Tuesday, September 12, 2017

General Counsel Faces Possible Stayed Suspension

A disciplinary case scheduled for oral argument before the Ohio Supreme Court is summarized by Dan Trevas

Disciplinary Counsel v. Brian Allan Maciak, Case no. 2017-0492
Palm Beach County, Fla.

The Board of Professional Conduct recommends that Florida attorney Brian A. Maciak be suspended from the practice of law in Ohio for two years, with the suspension fully stayed with conditions.

The Office of the Disciplinary Counsel charged Maciak with multiple violations of professional conduct rules related to his activities as general counsel for two large corporations, one headquartered in Texas and another in Florida. A three-member panel of the professional conduct board found Maciak committed rule violations for practicing law in Florida without obtaining the required authorized house counsel certification, and engaging in the practice of law from 2012 to 2015 while under suspension by the Ohio Supreme Court. Maciak’s suspensions were based on his failure to complete and report mandatory continuing legal education (CLE).

Attorney Leaves Cleveland to Become Corporate Counsel
Maciak formerly practiced with two Cleveland law firms and served as an executive and attorney for National City Bank in Cleveland. In 2006, he relocated to Texas to become vice president and assistant general counsel of Michaels Stores, Inc. He left the company, and was hired in 2009 as general counsel for TBC Retail Group in Florida. In 2012, he was promoted to TBC’s senior vice president and general counsel. TBC is the holding company for a variety of automotive retailers including Midas Muffler, National Tire and Battery, and Tire Kingdom.

At Michaels and TBC, Maciak’s duties centered as much on business as on law, and he testified that most of his time was devoted to “nonlegal functions.” He stated his role is primarily to oversee the in-house legal teams, but periodically provided legal advice and counsel to TBC.

Florida Bar Receives Complaint
In 2015, Jeffery Picker of the Florida Bar Association’s unauthorized practice of law department received a complaint from a former TBC employee about Maciak. Picker noted Maciak was neither a Florida Bar member nor certified as authorized house counsel. A lawyer must be one of the two to serve as general counsel for a Florida company.

Maciak applied for and was granted authorized status in late 2015. The complaint also accused Maciak of practicing law without a license and Ohio’s disciplinary counsel was notified. The disciplinary counsel contacted Maciak and notified him that he has been ineligible to practice law in Ohio since December 2011 and inquired about his activities in Florida.

Maciak Had Prior Short-Term Suspensions
Maciak was suspended from practicing in Ohio in December 2007 for failing to register, but was reinstated a month later. He was sanctioned twice for failure to complete CLE. He was fined $320 for the first violation in 2009 and $680 for the second in 2011. He was suspended until he paid both fines and completed his CLE requirements. He was reinstated in November 2015, about one month after receiving the disciplinary counsel’s inquiry.

In 2016, the disciplinary counsel charged Maciak with several rule violations, including practicing law in another jurisdiction (Florida) in violation of Florida rules. He also was charged with practicing law in Texas and Florida from 2009 to 2015 while under suspension in Ohio, and with making false statements and misrepresentations during the disciplinary investigation.

Maciak Believed Conduct Legal
Maciak admitted that he performed his general counsel duties at Michaels Stores and TBC and used the title general counsel, but didn’t believe those activities constituted the unauthorized practice of law. Maciak had first hired attorneys from his former Ohio law practice to assist him in determining whether his actions counted as an unauthorized practitioner, and they believed he was in compliance with the rules. However, after hiring a new attorney, he agreed that his work in Florida constituted unauthorized practice until he obtained his house counsel authorization. However, the board didn’t find he violated any rules in Texas because the state doesn’t sanction attorneys for practicing law while under suspension in Ohio.

Maciak also contends he was unaware that he had been suspended for CLE deficiencies, but admits that he and his office assistants received notices from the Supreme Court and its Office of Attorney Services about his CLE status. He also admits that someone using his name and password attempted to enter the online attorney portal, which highlighted that he was under suspension. Maciak told the panel he doesn’t remember seeing the notices, recall calling the attorney services office, or accessing the portal online.

