Disciplinary Counsel v. Brown

• Decision Date: 19 March 2009
• Docket Number: No. 2008-1573.,2008-1573.
• Parties: DISCIPLINARY COUNSEL v. BROWN.
• Court: Ohio Supreme Court

905 N.E.2d 163

121 Ohio St.3d 423

2009-Ohio-1152

DISCIPLINARY COUNSEL v. BROWN.

No. 2008-1573.

Supreme Court of Ohio.

Submitted November 19, 2008.

Decided March 19, 2009.

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First Assistant Disciplinary Counsel, for relator.

Bruce A. Brown, pro se.

PER CURIAM.

{¶ 1} In June 2006, relator, Disciplinary Counsel, charged respondent, Bruce Andrew Brown, also known as Amir Jamal Tauwab, Bruce Brown, Bruce A. Brown, and B. Andrew Brown, with six counts of unauthorized practice of law. The Board on the Unauthorized Practice of Law concluded that respondent had practiced law in violation of Ohio licensure requirements and recommends that we enjoin respondent from committing further illegal acts, that we impose a civil penalty of $50,000, and that we order respondent to show cause why he should not be held in contempt for violating the injunction we imposed against him in an earlier case in which we found that he had engaged in the unauthorized practice of law, Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003-Ohio-2568, 789 N.E.2d 210.

Background

{¶ 2} Respondent was admitted to the practice of law in New York in 1985, but was disbarred in 1992. In re Brown (1992), 181 A.D.2d 314, 586 N.Y.S.2d 607. Respondent has never been admitted to the practice of law in Ohio.

{¶ 3} In 1992, the Board on the Unauthorized Practice of Law found that respondent had engaged in conduct in Ohio constituting the unauthorized practice of law. Disciplinary Counsel v. Brown (1992), 61 Ohio Misc.2d 792, 584 N.E.2d 1391. Respondent was later convicted of 44 felonies, including grand theft, forgery, uttering, and tampering with records, based on his conduct relating to his unauthorized practice of law. State v. Brown (1995), 108 Ohio App.3d 489, 671 N.E.2d 280.

{¶ 4} In 2000, relator filed a complaint with the board, again charging respondent with having engaged in the unauthorized practice of law. Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003-Ohio-2568, 789 N.E.2d 210. This court found that respondent had held himself out as a licensed attorney and enjoined him from engaging in further acts of the unauthorized practice of law. Id.

{¶ 5} In addition to the criminal convictions mentioned above, respondent has been convicted several times of felony crimes in Ohio. In 1991, respondent pleaded guilty in Cuyahoga County Common Pleas Court to passing bad checks and forging a power of attorney. In January 2003, respondent pleaded guilty in Cuyahoga County Common Pleas Court to a 21-count indictment: six counts of theft, six counts of false representation as an attorney, seven counts of passing bad checks, one count of forgery, and one count of uttering. In June 2003, respondent pleaded guilty to two counts of forgery in Portage County Common Pleas Court.

{¶ 6} In 2006, relator brought this action, charging that respondent had again engaged in the unauthorized practice of law. At the time of the filing of this action, respondent maintained a place of business known as B. Andrew Brown &amp Associates, L.L.C., in Cleveland and held himself out as B. Andrew Brown, Esq., on stationery with B. Andrew Brown & Associates on the letterhead.

{¶ 7} The board concluded that respondent had practiced law in violation of Ohio licensure requirements and recommended that we enjoin respondent from committing further illegal acts. We agree that respondent engaged in the unauthorized practice of law and that an injunction, along with other penalties, is warranted.

Respondent's Conduct

Count One: The Hilliard Matter

{¶ 8} Georgia Lee Hilliard died on March 18, 2000. Yet respondent held a power of attorney dated July 12, 2005, purporting to appoint respondent as attorney-in-fact for Hilliard for any and all acts relating to specified real property belonging to Hilliard. On July 30, 2005, respondent appeared at the closing for the sale of the property and executed all the closing documents in his capacity as Hilliard's attorney-in-fact. Proceeds from the sale of the property were placed into a U.S. Bank trust account in his name. Respondent later filed an action against U.S. Bank, alleging that the bank had converted the proceeds from the sale of the Hilliard property.

{¶ 9} R.C. 4705.01 provides: "No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which the person is not a party concerned * * * unless the person has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules."

{¶ 10} In his objections, respondent argues that relator failed to prove that he filed the lawsuit on behalf of Hilliard. He argues that he, not Hilliard, was the named party. However, Civ.R. 17 does not permit respondent to file a lawsuit against U.S. Bank for what respondent claims was the "unlawful taking of [Hilliard's] funds." In the U.S. Bank lawsuit, respondent was ostensibly seeking the return of Hilliard's funds on behalf of Hilliard. This lawsuit was unrelated to the real estate transaction for which respondent was purportedly designated attorney-in-fact.

