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ericfruits · 5 years ago

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Ohio Takes On Admissions Case

A preview of oral argument in a bar admission case by Dan Trevas on the web page of the Ohio Supreme Court

In re: Application of Cynthia M. Rodgers, Case no. 2019-1094 Board of Commissioners on Character and Fitness

A 2019 Capital University Law School graduate from Muskingum County is challenging the assessment that she doesn’t have the character and fitness to be a lawyer and that she not be permitted to take the Ohio bar exam until 2024.

Two members of the Muskingum County Bar Association interviewed Cynthia M. Rodgers of Dresden and concluded that she possesses the character and fitness to sit for the bar exam. However, the Supreme Court’s Board of Commissioners on Character and Fitness initiated its own investigation of Rodgers, and a three-member panel conducted a hearing in May 2019. The panel expressed concern that the 59-year-old Rodgers had been involved in almost 60 civil actions during her lifetime and disclosed many unpaid debts, including an estimated $340,000 in student loans.

Based on the panel hearing, the board recommended that Rodgers shouldn’t be permitted to take the bar exam in 2019, but should reapply for a character and fitness review five years later, in 2024.

Board Questions Legal Filings Rodgers worked at Muskingum County Children Services from 1981 until 1985 then left the post to raise a family and return to school. She received an associate degree from Ohio University in 1991 and pursued a master of arts degree from OU from 1993 to 1995, but didn’t complete the program. In 2012, she received a bachelor’s degree from OU, majoring in philosophy pre-law.

Rodgers graduated from Capital’s graduate-level paralegal program in 2014, and obtained a legal intern license. She worked in Capital’s legal clinic, interned at the Gahanna City Prosecutor’s Office, and Southeastern Ohio Legal Services until she graduated law school in 2019.

Rodgers reported only working two years between 1985 and 2001, and stated she was injured in a tree-trimming accident and became disabled. Since then, she listed her employment as the administrator father’s estate from 2004 to 2014, and in similar roles for two of her brothers. She also served as a “volunteer research telecommuter and paralegal” for Miller Law Offices in Columbus from 2014 until 2016.

The board notes that during her adult life she has filed lawsuits regarding wrongful death, personal injury, medical malpractice, automobile sales, property law issues, and bankruptcy in various courts, ranging from municipal court to federal court. Several of the cases were filed in her role as administrator of her father’s and two brothers’ estates. The board maintains that Rodgers appears to be a person who would rather file a lawsuit than resolve an issue by negotiation or other means. It notes that she freely admitted for the most part she “didn’t know what she was doing” but felt that something had to be done.

The most recent lawsuit involved a claim for unpaid minimum wages by Columbus attorney Mark J. Miller. The board reports that Miller agreed to pay Rodgers mileage for commuting from her Muskingum County home to his Columbus office. She claimed she was entitled to payment, and Miller filed a complaint seeking to have the case dismissed and Rodgers declared a vexatious litigator. The matter was settled, and Miller agreed to pay Rodgers $16,500.

The board concludes that Rodgers filed multiple legal actions with little regard for their merit, or the expense and inconvenience they caused others.

Debt Levels Raise Board Concerns The board reports that Rodgers had a number of debts, some of which had been outstanding for many years. It notes that Rodgers and her husband amassed almost $900,000 in student loan debt. Rodgers expressed that she didn’t have any idea of how much she has borrowed, but the board estimates it is about $340,000. The loans have been consolidated, and the couple entered a percentage of income repayment plan.

Rodgers states that because of the disability from the tree injury, she is not able to work full time and if she becomes a lawyer, she intends to work part time for legal aid. The board asserts that Rodgers openly neglected financial responsibilities and knowingly incurred a substantial amount of student loan debt that she admits probably will never be paid.

Rodgers’ conduct represents an ongoing lack of integrity, abuse of process, and neglect of financial responsibilities, the board concludes. It notes that Rodgers was able to function at a high level at Capital’s legal clinic under the supervision of lawyers, but asserts the practice of law requires character, fitness, and financial responsibility, which Rodgers failed to demonstrate she possessed.

