Cleveland Metro. Bar Assn. v. Austin (Slip Opinion) , 2019 Ohio 3325 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Austin, Slip Opinion No. 2019-Ohio-3325.]
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SLIP OPINION NO. 2019-OHIO-3325
CLEVELAND METROPOLITAN BAR ASSOCIATION v. AUSTIN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Austin, Slip Opinion No.
2019-Ohio-3325.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct and the
Rules for the Government of the Bar—Indefinite suspension.
(No. 2018-0159—Submitted May 21, 2019—Decided August 21, 2019.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-067.
_______________________
Per Curiam.
{¶ 1} Respondent, Rebecca Jo Austin, of Lakewood, Ohio, Attorney
Registration No. 0088694, was admitted to the practice of law in Ohio in 2012.
{¶ 2} On November 30, 2017, relator, Cleveland Metropolitan Bar
Association, charged Austin with neglecting two client matters, failing to cooperate
in a disciplinary investigation, and other professional misconduct. Austin failed to
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answer the complaint, and on February 23, 2018, we imposed an interim default
suspension pursuant to Gov.Bar R. V(14)(B)(1). 152 Ohio St. 3d 1253, 2018-Ohio-
656, 96 N.E.3d 290. On May 4, 2018, we found her in contempt because she had
not timely complied with our default-suspension order. 152 Ohio St. 3d 1459, 2018-
Ohio-1710, 97 N.E.3d 497. On August 22, 2018, Austin moved for leave to answer
relator’s complaint, and on October 1, 2018, we granted her motion and remanded
the case to the Board of Professional Conduct, although we kept her interim default
suspension in place. 153 Ohio St. 3d 1489, 2018-Ohio-3955, 108 N.E.3d 86.
{¶ 3} On remand, relator amended its complaint to include additional
alleged misconduct, including that Austin continued to practice law during her
interim default suspension. Austin stipulated to most of the factual allegations in
the amended complaint but not to any ethical-rule violations. After a hearing before
a panel of the board, the board issued a report finding that Austin had engaged in
most of the charged misconduct1 and recommending that we indefinitely suspend
her from the practice of law, grant her credit for the time she has served under her
interim default suspension, order her to pay restitution to a former client, and
impose conditions on her reinstatement. Neither party filed objections to the
board’s report.
{¶ 4} Upon our review of the record, we adopt the board’s findings of
misconduct and recommended sanction. However, we conclude that Austin shall
not receive any credit for the nearly three-month period that she continued to
practice law during her interim suspension. Therefore, Austin shall receive credit
beginning May 16, 2018.
1. Relator withdrew Count V of its amended complaint, and the panel later dismissed that count.
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Misconduct
Count I—the Long matter
{¶ 5} On February 24, 2017, Joseph Long paid Austin a retainer to assist
him with a postdecree filing in his divorce case. Long thereafter attempted to
contact Austin by phone, e-mail, and text, but she failed to respond to his messages.
Long also sent Austin a narrative about his legal matter, but she failed to file
anything on his behalf. About two months after retaining Austin, Long sent her an
e-mail requesting a refund of his retainer. Austin again failed to reply.
{¶ 6} On May 10, 2017, Austin sent Long an e-mail apologizing for “recent
communications issues,” which she claimed were caused by technological
problems with her e-mail and phone and exacerbated by personal issues. Later the
same day, Long sent Austin an e-mail terminating her services and again requesting
a refund of his retainer. Austin, however, failed to return the unearned portion of
Long’s retainer until more than ten months later.
{¶ 7} Based on this conduct, the board found that Austin violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably
informed about the status of a matter), and 1.4(a)(4) (requiring a lawyer to comply
as soon as practicable with reasonable requests for information from the client).
We agree with the board’s findings of misconduct.
Count II—the employment-discrimination case
{¶ 8} In 2017, Austin represented the defendants in an employment-
discrimination case. The parties settled the matter, and Austin was to finalize a
settlement entry with the plaintiff’s counsel. The settlement, however, was not
finalized, and the court scheduled a show-cause hearing against Austin for October
2, 2017. Austin failed to appear for the hearing, and the court found her in
contempt. Austin also failed to appear for a hearing on the plaintiff’s supplemental
motion to enforce the settlement and for attorney fees. At her disciplinary hearing,
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Austin testified that she had not received electronic notice of the hearings but she
also acknowledged that the docket for the case was available online and that any
problems she experienced with her e-mail did not absolve her of the duty to attend
court hearings.
{¶ 9} Based on this conduct, the board found that Austin committed another
violation of Prof.Cond.R. 1.3. We agree with the board’s finding of misconduct.
Count III—the Rogers matter
{¶ 10} On February 19, 2018, Ashley Rogers retained Austin to represent
her in a domestic-violence action against Rogers’s husband. Austin advised Rogers
how to obtain an ex parte temporary protection order, which Rogers later secured
on her own. Four days later, on February 23, we issued Austin’s interim default
suspension.
