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American Family Prepaid Legal Corp. v. Columbus Bar Association

June 28, 2006


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Kemp


The Court considers this case pursuant to a motion for a stay and an injunction filed by Plaintiff American Family Prepaid Legal Corporation ("American Family") (Doc. # 52) and a response in opposition filed by Defendant Columbus Bar Association ("CBA") (Doc. # 55). Because the Court granted American Family's request for expedited consideration, no reply was permitted. (Doc. # 53). For the following reasons, the Court finds the motion well taken and therefore GRANTS the same. (Doc. # 52).


To avoid repetition, the Court deems it unnecessary to restate the factual and procedural background of the case. Rather, the Court shall incorporate that information from its May 9, 2006 Opinion and Order herein. (Doc. # 47). Of particular interest to the disposition of the current motion, however, is the fact that American Family initiated an appeal of that Opinion and Order on June 2, 2006 and now seeks a Fed. R. Civ. P. 62(c) stay and injunction from this Court. (Doc. # # 51, 52).


In addressing whether to grant a stay pending appeal, a court considers four factors: (1) whether the party seeking the stay has made a strong showing of a likelihood of success on the merits, (2) whether the absence of a stay will irreparably injure the applicant, (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). In making such inquiries, the Court is cognizant that it must balance these interrelated considerations together. Michigan Coalition, 945 F.2d at 153. In other words, no one factor is wholly dispositive; for example, as American Family points out, the "probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury [the applicant] will suffer absent a stay .... Simply stated, more of one excuses less of the other." Id.; Doc. # 52 at 3. The consequent result of this rationale is that when the potential for irreparable injury exists, the applicant must show "serious questions going to the merits." Id. at 153-54. The Court shall discuss each factor to be considered in turn.

(1) Likelihood of Success on the Merits

American Family maintains that the Supreme Court of Ohio's Rule for the Government of the Bar VII Section 5a ("Rule") is facially unconstitutional and that the Rule violates American Family's right to procedural due process in violation of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983. (Doc. # 1 at ¶ ¶ 108-119). The Court concludes that American Family has demonstrated a strong likelihood of success on the merits and serious questions going to the merits.

To make a valid claim under § 1983, American Family must establish that: (1) it was denied a constitutional right; and (2) the CBA acted under the color of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). While the parties concentrate on the former at the expense of the latter, the Court shall address the second factor first before turning to analysis of whether the Rule deprives American Family of its rights to procedural due process. (Doc. # # 52, 55).

To begin, Ohio's Constitution vests the State's judicial power in the Ohio Supreme Court. Ohio Constit. art. IV, § 1. The Constitution also mandates that the Ohio Supreme Court has original jurisdiction over "admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law." Ohio Const. art. IV, § 2(B)(1)(g). Pursuant to that jurisdiction, the Ohio Supreme Court has created Rules for the Government of the Bar, which include the Rule at issue. The Rule provides, in pertinent part:

(A)(1) Upon receipt of substantial, credible evidence demonstrating that an individual or entity has engaged in the unauthorized practice of law and poses a substantial threat of serious harm to the public, the Disciplinary Counsel or unauthorized practice of law committee of any regularly organized bar association, which shall be referred to as the relator, shall do both of the following:

(a) Prior to filing a motion for an interim cease and desist order, make a reasonable attempt to provide the individual or entity, who shall be referred to as respondent, with notice, which may include notice by telephone, that a motion requesting an interim order that the respondent cease and desist engaging in the unauthorized practice of law will be filed with the Supreme Court.

(b) File a motion with the Supreme Court requesting that the Court order respondent to immediately cease and desist engaging in the unauthorized practice of law. The relator shall include, in its motion, proposed findings of fact, proposed conclusions of law, and other information in support of the requested order. Evidence relevant to the requested order shall be attached to or filed with the motion. The motion may include a request for an immediate, interim cease and desist order pursuant to Rule XIV of the Rules of Practice of the Supreme Court of Ohio. The motion shall include a certificate detailing the attempts made by relator to provide advance notice to the respondent of ...

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