Tuesday, September 12, 2017

Post-Conviction Misconduct May Lead To Disbarment

Also on the oral argument docket of the Ohio Supreme Court is a bar case summarized by Kathleen Maloney

Cleveland Metropolitan Bar Association v. Rosel C. Hurley III, Case no. 2017-0798
Cuyahoga County

The Ohio Board of Professional Conduct, which reviews complaints of misconduct by lawyers and judges, recommends that Cleveland attorney Rosel C. Hurley III be disbarred from practicing law in the state. The board concluded that Hurley, while suspended from practicing law, presented himself as an attorney in a series of letters to employers in which he demanded money as a settlement for alleged employment discrimination.

Attorney Convicted of Felony, Suspended from Practicing Law
The Ohio Supreme Court suspended Hurley on an interim basis in March 2013 because he had been convicted of a felony for misusing a law enforcement database to retrieve information about this ex-wife and children while he was an assistant Cuyahoga County prosecutor. In April 2015, the Supreme Court suspended Hurley for two years for this misconduct and for making harassing calls to his former spouse.

Beginning in January 2016, Hurley sent letters to employers alleging that their postings for position openings violated the 1964 federal Civil Rights Act because the ads excluded any applicants with felony convictions. He stated in the letter that such blanket exclusions amounted to employment discrimination with “disastrous effect on individuals such as our client.” He added that “our client” would file an official complaint with the Equal Employment Opportunity Commission (EEOC) unless the employer paid Hurley’s law firm, Arnuma Law, a $500 settlement within 30 days and agreed to change their practices. He signed the letters with “J.D., Esquire.”

Hurley sent these letters to employers in Connecticut, Colorado, Florida, Georgia, Indiana, Maryland, Missouri, Pennsylvania, and Texas that had posted ads on sites such as Craigslist.com, Indeed.com, and ZipRecruiter.com. One employer sent Hurley a $500 check, which he cashed.

Letters Threatened Employers
The board’s report to the Supreme Court notes that Hurley’s letters didn’t explain that his “client” was actually himself, he was suspended from practicing law, and he wasn’t allowed to represent clients.

“[Hurley] misused his position as a lawyer in order to threaten and intimidate small businesses. This was his scheme,” the report states.

At a hearing before the panel that reviewed the disciplinary case, Hurley testified that he needed a job because he still owed $4,000 in court fines for his felony conviction, more than $1,200 in costs for his first disciplinary case, and $270 to the Supreme Court’s Office of Attorney Services.

The panel concluded, and the board agreed, that Hurley violated professional conduct rules because he claimed to represent a client while he was suspended, held himself out as a lawyer when he used “J.D.” and “Esquire” in his letters, made misleading statements, and acted dishonestly.

The board noted that there were several aggravating factors, including a pattern of misconduct and no acknowledgement of wrongdoing, but no mitigating circumstances, and recommended that Hurley be disbarred from practicing law in Ohio.

Attorney Defends Letters, Claims Mitigating Factors
Hurley objects to the board’s recommendation of disbarment. In his brief to the Court, he cites a 1963 U.S. Supreme Court case (Sperry v. Florida) involving a non-lawyer who was permitted to practice before the U.S. Patent Office. He argues that when a federal agency has a rule allowing a non-attorney to practice before it, a state can’t claim that the practice is unauthorized. Because the EEOC allows any individual to file a complaint on behalf of another person, his actions were proper, Hurley contends.

Hurley also maintains that he informed the panel of mitigating circumstances: he fully cooperated with the Cleveland Metropolitan Bar Association, which investigated his case; he wasn’t acting selfishly because his home had been foreclosed and he was trying to help his two children in college to pay their expenses; he had been diagnosed with a mental health disorder and was receiving treatment; he returned the $500 he received from one employer, so no one suffered monetary losses; and he has apologized to the bar association, the panel, and the Court.

Bar Association Points to Pattern of Misconduct
In response, the bar association notes that Hurley didn’t actually apply for jobs with the employers to which he sent the letters alleging employment discrimination. Two small business owners who testified at the hearing said they didn’t have lawyers on their staff and feared being sued based on the letters.

The bar association contends in its brief that Hurley sent the letters to try to make easy money, accepts no responsibility for his actions, and “has a pattern of allowing circumstances in his life to lead to ethical misconduct.” Hurley’s implication that his deceptive letter is allowed because a 1963 U.S. Supreme Court case ruled that non-lawyers are permitted to appear before federal agencies indicates his failure to understand his misconduct and his “blatant violation of this Court’s suspension order,” the association maintains.

The board also correctly found no mitigating circumstances, the bar association argues. Although Hurley was generally cooperative during the disciplinary process, the bar association states that he didn’t demonstrate full and free disclosure to the board, as shown by his repeated denial that the letters were misleading. His difficult personal financial situation supports a selfish motive in his actions, and he didn’t provide evidence that his mental health disorder played a role in his misconduct, the bar association adds.

Disbarment is necessary and appropriate in this case to protect the public, the bar association concludes.

- Kathleen Maloney

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