Cleveland Metropolitan Bar Association v. Wintner. ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Wintner, Slip Opinion No. 2018-Ohio-4731.]
NOTICE
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SLIP OPINION NO. 2018-OHIO-4731
CLEVELAND METROPOLITAN BAR ASSOCIATION v. WINTNER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland Metro. Bar Assn. v. Wintner, Slip Opinion No.
2018-Ohio-4731.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed one-year suspension.
(No. 2018-0810—Submitted June 26, 2018—Decided November 28, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2018-009.
__________________
Per Curiam.
{¶ 1} Respondent, Jennifer Ellen Wintner, of Cleveland, Ohio, Attorney
Registration No. 0014507, was admitted to the practice of law in Ohio in 1984. On
November 1, 2013, we suspended her from the practice of law based on her failure
to register as an attorney for the 2013/2015 biennium. In re Attorney Registration
Suspension of Wintner, 136 Ohio St. 3d 1544, 2013-Ohio-4827, 996 N.E.2d 973.
SUPREME COURT OF OHIO
We reinstated her license to practice law on September 9, 2014. In re Reinstatement
of Wintner, 140 Ohio St. 3d 1457, 2014-Ohio-4466, 17 N.E.3d 602.
{¶ 2} On February 1, 2018, relator, Cleveland Metropolitan Bar
Association, charged Wintner with professional misconduct arising from her
neglect and failure to reasonably communicate with a single client. A panel of the
Board of Professional Conduct considered the cause on the parties’ consent-to-
discipline agreement. See Gov.Bar R. V(16).
{¶ 3} The parties stipulated that in March 2016, Michelle Troutman hired
Wintner to investigate the possibility of Troutman obtaining a historic-preservation
tax credit for a building that Troutman had purchased. Wintner did not enter into
an engagement agreement regarding the nature and scope of Wintner’s
representation or establish the basis or rate of Wintner’s fee and expenses beyond
exploring the possibility of obtaining the tax credit. Wintner also failed to inform
Troutman that Wintner did not carry professional-liability insurance. Although
Wintner met with Troutman and completed some of the work that Troutman had
hired Wintner to do—and for which Troutman paid Wintner $500—Wintner did
not complete the work and stopped responding to Troutman’s communications.
Eventually, Troutman contacted another attorney for assistance with filing the
application for a historic-preservation tax credit.
{¶ 4} Wintner admits that her conduct violated Prof.Cond.R. 1.3 (requiring
a lawyer to act with reasonable diligence in representing a client), 1.4(a)(4)
(requiring a lawyer to comply as soon as practicable with reasonable requests for
information from the client), 1.4(c) (requiring a lawyer to inform the client if the
lawyer does not maintain professional liability insurance), and 1.5(b) (requiring an
attorney to communicate, within a reasonable amount of time after commencing
the representation, the nature and scope of the representation and the basis or rate
of the fee and expenses for which the client will be charged).
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January Term, 2018
{¶ 5} In addition to three mitigating factors—the absence of a dishonest or
selfish motive, Wintner’s acknowledgment of the wrongful nature of her conduct,
and her willingness to work with a mentoring attorney during the period of a stayed
suspension—the parties also stipulated that Wintner is willing to refund $250 of the
$500 that she received from Troutman. See generally Gov.Bar R. V(13)(C). The
only aggravating factor in this case is Wintner’s previous attorney-registration
suspension. See Gov.Bar R. V(13)(B)(1).
{¶ 6} The parties recommended that Wintner be suspended for one year,
with the entire suspension stayed on conditions, including a one-year period of
monitored probation, paying Troutman $250 in restitution, and completing six
additional hours of continuing legal education (“CLE”) in law-practice
management. In support of that recommendation, the parties cite two cases in
which we imposed conditionally stayed six-month suspensions on attorneys who
violated Prof.Cond.R. 1.3, 1.4, and 1.5 in relation to a single client matter when no
aggravating factors existed and multiple mitigating factors were present. See
Mahoning Cty. Bar Assn. v. Malvasi, 143 Ohio St. 3d 140, 2015-Ohio-2361, 34
N.E.3d 916, and Dayton Bar Assn. v. Strahorn, 152 Ohio St. 3d 288, 2017-Ohio-
9204, 95 N.E.3d 369.
{¶ 7} In addition to the cases cited by the parties, the panel considered
Columbus Bar Assn. v. McNeal, 152 Ohio St. 3d 37, 2017-Ohio-8775, 92 N.E.3d
840, and Cleveland Metro. Bar Assn. v. Freeman, 128 Ohio St. 3d 416, 2011-Ohio-
1447, 945 N.E.2d 515. McNeal was retained by a husband and wife to assist them
with potentially filing a complaint in a home-warranty matter. McNeal took some
action on behalf of his clients and then failed to respond to their requests for
information regarding the status of their matter. In the presence of just one
aggravating factor and several mitigating factors, we suspended McNeal for one
year, with the entire suspension stayed on conditions. We also imposed that same
sanction on Freeman, who failed to exercise reasonable diligence and did not
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reasonably communicate with clients in two separate matters. And although
Freeman had previously been publicly reprimanded for similar misconduct, we
determined that a conditionally stayed one-year suspension was warranted in that
situation.
{¶ 8} Based on the foregoing, we agree that Wintner’s conduct violated
Prof.Cond.R. 1.3, 1.4(a)(4), 1.4(c), and 1.5(b) and that a one-year suspension, all
stayed on the conditions agreed to by the parties, is the appropriate sanction for her
misconduct. Therefore, we adopt the parties’ consent-to-discipline agreement.
{¶ 9} Accordingly, Jennifer Ellen Wintner is suspended from the practice
of law in Ohio for one year, with the entire suspension stayed on the conditions that
she (1) make restitution of $250 to Michelle Troutman within 90 days of this
decision, (2) in addition to the biennial requirements set forth in Gov.Bar R. X,
complete six hours of CLE in law-practice management, (3) serve a one-year period
of monitored probation in accordance with Gov.Bar R. V(21), and (4) engage in no
further misconduct. If Wintner fails to comply with any condition of the stay, the
stay will be lifted and she will serve the full one-year suspension. Costs are taxed
to Wintner.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
O’DONNELL, J., concurs, but would order full restitution in the amount of
$500.
_________________
Giffen & Kaminski, L.L.C., Kathleen A. Nitschke, and Lauren C.
Tompkins; and Heather M. Zirke, Bar Counsel, and Kari L. Burns, Assistant Bar
Counsel, for relator.
Jennifer Ellen Wintner, pro se.
_________________
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