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Retired Cincinnati-area lawyer fined for unauthorized practice of law
DAN TREVAS
Supreme Court
Published: August 20, 2021
Retired Ohio lawyer and radio personality Eric Deters was fined $6,500 for engaging in the unauthorized practice of law by providing case-specific legal advice to clients of his former law firm, the Ohio Supreme Court ruled today.
The Supreme Court justices unanimously agreed that Deters engaged in the unauthorized practice of law while holding himself out as a practicing attorney at Deters Law Firm. However, the Court was divided in its reasoning as to how Deters violated the rule when discussing a personal injury lawsuit with Clinton and Jillian Pangallo in 2017.
“Though he never went so far as to affirmatively state that he was an attorney, he made no effort to clarify to the Pangallos his role in the firm or to inform them that he was no longer licensed to practice law in Ohio or any other jurisdiction,” the Court’s per curiam lead opinion stated.
The Board of Unauthorized Practice of Law recommended a $13,000 civil penalty. The Court adopted the $6,500 penalty suggested by a three-member panel of the board that conducted a hearing into the matter. In addition to the fine, the Court ordered Deters not to engage in further acts of the unauthorized practice of law.
Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the lead opinion.
Justice Sharon L. Kennedy concurred in judgment only, stating that when charging someone without an Ohio law license the focus of the unauthorized law practice inquiry should be on whether the person “exercised professional judgment in giving the legal advice.”
Chief Justice O’Connor wrote a separate concurring opinion to respond to Justice Kennedy’s concurrence. The chief justice stated that a “professional judgment” standard would not provide clarity in determining whether a non-lawyer engaged in the unauthorized practice of law. In fact, she wrote, it would be potentially harmful by limiting those who could be charged.
Justices Patrick F. Fischer and Jennifer Brunner joined the chief justice’s opinion. In addition, Justice Fischer noted he would impose the $13,000 fine recommended by the full board.
Firm Owner Transitions into Office Manager
Deters, of Independence, Kentucky, permanently retired from practicing law in Ohio in 2014 after his Kentucky law license was suspended. Following his retirement, he transferred ownership in Deters & Associates (“Deters Law”) to his father and continued to work there as the office manager and client liaison.
In September 2017, Clinton Pangallo was injured in an auto accident while driving his employer’s car. Recalling hearing Deters speak on a Cincinnati-area radio program, he called Deters Law to schedule a consultation. Clinton and his wife, Jillian, met with a Deters Law investigator, and Clinton signed a contingent-fee agreement, agreeing to pay the firm one-third of funds recovered in his personal-injury case.
In October 2017, Stephanie Collins, a Deters Law attorney, informed the Pangallos she would be handling the case, but she left the firm in November and told the Pangallos that Dominick Romeo would be their attorney. The Pangallos later learned Romeo was not licensed to practice law in Ohio.
Office Manager Urges Clients to Stay
In January 2018, Clinton emailed Romeo to terminate Deters Law firm’s representation. That night, Deters emailed Jillian several times to ask the Pangallos to meet, and stated in one of the emails that: “I can make sure everything is not only done right. But over the top.”
The next day, the Pangallos met with Deters and the firm investigator, but no attorneys were present. Deters and the Pangallos gave the board panel differing accounts of what transpired at the meeting.
The Pangallos testified they did not know Deters no longer was licensed to practice law and he never said whether he was or was not an attorney. Jillian said Deters referred to himself as “The Bulldog,” a moniker he has long used as a radio talk show host and on social media, and told the couple he “would take care of things and get things done.”
The Pangallos stated that Deters discussed with them the “stacking” of insurance policies as a means of receiving a greater recovery for Clinton’s injuries, and discussed the difference between Ohio and Kentucky law on stacking policies. He discussed how the difference could affect their recovery, and Deters advised Clinton to file a claim against Clinton’s employer because of the potential to collect a higher amount of damages.
Couple’s Account Disputed
Deters admitted he gave the Pangallos his opinion regarding the potential settlement they could expect based on his prior experience as an attorney, and he admitted they discussed pursuing recovery from Clinton’s employer. But Deters denied giving the couple any advice on the issue and stated that stacking policies “never came up” in their discussions.
Deters also offered to arrange a pre-settlement loan for the couple after learning they were experiencing financial difficulties and advised them that the interest rate for the loan repayment would be low because their case would be settled within a month. The couple and Deters both acknowledged they accepted the $3,000 loan based on Deters’ advice.
By the end of the meeting, Deters agreed to reduce the Pangallos’ contingent fee to 28 percent, purportedly with his father’s approval, and the couple agreed to stay with the firm.