{¶ 11} On February 27, 2018, Austin met with Rogers and collected $1,000
in cash and a $400 check for the representation. Austin failed to inform Rogers
about the suspension. One day later, Austin advised Rogers that Rogers did not
need to attend the hearing on her petition for a protection order that was scheduled
for the next day. Instead, Austin appeared for the hearing—although she declined
to enter a notice of appearance—and signed an agreed entry continuing the matter
as “Pro Se, Attorney for Petitioner.” After the hearing, Austin notified Rogers of
the new hearing date but again failed to mention her suspension.
{¶ 12} On March 5, 2018, Rogers sent Austin a text message stating that the
court had contacted her because Austin had not entered an appearance on Rogers’s
behalf. Rogers asked Austin whether she should hire a new attorney. Austin falsely
responded, “I’m representing you and I’ll clear it up.” On March 12, Rogers sent
Austin another text expressing similar concerns. Austin replied, “Don’t be worried
* * *. Sit tight and give me a few days, I’ll have info for you then.” By March 14,
Rogers had learned of Austin’s suspension and sent her a text message requesting
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a refund. In response, Austin stated that she was “addressing the situation” and that
she anticipated that her suspension would be “very temporary.”
{¶ 13} A few days later, Austin sent Rogers an invoice charging Rogers for
services that Austin had performed during her suspension. At her disciplinary
hearing, Austin attempted to characterize those services as nonlegal. But the board
found that Austin’s actions were “the essence of legal representation.” Austin later
returned Rogers’s $400 check but never refunded her $1,000 cash payment.
{¶ 14} Based on this conduct, the board found that Austin violated
Prof.Cond.R. 1.5(a) (prohibiting a lawyer from charging or collecting an illegal or
clearly excessive fee), 1.15(d) (requiring a lawyer to promptly deliver funds or
other property that the client is entitled to receive), 5.5(a) (prohibiting a lawyer
from practicing law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction), 8.4(c) (prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice). We agree with the board’s findings of misconduct.
Count IV—misconduct during Austin’s interim default suspension
{¶ 15} Count IV of relator’s amended complaint involved three instances of
Austin engaging in misconduct after we issued her February 23, 2018 interim
default suspension.
{¶ 16} First, as noted above, Austin appeared for the March 1, 2018 hearing
on Rogers’s petition for a domestic-violence protection order. After a magistrate
raised the issue of Austin’s suspension, Austin replied that she was “filing a
petition,” that her “boss” would take over her cases, and that she hoped by “next
week” the issue would be resolved. When she made those statements, however,
Austin was a solo practitioner without a boss to take over her cases. In addition,
Austin had not filed a petition for reinstatement and would not file anything in this
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disciplinary matter until more than five months later. At her disciplinary hearing,
Austin acknowledged that her statements to the magistrate were not true.
{¶ 17} Second, on March 5, 2018—more than a week after Austin’s
suspension—she attended an attorney conference in a juvenile-court case in which
she was serving as the guardian ad litem for three minor children. Austin failed to
inform the court that her license had been suspended. After one of the parties in
the case filed a motion to remove Austin because of her suspension, Austin filed a
document stating that she had been “petitioning” this court to reinstate her license
and “working diligently to comply with the Supreme Court.” But two weeks before
she filed the document, we had issued an order to show cause why she should not
be held in contempt for failing to comply with our default-suspension order, and
she never filed a response to that show-cause order.
{¶ 18} Third, on May 15, 2018—almost three months after we issued
Austin’s interim default suspension—she sent a letter to the guardian ad litem for
two children in a divorce proceeding. Austin’s letter referred to the father in the
divorce case as “my client” in a related criminal matter. The letterhead stated
“Austin Law LLc” and included a website address of “www.clelawfirm.com.” The
letter referred to Austin’s suspension only indirectly, by stating, “Regardless of the
status of my professional license, I pride myself on being a hard-working, ethical,
and astute guardian ad litem.” (Italics sic.)
{¶ 19} Based on this conduct, the board found that Austin violated
Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false
statement of fact or law to a tribunal) and 5.5(a). We agree with the board’s findings
of misconduct.
Counts VI and VII—additional rule violations and failure to cooperate
{¶ 20} In October 2017, Austin’s malpractice insurance lapsed, and she
thereafter failed to properly notify clients in writing that she lacked insurance. In
addition, at the time of her misconduct, her law practice had no permanent physical
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address. Rather than use her home address or a post-office box as her business
address, she used the address of a UPS store, which she later acknowledged was
facially misleading. In addition, Austin failed to pay her attorney-registration fees
for the period of September 15, 2017, through October 31, 2017. And she failed to
cooperate in relator’s disciplinary investigation between May 2017 and June 2018.
She also failed to appear for a scheduled deposition.
