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.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

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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