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Court Sets Guidelines for Labor Relations Services That May Be Provided By Nonlawyers
2006-0839. Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 2006-Ohio-6511.
On Final Report by the Board on the Unauthorized Practice of Law, No. UPL 04-05. Respondents are enjoined from the drafting or writing of contracts.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6511.pdf
(Dec. 27, 2006) In a decision announced today, the Supreme Court of Ohio held that:
(1) A nonlawyer does not engage in the unauthorized practice of law by representing another in union-election matters or in the negotiation of a collective bargaining agreement when the activities of the nonlawyer are confined to providing advice and services that do not require legal analysis, legal conclusions or legal training.
(2) It is the unauthorized practice of law for a nonlawyer to draft or write a contract or other legal instrument on behalf of another that is intended to create a legally binding relationship between an employer and a union, even if the contract is copied from a form book or was previously prepared by a lawyer.
The Court's 7-0 opinion, authored by Chief Justice Thomas J. Moyer, also affirmed the authority of the Supreme Court to define and regulate professional activities that involve the practice of law in the area of labor relations.
The case arose from a complaint filed by the Ohio State Bar Association (OSBA) alleging that a Dayton-based management consulting firm, Burdzinski, Brinkman, Czarzasty & Landwehr, and its nonlawyer principals, Bernard F. Burdzinski II and his wife, Connie S. Brinkman-Burdzinski, were providing labor relations services to their third-party corporate clients that constituted the unauthorized practice of law.
The Supreme Court's Board on the Unauthorized Practice of Law reviewed the OSBA complaint. A hearing was conducted before a three-commissioner panel, after which the board adopted the panel's findings of fact and conclusions of law. The board concluded that the Burdzinski firm and Mr. Burdzinski had engaged in the unauthorized practice of law when they negotiated the settlement of union election issues, served as lead negotiator in collective bargaining negotiations, and drafted collective-bargaining agreements on behalf of others. The board also found that Connie Burdzinski had engaged in unauthorized practice when she drafted collective-bargaining agreements. The board recommended that the Supreme Court order the respondents to cease from the same or similar conduct, and order the respondents to reimburse the costs and expenses incurred by the board and the OSBA.
The Burdzinski firm and the cited individuals filed objections to the board's findings, and the Court heard oral arguments in the case earlier this year.
In today's unanimous decision, the Court began by rejecting arguments by Burdzinski that this Court is barred from regulating the activities of labor relations practitioners because that field has been preempted by the federal government. Chief Justice Moyer noted that the U.S. Supreme Court has identified only two categories of cases where state authority is preempted by federal labor laws: “(1) those that reflect the concern that ‘one forum would enjoin, as illegal, conduct which the other forum would find legal' and (2) those that reflect the concern ‘that the [application of state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts.'
Noting that this case deals solely with the activities of third-party consultants, not with the ability of employers or unions to represent themselves in labor negotiations or elections, the Chief Justice wrote that neither of the circumstances invoking federal preemption were applicable. He also pointed to a line of U.S. Supreme Court decisions consistently deferring to the states in matters involving licensing standards and regulation of lawyers and other learned professions.
With regard to specific consulting services provided by Burdzinski that were found by the board to constitute the practice of law, Chief Justice Moyer wrote that the firm's gathering of information about employee concerns and complaints leading up to union elections, and its development of communication and management strategies to help employers resist unionization of their employees, did not involve legal analysis or require legal training, and therefore were not activities restricted to attorneys.
With regard to the firm's “coaching” of employers on arranging and conducting union elections, Chief Justice Moyer noted that “(n)ormally, advising a client on how to comply with a regulatory scheme would be the practice of law, but in this case … respondents use NLRB-prepared writings, rather than their own analysis or training, to advise their clients. Despite the use of words like ‘challenge,' ‘objection,' and ‘settlement' in the record regarding election matters, these terms are not used as legal terms in this context. Rather, respondents follow a strict set of guidelines published by the NLRB, without analysis or interpretation. Presenting prepackaged legal advice of this nature is not the practice of law.”
Regarding the active role undertaken by Burdzinski's nonattorneys in negotiating collective bargaining agreements, the Chief Justice again cited the NLRB's promulgation of very specific issue guidelines and rules as a pivotal factor. “While we have previously found negotiating on behalf of another to be the practice of law, our precedent is distinguishable from the facts of this case. … Respondents here are not negotiating the settlement of a legal dispute, nor are they negotiating a business or real-estate contract in which all elements of the contract are negotiable. Rather, there is a clearly defined scope of allowable subjects for negotiation. Because of the close federal regulation and the limited subjects for negotiation, we conclude that respondents' conducting of negotiations on behalf of their clients with employees or employees' representatives during collective bargaining is not the practice of the law.”
On the remaining issue of drafting actual collective bargaining contracts, the Chief Justice wrote: “We have consistently held that drafting contracts or legal instruments on behalf of another is the practice of law. The fact that respondents may copy the contracts or use forms from a form book does not change the nature of the act. In Geauga Cty. Bar Assn. v. Canfield (2001) … the respondent argued that simply copying a form contract was not the practice of law. We rejected that argument. … The drafting or writing of a contract or other legal instrument on behalf of another is the practice of law, even if the contract is copied from a form book or contract previously prepared by a lawyer.”
Based on this analysis, the Court's ruling enjoins the Burdzinski firm and its principals from the further drafting or writing of contracts, but permits them to continue to advise their clients on union election matters.
Contacts
Ian Robinson, 330.337.8761, for
the Ohio State Bar Association.
Thomas P. Whelley II, 937.463.4931, for Bernard Burdzinski et al.
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