Disciplinary Counsel v. Engel (Slip Opinion) , 154 Ohio St. 3d 209 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Engel, Slip Opinion No. 2018-Ohio-2988.]
NOTICE
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SLIP OPINION NO. 2018-OHIO-2988
DISCIPLINARY COUNSEL v. ENGEL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Engel, Slip Opinion No.
2018-Ohio-2988.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
year license suspension with 18 months of the suspension stayed.
(No. 2017-1087—Submitted December 6, 2017—Decided July 31, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-030.
_______________________
Per Curiam.
{¶ 1} Respondent, Andrew Mahlon Engel, of Centerville, Ohio, Attorney
Registration No. 0047371, was admitted to the practice of law in Ohio in 1990.
{¶ 2} On November 21, 2001, we publicly reprimanded Engel for
neglecting a legal matter and attempting to handle it without adequate preparation.
Dayton Bar Assn. v. Engel, 93 Ohio St. 3d 623, 758 N.E.2d 178 (2001). And on
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December 22, 2004, we suspended him from the practice of law for two years with
six months of the suspension stayed on conditions for intentionally failing to seek
the lawful objectives of a client, intentionally failing to carry out a contract of
employment, engaging in conduct that adversely reflected on his fitness to practice
law, and failing to cooperate in the ensuing disciplinary investigation. Dayton Bar
Assn. v. Engel, 105 Ohio St. 3d 49, 2004-Ohio-6900, 822 N.E.2d 346.
{¶ 3} In an August 3, 2016 complaint, relator, disciplinary counsel, alleged
that Engel neglected a single client matter, failed to keep the client reasonably
informed about the status of her legal matter and to comply with her reasonable
requests for information, failed to promptly refund the unearned portion of his fee,
and failed to cooperate in the resulting disciplinary investigation. The parties
submitted joint stipulations in which Engel admitted the charged misconduct and
agreed that three aggravating factors and four mitigating factors are present.
{¶ 4} A panel of the Board of Professional Conduct conducted a hearing at
which it heard testimony from Engel and three character references and viewed the
video deposition of Engel’s treating psychologist.
{¶ 5} The panel adopted the parties’ stipulations and recommended that
Engel be suspended from the practice of law for two years with 18 months of the
suspension stayed provided that he meet certain conditions before reinstatement
and that once reinstated to the practice of law, he serve a two-year period of
monitored probation. The board adopted the panel’s report and recommendation,
with an additional requirement that on seeking reinstatement, Engel must provide
an opinion from a qualified healthcare professional that he is able to return to the
competent and ethical professional practice of law. Engel objects to the panel’s
denial of his motion to supplement his posthearing brief and to the board’s
recommended sanction. For the reasons that follow, we overrule Engel’s
objections, adopt the board’s findings of fact, misconduct, and aggravating and
mitigating factors, and suspend Engel from the practice of law for two years with
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18 months of the suspension stayed, and we place the recommended conditions on
his reinstatement.
Misconduct
{¶ 6} In April 2015, Dianne Shelton hired Engel to represent her in a
consumer- debt action. Engel sent letters to counsel for Shelton’s creditor on April
27 and June 22, 2015, but Engel did not respond to Shelton’s multiple efforts to
reach him or take any other action to settle her debt before she filed a grievance
with relator in August 2015.
{¶ 7} Engel responded to relator’s original letter of inquiry in October 2015
and promised, during a November 19, 2015 telephone conversation with relator,
that he would contact Shelton. But he had no contact with Shelton or relator until
mid-February 2016. After informing relator that Shelton had agreed to continue
his representation and exchanging a few e-mails with Shelton, Engel had no further
contact with her until early March—when Shelton told him that she had settled the
matter herself. Engel did not respond to relator’s letters requesting that he submit
proof that he had honored his promise to refund the balance of Shelton’s retainer
until relator served him with a subpoena for his deposition at the end of May. But
even then, he did not provide a copy of the correspondence he had sent to Shelton.
The parties stipulated that Engel refunded $50 of Shelton’s $500 retainer on May
24, 2016, followed by the remaining $450 on July 11, 2016.
{¶ 8} Therefore, the parties stipulated and the board found that Engel
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), 1.4(a)(4) (requiring a lawyer to comply as
soon as practicable with reasonable requests for information from the client),
1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the lawyer’s
withdrawal from employment), and 8.1(b) and Gov.Bar R. V(9)(G) (both requiring
a lawyer to cooperate with a disciplinary investigation).
