Cleveland Metropolitan Bar Ass'n v. Axner ( 2013 )

[Cite as Cleveland Metro. Bar Assn. v. Axner, 135 Ohio St.3d 241, 2013-Ohio-400.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. AXNER.
[Cite as Cleveland Metro. Bar Assn. v. Axner, 135 Ohio St.3d 241,
2013-Ohio-400.]
Attorney misconduct—Multiple disciplinary violations—Improper employment of
suspended attorney—Indefinite suspension.
(No. 2012-1340—Submitted January 9, 2013—Decided February 14, 2013.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-036.
__________________
Per Curiam.
{¶ 1} Respondent, Gary Ray Axner of Cleveland, Ohio, Attorney
Registration No. 0018278, was admitted to the practice of law in Ohio in 1971. In
a five-count amended complaint filed in October 2011, relator, Cleveland
Metropolitan Bar Association, charged Axner with professional misconduct
arising from his alleged neglect of five separate client matters, his failure to
reasonably communicate with some of those clients, his employment of a
suspended attorney for approximately 13 years, and his initial failure to cooperate
in two of the resulting disciplinary investigations.1
{¶ 2} The parties submitted several stipulations of fact and misconduct, 57
exhibits, and ten witnesses, including Axner. The panel of the Board of
Commissioners on Grievances and Discipline found that relator had proven many
of its alleged violations by clear and convincing evidence but, citing the
1. Although some of Axner’s alleged acts of misconduct occurred before the February 1, 2007
effective date of the Rules of Professional Conduct, relator has not alleged any violations of the
Disciplinary Rules of the Code of Professional Responsibility, which governed attorney
misconduct that occurred before that date.
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insufficiency of the evidence, recommended that Count One and certain violations
alleged in Count Two be dismissed. Having considered its findings of
misconduct, the applicable aggravating and mitigating factors, and the sanctions
imposed for comparable misconduct, the panel recommended that Axner be
indefinitely suspended from the practice of law. The board adopted the panel’s
findings of fact and its recommended sanction. We are persuaded to accept the
recommendation of the board. Accordingly, we indefinitely suspend Axner.
Misconduct
Count One—The Calvey Matter
{¶ 3} The first count of relator’s complaint relates to Axner’s agreement to
handle a personal bankruptcy for Patricia and Timothy Calvey. It alleged that
Axner neglected the couple’s legal matter by failing to file a bankruptcy petition
during his nearly 18 months of representation, failing to reasonably communicate
with the couple, and charging an unreasonable and clearly excessive fee by
retaining $500 of their $1,399 retainer for services rendered upon the termination
of his representation.
{¶ 4} Having considered the parties’ stipulations and the testimony
regarding this count, the board found that the Calveys’ bankruptcy was less than
simple due to unforeseen complications, including an automobile accident and a
resulting personal-injury claim that the couple did not initially disclose to Axner.
And while the board noted that there was room to criticize Axner for his
inattentiveness and his communication style, the board could not say with firm
conviction that Axner demonstrated an unreasonable lack of diligence. Moreover,
the board was not convinced that the portion of the retainer that Axner kept was
unreasonable in light of the indisputable preparatory work that he had performed
on the Calveys’ case. Therefore, we adopt the board’s recommendation and
dismiss Count One in its entirety.
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January Term, 2013
Count Two—The Norman Matter
{¶ 5} Phyllis Norman retained Axner in November 2007 to file a
bankruptcy petition on her behalf and paid installments totaling $1,000 for
Axner’s fee and an additional $399 for costs. The parties stipulate that Axner
ignored Norman’s telephone calls and messages from the time he was retained
until July 2010—more than two and a half years. In order to speak to Axner,
Norman would go to his office during his Saturday office hours without an
appointment and wait to see him. At those meetings, Axner assured Norman that
he would file her bankruptcy petition “next week,” yet nothing happened.
Norman testified that Axner’s failures caused her a lot of stress and, when she
grew tired of waiting, she filed a grievance with relator. Upset that she had
contacted relator, Axner finally called her back and soon filed her bankruptcy
petition. She finally received her bankruptcy discharge in January 2011—more
than three years after she retained Axner. The parties stipulate that the delays in
Norman’s case were due to Axner’s neglect or lack of diligence.
{¶ 6} Based on these facts, the board found that Axner had violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting
a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness
to practice law). But, stating that there was insufficient evidence to establish that
discrepancies between the fees Axner had received from Norman and the amount
that he reported to the bankruptcy court resulted from misrepresentation, the
board recommends that we dismiss alleged violations of Prof.Cond.R. 3.3(a)(1)
(prohibiting a lawyer from knowingly making a false statement of fact or law to a
tribunal) and 8.4(d) (prohibiting a lawyer from engaging in conduct that is
prejudicial to the administration of justice). We adopt the board’s findings of fact
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and misconduct with respect to this count and hereby dismiss the alleged
violations of Prof.Cond.R. 3.3(a)(1) and 8.4(d).
