The Ohio Supreme Court has indefinitely suspended a Cleveland attorney who sent “demand letters” to various businesses threatening to file civil rights complaints against them and offering to settle those claims on behalf of his nonexistent clients for $500.

In a per curiam opinion, the Court voted 5-2 to indefinitely suspend Rosel C. Hurley III, whose violations of the rules governing the conduct of Ohio lawyers occurred while he was already under suspension.

The Board of Professional Conduct recommended that Hurley be permanently disbarred. However, the Court majority determined that his having a cooperative attitude, paying restitution, and seeking treatment for a diagnosed mental disorder warranted the lesser sanction. Justices Sharon L. Kennedy, Judith L. French, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the majority opinion.

Chief Justice Maureen O’Connor and Justice Terrence O’Donnell dissented, stating they would disbar Hurley.

Suspended Lawyer Seeks Non-Attorney Jobs Online
The Court placed Hurley on interim suspension in 2013 after being notified that he was convicted of improperly using the Ohio Law Enforcement Gateway while employed as an assistant prosecutor at the Cuyahoga County Prosecutor’s Office. Later that year, he was suspended for failing to register as an attorney. In 2015, he received a two-year suspension for the misconduct related to his 2013 convictions.

Hurley was unable to find full-time employment during his suspension, and he claimed that employers were discriminating against him based on his race and prior felony convictions.  Although still suspended, he sent “demand letters” to employers in response to at least 20 job openings posted online that included language disqualifying applicants with criminal backgrounds. Hurley’s letters warned that these “blanket exclusions” violated federal law and would result in “disparate impact to African Americans.” With each letter, Hurley offered a proposed settlement agreement in which he would accept $500 to avoid filing a complaint with the Equal Employment Opportunity Commission (EEOC).

The letter identified the sender as Arnuma Law, in large bold print on the first page, and made numerous references that they were being sent on behalf of a “client.” Arnuma Law was the name of Hurley’s former law firm. The letters were signed and included the typed title of “Mr. Rosel C. Hurley, J.D., Esquire.”

Hurley later admitted there were no clients and he was acting solely on his own behalf. The Cleveland Metropolitan Bar Association charged him with holding himself out as an attorney during his suspension and other misconduct.

Letter Concerns Employers
At Hurley’s disciplinary hearing, two employers testified that they received the demand letter. The president of a small Georgia business believed Hurley was authorized to practice law and was concerned that his posting was illegal. To avoid the cost of consulting an attorney, he agreed to the settlement and sent Arnuma Law a $500 check. A Colorado businessman also considered settling and temporarily removed his job posting after receiving the demand letter. When he received a second demand letter, he discovered that Hurley’s license was suspended.

The board concluded that Hurley misrepresented his status to mislead and intimidate small businesses into paying him, and it found that the use of the name of the former law firm, the use of “esquire” on the signature line, and the false statement that he represented a client violated professional conduct rules prohibiting practicing law while under suspension, making false or misleading representations about his ability to practice law or provide legal representation, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The board recommended disbarment.

Lawyer Objects to Findings
Hurley objected to the findings, maintaining that since he did not actually represent any clients, he did not violate any orders against practicing while under suspension. He also pointed to the U.S. Supreme Court’s decision in Sperry v. Florida ex rel. Florida Bar (1963), which held that Florida could not sanction a non-lawyer registered with the U.S. Patent Office for preparing patent applications in that state – activity that would constitute the unauthorized practice of law in Florida -- because federal law allowed non-lawyers to assist in filing patents. Relying on Sperry, Hurley asserted that anyone may file a charge of discrimination with the EEOC on behalf of another person and that he could not be punished for activity authorize by federal law.

Court Rejects Arguments
The Court rejected Hurley’s arguments. The opinion noted that the unauthorized practice of law includes not only providing legal services to others but also falsely representing oneself as authorized to practice in Ohio.

“The fact that Hurley did not actually represent any clients does not mean that he did not engage in the unauthorized practice of law,” the Court concluded.

The Court also noted that even if federal law permits a non-lawyer to file a charge of discrimination with the EEOC on behalf of another person, Hurley did not file a discrimination charge but rather purported to settle a claim for a nonexistent client, and he did not identify any federal law or regulation permitting a suspended lawyer to do that.

Court Selects Lower Sanction
The Court accorded weight to mitigating evidence in this case, including his having a cooperative attitude toward the disciplinary process despite disputing the charges of misconduct, paying restitution, and entering an agreement with the Ohio Lawyers Assistance Program (OLAP) to address a mental disorder.

“Under these circumstances, an indefinite suspension serves to protect the public while also leaving open the possibility that with treatment, Hurley might one day be able to return to the competent, ethical, and professional practice of law,” the opinion stated.

The Court explained that Hurley cannot apply for reinstatement unless he establishes by clear and convincing evidence that he has become a proper person to be readmitted.  The Court also conditioned reinstatement on Hurley complying with his OLAP contract and all recommendations of OLAP and his treating professionals and submitting to an OLAP mental-health evaluation that confirms he is able to return to the competent, ethical, and professional practice of law.

2017-0798. Cleveland Metro. Bar Assn. v. Hurley, Slip Opinion No. 2018-Ohio-231.

View oral argument video of this case.

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