Cleveland Metro. Bar Assn. v. Austin (Slip Opinion)
133 N.E.3d 499
Ohio2019Background
- Rebecca Jo Austin, admitted 2012, was charged with multiple ethics violations including neglect, misrepresentation, practicing while suspended, fee misconduct, and failure to cooperate; she initially defaulted and received an interim suspension.
- After permission to answer, the Board of Professional Conduct found Austin committed most charged violations based on client matters (Long and Rogers), courtroom failures, and post-suspension conduct; Austin stipulated to facts but not rule violations.
- In the Long matter Austin accepted a retainer, failed to communicate or perform, and delayed refunding unearned fees for over ten months.
- In the Rogers matter Austin accepted fees after her interim default suspension, appeared at a hearing without disclosing suspension, billed for legal services, returned part of the fee but kept $1,000, and misled the client and tribunals about her status.
- Additional problems included lapse of malpractice insurance without proper client notice, use of a misleading business address, failure to register timely, and failure to cooperate with disciplinary investigation.
- The Board recommended, and the Supreme Court adopted, an indefinite suspension with conditions for reinstatement and restitution to Rogers; the Court denied credit for part of the period during which Austin continued to practice (credit begins May 16, 2018).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Austin neglected client matters and failed to communicate | Relator: Austin neglected two matters (Long, employment case) and failed to keep clients informed | Austin: Attributed missed communications to technical and personal issues; denied intent | Court: Found violations of Prof.Cond.R. 1.3 and 1.4 (duty to act diligently and inform client) |
| Whether Austin practiced law while suspended and accepted/retained fees | Relator: Austin continued practicing during interim suspension, appeared in court, accepted fees from Rogers, and billed for legal services | Austin: Tried to characterize some acts as nonlegal and expected quick resolution of suspension | Court: Found violations of Prof.Cond.R. 5.5(a), 1.5(a), and 1.15(d); she practiced and collected fees while suspended |
| Whether Austin made false statements and failed to cooperate with investigation | Relator: Austin misrepresented her status to courts and client and failed to cooperate with disciplinary process | Austin: Offered explanations about email/notice problems and personal crisis; disputed rule-violation characterizations | Court: Found violations of Prof.Cond.R. 3.3(a)(1), 8.4(c)/(d), and failures to cooperate under Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) |
| Appropriate sanction and credit for time served during interim suspension | Relator: Indefinite suspension appropriate; credit only for period when not practicing | Austin: Sought leniency; argued mitigation (no prior discipline, personal crisis) | Court: Indefinitely suspended Austin; adopted Board's recommendation but denied credit for the nearly three months she practiced while suspended (credit begins May 16, 2018); ordered $1,000 restitution and conditions for reinstatement |
Key Cases Cited
- Toledo Bar Assn. v. Woodley, 132 Ohio St.3d 120, 969 N.E.2d 1192 (2012) (indefinite suspension where attorney neglected matters, practiced during suspension, accepted fees while suspended, and failed to cooperate)
- Disciplinary Counsel v. Higgins, 117 Ohio St.3d 473, 884 N.E.2d 1070 (2008) (indefinite suspension for practicing during suspension, accepting fees, failing to disclose suspension, neglect, and noncooperation)
- Disciplinary Counsel v. Mitchell, 124 Ohio St.3d 266, 921 N.E.2d 634 (2010) (indefinite suspension where attorney practiced during suspension and attempted to deceive a court)