Disciplinary Counsel v. Brown

[Cite as Disciplinary Counsel v. Brown, 121 Ohio St.3d 423, 2009-Ohio-1152.]

DISCIPLINARY COUNSEL v. BROWN.

[Cite as Disciplinary Counsel v. Brown, 121 Ohio St.3d 423, 2009-Ohio-1152.]

Unauthorized practice of law — Injunction issued and civil penalty imposed.

(No. 2008-1573 — Submitted November 19, 2008 — Decided March 19, 2009.)

ON FINAL REPORT by the Board on the Unauthorized

Practice of Law, No. UPL 06-06.

__________________

Per Curiam.

{¶ 1} In June 2006, relator, Disciplinary Counsel, charged respondent,

Bruce Andrew Brown, also known as Amir Jamal Tauwab, Bruce Brown, Bruce

A. Brown, and B. Andrew Brown, with six counts of unauthorized practice of

law. The Board on the Unauthorized Practice of Law concluded that respondent

had practiced law in violation of Ohio licensure requirements and recommends

that we enjoin respondent from committing further illegal acts, that we impose a

civil penalty of $50,000, and that we order respondent to show cause why he

should not be held in contempt for violating the injunction we imposed against

him in an earlier case in which we found that he had engaged in the unauthorized

practice of law, Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003-Ohio-

2568, 789 N.E.2d 210.

Background

{¶ 2} Respondent was admitted to the practice of law in New York in

1985, but was disbarred in 1992. In re Brown (1992), 181 A.D.2d 314, 586

N.Y.S.2d 607. Respondent has never been admitted to the practice of law in

Ohio.

{¶ 3} In 1992, the Board on the Unauthorized Practice of Law found that

respondent had engaged in conduct in Ohio constituting the unauthorized practice

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of law. Disciplinary Counsel v. Brown (1992), 61 Ohio Misc.2d 792, 584 N.E.2d

1391. Respondent was later convicted of 44 felonies, including grand theft,

forgery, uttering, and tampering with records, based on his conduct relating to his

unauthorized practice of law. State v. Brown (1995), 108 Ohio App.3d 489, 671

N.E.2d 280.

{¶ 4} In 2000, relator filed a complaint with the board, again charging

respondent with having engaged in the unauthorized practice of law. Disciplinary

Counsel v. Brown, 99 Ohio St.3d 114, 2003-Ohio-2568, 789 N.E.2d 210. This

court found that respondent had held himself out as a licensed attorney and

enjoined him from engaging in further acts of the unauthorized practice of law.

Id.

{¶ 5} In addition to the criminal convictions mentioned above,

respondent has been convicted several times of felony crimes in Ohio. In 1991,

respondent pleaded guilty in Cuyahoga County Common Pleas Court to passing

bad checks and forging a power of attorney. In January 2003, respondent pleaded

guilty in Cuyahoga County Common Pleas Court to a 21-count indictment: six

counts of theft, six counts of false representation as an attorney, seven counts of

passing bad checks, one count of forgery, and one count of uttering. In June

2003, respondent pleaded guilty to two counts of forgery in Portage County

Common Pleas Court.

{¶ 6} In 2006, relator brought this action, charging that respondent had

again engaged in the unauthorized practice of law. At the time of the filing of this

action, respondent maintained a place of business known as B. Andrew Brown &

Associates, L.L.C., in Cleveland and held himself out as B. Andrew Brown, Esq.,

on stationery with B. Andrew Brown & Associates on the letterhead.

{¶ 7} The board concluded that respondent had practiced law in violation

of Ohio licensure requirements and recommended that we enjoin respondent from

committing further illegal acts. We agree that respondent engaged in the

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unauthorized practice of law and that an injunction, along with other penalties, is

warranted.

Respondent’s Conduct

Count One: The Hilliard Matter

{¶ 8} Georgia Lee Hilliard died on March 18, 2000. Yet respondent held

a power of attorney dated July 12, 2005, purporting to appoint respondent as

attorney-in-fact for Hilliard for any and all acts relating to specified real property

belonging to Hilliard. On July 30, 2005, respondent appeared at the closing for

the sale of the property and executed all the closing documents in his capacity as

Hilliard’s attorney-in-fact. Proceeds from the sale of the property were placed

into a U.S. Bank trust account in his name. Respondent later filed an action

against U.S. Bank, alleging that the bank had converted the proceeds from the sale

of the Hilliard property.