Applicant Took Actions Based on Advice from Lawyers Rodgers responds to the board’s conclusions by noting that many of the lawsuits and legal claims she made were undertaken with the assistance of lawyers. She states most of them were initiated through her role as an estate administrator and were filed to protect the interests of her family members. She wrote that, while in paralegal and law school, she reviewed many of the cases she filed earlier in her life and realized she made many errors.

Rodgers also maintains that none of her student loans are in default and that she signed an agreement in 2001 with the U.S. Department of Education that will allow her to make income-based payments of her student loans for 10 years in a public service job and have the balance of her loans forgiven.

Rodgers admits she is not a typical bar exam applicant, having been married for 37 years, raised three daughters who graduated from Ohio State University, and dealt with hardships out of her control, including the injury to her leg. Rodgers maintains that while she has made errors in the past, a five-year sanction isn’t warranted. She produced letters of recommendation from Capital professors and staff attesting to her abilities, and is in good standing with all her creditors.

Rodgers notes that bar applicants who have been found to engage in dishonesty, fraud, deceit, or misrepresentation have received less than five-year disciplinary suspensions. She is urging the Court to allow her to take the July 2020 bar exam.

Bar Association Not Participating in Oral Argument The Muskingum County Bar Association did not file a merit brief in the matter and isn’t permitted to participate in oral argument.

–Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts Cynthia M. Rodgers, representing herself: 740.575.6870

Representing the Muskingum County Bar Association, Jillian Von Gunten: 740.450.7950

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/01/ohio-takes-on-admissions-case.html

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ericfruits · 6 years ago

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No (Debt) Relief

The Ohio Supreme Court has this discipline summary per Dan Travas

The Ohio Supreme Court indefinitely suspended a Cincinnati attorney for doing little to no work for clients he received through referrals from a now defunct California debt-relief company.

Justin E. Fernandez, whom the Supreme Court publicly reprimanded in 2016, was indefinitely suspended by the Court for violating multiple rules governing the conduct of Ohio attorneys. The per curiam opinion stated the violations included improperly retaining fees paid by the clients, overdrafting his client trust account, and failing to respond to disciplinary investigations.

The Cincinnati Bar Association, which brought the complaint against Fernandez to the Board of Professional Conduct, recommended a one-year suspension. The board recommended an indefinite suspension, and a Court majority adopted that sanction.

Chief Justice Maureen O’Connor and Justices Judith L. French and Patrick F. Fischer voted for the indefinite suspension. They were joined by Second District Court of Appeals Judge Michael T. Hall, sitting for former Justice William M. O’Neill, who resigned.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that the appropriate sanction was the one-year suspension proposed by the bar association. Justices Terrence O’Donnell and R. Patrick DeWine joined her opinion.

Attorney Relied on Outsourced Paralegal Service Fernandez, a solo practice attorney, represented clients referred to him by Morgan Drexen, a California company that provided paralegal and paraprofessional services to his practice. Fernandez represented at any one time between 100 and 400 clients referred to him by Morgan Drexen and stipulated that the firm performed “non-formal debt resolution” for his clients.

In April 2015, a federal court shut Morgan Drexen’s operations and froze its accounts. The company then filed for bankruptcy and went out of business. Three months later, Morgan Drexen sent letters to clients informing them of the bankruptcy and indicating that the attorney who represented them through the company was no longer affiliated with it.

Fernandez’s clients, Cleora Jean Smith, Betty Smith Carpenter, and Eddie and Amie Foster, were referred to him by Morgan Drexen and received the notifications.

Fernandez had agreed to assist Smith and Carpenter in debt settlements and to file a Chapter 7 bankruptcy for the Fosters. Smith paid $926, Carpenter $2,618, and the Fosters $900 to secure his services. Fernandez did not respond to their efforts to communicate with him and confirmed to the board that his voicemail prompt instructed clients to leave no more than one message per week because of his work volume.

Fernandez did no work for the clients, and did not advise the Fosters they were ineligible to file bankruptcy. He did not return money to the clients.

