The Ohio Supreme Court imposed a two-year, stayed suspension on an Ashtabula County attorney whose business card and law office sign implied he was still in partnership with a sitting Ohio Supreme Court justice.

The Board of Professional Conduct recommended Thomas C. Brown of Geneva receive a six-month stayed suspension for advertising his firm as the O’Neill & Brown Law Office. In a 4-3 per curiam decision, the Court wrote that six months would not “adequately protect the public from future harm,” and imposed the two-year sanction.

In a dissenting opinion, Justice Terrence O’Donnell wrote that Brown’s “deceitful conduct demands a serious sanction involving time out from the practice of law,” and that Brown should be indefinitely suspended.

Brown and Justice William M. O’Neill practiced together from 1981 to 1997 at the O’Neill & Brown Law Office.

Justice O’Neill did not participate in the case. Eighth District Court of Appeals Judge John Timothy McCormack was assigned to sit on the Court for the case.

Brown Renames Firm
Although Brown and O’Neill ceased practicing law together in 1997, Brown asked for Justice O’Neill’s consent in July 2015 to install a sign outside his office advertising the “O’Neill & Brown Law Office (EST 1981).” He also began distributing O’Neill & Brown Law Office business cards to court personnel, opposing attorneys, and potential clients.

That same month the Ashtabula County Bar Association began to investigate allegations of professional misconduct regarding the use of the law firm name, and Brown responded to the bar’s inquiry by explaining his past affiliation with Justice O’Neill. The bar association advised Justice O’Neill that Brown’s signs violated the rules governing Ohio attorneys, and Justice O’Neill instructed Brown to take down the sign.

The bar association filed a complaint with the professional conduct board claiming Brown violated three rules by using Justice O’Neill’s name, including making a false or misleading statement about the lawyer’s services, using a false or misleading firm name, and using the name of a lawyer who holds public office in a law firm’s name during a substantial period in which the officeholder is not regularly practicing with the firm.

A three-member panel of the board heard testimony in the matter, and a month after the hearing, the bar association alleged that Brown made false statements during the disciplinary process. The county bar found Brown was still using the O’Neill & Brown Law Office business card after testifying that he stopped using them, and that he told a disciplinary investigator that he took the offending sign down in September 2015, but witnesses had seen the sign remaining in view through November 2015.

The bar association provided documentation from the wife of a potential Brown client who received an O’Neill & Brown business card from Brown in April 2016. Brown admitted giving it to her and claimed it was unintentional. He said he carried a “rarely used” extra business card in his wallet and did not realize he gave the woman one of his discontinued cards. Brown also testified he was not certain of the date he took down the law firm sign and stated it was possible it remained up throughout November 2015.

Brown is the sole employee of the law firm. The board found the use of the sign and business cards and the claim the current firm was established in 1981 were violations of the rules against misleading statements. It also found Brown violated the law by including the name of an officeholder in a law firm name when the public official was not actively practicing with the firm. However, it found Brown’s handing out his business card and delay in taking down the signs did not violate the rules, and it recommended the sixth-month, stayed suspension.

Court Considers Sanction
When imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The Court noted that Brown had a prior disciplinary record. In 1999, the Court initiated an interim suspension of his license, which led to an indefinite suspension that continued until November 2006. Brown was suspended for violating a number of rules that included failing to file briefs in four client matters, threatening a judge who served as chairperson of the Ashtabula County grievance committee, making false statements in an effort to get a lawsuit against him dismissed, lying to a judge about his compliance with a court order, failing to attend scheduled court hearings, and failing to cooperate in a disciplinary investigation.

He also received three separate brief suspensions for not following attorney registration requirements in 2005, 2009, and 2015. Other aggravating factors the board found included:

• Brown acted with a selfish motive
• He committed multiple offenses
• He did not acknowledge the wrongful nature of his conduct
• He used Justice O’Neill’s name on the sign and business card four months after he was told it was a rule violation

The board found mitigating factors included:

• Brown’s cooperative attitude during the disciplinary process
• The conduct did not involve providing legal services
• No clients were negatively impacted
• Justice O’Neill participated in the decision to use the law firm name

The opinion stated that a six-month suspension would be inadequate in light of the aggravating factors that included using the prestige of Justice O’Neill’s position as a Supreme Court justice to enhance Brown’s reputation, his failure to comply with the notice that he was violating the rules, his past misconduct, and his failure to “acknowledge or appreciate” the nature of his misconduct.

The Court’s two-year stayed suspension requires that he remove any reference to the firm being established in 1981, permanently alter the sign within 60 days to remove the O’Neill name, destroy all O’Neill and Brown business cards within 14 days, commit no further misconduct, and refrain from advertising or communicating that he is practicing in the O’Neill & Brown Law Office except when making a biographical reference to his former affiliations. The Court concluded that if he violates any of those conditions the stay will be lifted and he will serve an entire two-year suspension.

Justices Sharon L. Kennedy, Judith L. French, and R. Patrick DeWine and Judge McCormack joined the majority opinion.

Dissent Finds Suspension Warranted
In his dissent, Justice O’Donnell concluded that receiving permission from Justice O’Neill to post the sign was not a mitigating, but rather an aggravating factor and he noted that Brown continued to use the O’Neill name on the sign after he was alerted by the bar association that it violated the rules and he continued using the firm’s business cards after he stipulated to the board that he had stopped.

Justice O’Donnell asserted that while the majority recognizes Brown’s selfish motive for using Justice O’Neill’s name and the prestige of Justice O’Neill’s position to enhance his reputation, it “fails to grasp that Brown also created an appearance of impropriety by representing he was practicing law in a legal partnership with a sitting justice....”

He concluded that an indefinite suspension was the appropriate sanction, and Chief Justice Maureen O’Connor and Justice Patrick F. Fischer concurred.

2016-1147. Ashtabula Cty. Bar Assn. v. Brown, Slip Opinion No. 2017-Ohio-5698.

View oral argument video of this case.

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