{¶ 9} R.C. 4705.01 provides: “No person shall be permitted to practice

as an attorney and counselor at law, or to commence, conduct, or defend any

action or proceeding in which the person is not a party concerned * * * unless the

person has been admitted to the bar by order of the supreme court in compliance

with its prescribed and published rules.”

{¶ 10} In his objections, respondent argues that relator failed to prove that

he filed the lawsuit on behalf of Hilliard. He argues that he, not Hilliard, was the

named party. However, Civ.R. 17 does not permit respondent to file a lawsuit

against U.S. Bank for what respondent claims was the “unlawful taking of

[Hilliard’s] funds.” In the U.S. Bank lawsuit, respondent was ostensibly seeking

the return of Hilliard’s funds on behalf of Hilliard. This lawsuit was unrelated to

the real estate transaction for which respondent was purportedly designated

attorney- in-fact.

{¶ 11} But even if the lawsuit were related to the real estate transaction,

respondent would be in violation of the law because “a power of attorney does not

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give a person the right to prepare and file pleadings in court for another.”

Cuyahoga Cty. Bar Assn. v. Spurlock, 96 Ohio St.3d 18, 2002-Ohio-2580, 770

N.E.2d 568, at ¶ 9. This court has previously held that “[w]hen a person not

admitted to the bar attempts to represent another in court on the basis of a power

of attorney assigning pro se rights, he is in violation of [R.C. 4705.01]. A private

contract cannot be used to circumvent a statutory prohibition based on public

policy.” Disciplinary Counsel v. Coleman (2000), 88 Ohio St.3d 155, 158, 724

N.E.2d 402. We affirm the board’s conclusion that respondent engaged in the

unauthorized practice of law by filing the action against U.S. Bank.

Count Two: The Paoletta Matter

{¶ 12} In 2005, respondent sent a letter to Cindy Paoletta requesting

payment of an alleged debt owed by Paoletta to Raymond P. Buildt, a contractor

who had allegedly furnished materials and labor to improve Paoletta’s property.

Respondent enclosed an affidavit for a mechanic’s lien against the property. The

letter was written on stationery bearing the names B. Andrew Brown &

Associates, L.L.C., and B. Andrew Brown, Esq., on the letterhead.

{¶ 13} Paoletta retained an attorney, who confirmed that the mechanic’s

lien had been filed with the Cuyahoga County Recorder’s Office. The lien

contained a legend stating that the document had been prepared by B.A. Brown.

{¶ 14} Paoletta’s attorney testified before the board that because the letter

from respondent contained the designations “L.L.C.” and “Esq.,” he had assumed

that respondent was an attorney. The attorney engaged in various written and

verbal communications with respondent based on this assumption. The attorney

later discovered that respondent was not an attorney, and when he confronted

respondent, he admitted that he was not an attorney. Soon thereafter, Paoletta’s

attorney received a letter from respondent enclosing a copy of a satisfaction of

mechanic’s lien that had been filed and that bore the notation “Prepared by: B.

Andrew Brown & Assoc.”

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{¶ 15} Prior to receiving the satisfaction of mechanic’s lien, Paoletta’s

attorney learned from the Cuyahoga County Prosecutor’s Office that respondent

was not admitted to practice law in Ohio. At the hearing before the board,

respondent submitted into evidence a letter purporting to have been sent by him to

Paoletta’s attorney on August 15, 2005, which provides: “Be advised that I am not

an attorney, practicing law. I am a collection agent.” Paoletta’s attorney testified

that he did not receive that letter in August 2005 and that the first time he saw it

was in November 2007, approximately two weeks before the board hearing.

{¶ 16} Respondent argues that he was acting as a “collection agent,” not

an attorney. However, there is no evidence that respondent was acting as a

collection agent in sending the letter to Paoletta. In leading Paoletta and her

attorney to believe that he was an attorney, respondent engaged in the

unauthorized practice of law. See Disciplinary Counsel v. Robson, 116 Ohio

St.3d 318, 2007-Ohio-6460, 878 N.E.2d 1042. Also, because “the practice of law

includes the preparation of legal documents on another’s behalf,” Geauga Cty.

