[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Ashtabula Cty. Bar Assn. v. Brown, Slip Opinion No. 2017-Ohio-5698.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2017-OHIO-5698
              ASHTABULA COUNTY B AR ASSOCIATION v. BROWN.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Ashtabula Cty. Bar Assn. v. Brown, Slip Opinion No.
                                   2017-Ohio-5698.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
        Conditionally stayed two-year suspension.
     (No. 2016-1147—Submitted February 8, 2017—Decided July 6, 2017.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2015-063.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Thomas Christopher Brown, of Geneva, Ohio, Attorney
Registration No. 0024054, was admitted to the practice of law in Ohio in 1981. We
suspended his license on an interim basis in October 1999, pending the final
disposition of disciplinary matters then pending against him. Disciplinary Counsel
v. Brown, 87 Ohio St.3d 1427, 718 N.E.2d 444 (1999).
                            SUPREME COURT OF OHIO




       {¶ 2} In November 2000, we indefinitely suspended him from the practice
of law with credit for the time served under his interim suspension based on
findings that he engaged in multiple acts of misconduct. Disciplinary Counsel v.
Brown, 90 Ohio St.3d 273, 737 N.E.2d 516 (2000). We reinstated his license to
practice law in November 2006. Disciplinary Counsel v. Brown, 112 Ohio St.3d
1205, 2006-Ohio-6723, 858 N.E.2d 814.
       {¶ 3} In addition, we have suspended Brown’s license on three separate
occasions for his failures to comply with the registration requirements of Gov.Bar
R. VI. See In re Attorney Registration Suspension of Brown, 107 Ohio St.3d 1431,
2005-Ohio-6408, 838 N.E.2d 671; In re Reinstatement of Brown, 113 Ohio St.3d
1425, 2007-Ohio-1313, 863 N.E.2d 644; In re Attorney Registration Suspension of
Brown, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256; In re
Reinstatement of Brown, 126 Ohio St.3d 1603, 2010-Ohio-4979, 935 N.E.2d 48; In
re Attorney Registration Suspension of Brown, 143 Ohio St.3d 1509, 2015-Ohio-
4567, 39 N.E.3d 1277; In re Reinstatement of Brown, 144 Ohio St.3d 1432, 2015-
Ohio-5363, 42 N.E.3d 766.
       {¶ 4} In a November 2, 2015 complaint, relator, Ashtabula County Bar
Association, alleged that Brown had engaged in false or misleading
communications about his law practice. Specifically, the complaint alleged that he
had erected a sign advertising his law firm as “O’Neill & Brown Law Office” and
distributed business cards bearing that firm name even though he was the only
employee of the firm.
       {¶ 5} The parties submitted stipulations of fact, and a panel of the Board of
Professional Conduct conducted a hearing. The panel found that Brown committed
some of the charged misconduct, recommended that we dismiss allegations that
Brown had made knowingly false statements during the disciplinary process, and
recommended that he be suspended from the practice of law for six months, fully
stayed on conditions. The board adopted the findings of fact, conclusions of law,




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and recommendations of the panel and recommends as an additional condition that
Brown be ordered to refrain from advertising or communicating in any manner that
he is practicing in the “O’Neill & Brown Law Office” except in biographical
references to his former law-firm affiliations.
       {¶ 6} Relator objects to the board’s findings and recommendations, arguing
that it carried its burden of proving that Brown made knowingly false statements in
the course of the disciplinary proceedings; therefore, relator argues, a more severe
sanction is warranted.
       {¶ 7} We overrule relator’s objections in part and sustain them in part and
adopt the board’s findings of fact and conclusions of law. For the reasons that
follow, we suspend Brown from the practice of law for two years, fully stayed on
the conditions recommended by the board.
                                     Misconduct
       {¶ 8} Following Brown’s admission to the Ohio bar in 1981, he and William
M. O’Neill—who presently serves as a justice of this court—practiced law together
at the O’Neill & Brown Law Office. Although they ceased practicing law together
in 1997, Brown began using their old firm name with Justice O’Neill’s consent in
July 2015. Brown installed a sign outside his office advertising it as “O’Neill &
Brown Law Office (EST 1981).” He also began distributing business cards bearing
the firm name “O’Neill & Brown Law Office” to court personnel, opposing
counsel, and potential clients.
       {¶ 9} Relator began to investigate allegations of professional misconduct
arising from Brown’s firm name, signage, and business cards in late July 2015.
Brown responded to relator’s inquiry in writing, explaining his past affiliation with
Justice O’Neill and inquiring as to which rules his conduct may have violated.
After relator advised Justice O’Neill that Brown’s sign violated the Rules of
Professional Conduct, Justice O’Neill instructed Brown to remove his name from
the sign.