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{¶ 9} We adopt the board’s findings of fact and misconduct.
Recommended Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
several 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.
{¶ 11} Here, the board considered Engel’s misconduct and adopted the
parties’ stipulated aggravating factors, which include two instances of prior
discipline, the commission of multiple offenses, and Engel’s failure to cooperate in
the investigative stage of the disciplinary process. See Gov.Bar R. V(13)(B)(1),
(4), and (5). The board also adopted the parties’ stipulations regarding the
applicable mitigating factors, including the absence of a dishonest or selfish motive,
Engel’s eventual full and free disclosure to the board and cooperative attitude
toward the disciplinary proceeding, evidence of his good character and reputation,
and two qualifying mental disorders—anxiety and depression. See Gov.Bar R.
V(13)(C)(2), (4), (5), and (7).1
{¶ 12} At the disciplinary hearing and in his posthearing brief, Engel agreed
that he should be suspended from the practice of law for two years but argued that
the entire suspension should be stayed with a requirement that he serve a period of
monitored probation. In contrast, relator argued that a two-year suspension with 18
months stayed is the appropriate sanction.
{¶ 13} The board found that there is no case law to support the imposition
of a fully stayed suspension under the facts of this case. On the contrary, it
recognized that the presumptive sanction for neglect of client matters coupled with
1
For a disorder to qualify as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7), there must be
(a) a diagnosis by a qualified healthcare professional, (b) a causal relationship between the disorder
and the misconduct, (c) a sustained period of successful treatment, and (d) a prognosis from a
qualified healthcare professional that the attorney will be able to return to the competent, and ethical
professional practice of law.
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the failure to cooperate in the ensuing disciplinary investigation is an indefinite
suspension from the practice of law. See, e.g., Disciplinary Counsel v. Ford, 133
Ohio St. 3d 105, 2012-Ohio-3915, 976 N.E.2d 846, ¶ 24; Mahoning Cty. Bar Assn.
v. DiMartino, 147 Ohio St. 3d 345, 2016-Ohio-5665, 65 N.E.3d 737, ¶ 13.
{¶ 14} But the board also found that we have imposed partially stayed term
suspensions on attorneys—both with and without prior discipline—who engaged
in conduct comparable to Engel’s. See, e.g., Cleveland Metro. Bar Assn. v. Bancsi,
141 Ohio St. 3d 457, 2014-Ohio-5255, 25 N.E.3d 1018 (imposing a two-year
suspension with 18 months stayed on the license of an attorney with prior
suspensions who neglected a client’s legal matter resulting in its dismissal and
failed to reasonably communicate with the affected client); Columbus Bar Assn. v.
Reed, 145 Ohio St. 3d 464, 2016-Ohio-834, 50 N.E.3d 516 (imposing a two-year
suspension with 18 months stayed on a previously disciplined attorney who had
neglected client matters, failed to reasonably communicate with the affected clients,
and also failed to cooperate in a fee-dispute arbitration and the ensuing disciplinary
investigations); and Disciplinary Counsel v. Hallquist, 128 Ohio St. 3d 480, 2011-
Ohio-1819, 946 N.E.2d 224 (imposing a two-year suspension with six months
stayed on an attorney with no prior discipline who had neglected two client matters
and failed to cooperate in the resulting disciplinary investigation).
{¶ 15} The board determined that the facts of this case most closely aligned
with those of Columbus Bar Assn. v. DiAlbert, 120 Ohio St. 3d 37, 2008-Ohio-5218,
896 N.E.2d 137. Like Engel, DiAlbert had neglected a single client’s legal matter,
failed to fully cooperate in the disciplinary process, and had a diagnosed mental
disorder that contributed to his misconduct. He also had two prior instances of
misconduct—one for leading a client to believe that he had filed a motion for
judicial release when he had not done so and the other for failing to comply with
continuing-legal-education requirements. Id. at ¶ 1, 8. We suspended DiAlbert’s
license for two years with 18 months of the suspension stayed on conditions,
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including compliance with an Ohio Lawyers Assistance Program (“OLAP”)
contract and completion of a two-year period of monitored probation. Id. at ¶ 12.