He also claims the CLE deficiencies were the result of innocent mistakes, maintaining that he attended or made presentations at a sufficient number of programs to be in compliance. The panel found he did attend and present at numerous CLE programs but wasn’t given credit, in part, due to his own negligence, and he couldn’t explain why he didn’t take actions to address the situation.

The panel recommended Maciak be suspended for one year with six months stayed. However, the full board voted for a fully stayed two-year suspension with the conditions that Maciak remain in full compliance with all CLE and attorney registration obligations and that he not engage in further misconduct.

Court Should Adopt Recommendation, Maciak Asserts
Maciak acknowledges he unwittingly engaged in the unauthorized practice of law and was negligent in ensuring he complied with his CLE reporting obligations. In his brief, Maciak said he “deeply regrets and has apologized for his errors in judgment, his failures to act in a more timely fashion, his misunderstanding about his role as General Counsel, and the status of his license.” He notes he has “now rectified all his licensure issues and there is virtually no possibility of any repetition of his misconduct,” and that he is “mortified that he put his law license at risk and that he damaged the reputation of the profession.”

Maciak maintains that he didn’t violate the professional rules by making misrepresentations about his behavior. He notes the board found he did complete the required amount of CLE to be in compliance but because of negligence and confusion with the reporting system, which the attorney services office stated was being revised to be clearer, he failed to adequately report his hours. He notes he continued to receive attorney registration notices indicating his status was “active” during his four years of suspension, and that contributed to his lack of awareness that he was suspended.

Maciak notes the board found numerous mitigating circumstances that led to its proposed fully stayed suspension, including that no clients were harmed by his actions, there was an absence of selfish or dishonest motive, favorable character and reputation testimony was provided, and he has paid the fines imposed for CLE noncompliance.

Maciak emphasizes that he didn’t misrepresent himself, but repeatedly testified that he didn’t remember whether he took the appropriate steps to ensure he was in compliance with his Ohio attorney registration requirements. He notes the panel concluded that Maciak was “cavalier, inattentive, negligent, and foolish, but he did not lie.”

Disciplinary Counsel Seeks Harsher Sanction
The disciplinary counsel argues that the seriousness of the misconduct, including the practice of law while under suspension, warrants an actual suspension from practicing law.

The disciplinary counsel notes that Maciak called the attorney services office in 2012 to inquire about his suspension, which establishes that he knew about it at that time, but didn’t take any steps to rectify it until contacted in 2015. The disciplinary counsel notes the Court has rejected prior claims of “ignorance” or “honest belief,” and that the panel reached the wrong legal conclusion when it deemed Maciak didn’t violate the rules because he testified he couldn’t remember that facts.

The disciplinary counsel asserts that licensed Ohio attorneys must know the status of their licenses at all times, and that Maciak falsely stated in written responses to the disciplinary counsel’s inquiry that he was unaware of his status until October 2015. An email between attorney services staff members reads that Maciak called in February 2012 about a letter he received about his CLE suspension and asked what he could do to clear it up.

The disciplinary counsel also argues that Maciak received six suspension notices from the Supreme Court and hasn’t acknowledged his response to the inquiry was false.

“Maciak’s recall became conveniently unclear only after he was confronted with evidence contradicting his false statements,” the disciplinary counsel’s brief states.

The disciplinary counsel argues that if Maciak receives a fully stayed suspension, his sanction would be far less severe than what the Court has imposed on an applicant for the bar and a lay person found to have engaged in the unauthorized practice of law. The disciplinary counsel also cautions that adopting the board’s recommendation “would effectively reward those attorneys who choose to remain ignorant of their license status and who simply proclaim ignorance or a poor memory when confronted with evidence contradicting the misrepresentations” made while under investigation.

  • Dan Trevas

(Mike Frisch)


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