Cleveland Metro. Bar Ass'n v. Hurley, 2017–0798
| Decision Date | 16 January 2018 |
| Docket Number | No. 2017–0798,2017–0798 |
| Parties | Cleveland Metropolitan Bar Association v. Hurley. |
| Court | Ohio Supreme Court |
Heather M. Zirke, Bar Counsel, and Kari L. Burns, Assistant Bar Counsel, for relator.
Rosel Charles Hurley III, Cleveland, pro se.
{¶ 1} Respondent, Rosel Charles Hurley III, of Cleveland, Ohio, Attorney Registration No. 0083288, was admitted to the practice of law in Ohio in 2008.
{¶ 2} In March 2013, we suspended his license on an interim basis after receiving notice that he had been convicted of multiple felonies for improperly using the Ohio Law Enforcement Gateway while employed by the Cuyahoga County prosecutor's office. In re Hurley , 134 Ohio St.3d 1491, 2013-Ohio-924, 984 N.E.2d 33. In November 2013, we suspended him for failing to register as an attorney for the 2013–2015 biennium. In re Attorney Registration Suspension of Hurley , 136 Ohio St.3d 1544, 2013-Ohio-4827, 996 N.E.2d 973. And in April 2015, we suspended him for two years for the conduct underlying his felony convictions and two unrelated misdemeanor convictions. Cleveland Metro. Bar Assn. v. Hurley , 143 Ohio St.3d 69, 2015-Ohio-1568, 34 N.E.3d 116. His attorney-registration and 2015 suspensions remain in effect.
{¶ 3} In January 2017, relator, Cleveland Metropolitan Bar Association, charged him with holding himself out as an attorney during his suspension and engaging in other dishonest conduct. Although Hurley admitted that many of the facts stated in the complaint were accurate, he denied that he violated any professional-conduct rules. After a panel of the Board of Professional Conduct held a hearing, the board found that he had engaged in the charged misconduct and recommended that we permanently disbar him. Hurley objects to both the board's findings of misconduct and the recommended sanction.
{¶ 4} We agree with the board that Hurley committed the violations alleged in the complaint. However, based upon our review of the record, we sustain in part Hurley's objections and conclude that an indefinite suspension is the appropriate sanction in this case with added conditions for reinstatement.
{¶ 5} According to Hurley, he was unable to obtain full-time employment after he was suspended, and he believed that employers were discriminating against him based on his race and prior felony convictions. As a result of this perceived injustice, he sent "demand letters" in response to at least 20 Internet job postings that included language disqualifying applicants who had criminal backgrounds. The letters warned employers that their "blanket exclusion of job applicants with felony convictions" violated federal law and "resulted in Disparate Impact to African Americans." With each letter, Hurley included a proposed settlement agreement, in which the employer would agree to pay $500 to avoid the filing of a complaint with the Equal Employment Opportunity Commission ("EEOC").
{¶ 6} Hurley's letters included the identifier "Arnuma Law LPA" or "Arnuma Law LLC" in large, bold print at the top of the first page. Arnuma Law, L.P.A., was the name of Hurley's former law firm. In addition, the letters made numerous references to a "client." Specifically, they stated:
Underneath the line for his signature, Hurley had typed "Mr. Rosel C. Hurley, J.D., Esquire." He later admitted that he had no "client" but was acting solely on his own behalf.
{¶ 7} At Hurley's disciplinary hearing, relator offered two witnesses who testified that they had received the demand letter. First, John Balloun, the president of a small business in Georgia, testified that he received the letter in response to an online job posting for a field-service technician. Believing that Hurley was authorized to practice law, Balloun became concerned that the language in his company's job posting may be illegal. To avoid the expenses of consulting with an attorney and potential litigation, Balloun signed the proposed settlement agreement and issued a $500 check to Arnuma Law. According to Balloun, Hurley never told him that he was suspended from the practice of law in Ohio. Hurley later testified that Balloun was the only person who executed the settlement agreement and paid the requested $500.