{¶ 16} Noting that Engel has twice been disciplined for the same type of
misconduct that he has been found to have committed in this case, and that unlike
DiAlbert, he failed to fully cooperate in the disciplinary process, the board
recommended that he be suspended from the practice of law for two years with 18
months of the suspension stayed. On his application for reinstatement, the board
would also require him to submit proof that (1) he has continued to receive
counseling from a qualified healthcare professional, (2) he is adhering to the
recommendations of his primary care physician, (3) he is in compliance with his
March 7, 2017 OLAP contract and any extension of it, and (4) a qualified healthcare
professional has determined that he is able to return to the competent and ethical
professional practice of law. Following his reinstatement to the practice of law, the
board further recommended that Engel be required to comply with the
recommendations of his healthcare professionals while serving a two-year period
of monitored probation pursuant to Gov.Bar R. V(21).
Objections
{¶ 17} Engel’s primary objections relate to the board’s recommendation
that he serve a two-year suspension from the practice of law with just 18 months of
that suspension stayed on conditions. But he also objects to the panel’s denial of
his motion to supplement his posthearing brief. In the interest of clarity, we address
Engel’s objections in reverse order.
Denial of Motion to Supplement
{¶ 18} In Engel’s third objection, he argues that the panel erred in denying
his August 1, 2017 motion to supplement his posthearing brief following a dispute
with his counsel that allegedly deprived him of the opportunity to highlight certain
mitigating factors and cite additional precedent favoring a lesser sanction.
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{¶ 19} Engel’s motion was not timely, as it was filed more than five weeks
after the deadline that the panel had set for filing posthearing briefs and just six
days before the full board filed its report and recommendation with this court. The
facts that he sought to bring to the panel’s attention were already a part of the
record, and the board was not limited to the consideration of the precedent cited in
the briefs. Moreover, Engel has availed himself of the opportunity to present his
proposed supplemental authority in his objections to this court. For these reasons,
we find that the board did not abuse its discretion by overruling his motion to
supplement his posthearing brief, and we overrule Engel’s third objection.
Weight Attributed to Mitigating Evidence
{¶ 20} In his second objection, Engel contends that the board should have
afforded greater mitigating weight to his mental disorders and should have
considered evidence of additional mitigating factors—including his OLAP
contract, his mentoring relationship, his service to economically disadvantaged
clients in consumer-protection and foreclosure-defense cases, and changes that he
made to his office procedures and staffing to prevent future misconduct. He also
urges us to find that his anxiety and depression “contributed significantly” to his
misconduct and that, when combined with other mitigating evidence, they warrant
the imposition of a fully stayed suspension.
{¶ 21} The board made extensive findings regarding the parties’ stipulated
mitigating factors and Engel’s supporting evidence. It acknowledged that Engel
admitted that he had not been attentive to Shelton’s case and that he attributed his
inattention to her case to its not being in active litigation. The board also credited
Engel’s testimony that he did not realize he was suffering from anxiety and
depression or that his conditions were adversely affecting his practice. The board
acknowledged that Engel was incredibly ashamed of and embarrassed by his
conduct and that he has taken steps to ensure that it will not recur. For example, it
credited Engel’s testimony that his health and mood had improved since he started
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taking a prescribed antidepressant and that in addition to being committed to his
course of psychotherapy, he had also entered into and complied with a three-year
OLAP contract. And in furtherance of his professional obligations, Engel hired an
associate to facilitate communication with his clients and began to confide in a
mentor, attorney Jonathan Hollingsworth. Hollingsworth confirmed that the
mentoring relationship commenced in July 2016 and that he had met with Engel on
three occasions to discuss Engel’s personal life, his office arrangement, and his
working to maintain a calendar that would allow Engel to meet his clients’ needs.
{¶ 22} The board also credited Engel for eight character letters that
identified him as a very competent, well-respected attorney of some renown in his
area of practice. It noted that three of the attorneys who wrote letters on Engel’s
behalf also testified to his good character, legal skills, and respect for and
commitment to his clients and the legal system. And despite their knowledge of
Engel’s three disciplinary proceedings, all stated that they would not hesitate to
refer clients to him.
{¶ 23} The board also considered the written report and video deposition
testimony of Engel’s treating psychologist, Marsha K. Weston, Psy.D. The
testimony revealed that Dr. Weston began treating Engel for depression and anxiety
in August 2016 and had seen him twice a week through April 2017 for 55 to 60
sessions. Dr. Weston observed that Engel has tended to avoid conflict, isolate
himself, and shut down emotionally. The board accepted Dr. Weston’s testimony
that those conditions had been present for many years and that they contributed
significantly to Engel’s delay in contacting his client, taking action on his client’s
behalf, and responding to disciplinary counsel. Yet we note that on cross-
examination, Dr. Weston was unable to explain why Engel’s mental disorders
caused him to neglect only a single client matter.
