurs in part and dissents in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-4360.pdf

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(Sept. 6, 2006) The Supreme Court of Ohio held today that Donald L Bailey of Cincinnati, d.b.a. License Resque, engaged in the unauthorized practice of law by giving legal advice to clients on regaining their suspended driver licenses and instructing them on the preparation and filing of legal documents with courts and the Ohio Bureau of Motor Vehicles. As a sanction for his violations, the Court imposed a civil penalty of $50,000.

License Resque, established in 1989, advertises itself as a business that assists clients whose Ohio driver licenses have been suspended in obtaining reinstatement of their driving privileges through the Ohio Bureau of Motor Vehicles and/or local courts. In 1996, pursuant to a prior unauthorized practice of law complaint brought against Bailey and License Resque by the Columbus Bar Association, Bailey signed a consent decree in which he agreed to cease engaging in business practices virtually identical to those charged in the current complaint.

In today's 6-1 per curiam decision, the Supreme Court adopted findings by its Board on the Unauthorized Practice of Law that were based on a new complaint filed against Bailey and License Resque by the Cincinnati Bar Association (CBA). A lengthy and contentious investigation ensued, during which Bailey repeatedly refused to comply with a CBA subpoena for License Resque office records. After being found in contempt of Supreme Court orders to cooperate with investigators, Bailey ultimately provided copies of the subpoenaed records and appeared at a June 2005 hearing.

A three-member hearing panel of the board heard testimony and reviewed documentary evidence, including direct testimony and cross-examination by Bailey of CBA's witnesses. The panel concluded that Bailey and his employees at License Resque, none of whom were licensed as attorneys, had committed 17 counts of unauthorized practice of law.

In recommending a sanction, the board noted that Bailey and his business had engaged in a long-term pattern of unauthorized practice and had displayed a lack of cooperation with the CBA investigation and board proceedings over several years. Bailey had also violated the 1996 consent decree in which he promised to cease virtually the same business practices. In light of these facts, the board recommended that the Supreme Court order Bailey and License Resque to cease all activities that constitute the unauthorized practice of law and recommended imposition of the maximum civil penalty of $10,000 per violation for each of the 17 counts of unauthorized practice found by the board, yielding a total civil penalty of $170,000.

Bailey, acting on his own behalf, filed 38 objections to the board's findings and recommendation.

In today's decision, the Court rejected Bailey's objections and affirmed the board's findings that services provided to customers by Bailey and License Resque's other unlicensed employees fell within the range of professional services that are restricted to licensed attorneys.

“The board specifically found that respondent (Bailey) advised clients regarding time limits for filing requests for administrative hearings and regarding wording and time limits for filing court appeals,” the decision noted. “(H)e advised them on the requirements for reinstatement of licenses and driving privileges from the 45 to 50 different types of license suspension; he advised clients as to statements to make in court; he interpreted the effect of abeyance letters and advised them on what to do if they missed court deadlines; he prepared requests for appeals, accident reports, affidavits to submit to the BMV, and petitions to modify point suspensions; and he communicated personally and through others working for his business with the BMV and with court employees on behalf of his clients. In summary, the board found that providing legal advice, preparing legal documents, and communicating with administrative and court employees on behalf of others were the types of services that respondent provided to his customers.”

In rejecting Bailey's arguments that his business functioned merely as a messenger service, the Court held that “(h)is misguided attempts to minimize his actions representing individuals before the BMV illustrate why the practice of law must be strictly limited to licensed attorneys. The practice of law is exacting even with the required legal and ethical training, and the legal system cannot adequately safeguard the public's interest unless it ensures a core level of professional competence and integrity.”

The Court agreed with the board's suggestion that Bailey should be subject to a monetary penalty based on his continuing violations after agreeing in 1996 to cease the same practices, and his adamant and protracted refusal to cooperate with the investigation until he was found in contempt and threatened with jail. The Court held, however, that the number of violations proven with specificity and testimony regarding Bailey's financial condition led to the conclusion that a $50,000 civil penalty was a more appropriate sanction than the $170,000 fine suggested by the board.

The Court's per curiam opinion was joined by Chief Justice Thomas J. Moyer and Justices Alice Robie Resnick, Paul E. Pfeifer, Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger. Justice Evelyn Lundberg Stratton entered a separate opinion concurring with the judgment that Bailey's actions constituted unauthorized practice of law, but stating that she would impose a civil penalty of $1,000 for each of 14 violations documented by client files that were admitted into evidence at Bailey's hearing, for a total sanction of $14,000.

Rosemary D. Welsh, 513.723.4487, for the Cincinnati Bar Association.

Donald R. Bailey, pro se: 614.575.1011.