Tuesday, Sept. 12, 2017
In re D.H., Case no. 2016-1195
Second District Court of Appeals (Montgomery County)
Frank and London Insurance Agency v. LGR Realty Inc., Case no. 2016-1307
Tenth District Court of Appeals (Franklin County)
Capital Care Network of Toledo v. State of Ohio Department of Health, Case no. 2016-1348
Sixth District Court of Appeals (Lucas County)
Disciplinary Counsel v. Brian Allan Maciak, Case no. 2017-0492
Palm Beach County, Fla.
Can Minor Appeal Juvenile Court’s Discretionary Transfer Decision Before Common Pleas Court Proceedings Begin?
In re D.H., Case no. 2016-1195
Second District Court of Appeals (Montgomery County)
ISSUES:
- Is a juvenile court order transferring jurisdiction of a minor to common pleas court a final order that can be appealed before proceedings in common pleas court begin?
- Does a 1974 Ohio Supreme Court decision declaring that a discretionary transfer of a juvenile isn’t a final, appealable order apply since the Ohio General Assembly subsequently amended R.C. 2505.02?
BACKGROUND:
In June 2014, a minor identified in court records as “D.H.” participated in a street crime known as “the knock-out game.” He allegedly struck two homeless men and took their property. There was no evidence the victims required medical attention or incurred medical expenses. D.H. was charged with two counts of robbery if it were a crime committed by an adult. D.H. hadn’t previously been adjudicated as a delinquent in juvenile court and never served any time in juvenile detention.
The Montgomery County Prosecutor’s Office requested the case be transferred from the juvenile division of Montgomery County Common Pleas Court to the general division so it could try D.H. as an adult. The juvenile court granted the request, and D.H. was indicted on two counts of robbery. In August 2014, he pleaded no contest, and a month later the trial court sentenced him to four years in prison.
D.H. challenged the discretionary transfer, and in August 2015, the Second District Court of Appeals ruled the juvenile court improperly transferred the case because it didn’t properly explain why it believed there wasn’t enough time to rehabilitate D.H. as a minor in the juvenile system. The prosecutor appealed the decision to the Supreme Court, which in early 2016 decided against hearing it.
The case was remanded to the juvenile court, which didn’t provide time for D.H.’s attorneys to make any additional arguments for treating him as a minor. The juvenile court again ruled D.H. wasn’t amenable to treatment, and in March 2016, transferred the case to adult court. D.H. appealed the juvenile court’s order. The prosecutor asked the Second District to dismiss the case, relying on the Ohio Supreme Court’s 1974 In re: Becker decision, which indicated the transfer order can’t be appealed and a juvenile must wait until after a conviction by the common pleas court to appeal. D.H. argued that since Becker the legislature amended R.C. 2505.02 to allow a transfer decision to be appealed under certain conditions. D.H. argued he met the conditions. In July 2016, the Second District sided with the prosecutor, noting the Supreme Court hasn’t declared that Becker has been affected by the changes in state law. D.H. appealed to the Supreme Court, which agreed to hear the case.
In the meantime, D.H. pleaded no contest a second time to the charges in April 2016 and received another four-year prison term. The Second District stayed the sentence in February 2017, pending the outcome of the Supreme Court case.
Delayed Appeals Rob Juveniles of Time for Rehabilitation, D.H. Argues
D.H. explains that R.C. 2505.02 was amended in 1998, more than 20 years after Becker, to make seven types of juvenile court orders final, allowing for them to be appealed to appellate courts. R.C. 2505.02(B)(4) requires two parts of an order be met to make it appealable. First, the order has to be a “provisional remedy” that prevents a ruling in favor of the person appealing. Second, the juvenile court must determine that the appealing party “would not be afforded a meaningful or effective remedy” if forced to wait until there is a final judgment on all issues and claims.
D.H. argues that since a juvenile court can only rehabilitate a delinquent up until the he or she turns 21 years old, then waiting until after he is transferred to adult court and convicted before allowing an appeal is not “meaningful and effective.”
“Requiring a child to wait to appeal is not meaningful or effective, because the child grows closer to aging out of the juvenile court's jurisdiction and away from rehabilitative opportunities. It also raises the question of what happens to a child who has reached his or her 21st birthday before the juvenile court has an opportunity to conduct a new hearing or reconsider the amenability determination after appeal,” D.H.’s brief states. “Does the juvenile court release a child back to the community without treatment and counseling? Or, does the juvenile court simply transfer the child to adult court because it has no other dispositional option at the juncture?”
