Disciplinary Counsel v. Brown-O'Neal

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Brown-O’Neal, Slip Opinion No. 2024-Ohio-5571.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2024-OHIO-5571

DISCIPLINARY COUNSEL v. BROWN-O’NEAL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Brown-O’Neal, Slip Opinion No.

2024-Ohio-5571.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—One-

year suspension with six months conditionally stayed.

(No. 2024-1109—Submitted September 17, 2024—Decided November 27, 2024.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2024-001.

__________________

The per curiam opinion below was joined by DEWINE, DONNELLY,

STEWART, and DETERS, JJ. KENNEDY, C.J., and FISCHER, J., concurred in part and

dissented in part and would not stay the suspension. BRUNNER, J., did not

participate.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Respondent, Tyresha Monique Brown-O’Neal, of Cleveland, Ohio,

Attorney Registration No. 0084636, was admitted to the practice of law in Ohio in

2009.

{¶ 2} In a January 4, 2024 complaint, relator, disciplinary counsel, charged

Brown-O’Neal with professional misconduct arising from her filing falsely

notarized affidavits, making false statements to the court, communicating directly

with a person she knew had legal representation, and inducing another attorney to

violate the Rules of Professional Conduct. Relator also charged her with failing to

appear for juvenile-court hearings and failing to serve counsel with written motions.

The parties submitted stipulations of fact, misconduct, and mitigating and

aggravating factors as well as stipulated exhibits.

{¶ 3} A three-member panel of the Board of Professional Conduct found

that Brown-O’Neal had committed the charged misconduct, and it recommended a

sanction of a one-year suspension, with six months stayed on the condition that she

refrain from further misconduct. The board adopted the panel’s findings of fact,

conclusions of law, and recommended sanction. No objections were filed.

{¶ 4} After a review of the record and our caselaw, we adopt the board’s

findings of misconduct and recommended sanction.

MISCONDUCT

{¶ 5} Brown-O’Neal’s misconduct stems from her representation in a child-

neglect matter. In June 2021, the Cuyahoga County Division of Children and

Family Services (“the division of family services”) filed a complaint alleging the

neglect of two minors, S.H. and G.G. S.H. and G.G. share a mother, Shawnte, but

have different fathers.

{¶ 6} Public defenders represented all three parents; Shawnte and G.G.’s

father shared counsel. At the emergency custody hearing, Shawnte terminated her

and G.G.’s father’s representation, and it appears from the record that they

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proceeded pro se. The court awarded temporary custody of S.H. to S.H.’s father

and temporary custody of G.G. to the division of family services. However,

Shawnte and G.G.’s father left with the child, violating the court’s order that

required them to surrender G.G. immediately.

{¶ 7} On July 9, the division of family services sought to hold Shawnte and

G.G.’s father in contempt for not relinquishing G.G. when it tried to take custody

of the child. On July 10, Shawnte and G.G.’s father hired Brown-O’Neal to

represent them in S.H.’s and G.G.’s cases.

{¶ 8} On July 12, the court held a hearing, at which Brown-O’Neal,

Shawnte, and G.G.’s father failed to appear. Shawnte and G.G.’s father were found

to be in contempt, and the court issued warrants for their arrest. On July 13, Brown-

O’Neal entered an appearance on behalf of only Shawnte and on July 16 filed a

motion to recall the warrants for Shawnte and G.G.’s father. Attached to the motion

were purported affidavits that Brown-O’Neal claimed to have notarized—though

she was never commissioned as a notary public. A magistrate denied the motion.

Brown-O’Neal then filed several motions requesting that the court terminate the

emergency custody order and recall the warrants, and she objected to the

magistrate’s denial of the first request to recall the warrants. The court denied each

of these motions, and the case went to trial.

{¶ 9} Trial on the matter was scheduled to begin on September 8. Brown-

O’Neal appeared at trial, but Shawnte and G.G.’s father did not. Because the

division of family services had not successfully served Shawnte, the judge

rescheduled the trial. On September 23, trial convened. Brown-O’Neal, Shawnte,

and G.G.’s father did not appear. The division of family services subsequently

dismissed S.H.’s and G.G.’s cases without prejudice because the time limits

provided in R.C. 2151.35(B)(1) had expired.

{¶ 10} On September 28, the division of family services filed a new suit

containing the same allegations. The next day, the court held an emergency

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temporary custody hearing, but Brown-O’Neal, Shawnte, and G.G.’s father did not

appear. The court again granted emergency temporary custody of S.H. to the

child’s father and emergency temporary custody of G.G. to the division of family

services.

{¶ 11} On October 4, the division of family services moved for temporary

custody of S.H. because S.H.’s father had allowed the child to visit with Shawnte

and G.G. unsupervised. The court held an emergency hearing, but Brown-O’Neal

and Shawnte did not appear. At the hearing, the court granted the motion and issued

an order prohibiting S.H. from having contact with Shawnte, G.G.’s father, and

G.G. The court also held Shawnte and G.G.’s father in contempt for failing to turn

G.G. over to the division of family services.