Count Three—Failure to Cooperate
{¶ 7} The board found that Axner had violated Gov.Bar R. V(4)(G)
(requiring a lawyer to cooperate with a disciplinary investigation) and
Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly failing to respond to a
demand for information by a disciplinary authority during an investigation) by
failing to respond to relator’s letter of inquiry regarding the Calvey and Norman
grievances and failing to comply with a subpoena for his deposition and the
production of documents. The board also noted that Axner was not candid either
about his reasons for his absence, stating that he had to attend his aunt’s funeral
(which occurred several days after the scheduled deposition), or about his
intention to retain certain counsel. We adopt the board’s findings of fact and
misconduct with respect to this count.
Count Four—The Carroll Matter
{¶ 8} The parties stipulate and the board found that on May 2, 2009,
Clinton and Wendy Carroll retained Axner to represent them in a Chapter 7
bankruptcy proceeding. By early September 2009, they had paid him a total of
$1,399, but he did not file their bankruptcy petition until mid-October 2010. The
bankruptcy court ordered Axner to disgorge $200 of his fee to the Carrolls after
he failed to attend a meeting of creditors. Axner subsequently converted the
bankruptcy to a Chapter 13 proceeding, but the first meeting of creditors had to be
rescheduled because he arrived late and inebriated. Throughout these delays,
Axner was not responsive to the Carrolls’ communications. They missed work to
attend the creditor meetings that Axner missed and had to repeat their credit-
counseling course due to his delays.
{¶ 9} The parties stipulated that Axner’s conduct violated Prof.Cond.R.
1.3. The board adopted that stipulation and also found that his conduct violated
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Prof.Cond.R. 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), 1.4(b)
(requiring a lawyer to explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation), 8.4(d),
and 8.4(h) as charged in the complaint. We adopt these findings of fact and
misconduct.
Count Five—Employment of a Suspended Attorney
{¶ 10} The parties stipulate that Axner employed suspended attorney
Howard Schuman for about 13 years following his 1998 suspension.2 While
Axner and Schuman initially attended meetings at clients’ homes together, Axner
eventually allowed Schuman to meet alone with clients. He generally split his
fees evenly with Schuman and never registered this employment relationship with
the Office of Disciplinary Counsel as required by Gov.Bar R. V(8)(G) (requiring
an attorney or law firm seeking to enter into an employment, contractual, or
consulting relationship with a suspended attorney to register that relationship with
the Office of Disciplinary Counsel).
{¶ 11} Axner violated an administrative order of the bankruptcy court by
failing to meet with his clients Traci Robinson and Barbara Wojciechowski before
the meetings of creditors in their cases. Instead, he relied upon Schuman to meet
with these clients and collect Robinson’s fees. He failed to attend the meeting of
creditors in both cases and, with respect to the Wojciechowski matter, failed to
file required documents, failed to keep the client reasonably informed of the status
of her case, failed to respond to the client’s requests for information, and failed to
2. Although we suspended Schuman for one year, we placed certain conditions on his
reinstatement to the practice of law, and to date, he has not applied for reinstatement. Cleveland
Bar Assn. v. Schuman, 81 Ohio St.3d 185, 690 N.E.2d 1 (1998). Moreover, in 2005, we imposed
an attorney-registration suspension against Schuman. In re Attorney Registration Suspension of
Schuman, 107 Ohio St.3d 1431, 2005-Ohio-6408, 838 N.E.2d 671.
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explain matters sufficiently to allow the client to make informed decisions.
Additionally, the parties stipulated that on April 14, 2011, Axner was drinking
before court and appeared drunk before federal Bankruptcy Judge Randolph
Baxter.
{¶ 12} With respect to this count, the parties stipulated and the board
found that Axner had violated Prof.Cond.R. 1.3, 1.4(a)(2), 1.4(b), 5.4(a)
(prohibiting a lawyer or law firm from sharing legal fees with a nonlawyer, except
in certain enumerated circumstances not applicable here), and 5.5(a) (prohibiting
a lawyer from practicing law in a jurisdiction in violation of the regulation of the
legal profession in that jurisdiction or assisting another in doing so) and Gov.Bar
R. V(8)(G)(3). The board also found that Axner’s conduct with respect to
Robinson and Wojciechowski violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer
from knowingly disobeying an obligation under the rules of a tribunal), 8.4(c),
8.4(d), and 8.4(h). We adopt these findings of fact and misconduct.