Bar Assn. v. Canfield (2001), 92 Ohio St.3d 15, 748 N.E.2d 23, in preparing the

affidavit for a mechanic’s lien and the satisfaction of mechanic’s lien on behalf of

Buildt, respondent engaged in the unauthorized practice of law.

{¶ 17} Finally, we have held that “one who purports to negotiate legal

claims on behalf of another and advises persons of their legal rights * * * engages

in the practice of law.” Cleveland Bar Assn. v. Henley (2002), 95 Ohio St.3d 91,

92, 766 N.E.2d 130. Thus, by engaging in negotiations with Paoletta’s attorney to

settle a legal dispute between Buildt and Paoletta, respondent engaged in the

unauthorized practice of law. Id.; see also Ohio State Bar Assn. v. Kolodner, 103

Ohio St.3d 504, 2004-Ohio-5581, 817 N.E.2d 25.

Count Three: The Primous Matter

{¶ 18} When Rosa Primous, a teacher, applied for a home-equity loan at

Key Bank in Cleveland, the bank’s branch manager reviewed her credit report and

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told her that another person was using her Social Security number. Primous asked

the branch manager if he knew a lawyer who could handle the problem, and he

recommended respondent and gave her one of respondent’s business cards. The

card identified respondent as B. Andrew Brown, Esq., and his business as B.

Andrew Brown & Associates, L.L.C.

{¶ 19} When Primous met with respondent, she referred to him as a

lawyer, and he did not correct her. Primous also paid respondent a $250

“retainer.” On stationery bearing the names B. Andrew Brown & Associates,

L.L.C., and B. Andrew Brown, Esq., respondent wrote a letter on Primous’s

behalf to the person believed to be using her Social Security number, stating that

respondent had been retained to investigate and resolve the matter. Also using his

B. Andrew Brown & Associates, L.L.C./B. Andrew Brown, Esq., stationery,

respondent wrote letters to the three major credit-reporting services on Primous’s

behalf. Primous later tried to contact respondent, but he did not return her calls or

any portion of her $250 retainer.

{¶ 20} Respondent contends that he was simply acting as a “credit repair

organization” with regard to Primous. However, Section 1679c(a), Title 15,

U.S.Code requires that a credit-repair organization provide every consumer with a

written statement setting forth the consumer’s rights under state and federal law.

Respondent offered no evidence that he ever provided such a statement to

Primous. Further, federal law requires a contract between the credit-repair

organization and the consumer that meets the requirements of Section 1679d(b),

Title 15, U.S.Code. There is no evidence of such a contract between respondent

and Primous. Finally, respondent never registered as a credit-services

organization as required by R.C. 4712.02, nor were his activities permitted under

R.C. Chapter 4712.

{¶ 21} Respondent’s failure to correct Primous’s misunderstanding that he

was an attorney led Primous to believe that she was paying an attorney to provide

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her with legal services, and therefore his actions with regard to Primous

constituted the unauthorized practice of law. See Disciplinary Counsel v. Robson,

116 Ohio St.3d 318, 2007-Ohio-6460, 878 N.E.2d 1042. Respondent, in

collecting a retainer, reinforced the notion that an attorney-client relationship had

been established.

{¶ 22} As we held in Land Title Abstract & Trust Co. v. Dworken (1934),

129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650, at paragraph one of the syllabus: “The

practice of law is not limited to the conduct of cases in court. It embraces the

preparation of pleadings and other papers incident to actions and special

proceedings and the management of such actions and proceedings on behalf of

clients before judges and courts, and in addition conveyancing, the preparation of

legal instruments of all kinds, and in general all advice to clients and all action

taken for them in matters connected with the law.” The acts of contacting the

person believed to be using Primous’s Social Security number and contacting the

three credit-reporting agencies — all on Primous’s behalf — while holding

himself out to Primous to be a lawyer, constituted the unauthorized practice of

law.