{¶ 12} In November 2021, Brown-O’Neal persuaded S.H.’s father to sign

an affidavit claiming that S.H. had made up allegations of “abuse and neglect”

against Shawnte and G.G.’s father. Despite knowing that S.H.’s father was

represented by counsel, Brown-O’Neal did not contact his attorney before speaking

with him or give his counsel a copy of the affidavit before he signed it. S.H.’s

father purportedly signed the affidavit electronically. Brown-O’Neal then

convinced an attorney who worked for her, Lon’Cherie’ D. Billingsley, to notarize

the affidavit. Brown-O’Neal falsely told Billingsley that she had witnessed S.H.’s

father sign it. On December 1, Brown-O’Neal sought to terminate the emergency

custody order granting the division of family services custody of G.G. and included

S.H.’s father’s affidavit with this motion.

{¶ 13} Days later, the court held its final pretrial hearing. Billingsley

attended the attorney conference before the hearing, but did not attend the hearing

itself. Brown-O’Neal did not attend either the attorney conference or the hearing.

At the hearing, S.H.’s father’s counsel informed the court that the affidavit S.H.’s

father purportedly signed was improperly obtained, and during an off-the-record

conversation, Billingsley admitted that she had notarized it based on Brown-

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January Term, 2024

O’Neal’s false representations. S.H.’s father’s counsel also informed the court that

Brown-O’Neal had not served counsel with any of the motions Brown-O’Neal had

filed in S.H.’s and G.G.’s cases. Brown-O’Neal’s certificates of service either said

that she had served S.H.’s father, even though he had a lawyer, or falsely stated that

she had served S.H.’s father’s counsel. The court struck S.H.’s father’s affidavit

and all of Brown-O’Neal’s motions.

{¶ 14} Over the next couple of years, Brown-O’Neal represented Shawnte

in S.H.’s and G.G.’s cases, continuing to rely on the improperly obtained and

falsely notarized affidavit of S.H.’s father.

{¶ 15} The board found that Brown-O’Neal violated Prof.Cond.R. 3.3(a)(1)

(prohibiting a lawyer from knowingly making a false statement of fact or law to a

tribunal), 4.2 (prohibiting a lawyer from communicating about the subject of the

representation with a person the lawyer knows to be represented by another lawyer

unless the lawyer has the consent of the other lawyer or is authorized by law or a

court order), 8.4(a) (prohibiting a lawyer from knowingly inducing another lawyer

to violate or attempt to violate the Ohio Rules of Professional Conduct), 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). We adopt the board’s findings

of misconduct.

SANCTION

{¶ 16} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the ethical duties that the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases.

{¶ 17} The board found the following aggravating factors: Brown-O’Neal

engaged in a pattern of misconduct, committed multiple offenses, and harmed

vulnerable people. See Gov.Bar R. V(13)(B)(3), (4), and (8). As for mitigation,

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the board found that Brown-O’Neal had no prior discipline, had a cooperative

attitude toward the proceedings, and provided evidence of good character. See

Gov.Bar R. V(13)(C)(1), (4), and (5).

{¶ 18} The board recommends that we suspend Brown-O’Neal for one year,

with six months stayed on the condition that she engage in no further misconduct.

In determining the proper sanction to recommend for her misconduct, the board

first recognized that violations of ethical rules prohibiting dishonesty, fraud, deceit,

or misrepresentation carry a presumptive sanction of an actual suspension from the

practice of law. See Disciplinary Counsel v. Fowerbaugh, 1995-Ohio-261,

syllabus. The board then reviewed cases involving similar misconduct and

addressed the facts that Brown-O’Neal had caused another attorney to commit

misconduct and that she had served as a part-time magistrate.

{¶ 19} The cases the board considered included Disciplinary Counsel v.

Schuman, 2017-Ohio-8800; Toledo Bar Assn. v. Miller, 2012-Ohio-1880; and

Warren Cty. Bar Assn. v. Vardiman, 2016-Ohio-352. In each of those cases, we

imposed a one-year suspension with six months conditionally stayed.

{¶ 20} In Schuman, the attorney lied to a court in order to receive attorney

fees to which he was not entitled. Schuman at ¶ 8. The attorney served as guardian

ad litem for a child in a custody case, for which the court had approved a fee of

$3,416. Id. at ¶ 3. When the parents did not pay in full, the attorney sued them and

obtained a default judgment. Id. at ¶ 4. However, the attorney made false

statements and submitted a fraudulently altered document to support his claim that

the parents owed him $6,405. Id. And despite several opportunities to admit his

dishonesty, the attorney continued his deception until facing disciplinary

proceedings. Id. at ¶ 8.

{¶ 21} In Miller, the attorney’s firm received a notice to garnish his wages,

and the attorney responded on behalf of the firm making false statements about his

employment. Miller at ¶ 4-6. Additionally, in a subsequent bankruptcy proceeding,

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January Term, 2024

he misrepresented that he had been laid off and had no income, despite knowing

that he would receive more than $30,000 following his separation from his firm.

