Cincinnati Bar Assn. v. Ludwig (Slip Opinion)

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

Cincinnati Bar Assn. v. Ludwig, Slip Opinion No. 2021-Ohio-3971.]

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. 2021-OHIO-3971

CINCINNATI BAR ASSOCIATION v. LUDWIG.

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

may be cited as Cincinnati Bar Assn. v. Ludwig, Slip Opinion No.

2021-Ohio-3971.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct——Two-

year suspension with credit for time served under ongoing attorney-

registration suspension and restitution ordered.

(No. 2021-0763—Submitted July 13, 2021—Decided November 10, 2021.)

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

Court, No. 2020-040.

______________

Per Curiam.

{¶ 1} Respondent, Nancy Hampton Ludwig, of Cincinnati, Ohio, Attorney

Registration No. 0077952, was admitted to the practice of law in Ohio in 2004. On

November 1, 2019, we suspended Ludwig’s license based on her failure to register

as an attorney for the 2019/2020 biennium, and that suspension remains in effect.

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In re Attorney Registration of Ludwig, 157 Ohio St.3d 1472, 2019-Ohio-4529, 134

N.E.3d 183.

{¶ 2} In a September 30, 2020 amended complaint, relator, Cincinnati Bar

Association, charged Ludwig with multiple ethical violations arising from her

representation of three separate clients. Among those charges were allegations that

she had neglected client matters, failed to reasonably communicate with her clients,

personally accepted retainers after clients signed a fee agreement with the law firm

that employed her, failed to hold prepaid fees in a client trust account, and failed to

deliver the clients’ papers and property upon the termination of the representation.

{¶ 3} The parties entered into stipulations of fact and misconduct. Based

on those stipulations and the evidence presented at a hearing before a three-member

panel of the Board of Professional Conduct, the panel unanimously dismissed two

alleged rule violations and found that Ludwig committed the remaining charged

misconduct. The panel recommended that Ludwig be suspended from the practice

of law for two years, that she be credited with the time served under her ongoing

attorney-registration suspension, and that she be ordered to pay restitution. Based

on concerns regarding Ludwig’s mental health, the panel also recommended that

she be required to file a petition for reinstatement pursuant to Gov.Bar R. V(25)

and prove that she is capable of returning to the competent, ethical, and professional

practice of law. The board adopted the panel’s findings of fact, conclusions of law,

and recommended sanction. Based on our review of the record, we adopt the

board’s findings of misconduct and recommendation.

Stipulated Facts and Misconduct

Count I: The Ober Matter

{¶ 4} In January 2019, Brandon Ober sought representation from Ludwig’s

employer, Blake Somers, L.L.C., regarding postdivorce child-custody issues. The

firm assigned the case to Ludwig. Ludwig met with Ober on February 5 and had

him sign a fee agreement. She informed him that he would need to pay his retainer

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and instructed him to write a $2,500 check payable to her. She then endorsed and

cashed the check without notifying the firm. The firm has no record that Ober was

ever a client of the firm.

{¶ 5} A hearing was scheduled to occur in Ober’s case eight days after he

paid the retainer to Ludwig. Ludwig advised him to attend the hearing alone and

tell the court that he was in the process of retaining an attorney. Ober followed her

instructions.

{¶ 6} Ludwig left the Somers firm on March 1, 2019, and began to practice

law as a sole practitioner. She did not carry professional-liability insurance at that

time and failed to provide her clients with written notice of that fact. She also failed

to maintain a client trust account and appropriate records, and she consequently

failed to hold Ober’s retainer in a trust account separate from her own property.

{¶ 7} On Ober’s behalf over the next several months, Ludwig filed various

motions, prepared discovery, communicated with opposing counsel and the

guardian ad litem, and appeared in court. Ober issued $1,000 checks made payable

to Ludwig on May 8 and May 23, and Ludwig endorsed and cashed those checks.

After Ludwig told Ober that she would not be able to communicate with him if her

electric service was cut off, he paid her $2,537.90 electric bill. And in August 2019,

Ludwig asked Ober for a favor because she needed to buy school supplies for her

daughters—he gave her between $160 and $170 in cash.

