To Suspend Or Not to Suspend

An oral argument preview on the web page of the Ohio Supreme Court

Disciplinary Counsel v. Andrew Mahlon Engel, Case no. 2017-1087
Montgomery County

A Dayton area lawyer who has twice been sanctioned by the Ohio Supreme Court for violating the rules governing attorneys faces a two-year suspension, with 18 months stayed, for failing to respond to a client matter and other conduct violations.

The Board of Professional Conduct recommends the suspension of Andrew M. Engel of Centerville, who was publicly reprimanded by the Supreme Court in 2001, and suspended for two years, with six months stayed, in 2004. The board is recommending Engel now be forced to cease practicing law for six months with the possibility of having to sit out two years if he doesn’t meet certain conditions.

Engel counters that he provided the board sufficient evidence to show he was suffering from a mental health disability at the time of his misconduct and that he is successfully undergoing treatment for the condition. He argues that his behavior warrants a fully stayed two-year suspension as long as he meets the conditions recommended by the board.

Engel Neglects Client’s Debt Settlement Case
In April 2015 Dianne Shelton hired Engel to represent her in a consumer debt matter. She paid Engel a $500 retainer, and he obtained information from Shelton and two municipal courts in order to pursue a settlementwith Shelton’s creditor. Shelton had explained to Engel that the debt was preventing her and her husband from financing the purchase of a home.

About two weeks after the initial meeting, Engel sent a letter to the lawyer for the creditor. More than a month later, Shelton called Engel seeking information about the status of her case and was unable to reach him. In mid-June Engel promised to call the opposing attorney to follow up, and then sent a follow up letter to the creditor’s lawyer. Between June and mid-August, Shelton repeatedly tried to reach Engel about the status of her case, and Engel didn’t respond to phone calls or emails. By mid-August, Engel hadn’t spoken directly to the opposing attorney, and Shelton field a grievance against Engel with the Office of Disciplinary Counsel.

In September 2015, Engel responded to Shelton by email and sent another follow up letter to the opposing attorney. At the time he wasn’t aware of the grievance Shelton filed against him. In October, the disciplinary counsel sent a letter of inquiry to Engel, and Engel responded later that month. In November, he told the disciplinary counsel he would contact Shelton and ask if she wanted him to continue to represent her or return her fees.

But Engel didn’t respond to follow up contacts from Shelton or the disciplinary counsel until February 2016. She agreed to allow Engel to continue to represent her, but after not hearing from him for several weeks, she settled her debt herself in March 2016. After being informed of the settlement, Engel promised to refund Shelton the “balance” of her $500 retainer. In May 2016, Engel sent Shelton $50. The disciplinary counsel continued to request documentation from Engel who appeared for a June 2016 deposition. Weeks after the deposition, Engel sent a letter to Shelton apologizing for her failure to respond to her, and refunded the remaining $450 of her retainer.

A three-member panel of the board found Engel violated several rules of professional conduct while representing Shelton, including a requirement that he act with diligence to resolve her legal matter, and failing to keep her reasonably informed about the status of her case. The board also found that he failed to respond to information requests from the disciplinary counsel and violated his duty to cooperate with the disciplinary proceeding.

Board Considers Sanction
The board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it. The board noted that Engel has prior disciplinary offenses, committed multiple rules violations, and didn’t cooperate in the investigative stage of the disciplinary process.

It also found that he didn’t act with a dishonest or selfish motive, eventually made full disclosure to the board and cooperated in the proceedings, provided proof of good character and reputation, and presented proof of a disorder that affected his representation of Shelton.

The panel heard from several witnesses including psychologist Marsha K. Weston, who testified that Engel was depressed and anxious when he first started to see her in August 2016. Weston prescribed medication and said Engel responded well to it and can competently practice law.

