Akron Bar Association v. Glitzenstein.

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

Akron Bar Assn. v. Glitzenstein, Slip Opinion No. 2018-Ohio-3862.]

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-3862

AKRON BAR ASSOCIATION v. GLITZENSTEIN.

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

may be cited as Akron Bar Assn. v. Glitzenstein, Slip Opinion No.

2018-Ohio-3862.]

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

including client-trust-account mismanagement—Conditionally stayed 18-

month suspension.

(No. 2018-0255—Submitted February 27, 2018—Decided September 26, 2018.)

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

Court, No. 2017-033.

__________________

Per Curiam.

{¶ 1} Respondent, Jonell Rae Glitzenstein, of Akron, Ohio, Attorney

Registration No. 0061889, was admitted to the practice of law in Ohio in 1993.

{¶ 2} In a formal complaint certified to the Board of Professional Conduct

on June 29, 2017, relator, Akron Bar Association, charged Glitzenstein with

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multiple ethical violations. The alleged violations arose from her failure to properly

use and maintain her client trust account, reasonably communicate with a client,

protect the interests of two clients on the termination of her representation, and

promptly refund an unearned fee. A panel of the board considered the cause on the

parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).

{¶ 3} The parties stipulated that Glitzenstein received more than $180,000

in client funds from January 2013 through mid-March 2017. Although a substantial

portion of those funds represented retainers and cost advances, she did not deposit

them into her client trust account and thereby violated Prof.Cond.R. 1.15(a)

(requiring a lawyer to hold the property of clients in an interest-bearing client trust

account, separate from the lawyer’s own property) and 1.15(c) (requiring a lawyer

to deposit into a client trust account legal fees and expenses that have been paid in

advance). She failed to maintain ledger sheets for her clients documenting the

funds she held on their behalf and failed to maintain other required records for her

client trust account in violation of Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to

maintain a record for each client that sets forth the name of the client; the date,

amount, and source of all funds received on behalf of the client; and the current

balance for each client) and 1.15(a)(3) (requiring a lawyer to maintain a record for

the lawyer’s client trust account, setting forth the name of the account; the date,

amount, and client affected by each credit and debit; and the balance in the account).

{¶ 4} In addition, Glitzenstein failed to respond to one client’s messages

stating that she no longer wanted to proceed with her divorce and waited nearly two

years to refund the unearned portion of that client’s retainer. She also failed to

return another client’s original documents—even after relator informed her that

there was no need for her to retain those documents. The parties stipulated that this

conduct violated Prof.Cond.R. 1.4(a)(4) (requiring a lawyer to comply as soon as

practicable with reasonable requests for information from the client), 1.16(d)

(requiring a lawyer withdrawing from representation to take steps reasonably

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January Term, 2018

practicable to protect a client’s interest), and 1.16(e) (requiring a lawyer to

promptly refund any unearned fee upon the lawyer’s withdrawal from

employment).

{¶ 5} The parties agree that three aggravating factors are present:

Glitzenstein acted with a selfish motive, engaged in a pattern of misconduct, and

committed multiple offenses. See Gov.Bar R. V(13)(B)(2), (3), and (4). Stipulated

mitigating factors include the absence of prior discipline, a cooperative attitude

toward the disciplinary proceedings, and Glitzenstein’s November 28, 2017

execution of a two-year contract with the Ohio Lawyers Assistance Program

(“OLAP”). See Gov.Bar R. V(13)(C)(1) and (4).

{¶ 6} The board recommends that we adopt the parties’ consent-to-

discipline agreement and suspend Glitzenstein from the practice of law for 18

months, all stayed on conditions.

{¶ 7} Of the four cases that the parties cited in support of their stipulated

sanction, the board found Disciplinary Counsel v. Barbera, 149 Ohio St.3d 505,

2017-Ohio-882, 75 N.E.3d 1248, to be most instructive. Barbera’s misconduct was

similar to Glitzenstein’s in that it involved the mismanagement of his client trust

account. But in addition to failing to maintain appropriate records, Barbera

commingled personal and client funds based on his erroneous belief that all of the

money coming into his practice—including money he had already earned—had to

be deposited in his client trust account. He also failed to cooperate in the relator’s

investigation. We suspended Barbera from the practice of law for one year, all

stayed on the conditions that he obtain additional continuing legal education

(“CLE”) focused on client-trust-account management, comply with an OLAP

contract for his diagnosed mental disorders, and serve a period of monitored

probation.

{¶ 8} The board reviewed additional cases in which we imposed fully

stayed suspensions for comparable misconduct on the condition that the attorneys

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obtain additional education and monitoring to ensure the institution and

maintenance of good practice habits. See, e.g., Disciplinary Counsel v. Johnston,

121 Ohio St.3d 403, 2009-Ohio-1432, 904 N.E.2d 892 (imposing a one-year

suspension, stayed on conditions including a period of monitored probation and

completion of CLE in law-office management and accounting, for misconduct

involving the commingling of personal and client funds in and multiple overdrafts

of the attorney’s client trust account). The board also noted that actual suspensions

are typically reserved for client-trust-account violations that involve elements of

dishonesty or client harm that are not present in this case. See, e.g., Disciplinary

Counsel v. Vogtsberger, 119 Ohio St.3d 458, 2008-Ohio-4571, 895 N.E.2d 158

(imposing a two-year suspension with one year stayed on an attorney who deposited

personal funds into his client trust account to shield the funds from creditors);

Dayton Bar Assn. v. Scaccia, 141 Ohio St.3d 35, 2014-Ohio-4278, 21 N.E.3d 290

(imposing a one-year suspension with six months stayed on an attorney who

mismanaged and neglected a case resulting in its dismissal, used client retainers to

pay expenses without providing adequate documentation, failed to maintain

required client-trust-account records, and failed to make restitution to all of the

affected clients).

{¶ 9} Based on the foregoing, we agree that Glitzenstein’s conduct violated

Prof.Cond.R. 1.15(a), 1.15(a)(2), 1.15(a)(3), 1.15(c), 1.4(a)(4), 1.16(d), and 1.16(e)

and that an 18-month suspension stayed in its entirety is the appropriate sanction

for that misconduct. We therefore adopt the parties’ consent-to-discipline

agreement.

{¶ 10} Accordingly, Jonell Rae Glitzenstein is suspended from the practice

of law in Ohio for 18 months, all stayed on the conditions that she comply with her

November 28, 2017 OLAP contract and any extension thereto; complete at least six

hours of CLE (in addition to the requirements of Gov.Bar R. X) focused on law-

office management, the proper use of a client trust account, and the proper

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January Term, 2018

maintenance of client-trust-account records; complete an 18-month period of

monitored probation with a focus on law-office management and compliance with

client-trust-account requirements; and engage in no further misconduct. If

Glitzenstein fails to comply with a condition of the stay, the stay will be lifted and

she will serve the full 18-month suspension. Costs are taxed to Glitzenstein.

Judgment accordingly.

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

DEGENARO, JJ., concur.

DEWINE, J., not participating.

_________________

Roderick, Linton, Belfance, L.L.P., and Robert M. Gippen; Deborah L.

Ruby, Co., L.P.A., and Deborah L. Ruby; and Wayne M. Rice, Bar Counsel, for

relator.

Montgomery, Rennie, & Jonson, L.P.A., George D. Jonson, and Linda L.

Woeber, for respondent.

_________________

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