[Cite as Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. , 112 Ohio St.3d 107, 2006-Ohio-6511.]

O HIO S TATE B AR A SSOCIATION , v . B URDZINSKI , B RINKMAN , C ZARZASTY &
L ANDWEHR , I NC ., ET AL . [Cite as Ohio State Bar Assn. v. Burdzins ki, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio St.3d 107, 2006-Ohio-6511.] Unauthorized practice of law — Labor-r elations consultants — It is the unauthorized practice of law to draft a contract on behalf of another that is intended to create a legally bi nding relationship between an employer and a union, even if the contract is copied from a form book or previously prepared by a lawyer. (No. 2006-0839 – Submitted August 8, 2006 – Decided December 27, 2006.)
O N F INAL R EPORT by the Board on the Unauthorized Practice of Law, No. UPL 04-05.

__________________ S YLLABUS OF THE C OURT 1. It is not the unauthorized practice of law for a nonlawyer to represent 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 be half of another that is intended to create a legally binding relationshi p between an employer and a union, even if the contract is copied from a form book or was previously prepared by a lawyer.

__________________ M OYER , C.J. {¶ 1} In this matter, on objections to the final report of the Board on the Unauthorized Practice of Law, we are asked to determine whether consultationsS UPREME C OURT OF O HIO

2 and other services by nonlawyers in la bor negotiations are the unauthorized practice of law.
I {¶ 2} Respondent Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., is a management-side labor consulting firm incorporated in 1988. Respondents
Bernard Burdzinski II and Connie Brinkm an-Burdzinski are shareholders and directors of the respondent corporation. {¶ 3} As labor-relations consultants, re spondents assist their clients in
interactions with their clients’ em ployees regarding union organizing. Respondents provide advice on how to pr event, conduct, and defeat a union election. Respondents gather information, develop a strategy, coach their clients on information-dissemination and the elimination of problems, and finally, make all arrangements for an election. Add itionally, in the event the election to unionize is successful or a collective-bargaining agreement is already in place, respondents serve as both negotiators a nd drafters on behalf of their clients regarding labor agreements. Also, th e respondents assist their clients in responding to charges of unfair labor practices before the National Labor Relations Board (“NLRB”). {¶ 4} Relator, the Ohio State Bar Associ ation, filed a complaint with the
Board on the Unauthorized Practice of La w averring that respondents’ activities constitute the unauthorized practice of la w. 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 two of the respondents had engaged in the unauthorized practice of la w when they negotiated the settlement of election issues, served as lead negotiator in collective bargaining, and drafted collective-bargaining agreements on beha lf of others. The board found that Connie Burdzinski was involved only in the drafting of collective-bargaining agreements. The board recommended that the Supreme Court enjoin theJanuary Term, 2006

3 respondents from the same or similar conduc t and that respondents reimburse the costs and expenses incurred by the board and relator.
II {¶ 5} The threshold issue is whether the federal government has preempted the field of labor negotiati ons. Respondents assert that we are preempted from regulating this area by the National Labor Relations Act. {¶ 6} But even in an area as federally regulated as labor relations, “Congress * * * has never exercised authority to occupy the entire field in the area of labor legislation. Thus the ques tion whether a certain state action is preempted by federal law is one of congressi onal intent. ‘ “The purpose of Congress
is the ultimate touchstone.” ’ ” Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206, quoting Malone v. White Motor Corp

. (1978), 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443, quoting Retail Clerks
v. Schermerhorn (1963) 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179. {¶ 7} The United States Supreme Court ha s consistently held that it was never the intent of Congress to preempt the field of labor relations: “We cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between empl oyees, employers, and unions; obviously,
much of this is left to the States.” Amalgamated Assn. of Street, Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge (1971), 403 U.S. 274, 289, 91 S.Ct. 1909, 29 L.Ed. 2d 473; see, also, San Diego Bldg. Trades Council, Millmen's
Union v. Garmon (1959), 359 U.S. 236, 243-244, 79 S.Ct. 773, 3 L.Ed.2d 775 (“However, due regard for the presuppositi ons of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Rela tions Act”).S UPREME C OURT OF O HIO