Board Finds Rule Violations The board adopted the panel’s findings that Fernandez violated a number of rules, including not acting with reasonable diligence in representing a client; failing to explain a matter to a client that would allow the client to make an informed decision; and not promptly delivering to his clients funds they were entitled to receive. He also violated the rules by failing to respond to disciplinary investigations.

The board concluded that Fernandez acted with a dishonest and selfish motive and that he deserved no mitigating credit for his cooperation in the disciplinary process. Fernandez objected to recommended indefinite suspension. He asked the Supreme Court to consider his intermittent homelessness and unspecified mental disorders, and to suspend him instead for one year.

Court Considers Factors Fernandez argued that a homeless attorney is likely to have impaired judgment and that poor decision-making, not selfishness, caused his behavior. He also noted that he cooperated after the disciplinary proceedings were initiated.

The Court’s opinion stated there was ample evidence to demonstrate he acted with a selfish motive.

“His business relationship with Morgan Drexen was driven to maximize profit with high-volume representation by using paraprofessionals to perform much of the work with minimal attorney oversight,” the Court stated. “He took his clients’ money, relied on Morgan Drexen to do the work, and failed to adequately monitor the status of his clients’ legal matters.”

The opinion noted that when Fernandez was asked if it were possible other clients were charged fees that he did not earn, he responded that he could not definitively answer because attorneys working with Morgan Drexen were heavily dependent on the electronic information the company’s paraprofessionals assembled. He stated he did not closely review what “was done and what wasn’t done.”

The Court also indicated that Fernandez knew little about the operation of the client trust account Morgan Drexen established for his clients and did not know how money moved between his clients, the company, and himself because he never reviewed the bank records.

“His misconduct is far more serious than his neglect of three client matters, his failure to refund unearned fees, and his failure to maintain required trust-account records, because he completely abdicated his duty to safeguard the client funds entrusted to his care,” the opinion stated.

Fernandez stated he was having mental health issues and a gambling problem, but presented no evidence at the panel hearing that he had been diagnosed by a qualified healthcare professional and that the issues contributed to his misconduct.

In addition to the suspension, the Court ordered that Fernandez’s reinstatement will be conditioned on proof that he made restitution to Smith, Carpenter, and the Fosters; completed 12 hours of continuing legal education focused on law-office and client-trust management; submitted to an evaluation by a qualified healthcare professional; and did not commit any more misconduct. If he is reinstated, he must serve two years of monitored probation.

Dissent Concludes Aggravating Factors Not Proven Justice Kennedy wrote that although Fernandez’s behavior “fell well short of the professional standards demanded of all attorneys,” the record does not contain clear and convincing evidence that he acted with a selfish motive or failed to cooperate in the disciplinary process.

Regarding a selfish motive, the dissent explained that the board had improperly equated Fernandez’s conduct with a prior case where an attorney had fraudulently altered fee applications to seek payment for court-appointed work that was not performed. The dissenting opinion stated that there is a difference between collecting fees with no intention of completing the work or giving a refund – misconduct that is tantamount to theft – and agreeing to perform the work but failing to do so out of neglect.

The dissent noted that Fernandez had relied on Morgan Drexen and its paralegals to manage his practice and the fees paid by the clients it solicited. Although the evidence indicated that Fernandez took on too many clients and neglected their cases, that does not prove he acted with a selfish motive, the opinion concluded.

Fernandez had conceded that he failed to respond to the bar association’s complaints, but he subsequently admitted his misconduct and accepted responsibility for it during the proceedings. The dissent explained that in other cases the Court has recognized that an attorney’s eventual cooperation is a basis for a lesser sanction, and here the record does not reflect that he exhibited a “complete failure” to cooperate.

The dissenting justices would impose a one-year suspension with the same reinstatement conditions as the majority.

2017-1409. Cincinnati Bar Assn.v. Fernandez, Slip Opinion No. 2018-Ohio-3828.

View oral argument video of this case.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/09/the-ohio-supreme-court-the-ohio-supreme-court-indefinitely-suspended-a-cincinnati-attorney-for-doing-little-to-no-work-for-c.html

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