{¶ 8} Ludwig appeared at an October 23, 2019 hearing on Ober’s behalf

and sent him an email stating that she would contact him the next day—but she did

not contact him for more than two weeks. In the interim, we suspended Ludwig on

November 1 for her failure to timely register for the 2019/2020 biennium. More

than two weeks later, Ludwig contacted Ober to discuss his case and make

arrangements to meet and prepare for a November 20 court-ordered settlement

conference. After that conference was canceled, Ludwig informed Ober that she

had been suspended from the practice of law for administrative reasons and told

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him that she would withdraw from his case. However, she failed to file a notice of

withdrawal or substitution of counsel with the court.

{¶ 9} After Ober filed a grievance against Ludwig, she gave relator’s

investigator an accounting showing that Ober had paid her a total of $7,200—

including the payment of her electric bill and cash for school supplies—and that

she had provided legal services totaling $6,883.50. Despite multiple requests from

Ober, Ludwig failed to return his file until early March 2020 and still owed him

restitution of $316.50 at the time of her disciplinary hearing.

{¶ 10} The board found that Ludwig’s conduct in the Ober matter violated

Prof.Cond.R. 1.4(a) (requiring a lawyer to keep a client reasonably informed about

the status of a matter and to comply as soon as practicable with reasonable requests

for information from the client), 1.4(c) (requiring a lawyer to inform a client if the

lawyer does not maintain professional-liability insurance), 1.8(c) (prohibiting a

lawyer from soliciting any substantial gift from a client), 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), 1.15(d) (requiring a lawyer to promptly deliver

funds or other property that the client is entitled to receive), and 1.16(a)(1)

(requiring a lawyer to withdraw from the representation of a client if the

representation will result in a violation of the Ohio Rules of Professional Conduct

or other law). In addition, the board found that Ludwig violated (1) Prof.Cond.R.

5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in violation of the

regulation of the legal profession in that jurisdiction or assisting another in doing

so) by meeting with Ober while her law license was suspended, (2) Prof.Cond.R.

8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation) by advising Ober to attend a hearing alone and tell the

court that he was in the process of retaining an attorney—even though he had

already signed a fee agreement and paid a retainer to her, and (3) Prof.Cond.R.

8.4(h) (prohibiting other conduct that adversely reflects on a lawyer’s fitness to

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practice law, even though that conduct is not expressly prohibited by another rule)

by personally accepting Ober’s retainer after he signed a fee agreement with the

Somers firm.

{¶ 11} We adopt these findings of misconduct.

Count II: The Campbell Matter

{¶ 12} In April 2019, Ludwig began working as an associate at the law firm

of Barr, Jones & Associates, L.L.P. In mid-August 2019, Ludwig met with Erin

Campbell about Campbell’s parenting plan and the dissolution of her marriage.

During that meeting, Campbell signed a fee agreement with Barr Jones and Ludwig

signed it herself on behalf of the firm. Campbell later paid Ludwig a $1,500 cash

retainer. Ludwig failed to deposit the retainer into a client trust account and failed

to maintain an appropriate written record documenting her receipt of that money.

Instead, she placed the cash and fee agreement in a folder that later was either lost

or stolen. She also failed to inform Barr Jones that Campbell had hired the firm or

paid a retainer. Although Ludwig claimed that she intended to do the work herself

after the fee went missing, she did not inform Campbell of that fact or explain that

she would not be a client of the law firm.

{¶ 13} Ludwig exchanged text messages with Campbell for about a month

until Campbell became unable to reach her at all. On November 13, 2019,

Campbell called Barr Jones to inquire about the status of her matter. She was

informed that Ludwig had left the firm and that the firm had no record of her

payment or documentation of her meeting with Ludwig. A partner of the firm

offered to prepare the dissolution documents for Campbell at no charge, but

Campbell refused to pay the $350 filing fee, believing that it was covered by her

retainer.

{¶ 14} Ludwig failed to return Campbell’s file to her because Ludwig had

lost it. She was distracted, tired, and deeply depressed when she commenced the

representation, following a serious electrical fire at her home. By the time of her

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disciplinary hearing, she had refunded Campbell’s full $1,500 payment and an

additional $350 to cover the filing fee for the dissolution.

{¶ 15} On these facts, the board found that Ludwig violated Prof.Cond.R.

1.3 (requiring a lawyer to act with reasonable diligence in representing a client),

1.4(a), 1.15(a), 1.16(a)(2) (requiring a lawyer to withdraw from representation

when the lawyer’s physical or mental condition materially impairs the lawyer’s

ability to represent the client), and 8.4(c) as stipulated by the parties. The board

also found that Ludwig violated Prof.Cond.R. 8.4(h) by accepting Campbell’s

retainer without informing the law firm of the representation. We adopt these

findings of misconduct.