Engel testified that he was insufficiently attentive to Shelton’s case and didn’t realize he was suffering from depression and anxiety that was affecting his practice. He admitted he should have been more responsive and that this type of misconduct will not happen again. He said he contracted with the Ohio Lawyers Assistance Program (OLAP) for treatment assistance and hired a new office associate to focus on client communications. He also entered into a mentoring relationship with attorney Jonathan Hollingsworth, the former Ohio State Bar Association president, who has advised Engel.

The disciplinary counsel recommended a two-year suspension with six months stayed. The board adopted the recommendation, stating it was consistent with sanctions imposed on lawyers with similar infractions. It recommended to the Supreme Court that the 18-month stay be conditioned on Engel continuing to receive counseling from Weston or another qualified health care provider; that he adhere to recommendations from his primary care physician, and stay in compliance with his OLAP contract. In addition, the board suggested that once Engel is reinstated to practicing law, he should be placed under two years of monitored probation.

Engel Seeks Fully Stayed Suspension
Engel notes the parties and the board stipulated to nearly all the facts as well as the aggravating and mitigating circumstances in the case, except for one. He argues the hearing panel did not “expressly” adopt the position that Engel’s mental disorder contributed to his misconduct or credit him for being sufficiently treated for the disorder. He also maintains the board didn’t consider his participation in OLAP, his attorney mentoring with Hollingsworth, or the changes to his legal practice as mitigating factors.

Engel cites several cases, including the Court’s recent 2017 Ashtabula County Bar Association v. Brown as examples where lawyers similarly situated to him have received fully stayed suspension on certain grounds. Engel noted that he had to part with his initial attorney handling his disciplinary matter after serious disagreements. He objects to the panel’s refusal to allow him to supplement his closing arguments with additional information, including the impact of the Brown case, which was decided after closing arguments were submitted. He maintains the failure to consider the cases he cited along without crediting him for his contributions to the profession by teaching for the Supreme Court’s Judicial College and representing a population that is underserved in Ohio led the board to erroneously suggest a sentence that prevents him from practicing law.

Disciplinary Counsel Says Suspension Warranted
The disciplinary counsel observes that this is the third time Engel has been found to have neglected a client and the second time he has failed to cooperate in a disciplinary matter, and insists that this behavior warrants an actual suspension from practicing law. The disciplinary counsel notes that Engel’s behavior caused a delay in Shelton’s ability to purchase a home and left her to settle her debt on her own.

The disciplinary counsel compares the mental disability claims of one of Engel’s past disciplinary matters with the current case. In Engel’s 2004 case, he didn’t receive mitigation credit for his mental disability because he didn’t present evidence that the depression contributed to his misconduct, the disciplinary counsel explains. The 2004 sanction specified his reinstatement was conditioned on providing a statement from a qualified mental health professional that he was could ethically and competently practice law, which he did provide.

Similarly to 2004, the disciplinary counsel contends in the Shelton matter, Engel presented evidence of a mental health disability, but no evidence that the disorder prevented him from following the professional conduct rules. The disciplinary counsel notes Engel didn’t seek treatment until after he received an official board complaint about his behavior.

The disciplinary counsel maintains that Weston, Engel’s treating psychologist, wouldn’t conclude whether Engel was competent to practice law when he sought treatment, and she could not explain why Engel neglected this client and apparently did not neglect other clients at the same time. Nevertheless, the disciplinary counsel argues the board did give Engel some mitigation credit for the disability.

Absent significant mitigation credit, Engel’s record and failure to cooperate would warrant an indefinite suspension, the disciplinary counsel argues. While the board may not have stated explicitly how it factored his mental health treatment into its finding, the recommended lower sanction of a two-year suspension, rather than an indefinite suspension, indicates Engel was given mitigation credit, the disciplinary counsel maintains.

The disciplinary counsel supports the proposed sanction recommended by the board, and argues that it’s consistent with prior sanctions handed down to attorneys displaying similar patterns of misconduct. The disciplinary counsel also rejects Engel’s arguments that he was unfairly prevented from providing supplemental material after closing arguments and suggests that Engel’s own inaction to promptly notify the board of his request for more time led to its exclusion.

– Dan Trevas

(Mike Frisch)