Category Archives: unauthorized practice of law while suspended

Ohio Supreme Court permanently disbars lawyer who was videotaped in court practicing law while indefinitely suspended

Hello and welcome to this Ethics Alert blog which will discuss another recent Ohio Supreme Court opinion disbarring a lawyer who was caught on video representing a client in court 3 times, beginning less than three months after his license was indefinitely suspended.  The case is Cleveland Metro. Bar Assn. v. Pryatel, Slip Opinion No. 2016-Ohio-865. (March 9, 2016).  The disciplinary opinion is here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-865.pdf and the link to the oral argument in the case is here: http://www.ohiochannel.org/video/case-no-2015-1005-cleveland-metropolitan-bar-association-v-mark-r-pryatel.

According to the opinion, the lawyer was indefinitely suspended in April 2013 for multiple violations of lawyer disciplinary rules, including misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  The lawyer was subsequently recorded on video and audio tapes representing a client (Richard Brazell) in court on three separate occasions in June and July 2013.

The lawyer first attended a probation violation hearing and stood with the client, admitting the probation violation on the client’s behalf, and speaking for the client.  The client’s girlfriend and stepfather testified before the professional conduct board that they paid the lawyer $450.00 for the representation (for both the lawyer’s previous representation and for future representation) and that the lawyer did not inform them that his license was suspended.

Two days after the probation hearing, the lawyer appeared with the client a second time on unrelated charges in another court.  An audio recording of the client’s arraignment indicated the lawyer spoke on the client’s behalf.  He told the magistrate that he was not the client’s attorney and the client was representing himself as the two worked out their business relationship. The magistrate told the board that the lawyer did not indicate that his license was suspended.

About a month later, the lawyer attended a hearing with the client a third time, answered questions on his behalf, and entered a plea to a violation of probation for the client before the judge.  The prosecutor and judge in that case both told the board that they believed that the lawyer was representing the client.  The judge became suspicious and asked his assistant to research the lawyer and found out that he was suspended.

When confronted with the allegations that he had represented the client in a deposition in the Bar matter, the lawyer denied under oath that he appeared with the client at the probation violation hearing or municipal court proceedings, and claimed that he told the client’s family that his license was suspended and that he was not paid for his legal work.  The opinion stated:  “All of these statements (by the lawyer) were later contradicted by testimonial, video, audio, and documentary evidence presented at the disciplinary hearing.”

The board found the following aggravating circumstances: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, a lack of cooperation in the disciplinary process, the submission of false statements during the disciplinary process, and a refusal to acknowledge the wrongful nature of the conduct.  Although the board acknowledged that the lawyer had been involved with the Ohio Lawyers Assistance Program, it found no mitigating factors.

The lawyer objected to the board’s finding that he practiced law while suspended and argued that his actions in the second appearance did not constitute the “practice of law” since he did not advocate for the client, cross-examine any witnesses, cite legal authority, or handle any legal documents.  The opinion rejected that argument and cited Cleveland Bar Assn. v. Comp Management, Inc., a 2006 case stating that the practice of law is not limited to advocacy or filing of legal documents, but also includes representation before a court, preparation of legal documents, management of client actions, all advice related to law, and all actions connected with the law taken on a client’s behalf.  “Here, the evidence demonstrated that the lawyer accompanied the client to the court, stood with him before the bench, spoke on his behalf, waived his legal rights as a criminal defendant, and entered a plea for him.  Under any definition, the lawyer’s appearance on behalf of the client constituted the practice of law.”

The lawyer claimed that he had been “sandbagged” by the bar association which investigated the Bar matter because the case against him did not originally contain the video of his appearance at the probation hearing. The bar association later supplemented its case with the video, and the lawyer had more than two weeks to review it before his disciplinary hearing. The opinion found that the lawyer did not provide any explanation to support the allegation that the introduction of the video prevented him from adequately defending himself against the charges.