D.H. argues he meets both parts of the 2505.02(B)(4) requirements. A discretionary transfer is a provisional remedy because it determines which court has jurisdiction over the case and doesn’t determine if D.H. is guilty of the charges. He also notes the requirement that he wait to appeal after an adult court conviction isn’t effective and he points to his first trial as an example. Had he been allowed to appeal the decision to transfer him to common pleas court, then the Second District could at that time have issued its ruling that the trial court conducted itself improperly. Instead, the case proceeded to common pleas court and two years later, as D.H. grew closer to the maximum age for rehabilitating juveniles, the Second District ruled the juvenile court made an error. That also means all the time and resources the common pleas court spent on the case were invalidated, and with this appeal, the process begins again, which isn’t efficient or effective, he concludes.
D.H. Has Effective Remedy, Prosecutors Maintain
The prosecutor states that it agrees with D.H. that the discretionary transfer is a provisional remedy, meeting one part of the test, but disagrees that me met the second requirement. The prosecutor contends that while D.H. relies on the test in R.C. 2505.02, the rule in R.C. 2501.02 states that an appeals court can only hear “a judgment of a juvenile court that a child is delinquent, neglected, abused, or dependent...,” which doesn’t apply to D.H. The prosecutor contends the juvenile court didn’t determine that D.H. was delinquent, but merely transferred the case to adult court to determine D.H.’s status, and that order can’t be appealed.
D.H. had and used a “meaningful and effective remedy” to challenge the discretionary transfer when he appealed after his conviction in common pleas court, the prosecutor notes, and maintains that D.H. overstates the time for rehabilitation in the juvenile system in determining whether to bindover a minor to adult court.
The prosecutor argues the juvenile court already determined D.H. was not amenable to rehabilitation when he was transferred, and any harm D.H. might have incurred from not being sent to juvenile rehabilitation while his appeal was pending is “highly speculative.” The prosecutor also argues that the amount of time for rehabilitation is one of 18 factors the juvenile court considers when deciding to transfer a case.
“By ordering the juvenile court to reconsider its decision to relinquish jurisdiction as the Second District did in D.H.’s prior appeal, D.H.’s case was transferred back to the juvenile court, where the court could have made a different determination as to his amenability,” the prosecutor’s brief states. “D .H.’s prior appeal demonstrates exactly how one can be afforded a meaningful and effective remedy following a final judgment. D.H.’s prior appeal also contradicts his argument that a discretionary transfer order forever precludes jurisdiction of his case from juvenile court and a determination of his amenability. The juvenile court reconsidered the applicable factors and again found D.H. not amenable to the juvenile system.”
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing D.H. from the Ohio Public Defender’s Office: Charlyn Bohland, 614.466.5394
Does Insurance Agent’s Negligence Occur When Insufficient Policy Purchased?
Frank and London Insurance Agency v. LGR Realty Inc., Case no. 2016-1307
Tenth District Court of Appeals (Franklin County)
ISSUE:
Does the four-year statute of limitations for filing a professional negligence claim against an insurance agent start when the wrongful act is committed, or when a claim is denied and the policyholder discovers the error?
BACKGROUND:
LGR Realty purchased insurance protection for its real estate practice through its agent, Frank and London Insurance Agency. Frank and London secured a policy for LGR from Continental Casualty that took effect in May 2010. LGR was sued in early 2011 for its role in a disputed property purchase, and turned to Continental Casualty to provide its legal defense and pay any claim against it. The insurer denied the claim in April 2011, and LGR asserted that Frank and London negligently failed to procure the proper coverage and misrepresented the coverage in place. LGR estimated it spent more than $420,000 of its own funds to successfully defend itself in the lawsuit.
LGR filed a lawsuit against Frank and London in April 2015, more than four years after the 2010 purchase of the coverage. Frank and London sought to dismiss the case, asserting LGR filed its suit after the four-year statute of limitations in R.C. 2305.09(D). The trial court agreed, and LGR appealed to the Tenth District Court of Appeals.
The Tenth District reversed the trial court’s decision, writing that one of the exceptions to the law’s four-year time limit is for “delayed-damages.” Under the delayed-damages exception, the appellate court ruled the statute of limitations begins to run from the time the claim of professional negligence caused LGR harm, which was in April 2011 when coverage was denied. It ruled the suit was filed on time.