Id. at ¶ 7-8. The attorney also misused funds of a client of the firm to pay a filing

fee for a pro bono client. Id. at ¶ 9.

{¶ 22} In Vardiman, the attorney forged the name of an unrepresented party

on four separate documents and then filed them in court. Vardiman, 2016-Ohio-

352, at ¶ 6-8. The attorney did not disclose his dishonesty to the court until he was

confronted by the court. Id. And in a separate matter, he forged the name of a

witness to a will and a power of attorney. Id. at ¶ 11.

{¶ 23} In addition to the cases the board considered, we find Disciplinary

Counsel v. Jarvis, 2022-Ohio-3936, instructive. In Jarvis, we imposed an 18-

month suspension conditionally stayed in its entirety on an attorney who engaged

in multiple acts of dishonesty while representing a married couple and their trustee

in an estate-planning matter. Jarvis at ¶ 1-3. The attorney falsely notarized and

backdated several documents, signed documents as a witness despite not having

been present to witness them being signed, and attested that one of his clients

appeared to be of sound mind when he knew that the client suffered from

Alzheimer’s disease. Id. at ¶ 12, 14. Additionally, the attorney directed his office

manager to meet with the client and obtain signatures on estate-planning documents

that the attorney later falsely notarized. Id. at ¶ 14. The attorney also directed the

same office manager to falsely sign a will and durable power of attorney as a

witness. Id. at ¶ 13. Nonetheless, there was enough mitigation—having no prior

discipline, exhibiting a cooperative attitude in disciplinary proceedings, and having

incurred other penalties—to fully stay the suspension. Id. at ¶ 31, 40.

{¶ 24} The board also focused on Brown-O’Neal’s inducing another

attorney to commit misconduct, as well as her serving as a part-time magistrate.

The board noted our precedent indicating that an actual suspension is appropriate

when an attorney causes another to violate the ethics rules. See Disciplinary

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Counsel v. Jancura, 2022-Ohio-3189 (imposing an actual suspension on an

attorney that misappropriated client funds and induced her husband who was also

an attorney to make false representations on her behalf). Additionally, the board

concluded that, based on our precedent, an attorney’s committing misconduct while

holding a position of trust justifies a more serious sanction, see, e.g., Disciplinary

Counsel v. Kelly, 2009-Ohio-317, ¶ 14 (attorney’s misconduct “tarnished the legal

system all the more” because she was president of her local bar association and

employed as the chief domestic relations magistrate), even when the misconduct is

unrelated to the position, see, e.g., Disciplinary Counsel v. Hillis, 2014-Ohio-2113,

¶ 6 (concluding that an attorney’s elected position led to imposition of a greater

sanction).

{¶ 25} After reviewing our caselaw, considering the Fowerbaugh

presumption of suspension, see Fowerbaugh, 1995-Ohio-261, at syllabus, and

taking into consideration the full extent of Brown-O’Neal’s misconduct, we

conclude that a one-year suspension with six months conditionally stayed is

warranted. Here, like the attorneys in Schuman, Miller, and Vardiman, Brown-

O’Neal made repeated misrepresentations to the court. Like the attorneys in

Schuman and Miller, she maintained those misrepresentations over a period of time.

And as in Jarvis, Brown-O’Neal involved another person in her misconduct and

falsely notarized documents. But Brown-O’Neal’s misconduct is worse than that

of the attorney in Jarvis, because she also violated Prof.Cond.R. 8.4(a), which

carries a presumption of an actual suspension, and she committed her misconduct

at the same time she held a position as a part-time magistrate. We conclude that

Brown-O’Neal’s misconduct was not isolated and that there is not sufficient

mitigation to overcome the presumption of an actual suspension recognized in

Fowerbaugh. In accord with Schuman, Miller, and Vardiman, we impose a one-

year suspension with six months conditionally stayed.

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{¶ 26} “[W]e have consistently recognized that the primary purpose of

disciplinary sanctions is not to punish the offender, but to protect the public.”

Disciplinary Counsel v. Edwards, 2012-Ohio-5643, ¶ 19, citing Disciplinary

Counsel v. O’Neill, 2004-Ohio-4704, ¶ 53. Here, we conclude that an actual

suspension protects the public and demonstrates that this type of behavior,

especially from those in a position of trust, is not acceptable. Therefore, we adopt

the board’s recommended sanction that Brown-O’Neal be suspended from the

practice of law for one year, with six months stayed on the condition recommended

by the board.

CONCLUSION

{¶ 27} Accordingly, Tyresha Monique Brown-O’Neal is suspended from

the practice of law in Ohio for one year, with six months of the suspension stayed

on the condition that she refrain from further misconduct. If Brown-O’Neal

violates the condition of the stay, the stay will be lifted, and she will serve the one-

year suspension in its entirety. Costs are taxed to Brown-O’Neal.

Judgment accordingly.

__________________

Joseph M. Caligiuri, Disciplinary Counsel, and Michelle A. Hall and

Marley C. Nelson, Assistant Disciplinary Counsel, for relator.

UB Greensfelder, L.L.P., and Alvin E. Mathews Jr., for respondent.

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