Count III: The Collins Matter

{¶ 16} In April 2019, Keena Collins hired Ludwig through Barr Jones to

represent her in connection with a contempt proceeding in the Clermont County

Juvenile Court. Ludwig did not have Collins sign a fee agreement, but shortly after

their first meeting, the Barr Jones billing department requested a $1,500 retainer,

which Collins paid.

{¶ 17} The parties stipulated that if Collins were called to testify, she would

state that she was billed for numerous telephone calls with Ludwig that never

occurred. Ludwig also billed Collins for drafting pleadings that were never filed

and discovery requests that were never served.

{¶ 18} Ludwig stipulated that Collins’s parenting case was very serious and

that Collins reasonably feared for her own life and the life of her child. Collins

would testify that she was frantically trying to reach Ludwig for much of July and

August 2019 but that Ludwig seldom returned her calls. And when Collins asked

Ludwig whether she was too busy to handle the case, Ludwig did not initially

respond, but later informed Collins that she had 45 other clients to deal with and

that Collins was free to get another lawyer.

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{¶ 19} On August 28, Ludwig filed a motion for an in camera interview of

Collins’s child and a motion to modify the parenting agreement. She also informed

Collins that she, her child, and her fiancé needed to fly to Cincinnati for a

September 11 hearing—which they did at great expense. Collins arrived on

September 8 so that she could meet with Ludwig on September 9. Ludwig

rescheduled that meeting for September 10 and then arrived 30 minutes late. She

spent much of the meeting on her phone dealing with a personal issue.

{¶ 20} On the morning of the hearing, Ludwig sent Collins a text message

informing her that she would meet her at the courthouse before the hearing. But

she arrived at the courthouse 30 minutes after the hearing was scheduled to begin.

After the magistrate spoke with the attorneys, Ludwig informed Collins that

opposing counsel was not prepared and that the court wanted the parties to try to

settle the case. Ludwig and Collins sat in a courtroom with the opposing party and

his counsel for four hours in a supposed effort to settle the case. Ludwig stipulated

that if called to testify, Collins would state that (1) it appeared that Ludwig was not

prepared for the hearing, (2) Ludwig did not initiate or participate in any settlement

discussions that day, and (3) she believed that Ludwig was not prepared to negotiate

a settlement on her behalf. At her disciplinary hearing, Ludwig testified that she

had performed services worth at least as much as Collins had paid her.

{¶ 21} The board found that Ludwig failed to act with reasonable diligence

and promptness, failed to respond to Collins’s multiple attempts to contact her, and

failed to keep Collins reasonably informed about the status of her case in violation

of Prof.Cond.R. 1.3 and 1.4. The board also found that Ludwig violated

Prof.Cond.R. 1.16 by failing to withdraw from the representation when her physical

or mental conditions materially impaired her ability to represent Collins, by failing

to control her workload so that Collins’s matter was handled competently, and by

failing to protect Collins’s interests by delivering all papers and property to which

Collins was entitled at the conclusion of the representation. Finally, the board

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found that Ludwig violated Prof.Cond.R. 8.4(c) by billing for work that she did not

complete. We adopt these findings of misconduct.

Sanction

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

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.

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

that Ludwig has a prior registration suspension and had engaged in a pattern of

misconduct, committed multiple offenses, and caused harm to her clients. See

Gov.Bar R. V(13)(B)(1), (3), (4), and (8). The board also found that Ludwig had

acted with a selfish motive by soliciting and accepting a substantial loan from Ober,

see Gov.Bar R. V(13)(B)(2), and noted that she has an outstanding monetary

sanction of $300 for her failure to comply with the continuing legal education

requirements of Gov.Bar R. X for the 2018/2019 biennium.

{¶ 24} In mitigation, the board found that Ludwig had made a timely, good-

faith effort to make restitution or rectify the consequences of her misconduct, made

full and free disclosure to the board and exhibited a cooperative attitude toward the

disciplinary proceedings, and submitted letters from three attorneys and one judge

attesting to her positive character and reputation in the legal community. See

Gov.Bar R. V(13)(C)(3), (4), and (5). The board also acknowledged that Ludwig

has been diagnosed with depression but is not currently able to afford treatment.

The parties have stipulated and the board has found that Ludwig is not currently fit

to practice law as a result of her untreated disorder.

