Modest Means
A bar discipline matter will be argued tomorrow before the Ohio Supreme Court
Lorain County Bar Association v. Kenneth A. Nelson II, Case No. 2021-0759
Lorain County
An Avon Lake attorney accused of mishandling bar association referrals of clients and falsely stating in a legal document that he wasn’t being investigated for professional misconduct is facing a two-year suspension, with one year stayed.
Kenneth Nelson participated in a Lorain County Bar Association lawyer referral program called “Modest Means” for clients experiencing financial hardships. Nelson was given a fee agreement to use with Modest Means clients. The Board of Professional Conduct determined that he didn’t employ the agreement with multiple clients in 2019 and 2020.
Nelson has been disciplined twice before for attorney misconduct. In May 2020, he applied to the Ohio Supreme Court to end a period of probation that was part of his second disciplinary sanction. In the paperwork he submitted, he stated there were no pending disciplinary proceedings against him.
However, the board stated, he was communicating with the bar association about the current allegations just days before filing his request to terminate his probation.
Nelson objects to the board’s factual findings, legal conclusions, and proposed suspension. Maintaining that his missteps were caused by his misunderstanding of the referral program, he argues a fully stayed suspension will protect the public.
Because of his objections, the Ohio Supreme Court must hold oral argument in the disciplinary case.
Attorney Accepts 18 Referrals from Modest Means Program
As part of participating in the Modest Means program, Nelson agreed to accept a $500 retainer from referred clients and to charge a rate of $75 per hour. In 2019 and 2020, he worked with 18 clients referred from the program. The board’s report states that Nelson didn’t use the fee agreement provided by the program but, instead, created his own. Nor did he deposit his referral clients’ money into his client trust account, known as an IOLTA, the board noted.
The attorney argued he thought the program was a flat-fee arrangement “earned upon receipt” for clients who were referred. He believed that the professional conduct rules prohibited him from depositing money earned in this manner into a client trust account. He waived all fees above $500, which he said illustrated his misunderstanding of the program.
The board report noted Nelson was asked to provide the 18 signed fee agreements for the referral program clients, but he produced only one. He testified at a deposition that he and his legal assistant were forced to leave their office during the May 2020 racial justice protests in Cleveland. He said his legal assistant took the box with the fee agreements and was unable to locate them afterward.
Board Panel Reviews Misconduct Allegations
The board’s three-member panel that heard his case questioned the truthfulness of this testimony. In part, the panel noted, Nelson didn’t call his legal assistant at the disciplinary hearing to corroborate his argument and he didn’t reach out to his clients to testify or provide their copies of the fee agreements to support his defense.
“[Nelson] is not a novice attorney and not unfamiliar with the disciplinary process,” the panel stated in the board report. “The panel finds that such conduct evidences [Nelson’s] failure to learn from his prior sanctions or an attempt to cover up his mistake, or both.”
The board determined that Nelson violated professional conduct rules regarding the proper administration of client funds, as well as rules prohibiting false statements to disciplinary authorities and conduct involving fraud, deceit, dishonesty, or misrepresentation.
One year of the board’s suggested two-year suspension will be stayed if Nelson commits no further misconduct. The board recommends that, if reinstated, Nelson be required to work with a monitoring attorney for two years – which will include monthly reviews of his fee agreements and compliance with IOLTA regulations.
Attorney Disputes Aspects of Findings, Believes Stayed Suspension Protects Public
Nelson notes that the panel found the one fee agreement from 2020 he did provide complied with professional conduct rules. He maintains that this agreement was executed in March 2020 before the bar association began its investigation.
He contends that a fully stayed suspension was agreeable to the bar association, but the panel rejected the proposal because of his prior discipline. He also contends that when he filed his May 2020 request to end his probation, he thought the bar association was investigating his compliance with his probation terms, not a new violation of the ethics rules.
He states that no client was harmed and an actual suspension isn’t necessary to protect the public. Two years of oversight by a monitor will ensure that he commits no future disciplinary violations, he concludes.
Bar Association Contends Timeout Necessary
The bar association maintains that it informed Nelson in late April 2020 of its intent to request that his probation be revoked because he wasn’t depositing referral client funds into his client trust account. On May 18, Nelson attended a meeting with the bar association to discuss his noncompliance, yet he still filed his application with the Court to end his probation from the earlier disciplinary case just four days later, the group states. It agrees with the board’s conclusion that Nelson knew his affidavit statement that no disciplinary proceedings were pending against him was false.
The bar association notes that Nelson’s monitor testified that Nelson committed misconduct during his probationary period. Nelson needs time away from the practice of law to consider the seriousness of his misconduct, while also allowing him to return to being an attorney at a later time with stringent precautions, the bar association maintains.
– Kathleen Maloney
(Mikw Frisch)