Cleveland Metropolitan Bar Association v. Rosett.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Cleveland Metro. Bar Assn. v. Rosett, Slip Opinion No. 2018-Ohio-3861.]

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-3861

CLEVELAND METROPOLITAN BAR ASSOCIATION v. ROSETT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Cleveland Metro. Bar Assn. v. Rosett, Slip Opinion No.

2018-Ohio-3861.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct,

including failing to act with reasonable diligence in representing

clients, failing to perform and retain a monthly reconciliation of the funds

held in a client trust account, and failing to properly safeguard client

funds—Public reprimand.

(No. 2018-0251—Submitted April 10, 2018—Decided September 26, 2018.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2017-024.

_______________________

Per Curiam.

{¶ 1} Respondent, Wendy Sue Rosett, of Shaker Heights, Ohio, Attorney

Registration No. 0055870, was admitted to the practice of law in Ohio in 1991.

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{¶ 2} We suspended Rosett’s license to practice law for one week in

November 2015 for her failure to register as an attorney for the 2015 to 2017

biennium. In re Attorney Registration Suspension of Rosett, 143 Ohio St.3d 1509,

2015-Ohio-4567, 39 N.E.3d 1277; In re Reinstatement of Rosett, 144 Ohio St.3d

1432, 2015-Ohio-5363, 42 N.E.3d 766. 1

{¶ 3} Rosett serves as a part-time magistrate for the Shaker Heights

Municipal Court and also runs a solo practice out of her home. Relator, Cleveland

Metropolitan Bar Association, charged Rosett with multiple acts of misconduct in

a five-count complaint certified to the Board of Professional Conduct on June 2,

2017. The parties stipulated that Rosett neglected five separate client matters,

failed to maintain required trust-account records, and failed to adequately protect

client funds held in her client trust account. A panel of the board conducted a

hearing, adopted the parties’ stipulations of fact and misconduct, unanimously

dismissed several other alleged rule violations, and recommended that we suspend

Rosett from the practice of law for one year, with the entire suspension stayed on

conditions. The board adopted the panel’s report and recommendation in its

entirety, and no objections have been filed.

{¶ 4} Having independently reviewed the record and the sanctions imposed

for comparable conduct, we adopt the board’s findings of fact and conclusions of

law and suspend Rosett from the practice of law for one year, with the entire

suspension stayed on the conditions recommended by the board.

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We also suspended Rosett’s license for one week in December 2017 for her failure to complete

the requisite hours of continuing legal education (“CLE”), to timely file three final reporting

transcripts, and to comply with prior sanctions issued by the CLE commission. In re Continuing

Legal Edn. Suspension of Rosett, 151 Ohio St.3d 1464, 2017-Ohio-9035, 87 N.E.3d 1264. Because

this suspension occurred after the panel hearing, the board did not consider it as an aggravating

factor in this case.

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January Term, 2018

Misconduct

Count I: Neglect and Client-Trust-Account Violations

{¶ 5} Richard Krahn retained Rosett in November 2013 to refile a complaint

to collect unpaid commissions against his former employer. Mediation failed and

neither Rosett nor Krahn appeared for a scheduled arbitration hearing—Rosett

claimed that she had not received notice. The arbitrator ruled in the employer’s

favor and denied Rosett’s motion for reconsideration.

{¶ 6} Rosett claimed that on July 30, 2014, approximately one week after

receiving the denial of the motion for reconsideration, she sent a letter to Krahn

informing him of the missed arbitration hearing and the adverse decision in his case.

The letter also allegedly instructed Krahn to contact Rosett immediately regarding

a possible appeal. Krahn, however, denied having received any such

correspondence. He had no further contact with Rosett until he arranged to meet

with her in July 2015.

{¶ 7} Rosett stipulated that during her representation of Krahn, she not only

failed to maintain a client ledger, but also failed to perform monthly reconciliations

of her client trust account. She acknowledged that when Krahn demanded a refund

of his attorney fees, she told him that he owed her additional fees for services

rendered, but that she elected not to pursue recovery. After Krahn obtained a

$1,750 default judgment against Rosett, she satisfied the judgment and also

reimbursed him for his attorney fees and litigation expenses.

{¶ 8} The parties stipulated and the board found that Rosett’s conduct

violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in

representing a client), 1.15(a)(2) (requiring a lawyer to maintain a record for each

client on whose behalf funds are held), and 1.15(a)(5) (requiring a lawyer to

perform and retain a monthly reconciliation of the funds held in the lawyer’s client

trust account).

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Counts II, III, and V: Neglect of Additional Client Matters

{¶ 9} While investigating Krahn’s grievance, relator discovered that Rosett

had neglected the legal matters of two additional clients. In a foreclosure action

against client Larry Sims, she failed to timely file an answer, failed to appear at a

default-judgment hearing, and failed to timely appeal the default judgment. She

also failed to attend a scheduled mediation session and failed to timely file an

answer on behalf of foreclosure client Lynn Tezak. Rosett also reported that she

had missed two filing deadlines in other client matters. Based on these facts, the

parties stipulated and the board found that Rosett committed three additional

violations of Prof.Cond.R. 1.3.

