Cincinnati Bar Assn. v. Clapp & Affliliates Fin. Serv., Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Cincinnati Bar Assn. v. Clapp & Affliliates Fin. Serv., Inc., 94 Ohio St.3d 509, 2002-
Ohio-1485.]

CINCINNATI BAR ASSOCIATION V. CLAPP & AFFILIATES FINANCIAL SERVICES,
INC.
[Cite as Cincinnati Bar Assn. v. Clapp & Affliliates Fin. Serv., Inc. (2002), 94
Ohio St.3d 509.]
Unauthorized practice of law -- Respondent corporation held in contempt for
failing to comply with Supreme Court's April 26, 2001 subpoena --
Respondent corporation ordered to comply with relator's subpoena
regarding its investigation of whether the corporation was engaged in the
unauthorized practice of law -- Actions intervening respondent required
to do in order to purge himself of contempt.
(No. 00-2099 -- Submitted October 31, 2001 -- Decided April 3, 2002.)
ON ORDER Requiring Intervening Respondent to Appear Pursuant to Order
Holding Him in Contempt.

Per Curiam. This matter is before the court on its order of September 28,
2001, holding intervening respondent, Robert D. Clapp of Cincinnati, Ohio, in
contempt of court and requiring that he appear before this court on October 31,
2001. Cincinnati Bar Assn. v. Clapp & Affiliates Fin. Serv., Inc. (2001), 93 Ohio
St.3d 1437, 755 N.E.2d 900.

On August 9, 2000, we found invalid certain subpoenas duces tecum
issued by the Board of Commissioners on the Unauthorized Practice of Law of
the Supreme Court at the request of relator, Cincinnati Bar Association, because
the subpoenas failed to include the language required by Civ.R. 45(A)(1)(c).
Cincinnati Bar Assn. v. Adjustment Serv. Corp. (2000), 89 Ohio St.3d 385, 732
N.E.2d 362. One of the invalid subpoenas sought the production of documents
from Clapp & Affiliates Financial Services, Inc. ("Clapp, Inc."), a respondent in

SUPREME COURT OF OHIO
that action, for the purpose of aiding relator in its investigation of whether Clapp,
Inc. was engaged in the unauthorized practice of law.

On October 10, 2000, the board again issued the subpoena, this time in
proper form. On October 26, 2000, Robert D. Clapp ("Robert Clapp"), a
nonlawyer appearing as an officer of Clapp, Inc., filed a motion to quash the
subpoena. Clapp, Inc. failed to respond to the subpoena, and on January 25, 2001,
we granted relator's motion to require Clapp, Inc. to show cause why it should not
be held in contempt for its failure. 91 Ohio St.3d 1422, 741 N.E.2d 147.

On February 14, 2001, Robert Clapp sought to intervene in the action on
the ground that he was the sole shareholder of Clapp, Inc. At the same time,
Robert Clapp filed a motion to quash the subpoena directed to Clapp, Inc. On
March 5, 2001, we granted the motion of Robert Clapp to intervene and denied
his motion to quash the subpoena. Accordingly, on April 26, 2001, the board
issued an order to compel Clapp, Inc. to comply with the subpoena. Clapp, Inc.
failed to respond, and relator filed a motion requesting this court to order Clapp,
Inc. to show cause why it should not be held in contempt for failing to comply
with the subpoena. On June 26, 2001, we granted that motion to show cause. 92
Ohio St.3d 1427, 749 N.E.2d 755.

Clapp, Inc. failed to show cause as required. However, on July 12, 2001,
Robert Clapp filed a "Response to Order Entered June 26, 2001." By order dated
September 28, 2001, we found Robert Clapp in contempt for not complying with
the subpoena duces tecum and ordered him to appear in person before the court on
October 31, 2001. 93 Ohio St.3d 1437, 755 N.E.2d 900. Robert Clapp did appear
before the court on the day assigned for hearing.