Frank and London appealed to the Supreme Court, which agreed to hear the case.
Negligence Occurred When Policy Purchased, Agency Argues
Both sides in the dispute point to separate Ohio Supreme Court decisions they claim set the rules for how to decide the case. The Frank and London agency maintains the Court’s 2011 Flagstar Bank F.S.B. v. Airline Union’s Mortgage Co. opinion provides the correct standard. In that case, the Court was asked to resolve a conflict among appellate courts on whether the statute of limitations begins running in a professional negligence suit from the date the negligent act is committed or the date the negligent act causes actual damages. The Court ruled the date is when the act was committed, and Frank and London contend that was when the policy was purchased and took effect. The agency argues the rule is fair and LGR had sufficient information since the purchase of the policy to discover negligently omitted coverage.
“LGR had sufficient information to discover any negligently omitted coverage because LGR had a copy of the insurance policy, and the impact of the omission would have manifested immediately because it would have influenced the terms of the policy and the premium paid,” the agency’s brief stated.
Frank and London note the Tenth District and LGR point to the Court’s 1982 Kunz v. Buckeye Union Insurance Co. decision, which found a tort, such as professional negligence, isn’t complete until the plaintiff is actually harmed. With insurance, the harm occurs when coverage is denied, and the statute of limitations runs from the time of the coverage denial, LGR argues.
The Court should overturn Kunz, Frank and London maintains, and notes that other Ohio Supreme Court decisions following Kunz indicate it was wrongly decided. The agency argues Kunz was based on a ruling by an Alaska state court. The agency argues the Court should look to the law, R.C. 2305.09, where it will find the exception to the statute of limitations is restricted to cases regarding trespassing underground, wrongful taking of personal property, and fraud. It also noted the General Assembly added a specific exception for a registered surveyor, which starts the statute of limitations clock at the time the surveyor completes the work.
Insurance Agents Different than Other Professionals, LGR Asserts
Unlike the cases cited by Frank and London, Kunz specifically addresses a professional negligence claim against an insurance agent for failing to obtain appropriate coverage, LGR notes. The company explains that negligence by an insurance agent is more like a claim about a faulty product than mistakes made by professionals such as lawyers, doctors, accountants, and appraisers. Professionals such as accountants and appraisers are providing their professional judgment and the harm occurs when the advice is provided. An insurance broker like Frank and London is purchasing a policy from a separate company and it’s the faulty purchase that is the problem, LGR asserts. The statute of limitations for a defective product runs not from the date from when it is sold, but the date that the product causes harm, the company notes.
For LGR the company was not harmed until it suffered a loss. That loss occurred when the company was sued and then attempted to use its insurance policy to cover the costs of the litigation – in April 2011 when Continental Casualty informed LGR that its claim wasn’t covered by the policy that Frank and London purchased for it. Unlike the judgment provided by some professionals, the negligence of an insurance agent may never be discovered and is only triggered when a claim or a lawsuit is filed.
“The placement of a defective insurance policy lays in wait for an event that will then cause harm to the consumer of that insurance product if, and only if, a claim is made that is then denied by the third party insurer who underwrote the policy,” LGR’s brief states. “Consider that there is no valid claim for a defective seat belt placed into the stream of commerce until a person suffers harm in an automobile accident due to that defect because the tort is not complete until the harm occurs. The defective seat belt hypothetical and the harm that results is no different from the scenario where the harm is caused by a defective insurance policy placed into the stream of commerce for a sole consumer.”
LGR notes that Flagstar doesn’t specifically overturn Kunz and argues it would be fundamentally unfair to apply that ruling to an insurance agent. The company notes it paid a premium for a policy, the insurance company and the agent enjoyed a profit for “their less than stellar performance,” and the LGR was left to absorb the costs for a loss it thought was insured.
Friend-of-the-Court Brief
An amicus curiae brief supporting the LGR Realty’s position has been submitted by the Ohio Association of Justice.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Frank and London Insurance Agency: Samuel Casolari, 513.372.6800
Representing LGR Realty Inc.: Edwin Hollern, 614.839.5700
Was Toledo Clinic’s Transfer Agreement with Michigan Hospital Legal?