{¶ 24} Ultimately, the board recognized Engel’s progress in psychotherapy,
his positive response to a prescription antidepressant, and his belief that meetings
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with his professional mentor are helpful. Furthermore, the board accepted Dr.
Weston’s testimony that she was satisfied with Engel’s progress—which she
estimated to be a 75 to 80 percent improvement—and acknowledged her opinion
that Engel can safely and competently practice law provided he continues his
medication, participate in therapy, and meet with his mentor.
{¶ 25} Although the board did not expressly state whether Engel’s
diagnosed mental conditions were solely, principally, or substantially responsible
for his misconduct as Engel now suggests it should have, the board’s findings
clearly demonstrate that it attributed significant effect to Engel’s mitigating
evidence. 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. We therefore overrule Engel’s
second objection.
Precedent for Sanction
{¶ 26} In Engel’s first objection, he asserts that our precedent (including
that cited by the board) supports the imposition of a fully stayed suspension under
the facts of this case. In support, he identifies four cases in which we have imposed
fully stayed suspensions on attorneys who had prior records of disciplinary
offenses, all readily distinguishable from the facts presently before us.
{¶ 27} In Disciplinary Counsel v. Turner, 140 Ohio St. 3d 109, 2014-Ohio-
3158, 15 N.E.3d 851, we imposed a two-year stayed suspension on an attorney who
deposited personal funds into his client trust account, used the account to pay his
personal and business expenses, and initially failed to cooperate in the ensuing
disciplinary investigation. But Turner’s conduct did not affect any clients, and
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there was no allegation that his client-trust account contained any client funds. And
although Turner had five prior suspensions, none of them were for similar
misconduct. In contrast to Engel, four of Turner’s prior suspensions related to
noncompliance with attorney registration or CLE requirements, with just one
suspension arising from his neglect and other client related matters.
{¶ 28} In Mahoning Cty. Bar Assn. v. Hanni, 145 Ohio St. 3d 492, 2016-
Ohio-1174, 50 N.E.3d 542, we imposed a one-year fully stayed suspension with
CLE and monitored-probation requirements for an attorney’s neglect and failure to
communicate with a single client. We had previously suspended Hanni for six
months, with the entire suspension stayed, for neglecting another client’s matter
and making unsubstantiated claims of ethical misconduct against a county
prosecutor. Id. at ¶ 1. Similarly, in Cleveland Metro. Bar Assn. v. Berk, 132 Ohio
St.3d 82, 2012-Ohio-2167, 969 N.E.2d 256, we imposed an 18-month stayed
suspension with two years of monitored probation for misconduct that included a
pattern of missed court deadlines and appearances in several client matters that
echoed Berk’s prior disciplinary offenses. But neither Hanni nor Berk failed to
cooperate in their respective disciplinary investigations as Engel has. Hanni at
¶ 11; Berk at ¶ 19; see also Mahoning Cty. Bar Assn. v. Hanni, 127 Ohio St. 3d 367,
2010-Ohio-5771, 939 N.E.2d 1226, ¶ 24; Cleveland Bar Assn. v. Berk, 114 Ohio
St.3d 478, 2007-Ohio-4264, 873 N.E.2d 285, ¶ 10.
{¶ 29} We also imposed a two-year stayed suspension in Ashtabula Cty.
Bar Assn. v. Brown, 151 Ohio St. 3d 63, 2017-Ohio-5698, 86 N.E.3d 269, based on
the respondent’s use of then sitting Justice William O’Neill’s name on his office
sign and business card approximately 18 years after they had last practiced together.
Although several aggravating factors were present, including Brown’s prior
discipline, selfish motive, and failure to acknowledge the wrongful nature of his
conduct, Brown’s misconduct differed from Engel’s in that it did not mimic his
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prior offenses or affect any clients and because he cooperated in the disciplinary
process.
{¶ 30} Based upon the foregoing, we are not persuaded that our precedent
supports the imposition of a fully stayed suspension in this case. Nor do we find
Engel’s argument that his case is sufficiently distinguishable from the cases cited
by the board to warrant the imposition of a lesser sanction here. Rather, given the
unique facts and circumstances of this case, we find that a brief actual suspension
from the practice of law followed by a longer stayed suspension with monitoring
will best protect the public from harm and preserve the public’s trust in the legal
profession. Therefore, we overrule Engel’s first objection and adopt the board’s
recommended sanction.