{¶ 25} The board now recommends that Ludwig be suspended from the

practice of law for two years, with credit for the time served under her November

1, 2019 attorney-registration suspension, and be ordered to make restitution of

$316.50 to Brandon Ober. The board further recommends that she be required to

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petition the court for reinstatement to the practice of law pursuant to Gov.Bar R.

V(25) and that in addition to the requirements for reinstatement set forth in that

rule, she be required to establish that she has received treatment for her mental-

health disorder and that she is capable of returning to the competent, ethical, and

professional practice of law.

{¶ 26} In support of that sanction, the board cited five cases in which we

have imposed two-year suspensions with some portion of that suspension stayed on

conditions for misconduct that is comparable to Ludwig’s. Of those cases, we find

Medina Cty. Bar Assn. v. Malynn, 131 Ohio St.3d 377, 2012-Ohio-1293, 965

N.E.2d 299, and Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297, 2011-Ohio-

3181, 951 N.E.2d 775, to be most instructive.

{¶ 27} Malynn neglected three client matters, failed to reasonably

communicate with one of those clients, failed to deposit client funds into a separate

client trust account, engaged in dishonest conduct by failing to inform a client that

the client’s case had been dismissed for Malynn’s failure to provide discovery, and

failed to cooperate in multiple disciplinary investigations. Like Ludwig, Malynn

engaged in a pattern of misconduct, committed multiple offenses, and caused harm

to multiple clients. He also failed to cooperate in the disciplinary process and

attempted to deceive the panel with several half-truths at his disciplinary hearing.

Just two mitigating factors were present—the absence of a prior disciplinary record

(though Malynn was suspended for a registration violation during the pendency of

his disciplinary case) and evidence of his good character and reputation. And,

although Malynn claimed that a diagnosed anxiety disorder contributed to his

misconduct, he failed to satisfy all the criteria necessary to have it considered as a

mitigating factor. We suspended Malynn from the practice of law for two years

with the final six months conditionally stayed, and we also imposed conditions on

his reinstatement.

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{¶ 28} Folwell failed to timely file an application with a probate court to

approve a minor’s personal-injury settlement, failed to maintain required client-

trust-account records, and used some of the minor’s settlement proceeds for his own

purposes. He also failed to timely file lawsuits on behalf of two other clients, failed

to timely file two probate estates, failed to promptly refund clients’ unearned fees,

and improperly shared a legal fee with a nonlawyer. Like Ludwig, Folwell acted

with a dishonest or selfish motive, engaged in a pattern of misconduct, and

committed multiple offenses. He cooperated in the disciplinary proceedings, but in

contrast to Ludwig, he had no prior disciplinary record. We suspended Folwell’s

license to practice law for two years, with the second year stayed on the conditions

that he commit no further misconduct and serve a one-year period of monitored

probation.

{¶ 29} Here, Ludwig’s misconduct is arguably more egregious than that of

Malynn and Folwell because she admitted that she had met with one of her clients

while her license was under suspension and engaged in multiple instances of

dishonesty. But in light of Ludwig’s efforts to rectify the consequences of her

misconduct, her cooperation in this disciplinary proceeding, and her candid

acknowledgment that her untreated mental-health issues currently render her unfit

to practice law, we believe that the board’s recommended sanction with its stringent

mental-health requirements for reinstatement to the practice of law will best protect

the public from further harm.

Conclusion

{¶ 30} Accordingly, Nancy Hampton Ludwig is suspended from the

practice of law for two years, with credit for the time served under her November

1, 2019 attorney-registration suspension, and ordered to make restitution of

$316.50 to Brandon Ober within 30 days of this order. Ludwig shall be required to

petition the court for reinstatement to the practice of law pursuant to Gov.Bar R.

V(25), and in addition to the requirements for reinstatement set forth in that rule,

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she shall be required to submit documentation from a qualified healthcare

professional selected or approved by relator (1) certifying that she has received

treatment for her depression and any other mental-health conditions that could

affect her ability to practice law and (2) opining that she is capable of returning to

the competent, ethical, and professional practice of law. Costs are taxed to Ludwig.

Judgment accordingly.

O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, STEWART, and

BRUNNER, JJ., concur.

DEWINE, J., not participating.

_________________

Vorys, Sater, Seymour and Pease, L.L.P., and Rosemary D. Welsh; Keating,

Muething & Klekamp, P.L.L., and Mary Ellen Malas; and Edwin W. Patterson III,

Bar Counsel, for relator.

Montgomery Jonson, L.L.P., George D. Jonson, and Lisa M. Zaring, for

respondent.

_________________

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