Capital Care Network of Toledo v. State of Ohio Department of Health, Case no. 2016-1348
Sixth District Court of Appeals (Lucas County)
ISSUES:
- Does Ohio’s administrative rule O.A.C. 3701-83-19(E) validly require ambulatory surgical clinics to have written transfer agreements with hospitals in cases of “medical complications, emergency situations, and for other needs,” and did the Ohio Department of Health director act in accordance with that law?
- Did the General Assembly violate the Ohio Constitution’s one-subject clause by using the state budget bill to enact laws for granting ambulatory-surgical-facility licenses?
- Can a challenged law be found to be an “undue burden” on abortion rights only if a plaintiff makes a factual and legal showing of such a burden, and did the court find such a burden when the issue wasn’t raised by one of the parties?
- Does Ohio law unconstitutionally delegate authority to a third party by requiring all ambulatory surgical facilities to have written transfer agreements with local hospitals in case of emergencies or other needs? According to the law, does the ultimate decision remain with the Ohio Department of Health?
BACKGROUND:
The General Assembly enacted R.C. 3702.30 in 1995 to require the Ohio Department of Health to license “ambulatory surgical facilities” (ASFs), which are free-standing facilities where outpatient surgeries are routinely performed. According to the health department, more than 250 ASFs currently are licensed in Ohio and fewer than a dozen perform abortions.
A 1996 department rule, Ohio Administrative Code 3701-83-19(E), requires that ASFs “shall have a written transfer agreement with a hospital for transfer of patients in the event of medical complications, emergency situations, and for other needs as they arise.”
Capital Care Network of Toledo, an ASF that provides abortions, had a transfer agreement with the University of Toledo Hospital beginning in 2012 and scheduled to expire on July 31, 2013. Also in mid-2013, as part of the state budget bill, the General Assembly changed the laws governing ASFs. The amendments incorporated the department’s transfer agreement rule into the Revised Code and required each ASF to have a transfer agreement “with a local hospital that specifies an effective procedure for the safe and immediate transfer of patients ….” A law also was enacted that barred public hospitals from making transfer agreements with clinics that do abortions. As a public hospital, the University of Toledo Hospital was prohibited from entering into further transfer agreements with Capital Care. These statutes regarding ASFs took effect on Sept. 29, 2013.
When Capital Care didn’t submit a new transfer agreement to the health department, the department sent a notice to the clinic, dated Aug. 2, proposing to revoke its license for failing to follow the department’s administrative rule. (The new statutes weren’t yet in effect.) In January 2014, Capital Care secured a transfer agreement with the University of Michigan Health System in Ann Arbor, Michigan, 52 miles from the clinic. The department sent another notice, dated Feb. 14, 2014, stating that Capital Care hadn’t complied with the rule or the new transfer agreement statute because the law mandated a transfer agreement with a “local” hospital. Following a hearing with the clinic, the department decided that the Ann Arbor hospital was too far away and revoked the clinic’s license.
Courts Find Laws Unconstitutional
Capital Care appealed to the Lucas County Common Pleas Court. The court determined in its June 2015 opinion that the transfer agreement statute, as well as related statutes governing the activities of public hospitals and the issuance of variances from the transfer agreement were unconstitutional because they violated the Ohio Constitution’s provision restricting legislation to one subject. The court also concluded that the transfer-agreement law placed an undue burden on women seeking abortions, based on federal standards, because the laws were an unconstitutional delegation of the state’s licensing authority to private hospitals.
The health department filed an appeal with the Sixth District Court of Appeals, which in July 2016 upheld the common pleas court’s ruling. The Sixth District cited the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, which was issued the month before, on June 27, 2016. The Ohio Supreme Court accepted the department’s appeal of the Sixth District’s decision to review the issues.
Rule Alone Justifies Closing Clinic, State Argues
The state health department, represented by the Attorney General’s Office, believes this case can be resolved solely based on the content of the department’s 1996 rule. In the state’s view, the 1996 rule always implied that a hospital entering into a transfer agreement had to be local, even though the rule didn’t expressly use that word, because the agreement had to accommodate emergency situations. Although Capital Care’s owner testified that the clinic’s plan was to transport patients to Ann Arbor by helicopter, which would take 15 to 20 minutes, the owner also stated that the helicopter service was in Licking County, the clinic had no contract with the company, and there might be other logistical issues. The state argues the transfer agreement with the Ann Arbor hospital didn’t ensure appropriate patient care for medical complications and emergency situations.
