Tuesday, February 13, 2018

No Actual Suspension For Corporate Counsel Unauthorized Practice

The Ohio Supreme Court ordered a stayed suspension for unauthorized practice by corporate counsel.

On December 3, 2007, we suspended Maciak from the practice for his failure to register as an attorney for the 2007 to 2009 biennium. In re Attorney Registration Suspension of Maciak, 116 Ohio St.3d 1420, 2007-Ohio-6463, 877 N.E.2d 305. We reinstated his license on January 24, 2008. In re Reinstatement of Maciak, 117 Ohio St.3d 1443, 2008-Ohio-1397, 883 N.E.2d 464. On December 23, 2009, we imposed a $320 sanction on Maciak for his failure to complete the requisite hours of continuing legal education (“CLE”) required by Gov.Bar R. X(3), to timely file his reporting transcript, and to timely bring himself into compliance. In re Continuing Legal Edn. Sanction of Maciak, 124 Ohio St.3d 1402, 2009-Ohio- 6833, 918 N.E.2d 1010. And on December 29, 2011, we fined Maciak an additional $680 and suspended his license for his failure to complete the requisite hours of CLE, to timely file his final reporting transcript, and to comply with prior sanctions issued by the CLE commission. In re Continuing Legal Edn. Suspension of Maciak, 130 Ohio St.3d 1505, 2011-Ohio-6770, 959 N.E.2d 2. That suspension remained in effect until November 25, 2015.

On September 8, 2016, relator, disciplinary counsel, charged Maciak with multiple acts of misconduct arising from his employment as general counsel of corporations in Texas and Florida. The charges include allegations that Maciak engaged in the unauthorized practice of law (“UPL”) in Texas and Florida, violated the terms of his 2011 Ohio CLE suspension, and made false statements to relator.

He stipulated to some violations

the panel and board found that by engaging in UPL in Florida from April 2009 until he obtained AHC certification in December 2015, Maciak violated Prof.Cond.R. 5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction). The panel and board also found that by practicing law in Florida from 2011 to 2015 while his Ohio license was under a CLE suspension, he committed a single violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).

Despite the fact that the parties had stipulated to two additional violations of Prof.Cond.R. 5.5(a), the panel dismissed those alleged violations, because relator presented no evidence or testimony to support them. The panel also dismissed the remaining ten alleged violations.

Charges of dishonesty were not sustained.

Sanction

We by no means condone Maciak’s nearly seven-year failure to keep abreast of his continuing obligation to participate in at least 24 hours of CLE for every biennial compliance period, to request credit for those activities, and to review his CLE transcript for accuracy. See Gov.Bar R. X(3); CLE Reg. 301 and Nor do we condone his failure to familiarize himself with the Rules for the Government of the Bar of Ohio, the Ohio Rules of Professional Conduct, or their counterparts in the other states in which he served as in-house corporate counsel. Nonetheless, given the specific and narrow facts of Maciak’s proven misconduct, the substantial evidence of his good character and remorse, and the affirmative steps he has taken to prevent similar violations in the future, we overrule relator’s objection and agree that a two-year suspension, stayed in its entirety upon the conditions recommended by the board, is the appropriate sanction in this case.

 Accordingly, Brian Allen Maciak is suspended from the practice of law in Ohio for two years, with the suspension stayed in its entirety on the conditions that he remain in full compliance with his CLE and attorney-registration obligations and engage in no further misconduct. If Maciak fails to comply with the conditions of the stay, the stay will be lifted, and he will serve the entire twoyear suspension. Costs are taxed to Maciak.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/02/the-ohio-supreme-court-on-december-3-2007-we-suspended-maciak-from-the-practice-for-his-failure-to-register-as-an-attorney.html

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Comments

Illustrating again, the Ohio Supreme Court's tendency to find excuses for certain types of blatant disregard of disciplinary rules depending on WHO violates the rules. Is Ohio's disciplinary PROCESS transparent? You bet. Are the disciplinary outcomes consistent? Not if you look closely.

Posted by: William Crosby | Feb 14, 2018 4:50:23 AM

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