Count IV: Failure to Safeguard Client Funds

{¶ 10} Rosett represented Shayna Brooks in an eviction matter. In

September 2015, Rosett allowed Brooks to direct a $700 payday-loan deposit to her

client trust account because Brooks did not have a checking account. The lender

made a $700 wire transfer to Rosett’s client trust account on September 11, 2015,

and Rosett issued a $700 check from her client trust account to Brooks that same

day. Rosett consented to a second deposit of $700 the following week and issued

three checks to Brooks in anticipation of the deposit—one from Rosett’s personal

account and two from her client trust account. But the lender never made the second

deposit, and Rosett’s client trust account became overdrawn. A second overdraft

occurred several weeks later when the lender attempted to withdraw $885.06 from

Rosett’s client trust account. Rosette reimbursed all bank fees from her personal

funds and no client funds were harmed.

{¶ 11} The parties stipulated and the board found that this conduct violated

Prof.Cond.R. 1.15(a) (requiring client funds to be properly safeguarded in a client

trust account).

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January Term, 2018

Sanction

{¶ 12} When imposing sanctions for attorney misconduct, we consider

several relevant factors, including the ethical duties the lawyer violated, the

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions

imposed in similar cases. Because each disciplinary case is unique, however, we

may take all the relevant factors into account when determining which sanction to

impose in any particular case. Columbus Bar Assn. v. Watson, 144 Ohio St.3d 317,

2015-Ohio-4613, 42 N.E.3d 752, ¶ 7.

{¶ 13} As aggravating factors, the parties stipulated and the board found

that Rosett has prior discipline and committed multiple offenses. See Gov.Bar R.

V(13)(B)(1) and (4). The board adopted the parties’ stipulated mitigating factors,

which include the absence of a dishonest or selfish motive and Rosett’s good

character. See Gov.Bar R. V(13)(C)(2) and (5). The board also found that Rosett’s

timely, good-faith effort to rectify the consequences of her misconduct was a

mitigating factor. See Gov.Bar R. V(13)(C)(3).

{¶ 14} While the board recognized that Rosett had struggled for 18 years to

balance the demands of her private practice with her duties as a part-time magistrate

for the Shaker Heights Municipal Court, it also determined that she had taken active

steps to rectify her inattentiveness and poor office management in the wake of this

disciplinary action. For example, she reduced her private caseload and revised her

magistrate schedule, which was once three days per week, to two ten-hour days.

She also arranged to employ a part-time assistant to work with her on an as-needed

basis and has adopted written policies and procedures to improve her ability to

manage her practice. Rosett also testified that she would welcome the assistance

of a monitoring attorney as one of the sanction conditions.

{¶ 15} The board recommends that Rosett be suspended from the practice

of law for one year, with the entire suspension stayed on conditions that would

require her to complete additional CLE courses that are focused on law-office

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management, serve a period of monitored probation, and commit no further

misconduct. In support of this sanction, the board cites three cases in which we

have imposed one-year suspensions stayed on similar conditions for comparable

misconduct. See Toledo Bar Assn. v. Crosser, 147 Ohio St.3d 499, 2016-Ohio-

8257, 67 N.E.3d 789 (attorney neglected a client’s legal matter and attempted to

conceal that neglect); Trumbull Cty. Bar Assn. v. Yakubek, 142 Ohio St.3d 455,

2015-Ohio-1570, 32 N.E.3d 440 (attorney neglected a client’s bankruptcy matter

and failed to reasonably communicate with the client); and Allen Cty. Bar Assn. v.

Brown, 124 Ohio St.3d 530, 2010-Ohio-580, 925 N.E.2d 112 (attorney accepted

retainer but failed to perform any of the contracted work and neglected a second

client’s legal matter).

{¶ 16} Having independently reviewed the record and the sanctions

imposed for comparable conduct, we adopt the board’s findings of fact and

conclusions of law, and we suspend Rosett from the practice of law for one year,

with the entire suspension stayed on the conditions recommended by the board.

{¶ 17} Accordingly, Wendy Sue Rosett is suspended from the practice of

law in Ohio for one year, with the suspension stayed in its entirety on the conditions

that, in addition to the CLE requirements of Gov.Bar R. X, she complete six hours

of CLE during her suspension to be focused on law-office management, serve a

one-year period of monitored probation in accordance with Gov.Bar R. V(21), and

engage in no further misconduct. If Rosett fails to comply with the conditions of

the stay, the stay will be lifted, and she will serve the entire one-year suspension.

Costs are taxed to Rosett.

Judgment accordingly.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,

and DEGENARO, JJ., concur.

_________________

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January Term, 2018

Jordan D. Lebovitz, Brenda M. Johnson, Heather M. Zirke, Bar Counsel,

and Kari L. Burns, Assistant Bar Counsel, for relator.

Law Office of Philip A. King, L.L.C., and Philip A. King, for respondent.

_________________

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