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       {¶ 10} Relator later filed a complaint alleging that Brown’s use of Justice
O’Neill’s name violated Prof.Cond.R. 7.1 (prohibiting a lawyer from making or
using false, misleading, or nonverifiable communication about the lawyer or the
lawyer’s services), 7.5(a) (prohibiting a lawyer from using a firm name, letterhead,
or other professional designation that is false or misleading), and 7.5(c) (prohibiting
the use of the name of a lawyer who holds a public office in a law firm’s name
during any substantial period in which the lawyer is not actively and regularly
practicing with the firm).
       {¶ 11} Approximately one month after the hearing, the panel allowed
relator to amend its complaint to allege two additional charges based on Brown’s
alleged false statements during the disciplinary process. First, relator alleged that
Brown continued to distribute the offending business cards after the time he
testified that he had stopped using them. Relator therefore alleged that Brown had
violated Prof.Cond.R. 8.1(a) (prohibiting knowingly making a false statement of
material fact in connection with a disciplinary matter) and 8.1(b) (prohibiting a
lawyer from failing to disclose a material fact in response to, or knowingly failing
to respond to, a demand for information by a disciplinary authority during an
investigation). Second, relator alleged that during the disciplinary investigation,
Brown told relator that he had removed Justice O’Neill’s name from the offending
sign in September 2015, when in fact the sign remained unaltered until November
2015. Relator accordingly alleged that Brown also had violated Prof.Cond.R.
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation).
       {¶ 12} In support of those charges, relator submitted an affidavit and
supporting documents from a potential client’s wife, who averred that Brown
handed her one of the offending business cards in April 2016, and noted that a
witness had testified that Justice O’Neill’s name remained on Brown’s sign until
late November 2015. Brown admitted the factual allegations of the amended




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                                January Term, 2017




complaint and submitted his own affidavit explaining that he unintentionally
distributed one business card bearing the “O’Neill and Brown Law Office” firm
name in April 2016.
       {¶ 13} The board found that the firm name depicted on Brown’s sign and
business card and the reference on the sign to the firm’s having been established in
1981 were false or misleading communications that violated Prof.Cond.R. 7.1 and
7.5(a). In addition, the board found that Brown’s use of Justice O’Neill’s name
during his term as a justice of this court violated Prof.Cond.R. 7.5(c). The board
determined, however, that relator had failed to carry its burden of proof on the new
charges alleged in the amended complaint and therefore recommended that we
dismiss the alleged violations of Prof.Cond.R. 8.1(a), 8.1(b), and 8.4(c).
       {¶ 14} Relator objects to the board’s recommendation that we dismiss the
alleged violations of Prof.Cond.R. 8.1(a), 8.1(b), and 8.4(c), arguing that its
evidence clearly and convincingly demonstrates that Brown intentionally continued
to distribute the offending business cards after testifying that he had ceased using
them and that he knowingly misrepresented the date that he removed Justice
O’Neill’s name from the sign outside his office.
       {¶ 15} Brown submitted his own affidavit stating that he carried, but “rarely
used,” an extra business card in his wallet and gave it to his potential client’s wife
without realizing that it was one of the “O’Neill & Brown” cards that he had
“discontinued using in 2015.”
       {¶ 16} With regard to the offending sign, relator submitted Brown’s
February 9, 2016 letter to relator, which stated that he had removed Justice
O’Neill’s name from his business sign “the first week of September 2015.” But
when confronted with the testimony of the chairperson of the Ashtabula County
grievance committee that she saw Justice O’Neill’s name on the sign as late as
November 23, 2015, Brown testified that he was not certain of the date and that it