As a result of that hearing, the court finds that the materials requested by
the relator are necessary and pertinent to its ongoing investigation of whether
respondent Clapp, Inc. is engaged in the unauthorized practice of law and that the
subpoena requesting those materials was validly issued and served.
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January Term, 2002

The court further finds that Robert D. Clapp moved to quash the subpoena
directed at Clapp, Inc. and further filed a "response" to the board's order of June
26, 2001, ostensibly for himself, but actually on behalf of the corporation of
which he is sole shareholder and Chief Executive Officer. As we recently said in
Disciplinary Counsel v. Lawlor (2001), 92 Ohio St.3d 406, 407, 750 N.E.2d 1107,
1109, "Since Union Savings Assn. v. Home Owners Aid, Inc. (1970), 23 Ohio
St.2d 60, 52 O.O.2d 329, 262 N.E.2d 558, we have consistently held that a
corporation may not maintain an action through an officer who is not a licensed
attorney." In Union Savings, we also held that a corporation may not appear in
court through its officer. And in Worthington City School Dist. Bd. of Edn. v.
Franklin Cty. Bd. of Revision (1999), 85 Ohio St.3d 156, 160-161, 707 N.E.2d
499, 502-503, we found that the officers of a corporation and of a quasi-
corporation (a local board of education), having prepared and filed legal
documents for their corporations, had engaged in the unauthorized practice of
law. Here, based on his statements in open court before us and taking judicial
notice of our own records, we find that Robert D. Clapp, who is not an attorney
admitted to the practice of law in Ohio, has personally engaged in the practice of
law in this state.

We previously found that Robert D. Clapp engaged in the unauthorized
practice of law in Richland Cty. Bar Assn. v. Clapp (1998), 84 Ohio St.3d 276,
703 N.E.2d 771.

THEREFORE, with respect to respondent Clapp, Inc.,

(1) IT IS ORDERED that respondent, Clapp, Inc., having failed to show
cause why it should not be held in contempt for failing to comply with the April
26, 2001 subpoena, is hereby held in contempt and,

(2) IT IS ORDERED that respondent, Clapp, Inc., produce within ten
days of the date of this order any book or books published or produced by Clapp,
Inc. and any documents or other material relating to the marketing of any such
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SUPREME COURT OF OHIO
book, as well as all records of business activities and prospects derived from the
promulgation of such book. In addition, Clapp, Inc. shall comply with relator's
subpoena and produce at the office of counsel for the relator within ten days of
the date of this order any and all files and records pertaining to any clients that
respondent Clapp, Inc. has represented within the past two years, including any
samples of any form letters sent by Clapp, Inc. to market its services, contact
potential clients, or negotiate settlements. Respondent Clapp, Inc. shall also
produce within ten days of the date of this order at the offices of counsel for
relator any and all documents provided to clients of Clapp, Inc. after payment is
received by Clapp, Inc. and

FURTHER, with respect to intervening respondent, Robert D. Clapp,

IT IS ORDERED that intervening respondent, Robert D. Clapp, having
been held in contempt on September 28, 2001, shall purge himself of said
contempt by causing Clapp, Inc., a corporation of which he is sole shareholder
and Chief Executive Officer, to fully and completely comply with the subpoena of
April 26, 2001, and to cause Clapp, Inc. to produce the documents and other
materials described in paragraph (2) of this order at the office of the counsel for
the relator within ten days of the date of this order, and

IT IS FURTHER ORDERED that intervening respondent, Robert D.
Clapp, in order to purge himself of contempt, shall produce or cause to be
produced within ten days of the date of this order at the office of counsel for the
relator any book or books published or produced by himself, or by himself with
another or others, or by Clapp, Inc., and any documents or other material relating
to the marketing of any such book, as well as all business activities and prospects
derived from the promulgation of such book, and

IT IS FURTHER ORDERED that intervening respondent Robert D.
Clapp, within ten days of the date of this order shall file an affidavit with relator
and with this court that he is no longer engaged and does not further intend to
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January Term, 2002
engage in any counseling or negotiation regarding legal matters for or on behalf
of another, or appear in court by pleadings or personal appearance for or on behalf
of any party other than himself, or engage in any other practice that may
constitute the practice of law, and

IT IS FURTHER ORDERED that should intervening respondent Robert
D. Clapp in his personal capacity or as Chief Executive Officer of respondent
Clapp, Inc., or as sole shareholder of Clapp, Inc., fail to produce the items referred
to in this order, he shall be incarcerated in the Richland County Jail for a period of
no less than thirty days and as long thereafter as he shall fail to purge himself of
the contempt of this court.

Costs are taxed to intervening respondent Robert D. Clapp.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________

Steven F. Stuhbarg, for relator.

Robert D. Clapp, pro se.
__________________
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