Conclusion
{¶ 31} Having overruled Engel’s objections, we adopt the board’s findings
of fact, misconduct, aggravating and mitigating factors, and recommended
sanction. Accordingly, we suspend Andrew Mahlon Engel from the practice of law
in Ohio for two years, with 18 months of the suspension stayed on the condition
that he engage in no further misconduct. If he fails to comply with the condition of
the stay, the stay will be lifted, and he will serve the entire two-year suspension.
{¶ 32} On his application for reinstatement, Engel shall submit proof that
he has continued counseling with Dr. Weston or another qualified healthcare
professional, is adhering to the recommendations of his primary-care physician, and
remains in compliance with his March 7, 2017 contract with OLAP, along with any
extensions recommended by his treating professionals or OLAP. He shall also
submit proof that a qualified healthcare professional has determined that he is able
to return to the competent and ethical professional practice of law.
{¶ 33} On reinstatement to the practice of law, Engel shall serve a two-year
period of monitored probation in accordance with Gov.Bar R. V(21), during which
time he shall comply with the recommendations of his treating healthcare
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professionals, maintain compliance with any OLAP terms that may be in effect,
and continue to work with a monitoring attorney approved by relator. Costs are
taxed to Engel.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, FRENCH, LASTER MAYS, FISCHER, and
DEWINE, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion.
ANITA LASTER MAYS, J., of the Eighth District Court of Appeals, sitting for
O’Neill, J.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 34} I concur with the majority’s decision to suspend Andrew Mahlon
Engel from the practice of law in Ohio for two years, with 18 months of the
suspension stayed on the condition that he engage in no further misconduct. I also
agree that on his application for reinstatement, Engel shall submit proof that he has
continued counseling with Dr. Weston or another qualified healthcare professional,
is adhering to the recommendations of his primary-care physician, and remains in
compliance with his March 7, 2017 contract with the Ohio Lawyers Assistance
Program (“OLAP”), along with any extensions recommended by his treating
professionals or OLAP. I disagree, however, with the majority’s reinstatement
requirement for Engel to submit proof that a qualified healthcare professional has
determined that he is able to return to the competent and ethical professional
practice of law.
{¶ 35} When imposing sanctions for attorney misconduct, we consider the
mitigating factors listed in Gov.Bar R. V(13). See Disciplinary Counsel v. Pickrel,
151 Ohio St. 3d 466, 2017-Ohio-6872, 90 N.E.3d 853, ¶ 10. Relevant currently is
Gov.Bar R. V(13)(C)(7), which permits a mental disorder or chemical dependency
to be considered mitigating upon all of the following:
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(a) A diagnosis of a disorder by a qualified health care
professional or qualified chemical dependency professional;
(b) A determination that the disorder contributed to cause the
misconduct;
(c) In the case of mental disorder, a sustained period of
successful treatment or in the case of substance use disorder or
nonsubstance-related disorder, a certification of successful
completion of an approved treatment program;
(d) A prognosis from a qualified health care professional or
qualified chemical dependency professional that the attorney
will be able to return to competent, ethical professional practice
under specified conditions.
If any one of the factors is not established, the mental disorder or qualified chemical
dependency may not be considered as mitigation. See, e.g., Disciplinary Counsel
v. Joltin, 147 Ohio St. 3d 490, 2016-Ohio-8168, 67 N.E.3d 780, ¶ 22 (board did not
consider attorney’s mental-health issues to be mitigating factors, as there was no
proof that they caused his misconduct).
{¶ 36} In this matter, the board adopted the parties’ stipulation that Engel’s
mental disorders of depression and anxiety may be considered as mitigation. They
agreed that Engel had established all the factors recited in Gov.Bar R. V(13)(C)(7),
including “a prognosis from a qualified health care professional that respondent is
able to return to the competent, ethical practice of law now and in the future so long
as he continues to follow the professional advice of his mental health provider and
his family doctor.” As Engel has already established that he is currently able to
return to the competent and ethical professional practice of law now and in the
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future, I would not require him to submit this proof with his application for
reinstatement.
{¶ 37} Therefore, I respectfully concur in part and dissent in part.
_________________
Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant
Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel,
for relator.
Pyper and Nordstrom, L.L.C., and Thomas H. Pyper, for respondent.
_________________
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