Cleveland Metro. Bar Assn. v. Brooks

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

Cleveland Metro. Bar Assn. v. Brooks, Slip Opinion No. 2022-Ohio-3712.]

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. 2022-OHIO-3712

CLEVELAND METROPOLITAN BAR ASSOCIATION v. BROOKS.

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

may be cited as Cleveland Metro. Bar Assn. v. Brooks, Slip Opinion No.

2022-Ohio-3712.]

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

Indefinite suspension.

(No. 2022-0714—Submitted August 2, 2022—Decided October 20, 2022.)

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

Court, No. 2021-019.

_______________________

Per Curiam.

{¶ 1} Respondent, Robert Chester Brooks II, of Cleveland, Ohio, Attorney

Registration No. 0040881, was admitted to the practice of law in Ohio in 1988. On

November 1, 2019, we suspended Brooks’s license for failing to register as an

attorney for the 2019/2020 biennium. In re Attorney Registration of Brooks, 157

Ohio St.3d 1472, 2019-Ohio-4529, 134 N.E.3d 183. On October 14, 2020, we

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suspended his license again for failing to comply with the continuing-legal-

education (“CLE”) requirements of Gov.Bar R. X. 160 Ohio St.3d 1424, 2020-

Ohio-4908, 155 N.E.3d 918. Those suspensions remain in effect.

{¶ 2} In July 2021, relator, Cleveland Metropolitan Bar Association,

charged Brooks with violating the Rules of Professional Conduct for, among other

things, continuing to practice law after his attorney-registration and CLE

suspensions had been imposed. Brooks stipulated to the charged misconduct, but

the parties could not agree on a recommended sanction. After a hearing, the Board

of Professional Conduct issued a report finding that Brooks had engaged in the

stipulated misconduct and recommending that we indefinitely suspend him and

impose a condition on his potential reinstatement to the practice of law. Neither

party has objected to the board’s report.

{¶ 3} Based on our independent review of the record, we adopt the board’s

findings of misconduct and its recommended sanction.

Misconduct

{¶ 4} When we imposed Brooks’s attorney-registration suspension in

November 2019, we ordered that he “immediately cease and desist from the

practice of law in any form” and we expressly prohibited him from “appear[ing] on

behalf of another before any court [or] judge.” 157 Ohio St.3d 1472, 2019-Ohio-

4529, 134 N.E.3d 183. Although Brooks received notice of the suspension in

December 2019, he continued to practice law. In February 2020, he represented a

client in a contempt hearing in the Garfield Heights Municipal Court. In July 2020,

he appeared as counsel at a hearing in the Cuyahoga County Court of Common

Pleas. In August 2020, he filed a motion in a different case pending in the

Cuyahoga County Court of Common Pleas, and in the same case he attempted to

appear at a September 2020 hearing, although the judge prohibited Brooks from

participating after learning of his suspension. Brooks told the judge that he had

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already sent in his registration fees and fine, but he had not done so. Brooks failed

to notify the other courts that his license was suspended.

{¶ 5} As noted above, on October 14, 2020, we imposed Brooks’s CLE

suspension. A few days later, relator notified Brooks that it had received a

grievance alleging that he had been practicing law while under suspension. Brooks

responded to the grievance in November 2020. Despite his knowledge of both

suspensions and relator’s investigation, Brooks continued to practice law. In

November 2020 through March 2021, he appeared on behalf of a client at four

hearings in the Cuyahoga County Juvenile Court. Brooks failed to notify that court

of his suspension before any of those hearings. In February 2021, he filed a notice

of appearance and a request for discovery in the Garfield Heights Municipal Court,

although the following month, he moved to withdraw and advised the court of his

suspension.

{¶ 6} Relator notified Brooks that it had received two more grievances

against him and requested that he respond to each. Brooks, however, failed to do

so. In May 2021, Brooks spoke on the telephone with relator’s counsel, who asked

Brooks to provide him with a list of all matters in which Brooks had appeared as

counsel while under suspension. Brooks failed to provide the list. In July 2021,

relator filed its disciplinary complaint, and Brooks waived his right to a

determination of probable cause. Despite Brooks’s awareness of the complaint, he

continued to represent a client in a matter pending in the Cuyahoga County Court

of Common Pleas until December 2021, a little over a month before his disciplinary

hearing.

{¶ 7} The board concluded that Brooks “showed little regard for the

multiple grievances submitted against him, Relator’s investigation, or the pending

complaint.” The board noted that after relator repeatedly requested information

about the extent to which Brooks had continued representing clients while

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suspended, Brooks either failed to provide the information or submitted

information that was incomplete or inaccurate.

{¶ 8} Based on this conduct, the parties stipulated and the board found that

Brooks committed five violations of Prof.Cond.R. 3.4(c) (prohibiting a lawyer from

knowingly disobeying an obligation under the rules of a tribunal), five violations

of 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), five

violations of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation), and one violation each

of Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) (both requiring a lawyer to

cooperate with a disciplinary investigation). In addition, Brooks admitted that

before his suspensions, he had not maintained professional-liability insurance and

had failed to notify his clients in writing that he did not carry such insurance. The

parties therefore stipulated and the board found that he had also violated

Prof.Cond.R. 1.4(c) (requiring a lawyer to inform a client if the lawyer does not

maintain professional-liability insurance and to obtain a signed acknowledgment of

that notice from the client).

