Charging Mortgage and Document Preparation Fees not "the Unauthorized Practice of Law"
In Greenspan v. Third Fed. S. & L. Assn., Slip Opinion No. 2009-Ohio-3508, the Supreme Court of Ohio held that the private right of action for damages resulting from the unauthorized practice of law could only be invoked after the Supreme Court had already made such a finding.
The plaintiff in Greenspan alleged that a $300 document preparation fee charged by Third Federal in connection with a 2002 mortgage loan constituted the unauthorized practice of law because the bank's nonattorney personnel prepared and completed mortgage loan documents.
The Supreme Court of Ohio rejected that claim, holding that the Court has exclusive jurisdiction over the practice of law in Ohio, including the unauthorized practice of law. Therefore any determination that a defendant engaged in such unauthorized practice could only come from the Supreme Court, which established a Board on the Unauthorized Practice of Law for precisely this purpose. The private right of action authorized by the legislature, therefore, could only permit recovery against persons already found to have engaged in the unauthorized practice of law by the Supreme Court, and the statute authorizing such recovery provided for exactly that. Creative attempts to circumvent the Court's exclusive jurisdiction by framing the matter as common-law "unjust enrichment" failed.
Although the Court rejected the argument that a plaintiff could bring a private action under these circumstances, it did not reach the issue of whether preparing the documents in question itself constituted the unauthorized practice of law.
