Dan Trevas reports on this opinion of the Ohio Supreme Court
The Ohio Supreme Court today indefinitely suspended a Lakewood lawyer who continued to practice while under suspension and engaged in other professional misconduct, including lying to a client and a court about being suspended.
In a per curiam opinion, the Supreme Court suspended Rebecca Jo Austin, ordered her to pay $1,000 restitutionto one of her clients, and placed other conditions on her ability to return to the practice of law. Austin received an interim suspension in February 2018, and disciplinary investigators discovered she continued to practice for another three months.
A Court majority agreed to grant her credit for time served under suspension from the point when she stopped practicing, which was May 2018. Justices Sharon L. Kennedy, Judith L. French, R. Patrick DeWine, Michael P. Donnelly and Melody J. Stewart joined the opinion.
Chief Justice Maureen O’Connor and Justice Patrick F. Fischer dissented and would not grant Austin credit for time served under the interim suspension.
Attorney Ignores Client Matter, Cites ‘Communication Issues’
In February 2017, Joseph Long hired Austin to represent him in a divorce proceeding. He paid her a retainer and attempted to contact her by phone, email, and text to inquire about his case. Austin failed to respond to any of Long’s messages. About two months later, Long asked for a refund, and Austin failed to reply.
In May 2017, she sent Long an email apologizing for “recent communications issues,” claiming it was caused by technical problems with her email and phone and “exacerbated by personal issues.”
Long responded by requesting a refund of his retainer. Austin did not return it until 10 months later.
Also in 2017, Austin represented defendants in an employment discrimination lawsuit, in which the partiesagreed to settle the matter. Austin was to work with the plaintiffs' lawyers to produce a final settlement entry.
The settlement was not finalized, and the court considering the matter scheduled a “show cause hearing” to determine why the case was not settled. Austin failed to appear at the hearing and was found in contempt of court. She also failed to appear at a subsequent hearing where the opposing attorney asked the court to enforce the settlement and to order attorney fees.
Austin later testified that she did not receive electronic notices of the hearings. But she acknowledged the case docket was available online and that any issues with her email did not excuse her from her duty to attend the court hearings.
In November 2017, the Cleveland Metropolitan Bar Association charged Austin with neglecting the two client matters, failing to cooperate in the disciplinary investigation, and committing other professional misconduct.
In February 2018, after Austin failed to respond to the bar association’s complaint, the Supreme Court imposed an interim default suspension on her, and in May 2018, found her in contempt for failing to comply with the suspension order.
Lawyer Practices While Under Suspension
Just days before her suspension, Austin agreed to represent Ashley Rogers in a domestic dispute, and Austin advised Rogers on how to obtain a protective order, which Rogers was able to secure on her own.
Austin failed to inform her client of her eventual suspension and instead collected $1,000 in cash and a $400 check from Rogers, then appeared at a hearing for Rogers in which the parties agreed to continue the matter and set a new hearing date.
At the hearing, Austin did not enter a notice of appearance for Rogers, and the court informed Rogers of that. Rogers asked Austin if she needed to hire a new lawyer, but Austin responded, “I’m representing you and I’ll clear it up.”
About a week later, Rogers learned of Austin’s suspension and requested a refund. Austin responded that she was “addressing the situation” and anticipated her suspension would be “very temporary.” Austin then billed Rogers for services performed during her suspension. She later returned Rogers’ $400 check, but never refunded the $1,000 cash payment.
The bar association amended its complaint against Austin after learning that she continued to practice under suspension, including representing Rogers and conducting other matters. During that time she also misled a magistrate and others about her suspension, telling them she was “working diligently to comply with the Supreme Court,” when in reality, she was not responding to orders issued regarding her disciplinary proceedings.
Lawyer Committed Multiple Rule Violations
The Board of Professional Conduct found Austin violated several of the rules governing the conduct of Ohio attorneys, including failing to keep clients reasonably informed of the status of their matters, making a false statement to a court, practicing law in violation of a regulation in a jurisdiction, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
During her interim suspension, Austin admitted to her misconduct, including not responding to Long’s inquiries or showing up at the settlement hearings, but denied any ethical rule violations.
Board Recommends Indefinite Suspension with Conditions
When considering recommending a sanction to the Court, the board considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.
As aggravating circumstances, the board found Austin engaged in a pattern of misconduct, committed multiple offenses, and initially failed to cooperate in the bar association’s disciplinary investigation. It also found she harmed a vulnerable client during her representation of Rogers and failed to make restitution to Rogers.
As mitigating factors, the board found Austin had no prior disciplinary record and lacked a dishonest or selfish motive. The board panel hearing her case concluded that Austin never tried to take advantage of any client and was: “... genuinely trying to help her clients while keeping all of her spinning plates in the air. The plates crashed. She is picking up the pieces.” The board also noted Austin cooperated during her disciplinary hearing.
Austin did not claim the existence of any mental health disorder that would qualify as a mitigating factor, but did testify she was operating in “crisis mode” because of various stressors in her personal life and was receiving treatment from a mental health professional.
The board expressly opposed disbarment, concluding that Austin is likely to establish her ability to be readmitted to the practice of law in the future.
“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,” the Court majority stated.
The Court indefinitely suspended Austin, giving her credit for time served from May 2018 until today, and ordered that she pay Rogers within 90 days or reimburse the Lawyers’ Fund for Client Protection for any payments the fund makes to Rogers. Before applying for reinstatement, Austin must also undergo an assessment by the Ohio Lawyers’ Assistance Program and fully cooperate with any recommendations resulting from the assessment.
2018-0159. Cleveland Metro Bar Assn. v. Austin, Slip Opinion No. 2019-Ohio-3325.
August 21, 2019 in Bar Discipline & Process | Permalink
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