“If the Clinic here performed laser eye surgery, sports orthopedics, or various routine surgeries performed in Ohio’s 269 ASFs, the [health department] Director’s common-sense order [revoking Capital Care’s license] would surely have been affirmed,” the state wrote in its brief to the Supreme Court.
Regardless, the state contends that Capital Care didn’t challenge the validity of the rule in the common pleas or appellate courts. Even though the lower courts found the statutes enacted in 2013 were unconstitutional, the state argues that the 1996 rule still stands and supports the decision to revoke the clinic’s license.
Statute Was Basis for Revoking License, Clinic Asserts
Capital Care disputes this distinction. Although the department’s notices mentioned the rule and the statute, the clinic maintains that the department’s order rejected the transfer agreement with the Ann Arbor hospital because it wasn’t local, which was a requirement set only in the statute. And the rule and the statute aren’t identical, Capital Care argues, pointing to the specific and differing language of each and adding that “local” as used in the statute at the time wasn’t defined.
“Capital Care’s license was revoked because its transfer agreement with the Michigan hospital was not with a ‘local’ hospital in violation of the transfer agreement [statute]. For this reason, it was proper for the Sixth District to decide whether the law the Director based his decision on was unconstitutional,” the clinic asserts in its brief.
The policy at Capital Care stated that patients who didn’t need immediate treatment would be transported to the Ann Arbor hospital by helicopter or, if the helicopter wasn’t available, by vehicle. For life-threatening emergencies when a patient needed immediate treatment, which the clinic indicates is rare, its staff calls 911. Responding EMTs must transport the patient to the closest hospital to ensure emergency care. Federal law mandates that hospitals accept and treat every emergency patient who arrives at their door until they are stabilized, Capital Care stresses.
Budget Bill and One-Subject Rule
The state disagrees with the lower courts’ determinations that the inclusion of the ASF laws in the state budget bill in 2013 violated the Ohio Constitution’s one-subject rule. Citing the Supreme Court’s decision last year in State ex rel. Ohio Civ. Serv. Emps. Assn. et al. v. State, the state argues that a budget bill properly addresses both spending and state operations. The public hospital ban places a condition on state-funded hospitals, the variance statute guides the health department’s operations, and the transfer agreement statute connects to the other two laws, in the state’s view.
Capital Care counters that there’s no common purpose or discernible relationship between the ASF statutes and other provisions of the 2013 budget bill. The licensing laws for ASFs don’t involve appropriations, restrict state spending, impact the government’s effective operation, or require any action by the government, the clinic argues. The clinic also maintains that the provisions were added to the budget bill late in the legislative process and weren’t debated openly.
Lower Courts’ Analyses Whether Laws Were Undue Burden
Asserting that Capital Care never raised a constitutional claim in the common pleas court or Sixth District that the statutes place an undue burden on women seeking an abortion, the state maintains that the lower courts shouldn’t have addressed undue burden. The state asks the Supreme Court to set aside those rulings that the statutes are unconstitutional. If the Court considers the statutes’ constitutionality, though, the state contends that the undue-burden analysis applies only to laws directed at abortion. But the transfer agreement statute is a neutral law that applies to all ASFs, not just abortion providers, the state maintains. The state also argues the Sixth District didn’t have enough of a factual record during its review to conduct an undue-burden analysis.
From Capital Care’s perspective, the courts had to consider the constitutional question about undue burden to decide whether the health department’s order to close the clinic violated the law. Citing State v. Moore, a 2016 Ohio Supreme Court decision, Capital Care reiterates that an appeals court can consider a new court decision – in this case, the U.S. Supreme Court’s Whole Woman’s Health ruling – when it is pending at the time of an appeal. After reviewing Whole Woman’s Health, and even with a limited record, the Sixth District concluded that the ASF licensing statutes generated substantial obstacles to abortion, such as the much farther distances women would need to travel for an abortion if the Toledo clinic closes, that outweighed any state benefit, Capital Care notes. The clinic also asserts that the undue-burden test is properly applied to neutral regulations or laws when they adversely affect abortion facilities, pointing to a federal court ruling in Women’s Medical Professional Corp. v. Baird (2006), which involved Ohio law.