Count Four: The Joseph Matter

{¶ 23} Mohammad Joseph and his cousin contacted respondent and asked

him to prepare the necessary documents for establishing a business to be known

as King Drive Through, L.L.C. Joseph thought that respondent was an attorney,

because his cousin had told him that respondent was an attorney and that

respondent had previously represented the cousin. Respondent signed the

Organization/Registration of Limited Liability Company form for King Drive

Through, L.L.C., accepting his appointment as agent, and B. Andrew Brown &

Associates is listed as the address to which requests for copies of company

documents should be addressed.

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{¶ 24} While meeting with respondent to discuss forming a business,

Joseph also mentioned to respondent that he had recently been charged with

carrying a concealed weapon. Respondent told Joseph that he would represent

him on the criminal charge and that he could get the charges dismissed. Joseph

paid respondent $1,800 for his services in setting up his business and representing

him in the criminal case. Thereafter, respondent failed to appear at three

scheduled hearings in the criminal case, despite reassuring Joseph each time that

he would be there to represent him. He also failed to file a motion to dismiss,

which he told Joseph he had filed. Ultimately, Joseph hired a licensed attorney to

represent him.

{¶ 25} Respondent told Joseph that he would return the $1,800 Joseph had

paid him by depositing the money directly into Joseph’s bank account.

Respondent wrote a check drawn on an account registered to the Bruce Andrew

Brown Group, Ltd., in the amount of $1,800 payable to Joseph. That check was

deposited into Joseph’s account and bore an indorsement purporting to be

Joseph’s. But Joseph later testified that he had not indorsed the check. Further,

respondent’s account had been closed, so the check was not honored. Respondent

wrote a second check, this one for $1,850, on the same account. This check also

purported to bear Joseph’s indorsement, but Joseph testified that he had not

signed that check either. The second check was also not honored.

{¶ 26} Joseph filed a claim with the Supreme Court of Ohio Clients’

Security Fund seeking return of the money he had given respondent. That claim

was denied on the grounds that respondent was not an attorney admitted to

practice in Ohio. Joseph did not learn that respondent was not an attorney until

notified by the Supreme Court Clients’ Security Fund.

{¶ 27} Respondent contends that B. Andrew Brown & Associates, L.L.C.

“is in the business of incorporating and registering business entities.” However,

in Miami Cty. Bar Assn. v. Wyandt & Silvers, Inc., 107 Ohio St.3d 259, 2005-

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Ohio-6430, 838 N.E.2d 655, this court held that a nonattorney’s advising clients

about setting up various businesses and filling out and filing basic forms from the

Ohio secretary of state to establish articles of incorporation and appoint a

statutory agent constitute the unauthorized practice of law. Thus, respondent

engaged in the unauthorized practice of law when he contracted with Joseph to

accept compensation to provide legal services to incorporate Joseph’s business

and then drafted the necessary documents.

{¶ 28} Respondent also engaged in the unauthorized practice of law when

he accepted money from Joseph to represent him in his criminal case and gave

him legal advice.

Count Five: The Pierce Matter

{¶ 29} Reginald Pierce was referred to respondent after asking a local

attorney to recommend an attorney to assist him in filing a bankruptcy petition.

Upon first meeting Pierce, respondent told him that he needed a lawyer to

complete his bankruptcy forms and that respondent would “take care of

everything” relative to the bankruptcy. Pierce believed that respondent was an

attorney, and respondent never informed Pierce otherwise.

{¶ 30} Respondent filed a Chapter 7 bankruptcy petition for Pierce and

designated himself as a bankruptcy-petition preparer. In conjunction with the

filing of the bankruptcy petition, respondent also filed a general power of

attorney, appointing himself as Pierce’s attorney-in-fact. At the unauthorized-

practice-of-law hearing, Pierce testified that the signature on the power-of-

attorney form was not his.

{¶ 31} Pierce paid respondent $200 to prepare and file the bankruptcy

petition, and an additional $209 for filing fees. A bankruptcy-petition preparer is

not permitted to collect or receive any payment from the debtor for the court fees

in connection with filing the petition. Section 110(g), Title 11, U.S.Code.

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{¶ 32} Respondent did not pay the filing fee in full when he filed Pierce’s

bankruptcy petition. Instead, he filed a request to pay the fee in installments.

