Cincinnati Bar Assn. v. Burgess (Slip Opinion)
2021 Ohio 2187
| Ohio | 2021Background
- Andrew T. Burgess (admitted 2016) was charged by the Cincinnati Bar Association (complaint filed Sept. 6, 2019) with misconduct in two client matters; he failed to answer the complaint.
- The court imposed an interim default suspension (Nov. 22, 2019); because Burgess defaulted, the charged violations were deemed admitted.
- Count One (Kelli Knuth): in a Hamilton County divorce, Burgess missed service and scheduling requirements, failed to appear at conferences and trial, did not notify the client, failed to promptly deliver the file, and falsely told the client her new attorney had the file. Violations charged: Prof.Cond.R. 1.1, 1.3, 1.4(a)(3),(4), 1.16(d), and 8.4(c).
- Count Two (Rodney Riddle): a limited-scope representation in Summit County in which Burgess failed to withdraw per local rule and delayed returning the client file. Violations charged: Prof.Cond.R. 1.4(a)(4) and 1.16(d).
- At remand, Burgess presented mitigation (overwhelm in solo practice; later OLAP contact; depressive disorder diagnosis; therapy); the board found mitigation (clean record, cooperation, remorse) but not a qualifying mental-disability mitigation. Aggravators: pattern, multiple offenses, initial failure to participate, harm to a vulnerable client.
- The board recommended terminating the interim suspension conditioned on requirements (OLAP evaluation, follow-up, pay costs) and imposing a one-year suspension fully stayed on conditions (one-year monitored probation focused on office management/client communication/case management; additional CLE; refrain from further misconduct). The Supreme Court adopted the board’s recommendation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of respondent's failure to answer disciplinary complaint | Relator: failure to answer makes charged violations deemed admitted under Gov.Bar R. V(14) | Burgess: did not timely move to answer; no effective defense raised | Court: failure to answer deemed violations admitted; interim default suspension appropriate earlier and remand for mitigation only |
| Appropriate sanction for admitted misconduct (two matters) | Relator/board: one-year suspension fully stayed on conditions (monitored probation, CLE, OLAP) to protect public | Burgess: urged mitigation, rehabilitation evidence, clean record — support for stayed sanction | Court: adopted board’s recommended one-year stayed suspension with specified conditions |
| Whether Burgess established a qualifying mental-condition mitigation | Relator: mitigation insufficient to meet Gov.Bar R. V(13)(C)(7) standard | Burgess: depressive disorder, OLAP referral, therapy and life changes support mitigation | Court: Burgess did not prove a qualifying mental disorder under the rule; limited weight given to mental-health evidence |
| Conditions for reinstatement and consequences of noncompliance | Board: require OLAP evaluation, compliance with treatment, pay costs; probation and CLE if reinstated; lift stay on noncompliance | Burgess: agreed to evaluation/treatment and conditions in seeking reinstatement | Court: terminated interim suspension but conditioned reinstatement on application, compliance with Nov. 22, 2019 order, OLAP evaluation and follow-through, and payment of costs; upon reinstatement imposed stayed one-year suspension with one-year monitored probation (focused monitoring), additional CLE, and lift of stay if conditions breached |
Key Cases Cited
- Akron Bar Assn. v. Bednarski, 71 N.E.3d 1093 (Ohio 2017) (failure to timely answer the disciplinary complaint results in deemed admission of charged violations)
- Cleveland Metro. Bar Assn. v. Mariotti, 145 N.E.3d 286 (Ohio 2019) (one-year stayed suspension with monitored probation for neglect, misrepresentation, and related misconduct)
- Disciplinary Counsel v. Pfundstein, 941 N.E.2d 1180 (Ohio 2010) (one-year stayed suspension where mitigation included a qualifying mental disability and OLAP compliance)
- Disciplinary Counsel v. Oberholtzer, 995 N.E.2d 217 (Ohio 2013) (courts tailor conditions of stayed suspensions to causes of misconduct)