Akron Bar Assn. v. Glitzenstein (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Akron Bar Assn. v. Glitzenstein, Slip Opinion No. 2018-Ohio-3862.]
NOTICE
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SLIP OPINION NO. 2018-OHIO-3862
AKRON BAR ASSOCIATION v. GLITZENSTEIN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Akron Bar Assn. v. Glitzenstein, Slip Opinion No.
2018-Ohio-3862.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including client-trust-account mismanagement—Conditionally stayed 18-
month suspension.
(No. 2018-0255—Submitted February 27, 2018—Decided September 26, 2018.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2017-033.
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Per Curiam.
{¶ 1} Respondent, Jonell Rae Glitzenstein, of Akron, Ohio, Attorney
Registration No. 0061889, was admitted to the practice of law in Ohio in 1993.
{¶ 2} In a formal complaint certified to the Board of Professional Conduct
on June 29, 2017, relator, Akron Bar Association, charged Glitzenstein with
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multiple ethical violations. The alleged violations arose from her failure to properly
use and maintain her client trust account, reasonably communicate with a client,
protect the interests of two clients on the termination of her representation, and
promptly refund an unearned fee. A panel of the board considered the cause on the
parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).
{¶ 3} The parties stipulated that Glitzenstein received more than $180,000
in client funds from January 2013 through mid-March 2017. Although a substantial
portion of those funds represented retainers and cost advances, she did not deposit
them into her client trust account and thereby violated Prof.Cond.R. 1.15(a)
(requiring a lawyer to hold the property of clients in an interest-bearing client trust
account, separate from the lawyer’s own property) and 1.15(c) (requiring a lawyer
to deposit into a client trust account legal fees and expenses that have been paid in
advance). She failed to maintain ledger sheets for her clients documenting the
funds she held on their behalf and failed to maintain other required records for her
client trust account in violation of Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to
maintain a record for each client that sets forth the name of the client; the date,
amount, and source of all funds received on behalf of the client; and the current
balance for each client) and 1.15(a)(3) (requiring a lawyer to maintain a record for
the lawyer’s client trust account, setting forth the name of the account; the date,
amount, and client affected by each credit and debit; and the balance in the account).
{¶ 4} In addition, Glitzenstein failed to respond to one client’s messages
stating that she no longer wanted to proceed with her divorce and waited nearly two
years to refund the unearned portion of that client’s retainer. She also failed to
return another client’s original documents—even after relator informed her that
there was no need for her to retain those documents. The parties stipulated that this
conduct violated Prof.Cond.R. 1.4(a)(4) (requiring a lawyer to comply as soon as
practicable with reasonable requests for information from the client), 1.16(d)
(requiring a lawyer withdrawing from representation to take steps reasonably
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January Term, 2018
practicable to protect a client’s interest), and 1.16(e) (requiring a lawyer to
promptly refund any unearned fee upon the lawyer’s withdrawal from
employment).
{¶ 5} The parties agree that three aggravating factors are present:
Glitzenstein acted with a selfish motive, engaged in a pattern of misconduct, and
committed multiple offenses. See Gov.Bar R. V(13)(B)(2), (3), and (4). Stipulated
mitigating factors include the absence of prior discipline, a cooperative attitude
toward the disciplinary proceedings, and Glitzenstein’s November 28, 2017
execution of a two-year contract with the Ohio Lawyers Assistance Program
(“OLAP”). See Gov.Bar R. V(13)(C)(1) and (4).
{¶ 6} The board recommends that we adopt the parties’ consent-to-
discipline agreement and suspend Glitzenstein from the practice of law for 18
months, all stayed on conditions.
{¶ 7} Of the four cases that the parties cited in support of their stipulated
sanction, the board found Disciplinary Counsel v. Barbera, 149 Ohio St. 3d 505,
2017-Ohio-882, 75 N.E.3d 1248, to be most instructive. Barbera’s misconduct was
similar to Glitzenstein’s in that it involved the mismanagement of his client trust
account. But in addition to failing to maintain appropriate records, Barbera
commingled personal and client funds based on his erroneous belief that all of the
money coming into his practice—including money he had already earned—had to
be deposited in his client trust account. He also failed to cooperate in the relator’s
investigation. We suspended Barbera from the practice of law for one year, all
stayed on the conditions that he obtain additional continuing legal education
(“CLE”) focused on client-trust-account management, comply with an OLAP
contract for his diagnosed mental disorders, and serve a period of monitored
probation.
{¶ 8} The board reviewed additional cases in which we imposed fully
stayed suspensions for comparable misconduct on the condition that the attorneys
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obtain additional education and monitoring to ensure the institution and
maintenance of good practice habits. See, e.g., Disciplinary Counsel v. Johnston,
121 Ohio St. 3d 403, 2009-Ohio-1432, 904 N.E.2d 892 (imposing a one-year
suspension, stayed on conditions including a period of monitored probation and
completion of CLE in law-office management and accounting, for misconduct
involving the commingling of personal and client funds in and multiple overdrafts
of the attorney’s client trust account). The board also noted that actual suspensions
are typically reserved for client-trust-account violations that involve elements of
dishonesty or client harm that are not present in this case. See, e.g., Disciplinary
Counsel v. Vogtsberger, 119 Ohio St. 3d 458, 2008-Ohio-4571, 895 N.E.2d 158
(imposing a two-year suspension with one year stayed on an attorney who deposited
personal funds into his client trust account to shield the funds from creditors);
Dayton Bar Assn. v. Scaccia, 141 Ohio St. 3d 35, 2014-Ohio-4278, 21 N.E.3d 290
(imposing a one-year suspension with six months stayed on an attorney who
mismanaged and neglected a case resulting in its dismissal, used client retainers to
pay expenses without providing adequate documentation, failed to maintain
required client-trust-account records, and failed to make restitution to all of the
affected clients).
{¶ 9} Based on the foregoing, we agree that Glitzenstein’s conduct violated
Prof.Cond.R. 1.15(a), 1.15(a)(2), 1.15(a)(3), 1.15(c), 1.4(a)(4), 1.16(d), and 1.16(e)
and that an 18-month suspension stayed in its entirety is the appropriate sanction
for that misconduct. We therefore adopt the parties’ consent-to-discipline
agreement.
{¶ 10} Accordingly, Jonell Rae Glitzenstein is suspended from the practice
of law in Ohio for 18 months, all stayed on the conditions that she comply with her
November 28, 2017 OLAP contract and any extension thereto; complete at least six
hours of CLE (in addition to the requirements of Gov.Bar R. X) focused on law-
office management, the proper use of a client trust account, and the proper
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January Term, 2018
maintenance of client-trust-account records; complete an 18-month period of
monitored probation with a focus on law-office management and compliance with
client-trust-account requirements; and engage in no further misconduct. If
Glitzenstein fails to comply with a condition of the stay, the stay will be lifted and
she will serve the full 18-month suspension. Costs are taxed to Glitzenstein.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEGENARO, JJ., concur.
DEWINE, J., not participating.
_________________
Roderick, Linton, Belfance, L.L.P., and Robert M. Gippen; Deborah L.
Ruby, Co., L.P.A., and Deborah L. Ruby; and Wayne M. Rice, Bar Counsel, for
relator.
Montgomery, Rennie, & Jonson, L.P.A., George D. Jonson, and Linda L.
Woeber, for respondent.
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