Sanction
{¶ 13} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 14} As aggravating factors, the parties stipulated and the board found
that Axner has engaged in a pattern of misconduct involving multiple offenses.
See BCGD Proc.Reg. 10(B)(1)(c) and (d). The board also found that Axner had
acted with a selfish motive and took advantage of vulnerable clients. See BCGD
Proc.Reg. 10(B)(1)(b) and (h).
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{¶ 15} As mitigating factors, the parties stipulated that Axner does not
have a prior disciplinary record, has fully and freely cooperated in the disciplinary
proceeding since obtaining counsel, and has been diagnosed with a chemical
dependency for which he has completed an intensive outpatient program. See
BCGD Proc.Reg. 10(B)(2)(a), (d), and (g). The board, however, noted that Axner
initially failed to cooperate in relator’s disciplinary investigation, that Axner’s
attendance at Alcoholics Anonymous (“AA”) meetings continued to drop, and
that when asked whether Axner was currently able to practice law competently
and ethically, his counselor replied, “I believe he’s currently working a good
recovery program.” And although the board acknowledged that some of Axner’s
misconduct could be attributed to his alcoholism, it found that there was no
evidence that his alcoholism was at the root of his 13-year de facto partnership
with Schuman. Therefore, the board found that the only mitigating factor present
was the absence of a prior disciplinary record.
{¶ 16} In his closing brief following the panel hearing, Axner argued that
the appropriate sanction for his misconduct was a suspension of an unspecified
duration, fully stayed on the conditions that he serve a period of monitored
probation and regularly attend AA. In contrast, citing Columbus Bar Assn. v. Van
Sickle, 128 Ohio St.3d 376, 2011-Ohio-774, 944 N.E.2d 677, relator recommends
that he be indefinitely suspended and that any future reinstatement be conditioned
on Axner’s entering into and successfully completing a contract with the Ohio
Lawyers Assistance Program (“OLAP”). In Van Sickle, we imposed an indefinite
suspension on an attorney who engaged in the practice of law while his license
was under a registration suspension, neglected legal matters to the detriment of
his clients, and failed initially to cooperate in the ensuing disciplinary
investigations. Id. at ¶ 15. We also conditioned any future reinstatement on his
participation in OLAP and treatment for his diagnosed depression. Id. at ¶ 16.
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{¶ 17} In rejecting Axner’s proposed sanction, the board noted that in
addition to neglecting work that his clients entrusted to him, Axner “committed
significant additional misconduct evincing dishonesty and a selfish motive by
knowingly partnering with a suspended lawyer (Mr. Schuman) for as many as 14
years and deriving substantial profits from that illicit arrangement, by deliberately
failing to report that arrangement to the Office of Disciplinary Counsel, by
deliberately failing to cooperate in Relator’s investigation, and by knowingly
misrepresenting his reasons for that failure.” He also appeared in court while
drunk. Viewing these instances of misconduct in the aggregate, the board found
that Axner’s conduct presented an “extraordinary risk” to the public. Recognizing
that we have imposed sanctions ranging from a public reprimand to permanent
disbarment on attorneys who have assisted suspended or disbarred attorneys in the
unauthorized practice of law, and stating that it “could find no instance of an
attorney enabling ineligible persons to practice law that was more extreme,
flagrant, and protracted than Respondent’s,” the board recommends that we
indefinitely suspend Axner from the practice of law. See, e.g., Disciplinary
Counsel v. Willis, 96 Ohio St.3d 142, 2002-Ohio-3614, 772 N.E.2d 625 (publicly
reprimanding an attorney who permitted a disbarred lawyer to handle client
matters without supervision for more than 18 months); Cincinnati Bar Assn. v.
Fehler-Schultz, 64 Ohio St.3d 452, 597 N.E.2d 79 (1992) (indefinitely suspending
an attorney who, among other things, permitted a suspended lawyer with felony
convictions for theft, forgery, and uttering to handle a full range of client matters);
Stark Cty. Bar Assn. v. George, 45 Ohio St.2d 267, 344 N.E.2d 132 (1976)
(disbarring an attorney who turned over his bankruptcy practice to his brother,
who was not a lawyer).
{¶ 18} We adopt the board’s findings of fact in aggravation and mitigation
and agree that an indefinite suspension is the proper sanction for Axner’s
misconduct. Accordingly, we indefinitely suspend Gary Ray Axner from the
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practice of law in Ohio. Any future reinstatement shall be conditioned on his
entering into an OLAP contract, the duration of which shall be determined by
OLAP, and his full compliance with that contract. Costs are taxed to Axner.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
__________________
Heather M. Zirke, Assistant Bar Counsel, Andrew C. Geronimo, and
Stephen D. Hobt, for relator.
Gary Ray Axner, pro se.
______________________
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