Cleveland Metropolitan Bar Ass'n v. Brown-Daniels , 135 Ohio St. 3d 278 ( 2013 )

[Cite as Cleveland Metro. Bar Assn. v. Brown-Daniels, 135 Ohio St.3d 278, 2013-Ohio-955.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. BROWN-DANIELS.
[Cite as Cleveland Metro. Bar Assn. v. Brown-Daniels, 135 Ohio St.3d 278,
2013-Ohio-955.]
Attorneys—Misconduct—Conduct involving dishonesty or misrepresentation—
Conduct adversely reflecting on fitness to practice law—One-year
suspension, partially stayed on conditions.
(No. 2012-1708—Submitted January 23, 2013—Decided March 19, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 10-035.
__________________
Per Curiam.
{¶ 1} Respondent, Barbara Charmagne Brown-Daniels of Cleveland
Heights, Ohio, Attorney Registration No. 0055655, was admitted to the practice
of law in Ohio in 1991. Relator, Cleveland Metropolitan Bar Association,
charged Brown-Daniels with professional misconduct in a five-count complaint
filed on April 12, 2010.
{¶ 2} Although Brown-Daniels was served with the complaint by
certified mail on April 16, 2010, she did not timely file an answer. Relator moved
for default on May 16, 2011, and on June 8, 2011, Brown-Daniels moved the
Board of Commissioners on Grievances and Discipline for leave to file an answer
instanter.
{¶ 3} At the hearing, the panel granted relator’s motion to dismiss
Counts Two, Three, and Four of its complaint, as well as certain alleged
violations in Counts One and Five. Having heard Brown-Daniels’s testimony and
reviewed the documentary evidence, the panel found that Brown-Daniels had
committed the remaining charged misconduct and recommended that Brown-
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Daniels be suspended from the practice of law for one year, with six months
stayed on conditions. The board adopted the panel’s findings of fact and
misconduct and the proposed sanction. Neither party has objected to the board’s
findings or recommendation.
{¶ 4} Based on the evidence before us, we adopt the board’s findings of
fact and misconduct, and we suspend Brown-Daniels from the practice of law in
Ohio for one year, with the final six months of that suspension stayed on the
conditions recommended by the board.
Misconduct
{¶ 5} Brown-Daniels had been admitted to the bar for approximately
nine years before she began practice as a solo practitioner. She served as board
counsel for an organization known as Associated Real Estate Counseling, Inc.,
that provided consumers with credit counseling, mediation, and mortgage
assistance. When that organization ceased operations in 2007, Brown-Daniels
agreed to represent a number of its clients in bankruptcy proceedings.
{¶ 6} On August 23, 2007, Brown-Daniels appeared before Judge Pat E.
Morgenstern-Clarren in the United States Bankruptcy Court for the Northern
District of Ohio, Eastern Division, to show cause why she had not complied with
the court’s order to return the $650 fee she had received in connection with the
case In re Green, No. 07-13689. She advised the court that she had kept the fee
because she had negotiated with the debtors to apply it to their new bankruptcy
filing. The court, however, noted that it could not confirm Brown-Daniels’s
explanation, because she had failed to file the required disclosure of compensation
in the debtors’ new case. Therefore, the court found that Brown-Daniels had
failed to comply with its previous order and revoked her electronic-filing
privileges.
{¶ 7} After the court suspended her electronic-filing privileges, Brown-
Daniels arranged for attorney Donald R. Murphy, an established attorney with no
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bankruptcy experience, to assist her with her bankruptcy practice. The terms of
their arrangement were not reduced to writing. Brown-Daniels’s testimony and a
sworn statement that Murphy gave to relator demonstrate that the two had
differing views on the scope of their relationship and their roles—issues that were
exacerbated by poor communication. Murphy stated that he was not aware of
several of his obligations until the bankruptcy court issued orders to show cause
and that he consequently sent Brown-Daniels a letter terminating their
relationship on October 23, 2007.