4 {¶ 8} The United States Supreme Court has identified two categories of cases that hold state authority to be pree mpted by federal labor law: “(1) those
that reflect the concern that ‘one foru m 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.’ ” Lodge 76, Internatl. Assn. of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Emp. Relations Comm. (1976), 427 U.S. 132, 138, 96 S.Ct. 2548, 49 L.Ed.2d 396, quoting Internatl. Union, Unified Auto., Aircraft & Agricultural Implement Workers of Am. v. Russell (1958), 356 U.S. 634, 644, 78 S.Ct. 932, 2 L.Ed.2d 1030. Neither of those concerns is applicable here. {¶ 9} Our determination as to whet her respondents may represent employers in the circumstances described herein would not enjoin conduct in one forum that is legal in another, nor would we limit rights guaranteed by Congress. Our disposition of this case will not affect the ability of employers or unions to represent themselves in these matters; rather, this case is limited to third-party, nonemployee, or nonunion persons. Th e federal labor laws address the relationship between employees and employ ers, not the authority of nonlawyers to act as consultants during union-authorization elections. Brown v. Hotel & Restaurant Emps. & Bartenders Internatl. Union Local 54 (1984) 468 U.S. 491, 505, 104 S.Ct. 3179, 82 L.Ed.2d 373. {¶ 10} The United States Supreme Court has been especially deferential to concerns of the states: “Federal labor policy as reflected in the National Labor Relations Act, as amended, has been c onstrued not to preclude the States from regulating aspects of labor relations that involve ‘conduct touch[ing] interests so deeply rooted in local feeling and respons ibility that * * * we could not infer that Congress had deprived the States of the power to act.’ ” Lodge 76 , 427 U.S. atJanuary Term, 2006

5 136, 96 S.Ct. 2548, 49 L.Ed.2d 396, quoting San Diego Bldg. Trades Council,
Millmen’s Union , 359 U.S. at 244, 79 S.Ct. 773, 3 L.Ed.2d 775. {¶ 11} There are few interests more deeply rooted in local responsibility than the governance of the bar. “We recognize that the States have a compelling interest in the practice of professions w ithin their boundaries, and that as part of their power to protect the public health, sa fety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions. * * * The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ ” Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 792, 95 S.Ct. 2004, 44 L.Ed.2d 572. See, also, Leis v. Flynt (1979), 439 U.S. 438, 442, 99 S.Ct. 698, 58 L.Ed.2d 717 (“the licensing and regulation of lawyers has been left exclusively to the States * * * within their respective jurisdictions”). {¶ 12} The overwhelming body of case law shows that Congress has not intended to preempt the field of labor rela tions and that there is ample room for state regulation of matters of local concer n and responsibility. This case does not affect the rights of employers or employees, but rather concerns the ability of the state to regulate the practice of law, a hi storically state function. There is no risk that our determination today will conflict with the intent of Congress; we therefore hold that we are not preempted by federal labor law and may properly regulate the actions of nonlawyers in labor-related matters.
III
A {¶ 13} “This court has exclusive power to regulate, control, and define the practice of law in Ohio * * *. The power to regulate includes the authority to grant as well as the authority to deny * * *.” Cleveland Bar Assn. v. CompManagement Inc. , 104 Ohio St.3d 168, 2004-Ohio-6506, 818 N.E. 2d 1181,S UPREME C OURT OF O HIO

6 ¶ 39. In the seminal case regarding the unauthorized practice of law, we held, “The practice of law is, ‘as generally unde rstood, the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and couns el, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.’ ” Land Title Abstract & Trust Co. v.
Dworken (1934), 129 Ohio St. 23, 28, 1 O.O. 313, 193 N.E. 650, quoting 49 Corpus Juris 1313. {¶ 14} This case presents three distin ct activities in which respondents have engaged: advising an employer regarding labor-election matters, negotiating on behalf of an employer on labor issu es, and preparing labor agreements on behalf of an employer.
B {¶ 15} The record suggests and respondents stated at oral argument that the NLRB prepares brochures, pamphlet s, and other documents to assist employers and employees in their understanding of their respective responsibilities and rights regarding a union election. Respondents argue that there is no interpretation regarding these regulations; rather, they are exhaustive
lists of allowed a nd prohibited actions. {¶ 16} The panel found that respondents gath er information that indicates the reasons employees may want a union, a nd they develop strategies to respond to that information. Gathering information, even on a matter that may come before a tribunal, is not the practice of law. The strategies developed appear to be business-oriented, such as how to comm unicate with employees. Strategic planning of this nature is not the practice of law. {¶ 17} The panel also found that respondents coached management on what topics to discuss and how to discuss them with employees, how to eliminateJanuary Term, 2006

