Cleveland Bar Ass'n v. Picklo

Per Curiam.

{¶ 1} Since 1999, respondent, Lynn Picklo, has been filing complaints in the Cleveland Municipal Court, Housing Division, for forcible entry and detainer, as well as for the recovery of past due rents. Respondent is not licensed to practice law in the state of Ohio, but she nevertheless filed these claims and appeared in court on behalf of the property owner.

*196{¶ 2} On July 2, 2001, relator, Cleveland Bar Association, filed a complaint alleging that respondent had engaged in the unauthorized practice of law. The Board of Commissioners on the Unauthorized Practice of Law considered the cause on the parties’ Agreed Stipulations and Waiver of Notice and Hearing and found that respondent’s filings and appearances constituted the practice of law by an unlicensed layperson and, therefore, were prohibited. See R.C. 4705.01 (No person may commence or conduct a court action on another’s behalf unless admitted to the bar). The board accordingly recommended that respondent be enjoined from filing pleadings and appearing in court on behalf of others.

{¶ 3} As authority for her actions, respondent cites R.C. 1923.01(C)(2), which defines “landlord” for the purpose of invoking a county, municipal, or common pleas court’s jurisdiction in most forcible entry and detainer actions as “the owner, lessor, or sublessor of premises [or] the agent or person the landlord authorizes to manage premises or to receive rent from a tenant under a rental agreement.” She also cites R.C. 5321.01(B), which, with respect to landlord-tenant remedies in general, similarly defines “landlord” as “the owner, lessor, or sublessor of residential premises, the agent of the owner, lessor, or sublessor, or any person authorized by the owner, lessor, or sublessor to manage the premises or to receive rent from a tenant under a rental agreement.” The board reviewed these statutes for conformity with this court’s exclusive original jurisdiction under Section 2(B)(1)(g), Article IV, Ohio Constitution, and concluded that the definitions in R.C. 1923.01(C)(2) and 5321.01(B) represented unconstitutional invasions of our power to define the practice of law. We agree.

{¶ 4} “The principle of separation of powers is embedded in the constitutional framework of our state government. The Ohio Constitution applies the principle in defining the nature and scope of powers designated to the three branches of the government. State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31. See State v. Harmon (1877), 31 Ohio St. 250, 258, 1877 WL 19. It is inherent in our theory of government ‘ “that each of the three grand divisions of the government, must be protected from the encroachments of the others, so far that its integrity and independence may be preserved. * * *” ’ S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 159, 28 OBR 250, 252, 503 N.E.2d 136, 138, quoting Fairview v. Giffee (1905), 73 Ohio St. 183, 187, 76 N.E. 865, 866.” State v. Hochhausler (1996), 76 Ohio St.3d 455, 463, 668 N.E.2d 457.

{¶ 5} Our authority to define the practice of law is inherent, Judd v. City Trust & Sav. Bank (1937), 133 Ohio St. 81, 10 O.O. 95, 12 N.E.2d 288, paragraph one of the syllabus, and the legislative branch has no right to limit the inherent powers of the judicial branch of the government. Hale v. State (1896), 55 Ohio St. 210, 45 N.E. 199. Exercising this authority, we have said that the practice of law includes appearing in court on another’s behalf and conducting another’s case *197in court. Land Title Abstract & Trust v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650, paragraph one of the syllabus. Thus, to the extent that R.C. 1923.01(C)(2) and 5321.01(B) purport to enlarge the class of persons who may legitimately engage in conduct defined as the practice of law, we must strike these statutes as unconstitutional.

{¶ 6} In reaching this result, we must also contend with the implications of our decision in George Shima Buick v. Ferencak (2001), 91 Ohio St.3d 1211, 741 N.E.2d 138, wherein we sua sponte dismissed an appeal and certified conflict raising another separation-of-powers issue because we lacked jurisdiction. There, the defendant challenged the constitutionality of a statute allowing certain lay employees to represent their corporate employers in small claims court. But because no one had served the Ohio Attorney General with notice of the constitutional attack, we found a jurisdictional defect, based on Cicco v. Stockmaster (2000), 89 Ohio St.3d 95, 728 N.E.2d 1066. Today we find that we applied Cicco too zealously in dismissing Ferencak.

{¶ 7} Cicco recognizes that R.C. 2721.12 imposes a notice requirement on parties contesting the constitutionality of a statute in a declaratory judgment action filed pursuant to R.C. Chapter 2721. That statute requires that the Attorney General be notified in every such action by service of the pleading in accordance with Civ.R. 4.1. Neither Ferencak nor this case is a declaratory judgment action filed pursuant to R.C. Chapter 2721. Ferencak began as a small claims action to recover damages stemming from a customer’s decision to stop payment on a check for automobile repairs. And this case is an action to enforce our constitutional responsibility to oversee the practice of law in this state. Cicco, therefore, does not require service on the Attorney General as a prerequisite to invoking our jurisdiction. .For this reason, Ferencak is overruled.

{¶ 8} Accordingly, we adopt the findings, conclusion, and recommendation of the board. Respondent is hereby enjoined from any further filings and appearances in court that constitute the unauthorized practice of law. Costs are taxed to respondent.

Judgment accordingly.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur. Lundberg Stratton, J., dissents.