[This opinion has been published in Ohio Official Reports at
90 Ohio St.3d 136.]
CINCINNATI BAR ASSOCIATION v. BAILEY.
[Cite as Cincinnati Bar Assn. v. Bailey, 2000-Ohio-4.]
Unauthorized practice of law—Formal complaint need not be filed by a local bar
association for Board of Commissioners on the Unauthorized Practice of
Law to issue a subpoena duces tecum in furtherance of its duty to protect
the public from the unauthorized practice of law—Respondent found in
contempt of Supreme Court of Ohio, when.
(No. 99-157—Submitted September 15, 1999—Decided September 20, 2000.)
ON MOTION to Hold In Contempt for Failure to Comply with Subpoena Duces
Tecum.
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{¶ 1} Based on a complaint that it received in 1997, relator, Cincinnati Bar
Association, commenced an investigation to determine whether respondent, Donald
L. Bailey, doing business as License Resque, was engaging in the unauthorized
practice of law. Pursuant to a request by relator, the Board of Commissioners on
the Unauthorized Practice of Law (the “board”), issued a subpoena duces tecum to
respondent on October 6, 1998, requesting that he deliver to the relator copies of
all documents that he provided to his clients and all training manuals and telephone
scripts used by the License Resque staff. On October 20, 1998, respondent filed a
motion to quash the subpoena in this court and on October 22, a motion to stay
enforcement of the subpoena.
{¶ 2} Despite our denial on November 12, 1998, of both respondent’s
motion to quash and his motion to stay, respondent did not comply with the
subpoena.
{¶ 3} On January 22, 1999, relator filed a motion that the respondent show
cause why he should not be held in contempt. Respondent’s motion to strike filed
on March 1, 1999, was denied on April 28, 1999. On May 7, 1999, respondent filed
a response to the motion to show cause.
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Vorys, Sater, Seymour & Pease, L.L.P., and Rosemary D. Welsh, for relator.
Donald L. Bailey, pro se.
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Per Curiam.
{¶ 4} In his memorandum responding to relator’s motion to show cause
why he should not be held in contempt, respondent argues that no formal complaint
has ever been filed against him with the board, that he is unable to produce some
documents requested in the subpoena because they do not exist, that he has not held
SUPREME COURT OF OHIO
himself out as an attorney at law, and that activities in which he engages do not
constitute the practice of law.
{¶ 5} However, we conclude that a formal complaint need not be filed for
the board to issue a subpoena in furtherance of its duty to protect the public from
the unauthorized practice of law.
{¶ 6} Pursuant to this court’s constitutional power to regulate all matters
relating to the practice of law under Section 2(B)(1)(g), Article IV of the
Constitution of Ohio, we delegated broad powers to the board to appoint local bar
associations to investigate entities alleged to have been engaged in the unauthorized
practice of law. Gov.Bar R. VII(4) states that a bar association’s unauthorized
practice committee “shall investigate any matter … that comes to its attention
and may file a complaint pursuant to this rule.” (Emphasis added.) This rule
indicates that the investigation and the filing of a complaint are two separate
actions. Thus, an investigation may commence without the filing of a formal
complaint. To facilitate the investigations of an unauthorized practice committee,
Gov.Bar R. VII(12) provides that the board may issue subpoenas.
{¶ 7} As the Supreme Court of Kansas noted, “General tenets of
administrative law recognize that an agency charged with investigatory duties to
ferret out violations of the law can issue subpoenas and make such investigations,
even though no formal administrative hearing be pending.” Yellow Freight Sys.,
Inc. v. Kansas Comm. on Civ. Rights (1974), 214 Kan. 120, 123,
519 P.2d 1092,
1095, relying on United States v. Morton Salt Co. (1950),
338 U.S. 632, 642,
70
S.Ct. 357, 364,
94 L.Ed. 401, 410-411.
{¶ 8} The issues raised by respondent as to whether he has held himself out
to be an attorney at law, or has engaged in the unauthorized practice of law, are
questions to be brought, in the first instance, before the board should a formal
complaint be filed against him. Respondent raises them here prematurely.
{¶ 9} Turning then to relator’s motion, we note that in its subpoena the
board requested materials that respondent supplied to clients and prospective
clients, in addition to training manuals and telephone scripts, which respondent
claims do not exist. After we denied his motion to strike the subpoena, respondent
had a duty to furnish those materials, so far as he was able. He did not do so, nor
did he respond to the repeated requests of relator that he furnish the materials. As
a consequence, relator has been required to file an action to enforce the board’s
subpoena in this court. We find that in failing to honor the subpoena so far as he
was able, respondent is in contempt of an order of this court. In re Doerger (1993),
66 Ohio St.3d 1498,
613 N.E.2d 239.
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January Term, 2000
{¶ 10} IT IS ORDERED that respondent pay $500 to the Clerk of the
Supreme Court of Ohio within thirty days of the date of this order. The contemnor
may purge himself of this sanction only by:
{¶ 11} (1) Producing all documents and things as directed in the October
6, 1998 subpoena duces tecum within thirty days of this order.
{¶ 12} (2) Filing written application with this court requesting that he be
purged of contempt within ninety days of this order. Respondent’s application must
include written notification from relator that respondent produced the documents
and things as commanded in the subpoena.
{¶ 13} (3) Complying with this order and all future orders issued by this
court. Respondent’s failure to so comply may result in the reinstatement of any
purged contempt sanction and/or other appropriate sanctions.
{¶ 14} IT IS FURTHER ORDERED that as an additional sanction for
contempt, respondent shall “compensate … for the necessity of bringing
proceedings to enforce compliance” with the board’s lawfully issued subpoena.
Brown v. Executive 200 (1980), 64 Ohio St.2d 250, 254,
18 O.O.3d 446, 449,
416
N.E.2d 610, 614. This portion of respondent’s sanction cannot be purged.
Id.
Accordingly, relator is directed to file with the board an itemization of its expenses
in preparing the motion to show cause dated January 22, 1999. If the board finds
such expenses reasonable, then it shall so certify to this court, requesting a judgment
against respondent in that amount.
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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