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“certainly is possible” that Justice O’Neill’s name could have remained on the sign
through November 2015.
       {¶ 17} The panel heard the above evidence, observed the witnesses’
demeanor firsthand, and found Brown’s explanations to be credible. Because the
record does not weigh heavily against that credibility determination, we defer to it.
See, e.g., Disciplinary Counsel v. Eichenberger, 146 Ohio St.3d 302, 2016-Ohio-
3332, 55 N.E.3d 1100, ¶ 22. We therefore overrule relator’s objections in this
regard and adopt the board’s findings of fact. We agree that Brown’s conduct
violated Prof.Cond.R. 7.1, 7.5(a), and 7.5(c) and hereby dismiss the alleged
violations of Prof.Cond.R. 8.1(a), 8.1(b), and 8.4(c) based on the insufficiency of
the evidence.
                                      Sanction
       {¶ 18} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant
factors, and the sanctions imposed in similar cases.
       {¶ 19} As aggravating factors, the board found that Brown has a prior
disciplinary record, his misconduct reflected a selfish motive, he committed
multiple offenses, he failed to acknowledge the wrongful nature of his conduct, and
he continued to use Justice O’Neill’s name on his sign and business card for
approximately four months after relator informed him that his actions might
constitute professional misconduct. See Gov.Bar R. V(13)(B)(1), (2), (4), and (7).
       {¶ 20} Brown’s prior disciplinary record is significant in that he has
received three separate registration suspensions and was under an indefinite
suspension for more than six years for conduct that included failing to file appellate
briefs in four client matters, threatening a judge who served as the chairperson of
the Ashtabula County grievance committee, making false statements in an affidavit
attached to his motion to dismiss a lawsuit filed against him, failing to comply with




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a pretrial order, lying to a judge when questioned about his compliance with a
separate pretrial order, representing both the victim and the accused in two separate
domestic-violence matters without advising his clients of the inherent conflicts of
interest, failing to attend scheduled hearings in two client matters and the ensuing
show-cause hearings, and failing to cooperate in the resulting disciplinary
investigation. Brown, 90 Ohio St.3d 273, 737 Ohio St.3d 516.
       {¶ 21} As mitigating factors, the board found that Brown demonstrated a
cooperative attitude during the disciplinary process, that his misconduct did not
involve the provision of legal services, that no clients were negatively impacted by
his conduct, and that Justice O’Neill participated in the decision to use the “O’Neill
and Brown Law Office” name on the sign in front of Brown’s office. See Gov.Bar
R. V(13)(C)(4).
       {¶ 22} In deciding the appropriate sanction for Brown’s misconduct, the
panel and board considered the sanction that we imposed for misleading advertising
in Medina Cty. Bar Assn. v. Baker, 102 Ohio St.3d 260, 2004-Ohio-2548, 809
N.E.2d 659.       Baker tacitly approved signage and advertisements that were
misleading as to the identity of the lawyer or lawyers in the practice, whether he or
his law firm were practicing under the trade name “Confidential Credit
Counselors,” and whether the law firm was offering credit counseling. Id. at ¶ 5.
We balanced a single aggravating factor—that Baker had profited to some degree
from his misconduct—against multiple mitigating factors, including the absence of
prior discipline; Baker’s reputation for honesty, integrity, and competence; his
history of charitable and civic works in his community; his full cooperation in the
disciplinary process; and the steps he had taken to correct the misleading
advertising. Id. at ¶ 7. And we determined that a public reprimand was the
appropriate sanction for Baker’s misconduct. Id. at ¶ 9.
       {¶ 23} Noting the number and nature of the aggravating factors present in
this case, the board recommended that Brown be suspended from the practice of




