Weekly Legislative Report: O'Neill stays in the governor's race, but as a result, shouldn't stay on the bench says the OSBA

​Dec. 14, 2017

On Friday, Ohio Supreme Court Justice Bill O'Neill announced that he would continue to seek his party's nomination for Governor of Ohio though he had previously said he would drop out if former Ohio Attorney General and director of the federal Consumer Financial Protection Bureau Richard Cordray decided to run (which, as we reported last week, Cordray did).

Despite the fact that he is actively campaigning to be the next Governor of Ohio, Justice O'Neill also indicated that he will remain on the Ohio Supreme Court though late January. He says he will not technically be a candidate until he files his petitions in February; however, Justice O'Neill's published platform and c​omments on a variety of public policy issues have opened the door to countless potential conflicts that cannot be ameliorated by mere recusal. In light of this concern and after careful deliberation with the Board of Governors, OSBA President Randall Comer issued a statement calling on Justice O'Neill to resign immediately. 

The OSBA's concerns center on Canon 4 in the Rules of Judicial Conduct, which provides that “[a] judge or judicial candidate shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Additionally, Rule 4.5 speaks to this situation directly, stating in relevant part that “[u]pon becoming a candidate in a primary or general election for a nonjudicial elective office, a judge shall resign from judicial office…” We believe that is the best course of action for ensuring public confidence in our judicial system now and in the future. 

Moving forward, we want to work with the Supreme Court and all interested parties to prevent future controversies of this nature. We will continue to keep you informed of any developments. 

Defending Against the Unauthorized Practice of Law 

In addition to standing up for the independence, integrity and impartiality of the judiciary, the OSBA is also working to guard against the unauthorized practice of law. This week, Cleveland attorney and member of the OSBA Unauthorized Practice of Law Committee Jeffrey Fanger testified before the Ohio House Financial Institutions, Housing and Urban Development Committee in opposition to House Bill 182, legislation which would allow debt settlement companies to operate in Ohio. 

The OSBA has consistently opposed previous iterations of this legislation, recognizing that its passage would authorize third-party businesses to engage in the practice of law without being properly licensed to do so. It would essentially set up a process in Ohio by which non-attorneys would be authorized to negotiate terms of a contract, enter into the new contractual agreement, establish new payment plans and payment arrangements and even discharge debt (which has tax implications) and presumably either advise the party on the terms of the new contact (including the tax implications) or not advise the party on the terms of the new contract—thereby leaving the debtor without the relevant information necessary to make an informed decision.  

The OSBA's long-standing position has been affirmed by the Ohio Supreme Court in Ohio State Bar Assn. V. Kolodner, 103 Ohio St. 3d 504, 2004-Ohio-5581, which found that the negotiation and drafting of debt settlement agreements is indeed the unauthorized practice of law. Though we appreciate that the bill's sponsor recognized this concern and attempted to address it by including uncodified language in the bill which declares that nothing in HB182 shall be construed to authorize the unauthorized practice of law, simply making this statement does not change the underlying constitutional principle. As Fanger reminded the Committee, the regulation of the practice of law rests exclusively with the Ohio Supreme Court rather than the General Assembly. HB182 had been slated for a committee vote this week, but thanks in part to Jeffrey Fanger and the members of the committee who continue to make the case why this bill would be bad for consumers and bad for Ohio, things are on hold, at least for now. We will continue to monitor the situation. 

Tracking OSBA Legislation 

As always, track OSBA priority bills and bills we are watching via the Legislative section at www.OhioBar.org.  

Week Ahead 

Some like to say "It's the Most Wonderful Time of the Year." Though we think they are referring to the holiday season and not the resulting legislative recess, the Ohio General Assembly won't be back in session until January.

 
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