{¶ 11} But even if the lawsuit were related to the real estate transaction, respondent would be in violation of the law because "a power of attorney does not give a person the right to prepare and file pleadings in court for another." Cuyahoga Cty. Bar Assn. v. Spurlock, 96 Ohio St.3d 18, 2002-Ohio-2580, 770 N.E.2d 568, at ¶ 9. This court has previously held that "[w]hen a person not admitted to the bar attempts to represent another in court on the basis of a power of attorney assigning pro se rights, he is in violation of [R.C. 4705.01]. A private contract cannot be used to circumvent a statutory prohibition based on public policy." Disciplinary Counsel v. Coleman (2000), 88 Ohio St.3d 155, 158, 724 N.E.2d 402. We affirm the board's conclusion that respondent engaged in the unauthorized practice of law by filing the action against U.S. Bank.

Count Two: The Paoletta Matter

{¶ 12} In 2005, respondent sent a letter to Cindy Paoletta requesting payment of an alleged debt owed by Paoletta to Raymond P. Buildt, a contractor who had allegedly furnished materials and labor to improve Paoletta's property. Respondent enclosed an affidavit for a mechanic's lien against the property. The letter was written on stationery bearing the names B. Andrew Brown & Associates, L.L.C., and B. Andrew Brown, Esq., on the letterhead.

{¶ 13} Paoletta retained an attorney, who confirmed that the mechanic's lien had been filed with the Cuyahoga County Recorder's Office. The lien contained a legend stating that the document had been prepared by B.A. Brown.

{¶ 14} Paoletta's attorney testified before the board that because the letter from respondent contained the designations "L.L.C." and "Esq.," he had assumed that respondent was an attorney. The attorney engaged in various written and verbal communications with respondent based on this assumption. The attorney later discovered that respondent was not an attorney, and when he confronted respondent, he admitted that he was not an attorney. Soon thereafter, Paoletta's attorney received a letter from respondent enclosing a copy of a satisfaction of mechanic's lien that had been filed and that bore the notation "Prepared by: B. Andrew Brown & Assoc."

{¶ 15} Prior to receiving the satisfaction of mechanic's lien, Paoletta's attorney learned from the Cuyahoga County Prosecutor's Office that respondent was not admitted to practice law in Ohio. At the hearing before the board, respondent submitted into evidence a letter purporting to have been sent by him to Paoletta's attorney on August 15, 2005, which provides: "Be advised that I am not an attorney, practicing law. I am a collection agent." Paoletta's attorney testified that he did not receive that letter in August 2005 and that the first time he saw it was in November 2007, approximately two weeks before the board hearing.

{¶ 16} Respondent argues that he was acting as a "collection agent," not an attorney. However, there is no evidence that respondent was acting as a collection agent in sending the letter to Paoletta. In leading Paoletta and her attorney to believe that he was an attorney, respondent engaged in the unauthorized practice of law. See Disciplinary Counsel v. Robson, 116 Ohio St.3d 318, 2007-Ohio-6460, 878 N.E.2d 1042. Also, because "the practice of law includes the preparation of legal documents on another's behalf," Geauga Cty. Bar Assn. v. Canfield (2001), 92 Ohio St.3d 15, 748 N.E.2d 23, in preparing the affidavit for a mechanic's lien and the satisfaction of mechanic's lien on behalf of Buildt, respondent engaged in the unauthorized practice of law.

{¶ 17} Finally, we have held that "one who purports to negotiate legal claims on behalf of another and advises persons of their legal rights * * * engages in the practice of law." Cleveland Bar Assn. v. Henley (2002), 95 Ohio St.3d 91, 92, 766 N.E.2d 130. Thus, by engaging in negotiations with Paoletta's attorney to settle a legal dispute between Buildt and Paoletta, respondent engaged in the unauthorized practice of law. Id.; see also Ohio State Bar Assn. v. Kolodner, 103 Ohio St.3d 504, 2004-Ohio-5581, 817 N.E.2d 25.

Count Three: The Primous Matter

{¶ 18} When Rosa Primous, a teacher, applied for a home-equity loan at Key Bank in Cleveland, the bank's branch manager reviewed her credit report and told her that another person was using her Social Security number. Primous asked the branch manager if he knew a lawyer who could handle the problem, and he recommended respondent and gave her one of respondent's business cards. The card identified respondent as B. Andrew Brown, Esq., and his business as B. Andrew Brown & Associates, L.L.C.

{¶ 19} When Primous met with respondent, she referred to him as a lawyer, and he did not correct her. Primous also paid respondent a $250 "...