Couple Expresses Dissatisfaction
Three months after the meeting with Deters, the Pangallos sent the firm a letter to terminate its legal representation. Deters responded in an email that he did not handle the couple’s case and identified three other attorneys who worked on the case. Jillian later told the board panel that she had never heard of two of the attorneys and the third attorney told her he was not working on their case.
Jillian also said she received an email from Deters, stating the couple would still owe the full contingent fee to Deters Law on top of any fee they paid to a new attorney. As of January 2020, the case had not been settled, and the interest on the $3,000 loan Deters arranged had increased the debt to more than $10,000.
The Office of Disciplinary Counsel investigated the case and filed a complaint with the board in April 2019, charging Deters with four instances of engaging in the unauthorized practice of law when meeting with the Pangallos.
Deters objected to the board’s findings that he violated the rule, arguing he was “passing on information” and not providing legal services or legal advice to the couple. He asserted that any staff member of a law firm could make the same statements to the Pangallos, and that trial consultants, paralegals, and other law-firm staff engage in conduct like his every day.
Because Deters objected to the board’s findings, the Supreme Court held oral argument in the case.
Supreme Court Assessed Tailoring of Legal Advice
The Court’s lead opinion noted the definition of the unauthorized practice of law in Ohio includes both holding oneself out as a person authorized to practice law or “rendering legal services for another” by a person not authorized to practice under Ohio court rules.
One key element is tailoring legal advice to the needs of a specific person, the opinion stated. The board concluded that Deters offered the Pangallos legal advice and counsel tailored to the specific facts and circumstances of their case.
While Deters argued that trial consultants and law firm staffs do the same thing, the board noted a trial consultant gives advice to an attorney, not the client, who then uses the consultant’s opinion when applying the lawyer’s own knowledge and experience. The board also indicated paralegals and staff may relay that advice to clients, but must do so under the careful supervision and direction of an attorney.
The opinion noted Deters provided advice directly to the couple based on his own legal knowledge. He did not convey his opinion through an attorney and he did not convey a Deters Law Firm attorney’s opinion to the couple.
“Instead, he told them what he thought the case was worth based on his years of experience as a lawyer. At the time that he gave the legal advice, it had been more than three years since he had been licensed to practice law in Ohio,” the opinion stated.
The Court rejected Deters’ arguments and accepted the board’s findings. However, because each of the four charges raised by the disciplinary counsel occurred in a single conversation, the Court determined Deters engaged in a single instance of the unauthorized practice of law.
Use of Professional Judgment Should Be Focus, Concurring Opinion Stated
In her concurring opinion, Justice Kennedy noted Ohio and nearly all states struggle to clearly define “the practice of law.” She stated that legal scholars have observed that the reason for this difficulty is because the law permeates so many aspects of personal lives and commercial affairs that most individuals, “whether or not they are lawyers,” are encountering and interpreting laws on a daily basis.
She wrote that the Court found Deters crossed the line by tailoring advice to the needs of the Pangallos, and she questions whether that should be the tipping point. She noted instances where non-lawyers give advice of a legal nature because of their understanding of the legal problems and consequences. However, those instances do not constitute the unauthorized practice of law because the person giving the advice is not exercising professional judgment — the person receiving the advice does not have a reasonable expectation that “learned and authorized professional legal advice is being given.”
Professional judgment is at the core of practicing law, the concurring opinion stated, and exercising professional judgment is an art that “requires the abstract understanding of legal principles and a refined skill for their concrete application.” To determine whether a person is committing the unauthorized practice law, the Court should not ask whether the non-lawyer “tailored legal advice to the needs of a specific person,” but rather “whether in doing so the layperson exercised professional judgment.”
The concurrence concluded that Deters engaged in the unauthorized practice of law by exercising professional judgment in advising the couple as to the types of claims the couple could assert and providing a monetary figure for what the claims were worth.
Concurrence Raised Concern about Using Professional Judgment as a Guide
Chief Justice O’Connor stated the concurrence in judgment only, authored by Justice Kennedy, failed to clarify “the contours of the practice of law,” and was unwarranted in this case because the justices unanimously agreed that Deters’ conduct constituted the unauthorized practice of law.
While the definition of the unauthorized practice of law may be broad, the Court regulates the authorized practice of law in a “common-sense manner for the purpose of protecting the public,” and considers the particular conduct of those accused of violating the rules, as well as the surrounding context, Chief Justice O’Connor wrote.
People who have shared general legal knowledge acquired while going through life have not been sanctioned by the Court, and Justice Kennedy’s opinion cited no examples of the Court doing so, the chief justice wrote.
If the Court were to adopt the professional-judgment standard, it would “unjustifiably limit the pool of people subject to censure for the unauthorized practice of law,” the chief justice concluded.
The case is cited 2020-1497. Disciplinary Counsel v. Deters, Slip Opinion No. 2021-Ohio-2706.