[Cite as Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc., 112 Ohio 

St.3d 107, 2006-Ohio-6511.]

OHIO STATE BAR ASSOCIATION, v. BURDZINSKI, BRINKMAN, CZARZASTY &

LANDWEHR, INC., ET AL. 

[Cite as Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, 

Inc., 112 Ohio St.3d 107, 2006-Ohio-6511.] 

Unauthorized practice of law — Labor-relations consultants — It is the 

unauthorized practice of law to draft a contract 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 previously 

prepared by a lawyer.

(No. 2006-0839 – Submitted August 8, 2006 – Decided December 27, 2006.) 

ON FINAL REPORT by the Board on the Unauthorized 

Practice of Law, No. UPL 04-05. 

__________________ 

SYLLABUS OF THE COURT

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 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. 

__________________ 

MOYER, 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 consultations 
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2 

and other services by nonlawyers in labor 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 Brinkman-Burdzinski are shareholders and 

directors of the respondent corporation. 

{¶ 3} As labor-relations consultants, respondents assist their clients in 

interactions with their clients’ employees regarding union organizing. 

Respondents provide advice on how to prevent, 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. Additionally, in the event the election to 

unionize is successful or a collective-bargaining agreement is already in place, 

respondents serve as both negotiators and drafters on behalf of their clients 

regarding labor agreements. Also, the 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 Association, filed a complaint with the 

Board on the Unauthorized Practice of Law averring that respondents’ activities 

constitute the unauthorized practice of law. 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 law when they negotiated the settlement 

of election issues, served as lead negotiator in collective bargaining, and drafted 

collective-bargaining agreements on behalf 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 the 
January Term, 2006 

3 

respondents from the same or similar conduct 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 negotiations. 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 question whether a certain state action is preempted by federal law is one of congressional 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 has 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 employees, 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 presuppositions 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 Relations Act”). 
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{¶ 8} The United States Supreme Court has identified two categories of 

cases that hold state authority to be preempted by federal labor law: “(1) those 

that reflect the concern that ‘one forum 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 whether 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. The federal labor laws address the 

relationship between employees and employers, 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 construed not to preclude the States from 

regulating aspects of labor relations that involve ‘conduct touch[ing] interests so 

deeply rooted in local feeling and responsibility that * * * we could not infer that 

Congress had deprived the States of the power to act.’ ” Lodge 76, 427 U.S. at 
January 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 within their boundaries, and that as part of 

their power to protect the public health, safety, 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 relations and that there is ample room for 

state regulation of matters of local concern 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 historically 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, 
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¶ 39. In the seminal case regarding the unauthorized practice of law, we held, 

“The practice of law is, ‘as generally understood, 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 counsel, 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 distinct activities in which respondents 

have engaged: advising an employer regarding labor-election matters, negotiating 

on behalf of an employer on labor issues, 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, pamphlets, 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 and prohibited actions. 

{¶ 16} The panel found that respondents gather information that indicates 

the reasons employees may want a union, and 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 communicate 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 eliminate 
January Term, 2006 

7 

problems identified by employees, and 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, respondents use NLRB-prepared writings, rather 

than their own analysis or training, to advise 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 guidelines 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 respondents’ 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 bargaining. 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 subjects for negotiation. Because of the close 

federal regulation and the limited subjects for negotiation, we conclude that 

respondents’ conducting of negotiations on behalf of their clients with employees 
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or employees’ representatives during collective bargaining is not the practice of 

the law. 

D 

{¶ 21} Lastly, respondents draft employment contracts and collectivebargaining agreements based upon the previous negotiations. Sometimes 

respondents simply copy and fill in the blanks of previously used contracts, 

sometimes they write contracts themselves, and sometimes they use a 

combination of efforts. 

{¶ 22} We have consistently held that drafting contracts or legal 

instruments on behalf of another 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 copy 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 himself, but for the benefit of another.” 

Id. The drafting or writing of a contract or other legal instrument on behalf of 

another is the practice of law, even if the 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 to 

represent 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 legal 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. Costs are taxed to respondent. 

Judgment accordingly. 

 RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL and 

LANZINGER, 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 Management Lawyers Association. 

______________________