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Disciplinary Counsel v. Engel

Supreme Court of Ohio

July 31, 2018

Disciplinary Counsel
v.
Engel.

          Submitted December 6, 2017

          On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2016-030.

          Scott J. Drexel, Disciplinary Counsel, Joseph M. Caligiuri, Chief Assistant Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel, for relator.

          Pyper and Nordstrom, L.L.C., and Thomas H. Pyper, for respondent.

          PER CURIAM.

         {¶ 1} Respondent, Andrew Mahlon Engel, of Centerville, Ohio, Attorney Registration No. 0047371, was admitted to the practice of law in Ohio in 1990.

         {¶ 2} On November 21, 2001, we publicly reprimanded Engel for neglecting a legal matter and attempting to handle it without adequate preparation. Dayton Bar Assn. v. Engel, 93 Ohio St.3d 623, 758 N.E.2d 178 (2001). And on December 22, 2004, we suspended him from the practice of law for two years with six months of the suspension stayed on conditions for intentionally failing to seek the lawful objectives of a client, intentionally failing to carry out a contract of employment, engaging in conduct that adversely reflected on his fitness to practice law, and failing to cooperate in the ensuing disciplinary investigation. Dayton Bar Assn. v. Engel, 105 Ohio St.3d 49, 2004-Ohio-6900, 822 N.E.2d 346.

         {¶ 3} In an August 3, 2016 complaint, relator, disciplinary counsel, alleged that Engel neglected a single client matter, failed to keep the client reasonably informed about the status of her legal matter and to comply with her reasonable requests for information, failed to promptly refund the unearned portion of his fee, and failed to cooperate in the resulting disciplinary investigation. The parties submitted joint stipulations in which Engel admitted the charged misconduct and agreed that three aggravating factors and four mitigating factors are present.

         {¶ 4} A panel of the Board of Professional Conduct conducted a hearing at which it heard testimony from Engel and three character references and viewed the video deposition of Engel's treating psychologist.

         {¶ 5} The panel adopted the parties' stipulations and recommended that Engel be suspended from the practice of law for two years with 18 months of the suspension stayed provided that he meet certain conditions before reinstatement and that once reinstated to the practice of law, he serve a two-year period of monitored probation. The board adopted the panel's report and recommendation, with an additional requirement that on seeking reinstatement, Engel must provide an opinion from a qualified healthcare professional that he is able to return to the competent and ethical professional practice of law. Engel objects to the panel's denial of his motion to supplement his postearing brief and to the board's recommended sanction. For the reasons that follow, we overrule Engel's objections, adopt the board's findings of fact, misconduct, and aggravating and mitigating factors, and suspend Engel from the practice of law for two years with 18 months of the suspension stayed, and we place the recommended conditions on his reinstatement.

         Misconduct

         {¶ 6} In April 2015, Dianne Shelton hired Engel to represent her in a consumer- debt action. Engel sent letters to counsel for Shelton's creditor on April 27 and June 22, 2015, but Engel did not respond to Shelton's multiple efforts to reach him or take any other action to settle her debt before she filed a grievance with relator in August 2015.

         {¶ 7} Engel responded to relator's original letter of inquiry in October 2015 and promised, during a November 19, 2015 telephone conversation with relator, that he would contact Shelton. But he had no contact with Shelton or relator until mid-February 2016. After informing relator that Shelton had agreed to continue his representation and exchanging a few e-mails with Shelton, Engel had no further contact with her until early March-when Shelton told him that she had settled the matter herself. Engel did not respond to relator's letters requesting that he submit proof that he had honored his promise to refund the balance of Shelton's retainer until relator served him with a subpoena for his deposition at the end of May. But even then, he did not provide a copy of the correspondence he had sent to Shelton. The parties stipulated that Engel refunded $50 of Shelton's $500 retainer on May 24, 2016, followed by the remaining $450 on July 11, 2016.

         {¶ 8} Therefore, the parties stipulated and the board found that Engel violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed about the status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with reasonable requests for information from the client), 1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the lawyer's withdrawal from employment), and 8.1(b) and Gov.Bar R. V(9)(G) (both requiring a lawyer to cooperate with a disciplinary investigation).

         {¶ 9} We adopt the board's findings of fact and misconduct.

         Recommended Sanction

         {¶ 10} When imposing sanctions for attorney misconduct, we consider several 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.

         {¶ 11} Here, the board considered Engel's misconduct and adopted the parties' stipulated aggravating factors, which include two instances of prior discipline, the commission of multiple offenses, and Engel's failure to cooperate in the investigative stage of the disciplinary process. See Gov.Bar R. V(13)(B)(1), (4), and (5). The board also adopted the parties' stipulations regarding the applicable mitigating factors, including the absence of a dishonest or selfish motive, Engel's eventual full and free disclosure to the board and cooperative attitude toward the disciplinary ...


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