Alleged Transfer of State Power to Private Hospitals
The state maintains that the statutes don’t violate due-process rights by delegating legislative power away from the health department to private hospitals. The state’s interest in ensuring the health and safety of citizens is significant, and there’s no difference, for example, between a law allowing a third-party private hospital to enter a transfer agreement with an ASF and a law mandating that the medical board, a third party, license doctors, the state asserts. Neither is an unlawful delegation of authority to a third party, the state argues. Based on Baird, the state contends, the delegation argument fails when, as in Ohio, a health department director has the authority to grant a waiver or variance to the transfer agreement.
Ohio law when Baird was decided gave the department director ultimate authority to implement waivers and variances, but the 2013 ASF laws eliminated the director’s ability to grant a waiver or to issue a variance unless a doctor with hospital admitting privileges signs on as a backup physician, Capital Care argues. Private hospitals decide unilaterally whether to enter into transfer agreements and doctors choose whether to serve as backups, while the director in reality has no final say to make a different decision under the provisions in the statutes, the clinic states. Because the statutes give no standards to hospitals when making these determinations, the clinic concludes that the laws lack the necessary due-process protections.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Ohio Department of Health from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980
Representing Capital Care Network of Toledo: Jennifer Branch, 513.621.9100
Attorney Discipline
Disciplinary Counsel v. Brian Allan Maciak, Case no. 2017-0492
Palm Beach County, Fla.
The Board of Professional Conduct recommends that Florida attorney Brian A. Maciak be suspended from the practice of law in Ohio for two years, with the suspension fully stayed with conditions.
The Office of the Disciplinary Counsel charged Maciak with multiple violations of professional conduct rules related to his activities as general counsel for two large corporations, one headquartered in Texas and another in Florida. A three-member panel of the professional conduct board found Maciak committed rule violations for practicing law in Florida without obtaining the required authorized house counsel certification, and engaging in the practice of law from 2012 to 2015 while under suspension by the Ohio Supreme Court. Maciak’s suspensions were based on his failure to complete and report mandatory continuing legal education (CLE).
Attorney Leaves Cleveland to Become Corporate Counsel
Maciak formerly practiced with two Cleveland law firms and served as an executive and attorney for National City Bank in Cleveland. In 2006, he relocated to Texas to become vice president and assistant general counsel of Michaels Stores, Inc. He left the company, and was hired in 2009 as general counsel for TBC Retail Group in Florida. In 2012, he was promoted to TBC’s senior vice president and general counsel. TBC is the holding company for a variety of automotive retailers including Midas Muffler, National Tire and Battery, and Tire Kingdom.
At Michaels and TBC, Maciak’s duties centered as much on business as on law, and he testified that most of his time was devoted to “nonlegal functions.” He stated his role is primarily to oversee the in-house legal teams, but periodically provided legal advice and counsel to TBC.
Florida Bar Receives Complaint
In 2015, Jeffery Picker of the Florida Bar Association’s unauthorized practice of law department received a complaint from a former TBC employee about Maciak. Picker noted Maciak was neither a Florida Bar member nor certified as authorized house counsel. A lawyer must be one of the two to serve as general counsel for a Florida company.
Maciak applied for and was granted authorized status in late 2015. The complaint also accused Maciak of practicing law without a license and Ohio’s disciplinary counsel was notified. The disciplinary counsel contacted Maciak and notified him that he has been ineligible to practice law in Ohio since December 2011 and inquired about his activities in Florida.
Maciak Had Prior Short-Term Suspensions
Maciak was suspended from practicing in Ohio in December 2007 for failing to register, but was reinstated a month later. He was sanctioned twice for failure to complete CLE. He was fined $320 for the first violation in 2009 and $680 for the second in 2011. He was suspended until he paid both fines and completed his CLE requirements. He was reinstated in November 2015, about one month after receiving the disciplinary counsel’s inquiry.
In 2016, the disciplinary counsel charged Maciak with several rule violations, including practicing law in another jurisdiction (Florida) in violation of Florida rules. He also was charged with practicing law in Texas and Florida from 2009 to 2015 while under suspension in Ohio, and with making false statements and misrepresentations during the disciplinary investigation.
Maciak Believed Conduct Legal
Maciak admitted that he performed his general counsel duties at Michaels Stores and TBC and used the title general counsel, but didn’t believe those activities constituted the unauthorized practice of law. Maciak had first hired attorneys from his former Ohio law practice to assist him in determining whether his actions counted as an unauthorized practitioner, and they believed he was in compliance with the rules. However, after hiring a new attorney, he agreed that his work in Florida constituted unauthorized practice until he obtained his house counsel authorization. However, the board didn’t find he violated any rules in Texas because the state doesn’t sanction attorneys for practicing law while under suspension in Ohio.
