Thursday, October 21, 2021

Sanction Disagreement

Dan Trevas reports on a bar discipline matter before the Ohio Supreme Court

A Cincinnati attorney who provided legal assistance to a client while under suspension received a second indefinite suspension from the Ohio Supreme Court today.

The Supreme Court unanimously agreed to sanction Elizabeth Ford not only for giving legal advice while under suspension, but also for repeatedly failing to follow through with her clients’ domestic relations matters and refusing to cooperate with disciplinary proceedings. However, the Court was divided on the appropriate penalties to impose.

The Court majority agreed with a joint recommendation from Ford and the Office of Disciplinary Counsel to place Ford on a second indefinite suspension to run concurrently with an indefinite suspension levied in March 2020 for similar professional misconduct.

Justices Sharon L. Kennedy, R. Patrick DeWine, Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the per curiam opinion imposing the concurrent indefinite suspension.

Chief Justice Maureen O’Connor stated she would permanently disbar Ford.

In a separate opinion, Justice Patrick F. Fischer agreed with the Board of Professional Conduct’s recommendation that Ford’s new suspension should run consecutively to her current indefinite suspension.

Lawyer Advises Client While Suspended
Today’s suspension is now the third Ford is serving. In November 2019, she was suspended for failing to register as a practicing attorney for the 2019-2021 biennium. At that time, the disciplinary counsel had already filed a complaint against her for violating several of the rules governing the ethical behavior of Ohio lawyers.

In March 2020, the Court indefinitely suspended her for professional misconduct that included dishonesty, failing to reasonably communicate with clients in four matters, and failing to cooperate with disciplinary investigations. Both the 2019 and 2020 suspensions are in effect.

Prior to her suspension, Jeffrey Streckfuss hired Ford in 2018 to assist him in reinstating his parenting time, which had been stopped for failing to comply with court orders to complete medical and mental-health assessments. In July 2019, Ford filed a motion in domestic relations court to have Streckfuss’ parenting time reinstated, and the motion indicated Streckfuss had completed the required assessments.

Ford did not take any other action on Streckfuss’ case.

The domestic relations court scheduled a December 2019 hearing on Streckfuss’ motion and a request by his ex-wife to hold Streckfuss in contempt for failing to comply with court orders. At that time, Ford was suspended from practicing law, and she failed to notify the court of her suspension or withdraw from Streckfuss’ case.

The night before the hearing, Ford sent Streckfuss a text message informing him of her suspension and that she was out of state because of a death in the family. In the text, she advised him to attend the hearing on his own and how to request reinstatement of his parenting time.

With respect to the contempt motion, she advised Streckfuss to request more time and to “blame” her for the delay. She told him to notify the court that she was no longer involved with his case. She then told Streckfuss she could “strategize with him when she returned.”

Streckfuss appeared at the hearing before a magistrate, who denied his request to reinstate the parenting time, stating neither he nor Ford presented any evidence that he completed the health assessments. Streckfuss sent Ford several messages seeking copies of his completed assessments, but she did not respond to his messages.

The magistrate discovered Ford’s license was suspended and filed a grievance with the disciplinary counsel. Ford failed to respond to a request from the disciplinary counsel to submit written responses to the grievance and failed to appear for a deposition.

Based on her actions in Streckfuss’ case, the professional conduct board found Ford violated several rules, including failing to act with reasonable diligence on a client’s matter and giving legal advice to Streckfuss while under suspension.

Attorney Ignores Disciplinary Investigations
In September 2020, the disciplinary counsel submitted another complaint to the board, stating that along with the violations Ford committed while representing Streckfuss, she committed more violations before and during her November 2019 suspension.

In June 2019, Mary Goldfuss hired Ford to file an emergency custody action. Ford accepted an advance fee from Goldfuss. Goldfuss sent two unanswered texts to Ford, and then heard from Ford in mid-August. Ford implied she had filed the custody action, but she had not. Goldfuss was unable to contact Ford again and sent a certified letter seeking a refund.

Goldfuss filed a grievance, and Ford again ignored requests by the disciplinary counsel to respond in writing and did not appear at a scheduled deposition. Eight months after Goldfuss fired Ford, the lawyer refunded Goldfuss her money.

In May 2019, Walter Monroe paid Ford $3,000 to represent him in a divorce proceeding, but agreed with Ford not to file for divorce immediately. In December 2019, Monroe sent Ford a text requesting she file the divorce. She did not respond. Monroe discovered Ford had been suspended and requested the return of his divorce paperwork and his money, but she failed to do so.

Monroe filed a grievance, and Ford did not immediately cooperate in the disciplinary investigation.

Supreme Court Considered Sanction
The Court noted that Ford freely cooperated with the disciplinary investigation once the disciplinary counsel filed its complaint with the board.

The board noted that except for advising a client while under suspension, her violations were like the ones that led to her March 2020 indefinite suspension. While the presumed sanction for an attorney practicing while under suspension is disbarment, the board found her actions “were not so egregious as to warrant” disbarment. The board recommended a second indefinite suspension to run consecutively to the 2020 suspension, along with other conditions the board believed would be sufficient to protect the public.

The Court’s opinion noted that an indefinite suspension is appropriate for attorneys who continue to practice law after their licenses have been suspended for registration or continuing legal education violations. The Court also noted that in cases where an attorney’s misconduct occurs over essentially the same period as the prior misconduct, it may be appropriate to impose a second indefinite suspension that runs concurrent to the first. The Court imposed Ford’s second indefinite suspension to run concurrently with the first.

To be reinstated, Ford is required to submit proof she paid Monroe $3,000 in restitution; undergo an evaluation by the Ohio Lawyers Assistance Program; comply with any treatment or counseling recommendations resulting from the evaluation; and obtain a written opinion from a qualified healthcare professional that she can return to the competent, ethical, and professional practice of law. The Court also required her to pay for the disciplinary proceedings.

Concurring and Dissenting Opinion Seeks Tougher Sanction
In his opinion concurring in part and dissenting in part from the majority, Justice Fischer noted that Ford’s misconduct did not occur over essentially the same period as the prior misconduct, but instead represented a continuing pattern of misconduct.

He noted the violations involved in her March 2020 suspension occurred while representing clients between 2016 and 2018. He wrote the matters leading to this suspension happened between 2018 and 2020.

Ford’s misconduct was very serious, Justice Fischer stated, noting that she “ignored her clients who had time-sensitive cases” and “lied to those clients about the status of their cases, all while wrongfully keeping some funds paid for services that she never rendered.” He stated that running the indefinite suspensions consecutively is the appropriate sanction.

2021-0441Disciplinary Counsel v. FordSlip Opinion No. 2021-Ohio-3661.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/10/a-cincinnati-attorney-who-provided-legal-assistance-to-a-client-while-under-suspension-received-a-second-indefinite-suspensio.html

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