The lawyer argued that he should not be disbarred because his actions involved a single client who benefited from his assistance and that he helped the client for “sympathetic and altruistic reasons.”  He also argued that he cooperated during the disciplinary process and had a history of providing quality legal services to indigent clients, and other lawyers charged with the same misconduct were not disbarred.  His lawyer argued at the oral argument that he had psychological and/or other issues and was participating in Ohio’s lawyer assistance program, and that the indefinite suspension should be again imposed.

The majority of the justices disagreed and permanently disbarred the lawyer stating:  “Less than three months after our order forbidding Pryatel to appear on behalf of another before any court, he represented a client in three court proceedings. As the board found, his actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”  Three justices dissented, stating that the indefinite suspension should be continued.

Bottom line: This lawyer had the apparent audacity to represent a client on 3 different occasions and in 2 separate cases beginning less than 3 months after he was indefinitely suspended from the practice of law for, among other things, misappropriating a client’s settlement funds, making false statements to a court, charging an illegal or clearly excessive fee, and neglecting a client matter.  As the opinion states: “(the lawyer’s) actions defy logic and reason, especially his insistence that his conduct at those hearings did not constitute the practice of law.”

Be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Minnesota lawyer is suspended for an additional 60 days for writing former client’s winning ‘pro se’ appeal brief while suspended

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Minnesota Supreme Court suspending a lawyer for an additional 60 days for writing a brief for a pro se former client while he was under a suspension in an unrelated matter.  The case is In re Petition for Disciplinary Action against Stephen Vincent Grigsby, Minnesota Supreme Court Case No. A11-0976 (July 11, 2012) and the opinion is at 7-11-12 Minnesota SC Opinion 60 day suspension for ghost writing while suspended.

According to the opinion, after the lawyer was suspended from practice for 60 days on April 16, 2009 for unrelated misconduct, he attempted to find alternative counsel for about 30 his clients; however, he was not able find another lawyer to write an appellate brief for a client (J.R.) who was convicted of DUI in a retrial after a judge declared a mistrial without his agreement.  The lawyer sent a letter to the client advising that he had been suspended from practice and could no longer represent him.  After the lawyer was unable to find another lawyer to write the appeal brief, he wrote it himself (at no charge), signed the former client’s name to the pleading and timely filed it with an explanatory letter.  An assistant county attorney assigned to the DUI case on appeal suspected that it had been ghostwritten and reported it to the Minnesota disciplinary authorities.

After an evidentiary hearing, the referee issued a report finding that, by “drafting a legal document on behalf of a client, and submitt[ing] that document in the client’s appeal” while suspended, the lawyer had violated Minnesota Bar Rule 5.5(a), which provides that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.”  The referee also recommended that the lawyer be found guilty of violating Minnesota Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion agreed with the referee that, by drafting an appellate brief while suspended, signing the client’s name to the brief, and falsely stating to the appellate court that the former client was pro se, the lawyer had violated Rule 5.5(a); however, it rejected the referee’s recommendation that the lawyer be found guilty of violating Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion also rejected the lawyer’s argument that, even if the Minnesota Bar Rules prohibited his conduct, he was doing what was necessary to protect his ex-client’s interests in what amounted to an emergency under Minnesota Bar Rule 1.2(a), which provides that a “lawyer may take such action on behalf of the client as is impliedly authorized” by the client.  According to the opinion, the lawyer had other options, such as asking for an extension of time to file the brief, or requesting an ethics opinion regarding his obligations.

After considering the circumstances and mitigating factors, the opinion also rejected the referee’s recommendation of a nine (9) that month rehabilitative suspension which would have required that the lawyer prove rehabilitation in order to be reinstated and imposed a non-rehabilitative 60 day suspension.  The lawyer was also required to retake and pass the ethics/professional responsibility portion of the Bar Exam, and pay costs in the amount of $900.00.

Bottom line:  This lawyer apparently was trying to do the right thing for his client; however, he violated the Minnesota Bar Rules to do it.  Significantly, the lawyer was not found guilty of misrepresentation, fraud and deceit, and/or candor to the tribunal and the opinion also noted that the brief that the lawyer filed must have been effective because the former client won his appeal and the DUI conviction was reversed on former jeopardy grounds.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

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