Tuesday, March 2, 2021

Unauthorized Practice Allegations Against Retired Attorney

An unauthorized practice matter will be argued before the Ohio Supreme Court this week.

Disciplinary Counsel v. Eric C. Deters, Case No. 2020-1497
Board on the Unauthorized Practice of Law

The Board on the Unauthorized Practice of Law has filed a report with the Ohio Supreme Court based on the actions of Eric Deters, a “permanently retired” lawyer who cannot practice law in Ohio. The board found that Deters in January and April of 2018 gave two clients legal advice related to an auto accident case.

The Office of Disciplinary Counsel investigated the complaint and charged Deters with six counts alleging the unauthorized practice of law (UPL). The UPL board dismissed two of the counts, and recommends that the Supreme Court find he engaged in the unauthorized practice of law on the other four counts. The board’s panel that heard the case suggested an order prohibiting Deters from engaging in the practice of law plus a $6,500 civil penalty, but the board determined a $13,000 civil penalty was warranted.

Injured Man Contacts Law Firm after Hearing Former Lawyer on Radio
Clint Pangallo was injured in a motor vehicle accident in September 2017 and contacted Deters Law after hearing Eric Deters on the radio. Clint and his wife, Jillian Pangallo, met with an investigator employed by Deters Law and signed a contingency-fee agreement. A law firm attorney contacted Jillian in October, informing Jillian she was handling their case. A few weeks later, the couple was informed that a different lawyer at the firm would be taking over their case.

In January 2018, Clint sent an email to the new attorney terminating Deters Law’s representation. Eric Deters, whom the Pangallos hadn’t met, contacted the couple, asking them to reconsider and requesting a meeting. The couple eventually agreed to meet the next day at the firm’s Covington, Kentucky, offices. No lawyers were present, and the Pangallos and Deters disagree about much of what happened in the meeting.

After the meeting, the Pangallos continued working with the firm until April 24, 2018, when they emailed a letter to Deters terminating their relationship with the firm.

Board Panel Dismisses Two UPL Allegations, Moves Forward with Others
The disciplinary counsel filed the complaint against Deters with the UPL board in April 2019. Following a January 2020 hearing and consideration of post-hearing briefs, the board’s panel dismissed two counts. One dismissed count was based on Deters attempts to persuade the Pangallos to stay with the firm in January 2018 and representations that he had influence at the firm. The other dismissed count stemmed from the opinions Deters expressed about a slip-and-fall case Clint was making against a grocery store.

The panel agreed with four of the UPL allegations.

The panel determined that Deters’ opinion on the value of the auto accident case was practicing law because he offered it as a nonlawyer firm employee at the January 2018 meeting, which was held to discuss that case, without prior authorization from the firm’s attorney who represented the Pangallos.

The Pangallos also said that Deters discussed the “stacking” of insurance policies at the meeting. In Kentucky, a person can pursue claims through, and receive payments from, more than one insurance company, but Ohio doesn’t allow stacking, the Pangallos said Deters explained. Because the Pangallos’ insurance had low limits and Clint was driving a work vehicle at the time of the accident, Deters recommended that they sue Clint’s employer because the employer would have “bigger pockets,” they said. Deters denied this conversation happened, but the Pangallos testified to it and recalled details. Finding the Pangallos more credible, the panel determined the discussion about stacking insurance policies and the recommendation to sue constituted the unauthorized practice of law.

At the meeting, Deters also arranged a loan for the Pangallos, who were struggling financially. The panel stated that Deters’ explanation about how the loan would work was permissible, but his analysis about how quickly the auto accident case would be settled was legal advice.

After the Pangallos left the firm as clients in April 2018, Deters told them the firm would still seek its contingent fee from the settlement – on top of what the Pangallos would have to pay a new lawyer. The panel viewed this statement as Deters trying to bully the Pangallos into staying with the firm, and found the communication was erroneous legal advice and the unauthorized practice of law.

The UPL board adopted the panel’s findings and recommended a $13,000 civil penalty to deter future misconduct.

Former Lawyer Maintains Meaning of UPL Is Murky
Deters objects to the UPL board’s findings. He states that the unauthorized practice of law is explained in R.C. 4705.07 as holding oneself out as an attorney; representing orally or in writing that one is authorized to practice law; or committing an act prohibited by the Ohio Supreme Court as the unauthorized practice of law. He argues he at no point held himself out as an attorney to the Pangallos nor did he represent to them in writing that he was authorized to practice law. The law firm’s website, his social media posts, and the letter his father sends to clients make clear that his role at the firm is as a paralegal and office manager, Deters maintains.

“I tried to keep [the Pangallos] at Deters Law. I explained all which we had done. With my Dad’s blessing, I reduced the fee. I gave them access to me for communication. I suggested a loan to help them out in dire straits,” Deters writes in his brief.

Noting that the Court prohibits the rendering of legal services by a nonlawyer, Deters states the “rendering of legal services” isn’t defined anywhere. He contends it is unclear what actions exactly are the unauthorized practice of law and that his actions were the same as those taken by law firm staffs across the state. He believes the Court’s rules are meant to cover instances where lawyers and nonlawyers take a fee and don’t perform the work, arguing that didn’t happen with the Pangallos.

Disciplinary Counsel Argues Former Lawyer Understands Unauthorized Actions
The disciplinary counsel responds that Deters refuses to recognize the restrictions placed on him given that he cannot practice law in Ohio and he is a suspended lawyer in Kentucky. With the Pangallos, Deters gave legal advice, set fees, planned legal strategy, and charted the direction of the case, the disciplinary counsel argues.

Deters wants to have it both ways, the disciplinary counsel contends. Deters states that the attorney conduct rules don’t apply to him because he’s no longer a lawyer, but that he can’t be accused of the unauthorized practice of law because other paralegals conduct themselves similarly. However, the disciplinary counsel notes, Deters had been a seasoned legal practitioner with an understanding of what constitutes the unauthorized practice of law.

The disciplinary counsel concludes by quoting the UPL board’s report:

“The panel is convinced that, absent the strong incentive of a civil penalty, he will continue to try to blur the line between what a paralegal does and what a lawyer is licensed to do. In other words, he will continue to try to practice law without a license, whether it is through an alleged authorization by another attorney, or by operating in the gray area of ‘passing along information.’”

 Kathleen Maloney

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/03/unauthorized-practice-allegations-against-retired-attorney-.html

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