Daily Court Reporter - News Attorney suspended for two years
Attorney suspended for two years
Dan Trevas, Supreme Court of Ohio
The Ohio Supreme Court recently suspended a Barberton attorney from the practice of law for two years with the last six months stayed based on discrepancies in her handling of two criminal cases.
Holly L. Bednarski was placed on an interim suspension by the Court in March 2015 after she failed to respond to a complaint filed against her by the Akron Bar Association with the Ohio Board of Professional Conduct. After Bednarski responded to an order to show cause why that interim suspension should not be converted to an indefinite suspension, the Court remanded the matter to the board to consider mitigating evidence. In a per curiam decision, the Court ruled it would not grant her any credit for the prior time served under the interim suspension and will require that if she successfully completes the two-year suspension, she will then have to serve two years of monitored probation.
Lawyer Accepted Advance Fees, Did Not Complete Work
After initially failing to answer the charges of ethical violations, Bednarksi admitted to violations of the rules governing Ohio attorneys when she testified before a three-member board panel hearing her case. The charges stem from two incidents where clients paid her a flat fee in advance of her representation.
David Jones Jr. retained Bednarski to represent him in an appeal of his criminal conviction. He paid Bednarksi $1,500, and in violation of attorney rules, Bednarski did not maintain a client trust account to hold the funds. She also did not enter a written fee agreement with Jones, and did not notify him that if she did not complete her representation, he may be entitled to a refund of all or part of the flat fee. She also failed to have Jones sign an acknowledgment form that stated she failed to carry professional liability insurance.
Bednarksi entered an appearance in Jones’ appeal and requested an extension of time to file a brief. Bednarksi failed to file the brief and did not respond to repeated attempts by Jones to contact her. The appeal was dismissed and Jones was ordered to report to the adult parole authority to serve his sentence.
In addition to several violations regarding the handling of client funds and failure to make required disclosures to the client, the board found that Bednarski failed to competently represent Jones and keep him informed of the status of the matter.
In a second matter, Bednarski accepted a $1,360 advanced fee from Kacee Rae Moser without a written fee agreement to defend her against a felony charge and subsequent misdemeanor charge. She failed to inform Moser about the lack of insurance or Moser’s possible right to a refund.
Bednarksi successfully defended the misdemeanor charge, but because of a communication breakdown before Moser’s felony jury trial, Bednarksi informed Moser she was preparing to withdraw from the case. Moser hired a new lawyer to represent her, but Bednarski failed to inform the court of her withdrawal. The board found she violated the rules regarding the need for a client’s signed acknowledgement about a lack of liability insurance, and for not keeping the fee in a client trust account that can only be withdrawn once the fee is earned. In Moser’s matter, the parties agreed that Bednarski earned the fee and did not owe a refund.
Divorce and Drinking Led to Problems, Bednarski Testified
Bednarksi testified that after her admission to practice law, she and her husband shared a practice, and he assumed primary accounting and book-keeping duties. After they divorced, she stated she “could not quite manage” to do the finances and the bank closed her client trust account about 10 days after it was opened. Because she was not making enough money to support herself, the utilities in her home, where she had her law office, were shut off. She began to live in her car and with friends and did not always receive her mail.
She also testified that when married she began drinking four or five alcoholic drinks a day, and that pattern continued until a 2015 hospitalization for pancreatitis, which she attributed to excessive drinking. However, Bednarski acknowledged she had never been diagnosed or treated for any addiction or mental-health condition. The opinion noted that during the disciplinary process Bednarski agreed to contact the Ohio Lawyers Assistance Program (OLAP) for help, but failed to do so.
Board Weighs Factors Before Proposing Sanctions
Before proposing a sanction against Bednarski, the board considered the aggravating circumstances and the mitigating factors involved in the incidents. The board noted that Bednarksi had no prior disciplinary record and that her behavior was not driven by a selfish or dishonest motive.
However, the board determined that Bednarksi displayed a pattern of misconduct, committed multiple offenses, did not fully cooperate in the disciplinary process, harmed a client with her misconduct, and failed to pay $1,515 in restitution to Jones. It found that in addition to not treating her drinking problem, she failed to cooperate during the Akron Bar Association’s investigation, did not accept an offer from the bar association for free continuing legal education, and failed to fully comply with the board’s disciplinary process.
The board proposed that Bednarski receive a sanction greater than those placed on other lawyers in similar cases, finding that she is “far from ready to resume the practice of law.” The Court accepted the board’s recommendation that the final six months of her two-year suspension be stayed if she schedules a mental-health and substance-abuse assessment with OLAP, enters into any treatment recommended by OLAP, pays restitution to Jones, completes 12 hours of continued legal education related to law-office management, and commits no further misconduct.
Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion. Justice William M. O’Neill dissented, indicating he would grant Bednarski time served under her interim suspension.
2015-0243. Akron Bar Assn. V. Bednarski, Slip Opinion No. 2017-Ohio-522.
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Date Published: February 24, 2017