{¶ 8} Brown-Daniels and Murphy appeared at a November 29, 2007
hearing before Judge Morgenstern-Clarren to address show-cause orders issued
against them in three separate bankruptcy proceedings. At that hearing, they gave
statements regarding their relationship and the actions they had taken in the cases
at issue. After the hearing, Judge Morgenstern-Clarren issued an order on
December 3, 2007, in which she found that Brown-Daniels had breached the
standards that apply to attorneys practicing in the bankruptcy court by (1) filing
documents under Murphy’s name when she knew she could not file them herself
because her electronic-filing privileges had been revoked, (2) filing two
documents bearing Murphy’s electronic signature without his knowledge or
participation, and (3) permitting her nonlawyer staff to complete documents and
forms and file them without any attorney supervision. Based on these findings,
the court barred Brown-Daniels from filing any new bankruptcy petitions in that
court or participating as counsel in cases filed by other attorneys until she
satisfied certain educational requirements enumerated in the order and obtained
the court’s written permission to resume filing.
{¶ 9} Additionally, from August 2007 through June 2008, Brown-
Daniels was the subject of multiple disgorgement orders in cases before Judge
Morgenstern-Clarren and two other judges in the United States Bankruptcy Court
for the Northern District of Ohio, Eastern Division. In at least three of those
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cases, the court found her in contempt and ordered her to pay sanctions of $25 per
day until she complied with the disgorgement orders. Brown-Daniels testified
that she had not appealed or otherwise challenged those orders, that she did not
have the financial ability to pay the disgorgement orders or the sanctions imposed,
and that she was awaiting the outcome of this disciplinary proceeding to address
those orders.
{¶ 10} With respect to the first count of relator’s complaint, the board
found that Brown-Daniels had violated Prof.Cond.R. 1.1 (requiring a lawyer to
provide competent representation to a client) by virtue of the numerous
disgorgement orders issued against her by the bankruptcy court and her
association with Murphy—who had no bankruptcy experience—to handle her
client’s bankruptcy matters following the revocation of her electronic-filing
privileges. Based on Murphy’s sworn statement and the transcript—and noting
relator’s failure to call Murphy as a witness at the hearing—the board was not
persuaded that Brown-Daniels’s use of Murphy’s electronic password and
signature was always unauthorized. It did find, however, that by using Murphy’s
password and signature after he terminated their association, Brown-Daniels
intended to avoid the order that restricted her own electronic-filing privileges and
misrepresented the identity of the responsible attorney to the bankruptcy court.
{¶ 11} The board found that this conduct violated Prof.Cond.R. 8.4(c)
(prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation) and 8.4(d) (prohibiting a lawyer from engaging in
conduct that is prejudicial to the administration of justice). And with respect to
Count Five, the board found that by failing to comply with a number of
bankruptcy court orders to disgorge her attorney fees in multiple cases and failing
to pay (or petition the court to stay the imposition of) daily sanctions imposed in
several of those cases, Brown-Daniels had violated Prof.Cond.R. 8.4(d) and 8.4(h)
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(prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer’s fitness to practice law).
Sanction
{¶ 12} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 13} The board found Brown-Daniels’s pattern of misconduct involving
multiple offenses, her refusal to acknowledge the wrongful nature of her conduct,
and her failure to make restitution as required by the bankruptcy court’s
disgorgement orders to be aggravating factors. See BCGD Proc.Reg. 10(B)(1)(c),
(d), (g), and (i). The board expressed its concern that Brown-Daniels had blamed
her staff for using Murphy’s electronic password and signature and had suggested
that her problems in the bankruptcy court were the result of some animus by the
trustee in another bankruptcy matter, portraying herself as a helpless victim rather
than a person accountable for her own circumstances.
{¶ 14} As mitigating factors, the board found that Brown-Daniels does not
have a prior disciplinary record and that the bankruptcy court had imposed
sanctions against her for the misconduct at issue in this case. See BCGD
Proc.Reg. 10(B)(2)(a) and (f). Although Brown-Daniels testified that she suffered
from anxiety and depression for which she had sought medical treatment, she
presented no evidence or testimony from a medical or mental-health professional
to substantiate her claims. Therefore, the board did not consider her alleged
conditions to be mitigating. See BCGD Proc.Reg. 10(B)(2)(g).
