AKRON BAR ASSOCIATION v. BEDNARSKI.
No. 2015-0243
Supreme Court of Ohio
February 16, 2017
2017-Ohio-522
Submitted January 11, 2017
{11} Respondent, Holly Lynn Bednarski of Barberton, Ohio, Attorney Registration No. 0077231, was admitted to the practice of law in Ohio in 2004.
{12} On December 15, 2014, relator, Akron Bar Association, filed a complaint with the Board of Commissioners on Grievances and Discipline, now known as the
{13} Bednarski is deemed to have committed the charged ethical violations by virtue of her default and failure to timely move this court for leave to answer the charges against her. See
{14} The board adopted the panel‘s findings and recommended sanction but also suggested that compliance with the panel‘s suggested OLAP, restitution, and CLE requirements be imposed as conditions of the stay. We adopt the board‘s report in its entirety and suspend Bednarski from the practice of law for two years with the final six months stayed on conditions and with no credit for time served under her interim default suspension.
Misconduct
Count One
{15} David Jones Jr. retained Bednarski to represent him in an appeal of a criminal conviction and paid her a flat fee of $1,500. Bednarski did not maintain a client trust account, did not enter a written fee agreement with Jones, and did not notify him in writing that if she did not complete the representation he may be entitled to a refund of all or part of the fee. She also failed to have Jones sign an acknowledgment that she did not carry professional liability insurance. After entering an appearance in the appeal and requesting an extension of time for filing the brief, Bednarski did not respond to Jones‘s numerous attempts to contact her. She also failed to file a brief on Jones‘s behalf, and the appeal was dismissed for lack of prosecution. Consequently, the stay of Jones‘s sentence
{16} Bednarski‘s conduct is deemed to have violated
Count Two
{17} Kacee Rae Moser retained Bednarski to defend her against a felony charge and a subsequent misdemeanor charge for conduct that allegedly occurred while she was released on bond to house arrest. Moser paid Bednarski $1,360 for the representation, but there was no written fee agreement. Bednarski did not have a client trust account and did not carry professional liability insurance. Nor did she have Moser sign a notice that she may be entitled to a refund of all or part of the fee if Bednarski failed to complete the representation. Bednarski successfully defended the misdemeanor charge, but due to a breakdown in communication before a jury trial on the felony charge, she informed Moser that she was preparing a motion to withdraw from the case. Although Moser‘s new counsel entered an appearance in the case, Bednarski never moved the court to permit her to withdraw from the representation. Bednarski‘s conduct in this case is deemed to have violated
Sanction
{18} 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
{110} The parties agreed that the appropriate sanction for Bednarski‘s misconduct is a two-year suspension from the practice of law with no credit for time served under the interim default suspension, with additional requirements that she (1) submit to an OLAP evaluation and comply with any treatment recommendations, (2) pay $100 per month toward restitution, and (3) take at least one credit hour of CLE per month during her suspension, with at least 12 hours focused on law-office management and three hours focused on professional conduct. The parties also agreed that upon reinstatement, Bednarski should be required to serve a one-year period of monitored probation.
{111} The panel and board adopted the parties’ stipulated aggravating and mitigating factors but also considered additional factors in crafting their recommended sanction.
{12} Bednarski testified that after her admission to the bar, she practiced law with her husband, who assumed primary responsibility for the firm‘s accounting and books. But after they divorced, she “could not quite manage to do it by [her]self.” She stated that the bank closed her client trust account approximately ten days after she opened it. Because she was not making enough money to support herself, the utilities at her home—where she also had her office—were shut off. She began living in her car or with friends and did not always receive her mail.
{13} Bednarski also testified that while she was married, she was drinking four or five drinks—usually whiskey and ginger ale—every day. This pattern of drinking continued following her 2009 divorce until her 2015 hospitalization for pancreatitis, which she attributed to her excessive drinking. However, Bednarski has never been diagnosed or treated for any addiction or mental-health condition. Although she agreed during a deposition in the context of this disciplinary proceeding that she would contact OLAP, she never did so, because she wanted to handle her drinking problem by herself. While Bednarski admitted that she needs professional treatment for her drinking problem, she had not done anything about it at the time of her disciplinary hearing and seemed to think that it was under control—even though she admitted that she still drinks a couple of glasses of wine with dinner.
{15} Bednarski‘s only character witness—a common pleas court bailiff who has known her for approximately 15 years—expressed her belief that Bednarski‘s disciplinary problems were a consequence of her financial difficulties and her focus on “survival.” She also testified that she had observed positive changes in Bednarski‘s behavior in the two years preceding the hearing, noting that she had gotten healthy, gotten her finances under control, was working, and had a stable residence.
{16} The panel recommended that Bednarski be suspended from the practice of law in Ohio for two years with no credit for the time served under the interim default suspension order and with the final six months stayed on the condition that she commit no further disciplinary violations. Further, the panel recommended that she be required to (1) schedule mental-health and substance-abuse assessments with OLAP within 30 days of this court‘s decision and, if OLAP determines that treatment is necessary, enter into an OLAP contract for a duration to be determined by OLAP and comply with all treatment recommendations, (2) pay $100 per month to relator, which will forward the money to her former client Jones, until the $1,515.10 in restitution owed to Jones is paid in full, (3) complete 12 hours of CLE related to law-office management in addition to the requirements set forth in
{17} The board adopted the panel‘s recommended sanction of a two-year suspension with six months stayed and a two-year period of monitored probation, but the board also suggested that the OLAP, restitution, and CLE requirements—like the requirement that she engage in no further misconduct—be conditions of the stay.
{18} Both the panel and board recognized that the recommended sanction appeared to be more severe than the sanctions this court has imposed in comparable cases. See, e.g., Toledo Bar Assn. v. Stewart, 135 Ohio St.3d 316,
{19} Having thoroughly reviewed the record and considered our precedents, we adopt the board‘s findings of fact and misconduct and aggravating and mitigating factors. We also agree that a two-year suspension with the final six months stayed on the conditions recommended by the board and with no credit for time served under the interim default suspension is the appropriate sanction for Bednarski‘s misconduct.
{21} Upon reinstatement to the practice of law, Bednarski shall serve two years of monitored probation focused on law-office management in accordance with
Judgment accordingly.
O‘CONNOR, C.J., and O‘DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
O‘NEILL, J., dissents and would grant respondent credit for time served under the interim default suspension.
Roetzel & Andress and Karen Adinolfi; and Thomas P. Kot, Bar Counsel, for relator.
Holly Lynn Bednarski, pro se.