{¶ 9} We adopt the board’s findings of misconduct.

Sanction

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

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

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

imposed in similar cases.

{¶ 11} As for aggravating factors, the parties stipulated and the board found

that Brooks had engaged in a pattern of misconduct, committed multiple offenses,

failed to cooperate in the disciplinary investigation, and engaged in deceptive

practices during the disciplinary process. See Gov.Bar R. V(13)(B)(3) through (6).

The board emphasized that Brooks had “failed to display true candor” during

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relator’s investigation and “never completely disclosed the number of matters that

he appeared in while under suspension.”

{¶ 12} As for mitigation, the board noted that Brooks had submitted

evidence of good character and reputation and that prior to his suspensions, his law

practice had served an underrepresented segment of the community. See Gov.Bar

R. V(13)(C)(5). But those factors, the board noted, did not outweigh the fact that

he had continued practicing law despite “full knowledge of this disciplinary

proceeding.” Brooks also testified that he had a mental disorder, that he had

communicated with the Ohio Lawyers Assistance Program (“OLAP”), and that he

would benefit from treatment. The board concluded, however, that Brooks had not

provided the necessary evidence to substantiate his belief that he suffered from a

mental disorder. Brooks therefore failed to establish that he had a disorder that

qualifies as a mitigating factor under Gov.Bar R. V(13)(C)(7).

{¶ 13} To determine the appropriate sanction, the board reviewed a number

of cases involving attorneys who continued practicing law while under a CLE or

attorney-registration suspension and who either failed to cooperate in the ensuing

disciplinary investigation or engaged in deceitful conduct. See, e.g., Disciplinary

Counsel v. Higgins, 117 Ohio St.3d 473, 2008-Ohio-1509, 884 N.E.2d 1070

(indefinitely suspending an attorney for representing a client in a divorce and child-

custody case while under a CLE suspension and for failing to cooperate in the

disciplinary investigation); Toledo Bar Assn. v. Crandall, 98 Ohio St.3d 444, 2003-

Ohio-1637, 786 N.E.2d 872 (indefinitely suspending an attorney for continuing to

represent clients in two separate matters while under a CLE suspension and failing

to cooperate in the disciplinary investigation); Disciplinary Counsel v. Squeo, 133

Ohio St.3d 536, 2012-Ohio-5004, 979 N.E.2d 321 (indefinitely suspending an

attorney who held himself out as an attorney while under CLE and attorney-

registration suspensions, engaged in dishonest conduct, and failed to cooperate in

the disciplinary investigation); Disciplinary Counsel v. Mitchell, 124 Ohio St.3d

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266, 2010-Ohio-135, 921 N.E.2d 634 (indefinitely suspending an attorney for

attempting to represent a minor in juvenile court while under an attorney-

registration suspension and providing false information to the court about his

identity and the status of his law license).

{¶ 14} Considering that Brooks continued practicing law—and therefore

continued to mislead courts—up until almost a month before his disciplinary

hearing, the board concluded that he had showed “a sheer unwillingness to

cooperate in the disciplinary process.” Therefore, the board concluded that an

indefinite suspension was necessary to protect the public “due to [Brooks’s]

continued course of conduct to completely disregard his suspension and the

disciplinary process.” Additionally, the board agreed with Brooks’s own

assessment that he may benefit from counseling and/or other mental-health

treatment and therefore recommended that as a condition of his reinstatement to the

practice of law, we require him to provide proof that he has undergone an OLAP

evaluation and complied with any treatment recommendations.

{¶ 15} Having considered Brooks’s misconduct, the relevant aggravating

and mitigating factors, and our applicable precedent, we agree with the board’s

recommended sanction. “We have routinely imposed indefinite suspensions on

attorneys who have continued to practice law while under suspension for CLE and

registration violations and who have then failed to respond to the ensuing

disciplinary investigation.” Disciplinary Counsel v. Eisler, 143 Ohio St.3d 51,

2015-Ohio-967, 34 N.E.3d 99, ¶ 17. In light of our precedent, an indefinite

suspension is the appropriate sanction in this case.

Conclusion

{¶ 16} Robert Chester Brooks II is hereby indefinitely suspended from the

practice of law in Ohio. In addition to the requirements of Gov.Bar R. V(25),

Brooks’s reinstatement shall be conditioned on submission of proof that he has

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undergone an OLAP evaluation and complied with any resulting recommendations

for counseling and/or other mental-health treatment. Costs are taxed to Brooks.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,

and BRUNNER, JJ., concur.

_________________

Christopher Joseph Klasa, Bar Counsel, and Stephanie R. Anderson,

Deputy Bar Counsel, for relator.

Robert Chester Brooks II, pro se.

_________________

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