Court Hears Post-Suspension Practice Allegations

The Ohio Supreme Court will hear oral argument in a bar discipline case  on October 28

Cleveland Metropolitan Bar Association v. Mark R. Pryatel, Case no. 2015-1005
Cuyahoga County

The Board of Professional Conduct has concluded that Cleveland attorney Mark R. Pryatel practiced law while he was indefinitely suspended by representing a client three times in court in June and July 2013. The board recommends to the Ohio Supreme Court that Pryatel be forever barred from practicing law again in the state for his misconduct.

The Court indefinitely suspended Pryatel in April 2013 for misappropriating a client’s settlement money and neglecting another case.

Lawyer Attends Court Three Times with Client
On June 5 of that year, Pryatel met Richard Brazell, whom he had represented before in other matters, at the Rocky River Municipal Court, where Brazell was being arraigned for driving with a suspended driver’s license and other traffic offenses. According to the board’s report to the Court, an audio recording reflects that Pryatel appeared with Brazell before the magistrate, and the lawyer entered a not guilty plea for Brazell, waived his right to a trial by jury, and also mentioned he had represented Brazell two days earlier in Cleveland Municipal Court. Pryatel also told the magistrate that he “would probably enter an appearance” on Brazell’s behalf, but that the accused was representing himself at that time.

Pryatel had appeared with Brazell in the Cleveland Municipal Court on June 3 because Brazell had been accused of a probation violation. Pryatel was paid a $300 retainer in May for this case when he met with some of Brazell’s family.

Back in Rocky River, a pretrial hearing was held on July 9 to address Brazell’s driving under suspension charge. Pryatel appeared with Brazell before Judge Brian Hagan. The lawyer helped Brazell to enter a no contest plea to an amended charge.

In its report, the board concluded that Pryatel never told Brazell, Brazell’s family, or the judge that he had been suspended from acting as an attorney and wasn’t permitted to represent the defendant. However, Judge Hagan thought Pryatel’s name sounded familiar and had his bailiff check whether the attorney’s license was active. After discovering Pryatel was suspended, the judge contacted the Office of Disciplinary Counsel, the arm of the Court that investigates attorney disciplinary complaints.

He Wasn’t Practicing Law, Attorney Claims 
Attorneys for Pryatel maintain that the magistrate at the June 5 Rocky River arraignment testified that she understood Brazell was representing himself. They also note that Brazell, not Pryatel, signed various court forms, including waivers of a jury trial and a speedy trial that would have required the signature of a lawyer when a client is represented by one.

As for the July 9 hearing, Pryatel’s attorneys point to a court rule in Rocky River that requires the audio recording of certain hearings. The judge neglected to unmute the recording software, and Pryatel’s attorneys claim the lack of this evidence violates Pryatel’s due process rights. In addition, security video of court proceedings that is regularly recorded over wasn’t preserved to substantiate the claims that Pryatel was acting as Brazell’s lawyer, they assert.

They argue that Pryatel wasn’t practicing law because didn’t engage in “any advocacy, argument, persuasion, interpretation, analysis, or reference to legal citations” – an interpretation they attribute to a 2006 Ohio Supreme Court decision.

They also contend that the disciplinary hearing involved “sandbagging” because lawyers for the Cleveland Metropolitan Bar Association asked Pryatel about his actions in the Cleveland court during a depositionabout the Rocky River hearings, even though the Cleveland matter hadn’t yet been alleged in a disciplinary complaint. They further claim they weren’t properly notified about a video of the June Cleveland Municipal Court proceedings.

While the board identified no mitigating factors, Pryatel’s attorneys cite six and ask the Court to reject the board’s findings and recommended sanction.

Lawyer Represented Client in Court, Bar Association Maintains 
Attorneys for the Cleveland Metropolitan Bar Association assert that the video of the June 3 Cleveland Municipal Court hearing shows that Pryatel represented Brazell in open court. In the audio recording of the June 5 arraignment in Rocky River, it is also clear that Pryatel is speaking on behalf of the defendant before the magistrate, they maintain.

“[Pryatel’s] characterization of Mr. Brazell as ‘pro se for now’ in [the audio recording] does not excuse or cure his efforts to practice law during the arraignment,” they write in the brief to the Court.

As for the July 9 hearing, Judge Hagan testified that Pryatel engaged in the discussion about Brazell’s plea and answered the judge’s questions on behalf of the defendant. The judge acknowledged that he forgot to unmute the audio recording system, so he prepared a nunc pro tunc entry to reflect the plea discussion for the court’s records. The bar association’s attorneys dispute Pryatel’s implication that a suspended lawyer can’t be held accountable for violating professional conduct rules unless there is a recording of the event.

While Pryatel claims he was acting as a “layperson” at the hearings, they argue the practice of law isn’t defined as narrowly as the lawyer claims. Instead, the practice of law includes, among other activities, representation before a court, they assert, quoting the same Ohio Supreme Court ruling that Pryatel cited.

“The Supreme Court of Ohio has never allowed suspended lawyers, or non-lawyers, to appear before judicial officers in probation violation hearings, arraignments, and/or plea colloquies on behalf of clients,” they contend.

They also contest the allegations of “sandbagging.” The relevant rules don’t prohibit the bar association from asking an attorney accused of practicing law while suspended about other conduct that also may have been the improper practice of law, they maintain. They add that Pryatel was notified a month before the Dec. 5, 2014, disciplinary hearing that the complaint had been amended to include his actions in the Cleveland Municipal Court, and he was provided the video of the July 9 hearing two months before the second disciplinary hearing in February 2015.

Pryatel has given conflicting testimony about these events, his claims of mitigating factors aren’t supportable, and he has violated multiple professional conduct rules, they maintain, concluding that he should be disbarred.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Cleveland Metropolitan Bar Association: Joseph P. Dunson, 440.503.3234

Representing Mark R. Pryatel: Keith L. Pryatel, 330.867.9998.

The arguments can be seen on The Ohio Channel. (Mike Frisch)