Disciplinary Counsel v. Maciak

102 N.E.3d 485, 153 Ohio St. 3d 185, 2018 Ohio 544
CourtOhio Supreme Court
DecidedJanuary 24, 2018
DocketNo. 2017–0492
StatusPublished
Cited by4 cases

This text of 102 N.E.3d 485 (Disciplinary Counsel v. Maciak) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Disciplinary Counsel v. Maciak, 102 N.E.3d 485, 153 Ohio St. 3d 185, 2018 Ohio 544 (Ohio 2018).

Opinion

Per Curiam.

*185{¶ 1} Respondent, Brian Allan Maciak of Jupiter, Florida, Attorney Registration No. 0072793, was admitted to the practice of law in Ohio in 2000.

*186{¶ 2} On December 3, 2007, we suspended Maciak from the practice of law for his failure to register as an attorney for the 2007 to 2009 biennium. In re Attorney Registration Suspension of Maciak , 116 Ohio St.3d 1420, 2007-Ohio-6463, 877 N.E.2d 305. We reinstated his license on January 24, 2008. In re Reinstatement of Maciak , 117 Ohio St.3d 1443, 2008-Ohio-1397, 883 N.E.2d 463. On December 23, 2009, we imposed a $320 sanction on Maciak for his failure to complete the requisite hours of continuing legal education ("CLE") required by Gov.Bar R. X(3), to timely file his reporting transcript, and to timely bring himself into compliance. In re Continuing Legal Edn. Sanction of Maciak , 124 Ohio St.3d 1402, 2009-Ohio-6833, 918 N.E.2d 1010. And on December 29, 2011, we fined Maciak an additional $680 and suspended his license for his failure to complete the requisite hours of CLE, to timely file his final reporting transcript, and to comply with the prior sanction issued by the CLE commission.

*487In re Continuing Legal Edn. Suspension of Maciak , 130 Ohio St.3d 1505, 2011-Ohio-6770, 959 N.E.2d 2. That suspension remained in effect until November 25, 2015.

{¶ 3} On September 8, 2016, relator, disciplinary counsel, charged Maciak with multiple acts of misconduct arising from his employment as general counsel of corporations in Texas and Florida. The charges include allegations that Maciak engaged in the unauthorized practice of law ("UPL") in Texas and Florida, violated the terms of his 2011 Ohio CLE suspension, and made false statements to relator.

{¶ 4} The parties submitted some stipulations of fact and misconduct, and a panel of the board conducted a three-day hearing at which it heard testimony from Maciak and 11 other witnesses. In its report, the panel found that Maciak committed just two of the charged ethical violations: he engaged in UPL in Florida before obtaining the proper certification from that state, and he engaged in conduct that adversely reflected on his fitness to practice by continuing to practice law during his CLE suspension. The panel unanimously dismissed the remaining 12 alleged violations and recommended that Maciak be suspended from the practice of law for one year, with six months stayed on conditions.

{¶ 5} The board adopted the panel's findings of fact and conclusions of law but recommended that we suspend Maciak from the practice of law for two years, with the entire suspension stayed on conditions. Relator objects and urges us not only to reject the panel's dismissal of two alleged violations but also to impose an unstayed suspension from the practice of law. For the reasons that follow, we overrule relator's objections, adopt the board's findings of fact and conclusions of law, and suspend Maciak from the practice of law for two years, with the entire suspension stayed on the conditions recommended by the board.

Misconduct

{¶ 6} Maciak accepted a position as general counsel for Florida-based TBC Retail Group in April 2009. He was promoted in June 2012 to the position of *187senior vice president, general counsel, and secretary of TBC Corporation ("TBC"), the multinational, multibillion-dollar parent company of TBC Retail Group.

Florida Bar Investigation

{¶ 7} In February 2015, Maciak received a letter from Jeffrey Picker, counsel for the Unauthorized Practice of Law Department of the Florida Bar, regarding a complaint filed by a former TBC employee. Picker informed Maciak that in order to serve as general counsel of a business organization in Florida, one must either be a member of the Florida Bar or certified as Authorized House Counsel ("AHC").1 Picker noted that Maciak was neither admitted to nor certified as AHC by the Florida Bar and asked Maciak how he proposed to resolve his UPL. He also advised Maciak that he was not permitted to hold himself out as a lawyer in Florida, practice law, or represent TBC in the resolution of a legal matter until he obtained the proper licensure or certification.

{¶ 8} Over the next several months, Picker and Maciak communicated by e-mail, letter, and telephone. Maciak maintained that the primary focus of his job was what he considered to be business *488matters, but he did not dispute that he periodically provided legal advice and counsel to TBC. At Picker's insistence, Maciak deleted the title of general counsel from his biography on TBC's website and agreed to submit an application for AHC certification-though he did not alter his activities. After the Supreme Court of Florida granted Maciak AHC certification in December 2015, the Florida Bar closed its investigation into his UPL.

Ohio Disciplinary Proceedings

{¶ 9} Relator's investigation began in October 2015, with a grievance filed by the same former TBC employee who had reported Maciak's conduct to the Florida Bar. The former employee alleged that Maciak was practicing law in Florida without the proper licensure or certification. Noting that Maciak had been ineligible to practice law in Ohio since December 29, 2011, relator sought information about his activities. Maciak responded to three separate letters from relator, answered 114 questions in writing, provided several binders of documents, and traveled to Ohio from Florida to give a deposition before relator filed his complaint.

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Cite This Page — Counsel Stack

Bluebook (online)
102 N.E.3d 485, 153 Ohio St. 3d 185, 2018 Ohio 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-maciak-ohio-2018.