Respondent converted $109 of the filing fee to his own use.

{¶ 33} The case was assigned to Judge Morgenstern-Clarren, who

immediately issued a show-cause order requiring respondent and Pierce to appear

and explain why the petition had been filed by a third party and whether any

compensation had been paid to respondent for preparing the bankruptcy case.

Under bankruptcy law, a bankruptcy-petition preparer cannot be paid by the

debtor until the entire filing fee is paid.

{¶ 34} Respondent appeared before Judge Morgenstern-Clarren without

Pierce and falsely claimed that he had not yet been paid by him for his services.

Respondent never informed Pierce of the judge’s order to appear. Judge

Morgenstern-Clarren ultimately dismissed Pierce’s case because Pierce failed to

appear in response to the court’s order to show case.

{¶ 35} Unaware that his bankruptcy case had been dismissed, Pierce again

consulted respondent when his employer told him that his wages were going to be

garnished. Respondent told Pierce that because he had filed bankruptcy, he

should not be garnished, and he made several calls to temporarily delay the

garnishment. Ultimately, Pierce hired a licensed attorney to file a new bankruptcy

petition.

{¶ 36} Respondent argues that at all times he was acting as a nonattorney

bankruptcy-petition preparer, not an attorney. Although Section 110, Title 11 of

the U.S. Code permits nonattorneys to prepare ordinary petitions for bankruptcy

on behalf of others pursuant to specific guidelines, Cleveland Bar Assn. v. Boyd,

112 Ohio St.3d 331, 2006-Ohio-6590, 859 N.E.2d 930, ¶ 6, respondent exceeded

the statutory guidelines for bankruptcy-petition preparers because he began to act

in the capacity of a legal representative. Respondent ultimately failed in his effort

to represent Pierce before the bankruptcy court. In failing to restrict his activities

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to those permitted by Section 110, Title 11, U.S.Code, the respondent also caused

Pierce’s case to be dismissed.

{¶ 37} In violation of Section 110(b)(2)(A), Title 11, U.S.Code,

respondent never explained to Pierce that he was acting as a nonattorney

bankruptcy-petition preparer. In fact, the evidence establishes that respondent told

Pierce that Pierce needed a lawyer to complete his bankruptcy forms and that

Pierce believed respondent was a lawyer. In violation of Section 110(b)(2)(A),

Title 11, U.S.Code, respondent never explained to Pierce that he was acting as a

nonattorney bankruptcy-petition preparer. Thus, by simply signing his name on

the petition as a nonattorney bankruptcy-petition preparer, respondent did not

fulfill the requirements of the statute.

{¶ 38} Believing that respondent was an attorney, Pierce gave respondent

information regarding his debts, and in violation of Section 110, Title 11,

U.S.Code, respondent completed the bankruptcy schedules. In violation of

Section 110(g), Title 11, U.S.Code, respondent collected court fees from Pierce.

In violation of Section 110(h)(2), Title 11, U.S.Code, respondent failed to file a

declaration disclosing any fee received from Pierce within 12 months prior to the

filing of the case.

{¶ 39} In summary, respondent failed to inform Pierce that he was not an

attorney, failed to file a compensation-disclosure form, received funds from

Pierce before he paid the entire filing fee, filed a forged general power of attorney

in an attempt to elevate his level of representation, acted on Pierce’s behalf to

temporarily stop a garnishment, and advised Pierce, incorrectly, of the status of

his bankruptcy after the case had been dismissed and Pierce’s wages were

garnished. In his interactions with Pierce, respondent repeatedly overstepped the

activities permitted by Section 110, Title 11, U.S.Code and engaged in the

unauthorized practice of law.

Count Six: The Delaney Matter

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{¶ 40} There was an additional count that was dismissed by the panel due

to insufficient evidence.