{¶ 21} Based on this conduct, the board found that Austin violated
Prof.Cond.R. 1.4(c) (requiring a lawyer to inform the client if the lawyer does not
maintain professional-liability insurance and obtain a signed acknowledgment of
that notice from the client), Prof.Cond.R. 7.1 (prohibiting a lawyer from using a
false, misleading, or nonverifiable communication about the lawyer or the lawyer’s
services), Gov.Bar R. VI (requiring an attorney to register with the Supreme Court
on or before the first day of September in each odd-numbered year), and
Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) (both requiring an attorney to
cooperate with a disciplinary investigation). We agree with the board’s findings of
misconduct.
Sanction
{¶ 22} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 23} As aggravating factors, the board found that Austin had engaged in
a pattern of misconduct, committed multiple offenses, and initially failed to
cooperate in relator’s disciplinary investigation. See Gov.Bar R. V(13)(B)(3), (4),
and (5). The board also concluded that Austin’s misconduct had harmed a
vulnerable client—Ashley Rogers—and that Austin had failed to make restitution
to Rogers. See Gov.Bar R. V(13)(B)(8) and (9).
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{¶ 24} In mitigation, the board noted that Austin has a clean disciplinary
record and lacked a dishonest or selfish motive. See Gov.Bar R. V(13)(C)(1) and
(2). Specifically, the panel members had the impression that Austin “was never
trying to take advantage of any client and that she was genuinely trying to help her
clients while keeping all of her spinning plates in the air. Her plates crashed. She
is picking up the pieces.” The board also noted that Austin had made full and free
disclosures during her disciplinary hearing. See Gov.Bar R. V(13)(C)(4). The
evidence did not establish the existence of a mental disorder that would qualify as
a mitigating factor under Gov.Bar R. V(13)(C)(7) (permitting the existence of a
disorder to be considered a mitigating factor only if certain conditions are met).
However, the board noted Austin’s testimony that at the time of her misconduct,
she was operating in “crisis mode” due to various stressors in her personal life and
had been receiving treatment from a mental-health professional.
{¶ 25} To support its recommended sanction, the board cited several
decisions imposing indefinite suspensions for comparable misconduct. For
example, in Toledo Bar Assn. v. Woodley, 132 Ohio St. 3d 120, 2012-Ohio-2458,
969 N.E.2d 1192, we indefinitely suspended an attorney who neglected three client
matters, failed to return those clients’ unearned fees, continued practicing law
during his attorney-registration suspension, requested additional fees from a client
without advising the client that he was suspended, and failed to cooperate in the
disciplinary investigation. Similarly, in Disciplinary Counsel v. Higgins, 117 Ohio
St.3d 473, 2008-Ohio-1509, 884 N.E.2d 1070, we indefinitely suspended an
attorney who continued to practice law during his continuing-legal-education
suspension, accepted fees from a client after his suspension, failed to disclose to
the client that he was suspended, neglected the client’s matter, and failed to
cooperate in the ensuing disciplinary investigation. And in Disciplinary Counsel
v. Mitchell, 124 Ohio St. 3d 266, 2010-Ohio-135, 921 N.E.2d 634, we indefinitely
suspended an attorney who practiced law during his attorney-registration
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suspension and intentionally attempted to deceive a court as to his identity and the
status of his law license.
{¶ 26} Here, Austin neglected two client matters, practiced law after the
imposition of her interim default suspension, collected legal fees from a client while
she was suspended, failed to fully refund those fees, made misrepresentations to a
client and courts about her suspension, and failed to cooperate in relator’s
disciplinary investigation. The board expressly opposes disbarment, concluding
that Austin “likely has the ability to establish that she is a proper person to be
readmitted to the bar of Ohio in the future.” Considering the aggravating and
mitigating factors and the sanctions imposed in comparable cases, we adopt the
board’s recommended sanction. An indefinite suspension will serve to protect the
public while also leaving open the possibility that Austin might be able to return to
the competent, ethical, and professional practice of law.
Conclusion
{¶ 27} For the reasons explained above, Rebecca Jo Austin is indefinitely
suspended from the practice of law in Ohio, with credit from May 16, 2018, for the
time she has served under the February 23, 2018 interim default suspension. Within
90 days of our disciplinary order, Austin shall make restitution in the amount of
$1,000 to Ashley Rogers or reimburse the Lawyers’ Fund for Client Protection for
any payments made to Rogers. In addition to the requirements set forth in Gov.Bar
R. V(25)(D)(1), Austin’s reinstatement shall be conditioned upon proof that she has
(1) undergone an assessment by the Ohio Lawyers’ Assistance Program and (2)
fully complied with the recommendations resulting from that assessment, including
the receipt of any mental-health services in the Cleveland area. Costs are taxed to
Austin.
Judgment accordingly.
KENNEDY, FRENCH, DEWINE, DONNELLY, and STEWART, JJ., concur.
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O’CONNOR, C.J., and FISCHER, J., would not award credit for time served
under the interim default suspension.
_________________
Thompson Hine, L.L.P., and Karen E. Rubin; and Heather M. Zirke and
Kari L. Burns, Bar Counsel, for relator.
Rebecca Jo Austin, pro se.
_________________
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