Daily Court Reporter - News Lawyer suspended for failing to follow through with matter
Lawyer suspended for failing to follow through with matter
Dan Trevas, Supreme Court of Ohio
A Centerville attorney was suspended recently for two years with 18 months stayed for failing to follow through on a client’s debt-collection case and grudgingly cooperating with disciplinary investigators.
This is the third time the Ohio Supreme Court has disciplined Andrew M. Engel. In a per curiam opinion, the Court ordered Engel to meet certain conditions to be reinstated, including serving two years of monitored probation.
Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith L. French, Patrick F. Fischer, R. Patrick DeWine, and Mary DeGenaro joined the opinion. Justice Sharon L. Kennedy concurred in part and dissented in part. Justice Kennedy disagreed with one of the conditions imposed by the majority for Engel’s reinstatement.
Client Resolves Case After Attorney Fails to Respond
In April 2015 Dianne Shelton hired Engel to represent her in a consumer-debt case. Engel sent letters to Shelton’s creditor in April and June of 2015. But Engel did not respond to multiple attempts by Shelton to contact him, and he took no further action in the case.
In August 2015, Shelton filed a grievance with the Office of Disciplinary Counsel. Engel responded to the disciplinary counsel’s original October 2015 letter and promised in a November 2015 conversation with the office that he would contact Shelton. Engel did not contact Shelton or the disciplinary counsel again until February 2016.
When Engel spoke to Shelton, Shelton agreed to his continued representation of her and they exchanged a few emails until early March when Shelton informed Engel she settled the matter herself.
Shelton sought a refund of the $500 retainer she paid Engel, and the disciplinary counsel asked Engel to submit proof that he was repaying her. Engel did not comply with the office’s request, but the parties later stipulated that he paid her $50 in May 2016 and $450 in July 2016.
Board Finds Rule Violations
The disciplinary counsel filed a complaint with the Board of Professional Conduct in August 2016 alleging Engel violated several of the rules governing the conduct of Ohio attorneys during his handling of Shelton’s matter. The parties agreed that Engel’s violations included: failing to act with reasonable diligence in representing a client; not keeping a client reasonably informed about the status of a matter; not promptly refunding an unearned fee; and not cooperating with a disciplinary investigation.
The parties also stipulated to aggravating circumstances that could increase the punishment the board recommends for a lawyer and mitigating factors, which could lead to a suggested reduced penalty.
The board noted Engel has been sanctioned twice before. In 2001 the Ohio Supreme Court publicly reprimanded him for neglecting a legal matter and attempting to handle it without adequate preparation. In 2004, the Court suspended him for two years with six months stayed for several rule violations including engaging in conduct that adversely reflected on his fitness to practice law and not cooperating with a disciplinary proceeding.
The parties also agreed that Engel did not act with a dishonest or selfish motive, eventually cooperated with the disciplinary proceeding, provided evidence of good character, and evidence of anxiety and depression.
Engel argued at a disciplinary hearing that he should be suspended, but the entire suspension should be stayed with the requirement that he serve two years of monitored probation. The board instead recommended a suspension of two years with 18 months stayed, and when he applies for reinstatement he must submit proof that he: continued to receive counseling from a qualified professional; adhered to the recommendations of his doctor; complied with a 2017 Ohio Lawyers Assistance Program (OLAP) contract; and provide a report from a healthcare professional that he is able to return to the competent and ethical practice of law.
Attorneys Objected to Board Recommendation
Engel argued to the Court that the board did not adequately consider his mitigating factors that should have led to a fully stayed suspension. He urged the Court to give more weight to his signing an OLAP contract, engaging in a mentoring relationship with a noted attorney, providing legal services to economically disadvantaged clients, changing his office procedures, and acknowledging that his anxiety and depression “contributed significantly” to his misconduct.
The Court’s opinion stated the board considered all of Engel’s mitigating evidence, including his acknowledgement that he admitted he had not been attentive to Shelton’s case and attributed that to the case not being in active litigation.
The board considered the testimony of Dr. Marsha K. Weston, who treated Engel for anxiety and depression, and accepted her opinion that the conditions contributed to Engel’s delay in acting in Shelton’s case as well as responding to her and the disciplinary counsel. The Court noted that Weston was unable to explain why Engel’s mental disorders caused him to neglect only one client matter.
The Court stated the typical recommendation for a lawyer who has a prior record of misconduct and does not cooperate with a disciplinary investigation is an indefinite suspension, and the proposed two-year suspension reflects that the board considered Engel’s arguments.
“Indeed, those mitigating factors led the board to reduce the recommended sanction from a presumptive indefinite suspension to a two-year suspension with all but six months stayed—even though Engel has already been sanctioned twice for engaging in similar misconduct, has committed multiple offenses, and initially failed to cooperate in relator’s investigation. Having independently reviewed the record, we are confident that the panel properly considered and weighed all mitigating evidence,” the opinion stated.
The Court suspended Engel for two years with 18 months stayed on the condition that he not commit any further misconduct. The Court agreed with the reinstatement and probation requirements recommended by the board.
2017-1087. Disciplinary Counsel v. Engel, Slip Opinion No. 2018-Ohio-2988.
The opinion can be found online at: http://www.courtnewsohio.gov/cases/2018/SCO/0731/171087.asp#.W2L1nLgnaUk
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
Date Published: August 21, 2018