Review

{¶ 41} Section 2(B)(1)(g), Article IV of the Ohio Constitution confers on

this court original jurisdiction over all matters related to the practice of law,

including regulating the unauthorized practice of law. The unauthorized practice

of law consists of rendering legal services for others by anyone not licensed or

registered to practice law in Ohio. Gov.Bar R. VII(2). Advising others of their

legal rights and responsibilities is the practice of law, as is the preparation of legal

pleadings and other legal papers without the supervision of an attorney licensed in

Ohio. Cleveland Bar Assn. v. McKissic, 106 Ohio St.3d 106, 2005-Ohio-3954,

832 N.E.2d 49, ¶ 6.

{¶ 42} “An allegation that an individual or entity has engaged in the

unauthorized practice of law must be supported by either an admission or other

evidence of the specific act or acts upon which the allegation is based.”

Cleveland Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-

6108, 857 N.E.2d 95, paragraph one of the syllabus. We find that the record

provides ample evidence of the specific acts upon which to base the allegations of

unauthorized practice. We adopt the board’s findings and conclusions.

Sanction

{¶ 43} In 2003, when considering prior charges of unauthorized practice

of law against respondent, this court declined to enjoin respondent from using

“J.D.” or “Esq.” in connection with his name. Disciplinary Counsel v. Brown, 99

Ohio St.3d 114, 2003-Ohio-2568, 789 N.E.2d 210, ¶ 12, fn. 1. However, we

expressly admonished respondent that he risked punishment for contempt for

continuing to engage in the unauthorized practice of law. Id. Clearly, respondent

has not heeded this admonishment, nor has he heeded this court’s injunction

prohibiting him from engaging in the unauthorized practice of law.

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{¶ 44} Respondent’s use of the term “Esq.” in connection with his name

on his office stationery and business cards is misleading. His use of the term was

one of the factors that induced a federal judge, a practicing lawyer, a school

teacher, and a city prosecutor into believing that he was an attorney. As the board

concluded, the record in this case included substantial credible evidence that

respondent’s use of the term “Esq.” induced clients to believe that he was a

lawyer, a misunderstanding that he was aware of and failed to correct.

{¶ 45} Accordingly, having found that respondent again engaged in the

unauthorized practice of law by giving legal advice and assisting others in

preparing legal pleadings and other documents, we accept the board’s

recommendation that we issue an injunction prohibiting respondent from

performing acts constituting the practice of law. We further issue an order

prohibiting respondent from using the terms “Esq.,” “Esquire,” “J.D.,” or “Juris

Doctor” in conjunction with his name or business name.

{¶ 46} Gov.Bar R. VII(8)(B) and UPL Reg. 400 permit civil penalties in

matters such as this. We adopt the board’s recommendation and impose a civil

penalty of $10,000 for each of Counts One, Two, Three, Four, and Five of the

complaint, for a total penalty of $50,000. The board supports its recommendation

by stating, “Respondent’s conduct in this case demonstrated a degree of flagrancy

not presented before to this Board. Despite being before the board on three

separate occasions since 1992 based on very similar allegations, he has continued

to engage in a pattern of deception and chicanery in a deliberate and unlawful

attempt to engage in the practice of law. Gov.Bar R. VII, §8(B)(3).”

{¶ 47} We agree with the board’s assessment. Respondent has previously

engaged in and been ordered by this court to cease engaging in the unauthorized

practice of law. UPL Reg. 400(F)(3)(a) and (b). His conduct resulted in harm to

several persons who believed he was an attorney and relied upon that belief to

their detriment. Gov.Bar R. VII(8)(B)(4). Moreover, in each count, respondent

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benefited financially from the services he performed or promised to perform.

UPL Reg. 400(F)(3)(d). Finally, he engaged in conduct that allowed others to

mistakenly believe that he was admitted to practice law in the state of Ohio. UPL

Reg. 400(F)(3)(g).

{¶ 48} The board further found that respondent’s proven actions under

Counts One, Two, Three, Four, and Five of the complaint constitute violations of

this court’s injunction in Disciplinary Counsel v. Brown, 99 Ohio St.3d 114,

2003-Ohio-2568, 789 N.E.2d 210. Accordingly, upon the filing of a motion by

relator in Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003-Ohio-2568,

789 N.E.2d 210, case No. 2002-1380, respondent will be ordered to appear and

show cause why he should not be held in contempt of our order issued on May 28,

2003.

{¶ 49} All expenses and costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First

Assistant Disciplinary Counsel, for relator.

Bruce A. Brown, pro se.

______________________

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