{¶ 8} Relator's second witness was James Roland, the operations manager for a small business in Colorado. Roland testified that he received the demand letter in response to an online job posting for a process server. Roland reacted to the letter by removing the job posting and considered paying the settlement offer. But after talking to a lawyer, Roland reposted the position. Hurley resubmitted the demand letter, and at that point, Roland researched Hurley's Ohio attorney-registration status and discovered that he was suspended.
{¶ 9} Based on the hearing evidence, the board concluded that Hurley had misrepresented his status as an Ohio lawyer in an attempt to mislead and intimidate small businesses into paying him money. Consequently, the board found that by sending the demand letters while under suspension, using the name of his former law firm and including "Esquire" after his own name, and omitting from the letters that he was suspended and representing only himself, he violated Prof.Cond.R. 5.5(a) (), 5.5(b)(2) (), 7.1 (prohibiting a lawyer from making or using a false, misleading, or nonverifiable communication about the lawyer or the lawyer's services), and 8.4(c) ().
Hurley's objections
{¶ 10} Throughout these proceedings and in his written objections, Hurley has maintained that because he did not actually represent any clients at the time he sent the demand letters, he did not violate his suspension orders. The unauthorized practice of law, however, includes not only the rendering of legal services for another by any person not authorized to practice in Ohio but also the holding out to the public or otherwise representing oneself as authorized to practice in Ohio by a person not authorized to do so. Disciplinary Counsel v. Harris , 137 Ohio St. 1, 2013-Ohio-4026, 996 N.E.2d 921, ¶ 18; Gov.Bar R. VII(2)(A)(4). Thus, the fact that Hurley did not actually represent any clients does not mean that he did not engage in the unauthorized practice of law.
{¶ 11} Hurley also relies on Sperry v. Florida ex rel. Florida Bar , 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), in which the United States Supreme Court held that Florida could not enjoin a nonlawyer registered to practice before the United States Patent Office from preparing patent applications in that state—activity that would otherwise constitute the practice of law in Florida—because federal law expressly authorized nonlawyer practice of that type before the patent office. Id. at 385, 404, 83 S.Ct. 1322. Hurley appears to be arguing by analogy that we cannot punish his conduct, because he was authorized by federal law to engage in activity before the EEOC. To support that claim, he submitted a copy of a screenshot from an EEOC webpage indicating that anyone may file a charge of discrimination with the agency on behalf of another person.
{¶ 12} Hurley, however, did not file a discrimination charge with the EEOC. Rather, he attempted to privately settle a potential discrimination claim on behalf of a nonexistent client. Hurley has failed to identify any federal statute or regulation expressly authorizing such activity by nonlawyers or suspended lawyers. Therefore, Sperry does not absolve or otherwise protect Hurley against the board's findings of misconduct in this case.
{¶ 13} Finally, at oral argument, Hurley set forth additional reasons to reject the board's misconduct findings, including that relator had belatedly disclosed its witnesses prior to the disciplinary hearing and failed to sufficiently prove certain counts of its complaint. Because Hurley did not raise these arguments in his written objections, they are not properly before the court. Disciplinary Counsel v. Goldblatt , 118 Ohio St.3d 310, 2008-Ohio-2458, 888 N.E.2d 1091, ¶ 5.
{¶ 14} We therefore overrule Hurley's objections and agree with the board that he violated Prof.Cond.R. 5.5(a), 5.5(b)(2), 7.1, and 8.4(c).
{¶ 15} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.
Aggravating and mitigating factors
{¶ 16} As aggravating factors, the board found that Hurley has a prior disciplinary record, had a dishonest motive, engaged in a pattern of misconduct, committed multiple offenses, refused to acknowledge the wrongful nature of his conduct, and caused...
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Cleveland Metro. Bar Ass'n v. Hurley
...V(17)(E)(1) and that publication be made as provided for in Gov.Bar R. V(17)(E)(2).{¶ 6} For earlier case, see Cleveland Metro. Bar Assn. v. Hurley , 152 Ohio St.3d 536, 2018-Ohio-231, 98 N.E.3d 259. O'Connor, C.J., and Kennedy, Fischer, DeWine, Donnelly, Stewart, and Brunner, JJ., ...