7 problems identified by employees, an d how to arrange and conduct a union
election. {¶ 18} Normally, advising a client on how to comply with a regulatory scheme would be the practice of law, but in this case, the NLRB has already performed that function. Here, responde nts use NLRB-prepared writings, rather than their own analysis or training, to a dvise 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 guid elines published by the NLRB, without analysis or interpretation. Presenting prepackaged legal advice of this nature is not the practice of law. {¶ 19} Accordingly, we hold that responde nts’ actions on behalf of their customers related to a union election are not the practice of law.
C {¶ 20} Respondents also serve as negotiators on behalf of their clients. Respondents may serve as a member of a negotiating committee or as lead negotiator. The panel found that the NLRB publishes a list of mandatory, permissible, and prohibited subjects for ba rgaining. 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. Land Title Abstract , 129 Ohio St. at 29, 1 O.O. 313, 193 N.E. 650. See, also, Cleveland Bar Assn. v. Henley (2002)
, 95 Ohio St.3d 91, 766 N.E.2d 130. 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 subject s for negotiation. Because of the close federal regulation and the limited subject s for negotiation, we conclude that respondents’ conducting of ne gotiations on behalf of thei r clients with employeesS UPREME C OURT OF O HIO

8 or employees’ representatives during collective bargaining is not the practice of
the law.
D {¶ 21} Lastly, respondents draft employ ment contracts and collectivebargaining agreements based upon th e previous negotiations. Sometimes respondents simply copy and fill in the bl anks of previously used contracts, sometimes they write contracts themselves, and sometimes they use a
combination of efforts. {¶ 22} We have consistently held th at drafting contracts or legal
instruments on behalf of anot her is the practice of law. Land Title Abstract, 129 Ohio St. at 28-29, 1 O.O 313, 193 N.E. 650, and at syllabus. (“The greater, more responsible, and delicate part of a lawyer’s work is in other directions. Drafting instruments creating trusts, formulating contracts, drawing wills and negotiations, all require legal knowledge and power of adaptation of the highest order”). {¶ 23} The fact that respondents may co py 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), 92 Ohio St.3d 15, 748 N.E.2d 23, the respondent argued that simply copying a form contract was not the practice of law. We rejected that argument: “Although he copied the documents from a form book, the fact is that respondent completes those forms not for hims elf, but for the benefit of another.” Id. The drafting or writing of a contract or other legal instru ment on behalf of another is the practice of law, even if th e contract is copied from a form book or contract previously prepared by a lawyer.
IV {¶ 24} It is not the unauthorized practice of law for a nonlawyer torepresent another in union-election matters or in the negotiation of a collectivebargaining agreement when the activities of the nonlawyer are confined to providing advice and services that do not require legal analysis, legal conclusions,January Term, 2006

9 or legal training. It is the unauthorized practice of law for a nonlawyer to draft or
write a contract or other le gal 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. {¶ 25} Respondents are therefore enjoined from the further drafting or writing of contracts. Cost s are taxed to respondent. Judgment accordingly.
R ESNICK , P FEIFER , L UNDBERG S TRATTON , O’C ONNOR , O’D ONNELL and
L ANZINGER , JJ., concur.

__________________ Chernesky, Heyman & Kress, P.L.L., Thomas P. Whelley II, and Rachael L. Rodman, for respondents. Fitch, Kendall, Cecil, Robinson & Barry Co., L.P.A., and Ian Robinson; and Eugene Whetzel, for relator. Frost Brown Todd L.L.C., George E. Yund, and Christine L. Robek, for amicus curiae, Ohio Manage ment Lawyers Association.

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