Maciak also contends he was unaware that he had been suspended for CLE deficiencies, but admits that he and his office assistants received notices from the Supreme Court and its Office of Attorney Services about his CLE status. He also admits that someone using his name and password attempted to enter the online attorney portal, which highlighted that he was under suspension. Maciak told the panel he doesn’t remember seeing the notices, recall calling the attorney services office, or accessing the portal online.
He also claims the CLE deficiencies were the result of innocent mistakes, maintaining that he attended or made presentations at a sufficient number of programs to be in compliance. The panel found he did attend and present at numerous CLE programs but wasn’t given credit, in part, due to his own negligence, and he couldn’t explain why he didn’t take actions to address the situation.
The panel recommended Maciak be suspended for one year with six months stayed. However, the full board voted for a fully stayed two-year suspension with the conditions that Maciak remain in full compliance with all CLE and attorney registration obligations and that he not engage in further misconduct.
Court Should Adopt Recommendation, Maciak Asserts
Maciak acknowledges he unwittingly engaged in the unauthorized practice of law and was negligent in ensuring he complied with his CLE reporting obligations. In his brief, Maciak said he “deeply regrets and has apologized for his errors in judgment, his failures to act in a more timely fashion, his misunderstanding about his role as General Counsel, and the status of his license.” He notes he has “now rectified all his licensure issues and there is virtually no possibility of any repetition of his misconduct,” and that he is “mortified that he put his law license at risk and that he damaged the reputation of the profession.”
Maciak maintains that he didn’t violate the professional rules by making misrepresentations about his behavior. He notes the board found he did complete the required amount of CLE to be in compliance but because of negligence and confusion with the reporting system, which the attorney services office stated was being revised to be clearer, he failed to adequately report his hours. He notes he continued to receive attorney registration notices indicating his status was “active” during his four years of suspension, and that contributed to his lack of awareness that he was suspended.
Maciak notes the board found numerous mitigating circumstances that led to its proposed fully stayed suspension, including that no clients were harmed by his actions, there was an absence of selfish or dishonest motive, favorable character and reputation testimony was provided, and he has paid the fines imposed for CLE noncompliance.
Maciak emphasizes that he didn’t misrepresent himself, but repeatedly testified that he didn’t remember whether he took the appropriate steps to ensure he was in compliance with his Ohio attorney registration requirements. He notes the panel concluded that Maciak was “cavalier, inattentive, negligent, and foolish, but he did not lie.”
Disciplinary Counsel Seeks Harsher Sanction
The disciplinary counsel argues that the seriousness of the misconduct, including the practice of law while under suspension, warrants an actual suspension from practicing law.
The disciplinary counsel notes that Maciak called the attorney services office in 2012 to inquire about his suspension, which establishes that he knew about it at that time, but didn’t take any steps to rectify it until contacted in 2015. The disciplinary counsel notes the Court has rejected prior claims of “ignorance” or “honest belief,” and that the panel reached the wrong legal conclusion when it deemed Maciak didn’t violate the rules because he testified he couldn’t remember that facts.
The disciplinary counsel asserts that licensed Ohio attorneys must know the status of their licenses at all times, and that Maciak falsely stated in written responses to the disciplinary counsel’s inquiry that he was unaware of his status until October 2015. An email between attorney services staff members reads that Maciak called in February 2012 about a letter he received about his CLE suspension and asked what he could do to clear it up.
The disciplinary counsel also argues that Maciak received six suspension notices from the Supreme Court and hasn’t acknowledged his response to the inquiry was false.
“Maciak’s recall became conveniently unclear only after he was confronted with evidence contradicting his false statements,” the disciplinary counsel’s brief states.
The disciplinary counsel argues that if Maciak receives a fully stayed suspension, his sanction would be far less severe than what the Court has imposed on an applicant for the bar and a lay person found to have engaged in the unauthorized practice of law. The disciplinary counsel also cautions that adopting the board’s recommendation “would effectively reward those attorneys who choose to remain ignorant of their license status and who simply proclaim ignorance or a poor memory when confronted with evidence contradicting the misrepresentations” made while under investigation.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Brian A. Maciak: Jonathan Coughlan, 614.462.5400
Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256
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