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{¶ 15} Relator recommended that Brown-Daniels be suspended from the
practice of law for one year with no more than six months of that suspension
stayed on conditions. The board adopted relator’s recommendation, citing
Cleveland Metro. Bar Assn. v. Nance, 124 Ohio St.3d 57, 2009-Ohio-5957, 918
N.E.2d 1000 (imposing a one-year suspension with six months stayed on
conditions on an attorney who repeatedly failed to comply with bankruptcy orders
to disgorge fees and pay assessed fines), and Disciplinary Counsel v. Gerchak,
130 Ohio St.3d 143, 2011-Ohio-5075, 956 N.E.2d 292 (imposing a one-year fully
stayed suspension on an attorney who used another attorney’s electronic-filing
account to file a client’s bankruptcy petition because his own electronic-filing
privileges had been suspended). The board recommended that Brown-Daniels be
suspended from the practice of law for one year with six months stayed on the
conditions that she complete six hours of continuing legal education (“CLE”) in
law-office management, in addition to the general requirements of Gov.Bar R. X,
remit or resolve all fines and costs assessed by the bankruptcy court, and submit
evidence of compliance with the continuing-education requirements imposed by
Judge Morgenstern-Clarren’s December 2007 order barring Brown-Daniels from
practicing law in the United States Bankruptcy Court for the Northern District of
Ohio, Eastern Division.
{¶ 16} The board distinguished this case from Gerchak, noting that in that
case there were multiple mitigating factors to support a fully stayed suspension.
Among those factors were the absence of a prior disciplinary record, full and free
disclosure and cooperative attitude during the disciplinary proceedings, the
absence of a dishonest or selfish motive, evidence of Gerchak’s good character
and reputation in the legal community, and the sanctions imposed by the
bankruptcy court. Gerchak at ¶ 11; BCGD Proc.Reg. 10(b)(2)(a), (b), (d), (e), and
(f).
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{¶ 17} We recognize that the facts of Nance are not entirely congruent
with this case. Nance’s misconduct consisted of his mishandling of several
bankruptcy matters, his failure to comply with disgorgement orders issued in
those proceedings, and his failure to appear at the resultant contempt hearings.
Nance, 124 Ohio St.3d 57, 2009-Ohio-5957, 918 N.E.2d 1000, at ¶ 5-9. In
addition to Brown-Daniels’s failure to satisfy a number of disgorgement orders
issued against her in her clients’ bankruptcy proceedings, she also used another
attorney’s electronic-filing privileges without authorization to file at least two
documents in the bankruptcy court while her own electronic-filing privileges were
suspended. But Nance also had a prior six-month stayed suspension for misuse of
his client trust account that weighed in favor of a stronger sanction. Id. at ¶ 12,
citing Cuyahoga Cty. Bar Assn. v. Nance, 119 Ohio St.3d 55, 2008-Ohio-3333,
891 N.E.2d 746.
{¶ 18} Having reviewed the record, the aggravating and mitigating factors
present in this case, and the sanction imposed in Nance, we adopt the board’s
findings of fact and misconduct and are persuaded that the board’s
recommendation of a one-year suspension with six months conditionally stayed is
the appropriate sanction for Brown-Daniels’s misconduct.
{¶ 19} Accordingly, we suspend Barbara Charmagne Brown-Daniels from
the practice of law for one year but stay the second six months of that suspension
on the conditions that she (1) commit no further misconduct, (2) complete six
hours of CLE in law-office management within 90 days of the date of this order
that shall not apply to the general CLE requirements of Gov.Bar R. X, and (3)
remit or resolve all fines and costs assessed by the bankruptcy court within 90
days of the date of this order. If Brown-Daniels fails to comply with the
conditions of the stay, the stay will be lifted and she will serve the full one-year
suspension. Before seeking reinstatement to the practice of law in Ohio, Brown-
Daniels shall be required to submit evidence that she has complied with the
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continuing-education requirements imposed by Judge Morgenstern-Clarren’s
December 3, 2007 order barring her from practicing law in the United States
Bankruptcy Court for the Northern District of Ohio, Eastern Division. Costs are
taxed to Brown-Daniels.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
__________________
David O. Simon and Suzana K. Koch, for relator.
Gerald R. Walton, for respondent.
______________________
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