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law for six months, fully stayed on several conditions. Although relator objects to
the board’s recommended dismissal of the alleged violations of Prof.Cond.R.
8.1(a), 8.1(b), and 8.4(c) and to the board’s failure to sanction Brown for the
conduct underlying those alleged violations, relator does not contest the stayed six-
month suspension that the board recommended for Brown’s violations of
Prof.Cond.R. 7.1, 7.5(a), and 7.5(c).
       {¶ 24} In light of the significant aggravating factors in this case—including
Brown’s prior indefinite suspension from the practice of law, his selfish motive for
using Justice O’Neill’s name and the prestige of Justice O’Neill’s position as a
justice of this court to enhance his own reputation, his failure to acknowledge or
appreciate the wrongful nature of his misconduct, and his failure to timely modify
his sign and business cards once relator put him on notice that they were
misleading—we do not believe that a fully stayed six-month suspension will
adequately protect the public from future harm.
       {¶ 25} Accordingly, we suspend Thomas Christopher Brown from the
practice of law for two years, fully stayed on the board-recommended conditions
that he (1) remove any reference to his firm’s having been established in 1981, (2)
within 60 days of the date of our decision, permanently alter the signage outside his
law office to remove the name “O’Neill,” (3) within 14 days of the date of our
decision, destroy all business cards bearing the name “O’Neill & Brown Law
Office” and submit an affidavit to this court averring that the cards have been
destroyed, (4) refrain from advertising or communicating in any manner that he is
practicing in the “O’Neill & Brown Law Office” except in biographical references
to his former law-firm affiliations, and (5) engage in no further professional
misconduct. If he violates a condition of the stay, the stay will be lifted and he will
serve the entire two-year suspension. Costs are taxed to Brown.
                                                              Judgment accordingly.
       KENNEDY, FRENCH, MCCORMACK, and DEWINE, JJ., concur.




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                                January Term, 2017




       O’DONNELL, J., dissents, with an opinion joined by O’CONNOR, C.J., and
FISCHER, J.
       JOHN TIMOTHY MCCORMACK, J., of the Eighth District Court of Appeals,
sitting for O’NEILL, J.
                               _________________
       O’DONNELL, J., dissenting.
       {¶ 26} Respectfully, I dissent.
       {¶ 27} Attorney Thomas Brown installed a sign and printed and distributed
business cards bearing the name of “O’Neill & Brown Law Office.” I agree with
the majority that Brown’s conduct violates Prof.Cond.R. 7.1 (prohibiting false,
misleading, or nonverifiable communications about the lawyer or the lawyer’s
services), 7.5(a) (prohibiting use of a false or misleading firm name, letterhead, or
other professional designation), and 7.5(c) (prohibiting use of the name of a lawyer
who holds a public office in a law firm’s name when the lawyer is not practicing
with the firm).
       {¶ 28} The majority apparently agrees with the board’s determination that
a mitigating factor is that “Justice O’Neill participated in the decision to use the
‘O’Neill and Brown Law Office’ name on the sign in front of Brown’s office.”
Majority opinion at ¶ 21.
       {¶ 29} In my view, there is nothing mitigating about that fact.
       {¶ 30} Because judges are prohibited from lending their names to law firms,
the fact that Brown obtained consent to use the “O’Neill” name cannot be deemed
mitigating; rather, this is aggravating misconduct. For this reason, a fully stayed
suspension from the practice of law is not a sufficient sanction in these
circumstances.
       {¶ 31} Further aggravating his misconduct is the fact that after the
Ashtabula County Bar Association alerted him that the law firm sign violated the
Rules of Professional Conduct, he continued using the “O’Neill” name on the sign




                                         9
                             SUPREME COURT OF OHIO




until November 2015 and on his business card until April 2016, despite the fact that
he had stipulated to the board that he was no longer using that business card. The
majority recognizes Brown’s “selfish motive for using Justice O’Neill’s name and
the prestige of Justice O’Neill’s position as a justice of this court to enhance his
own tarnished reputation,” majority opinion at ¶ 24, but it fails to grasp that Brown
also created an appearance of impropriety by representing that he was practicing
law in a legal partnership with a sitting justice of the Supreme Court of Ohio. This
deceitful conduct demands a serious sanction involving time out from the practice
of law in order to protect the public from being misled about the nature of a
professional legal engagement with Brown.
       {¶ 32} This court previously indefinitely suspended Brown for a period of
six years, and he has been the subject of three attorney-registration suspensions,
two of which we imposed subsequent to his reinstatement.
       {¶ 33} In my view, in light of his previous discipline, the appropriate
sanction for Brown’s misconduct is an indefinite suspension.
       O’CONNOR, C.J., and FISCHER, J., concur in the foregoing opinion.
                               _________________
       Harold E. Specht Jr., Bar Counsel, for relator.
       Thomas C. Brown, pro se.
                               _________________




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