[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cleveland Metro. Bar Assn. v. Horton, Slip Opinion No. 2018-Ohio-2390.]

NOTICE This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2018-O HIO -2390

C LEVELAND M ETROPOLITAN B AR A SSOCIATION v . H ORTON . [Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Cleveland Metro. Bar Assn. v. Horton, Slip Opinion No. 2018-Ohio-2390.] Attorneys—Misconduct—Violations of th e Rules of Professional Conduct—Twoyear suspension, with one year conditionally stayed. (No. 2017-1416—Submitted December 6, 2017—Decided June 26, 2018.)

O N C ERTIFIED R EPORT by the Board of Professi onal Conduct of the Supreme Court, No. 2017-011.

_______________________ Per Curiam. {¶ 1} Respondent, Debbie Kay Horton, of Solon, Ohio, Attorney Registration No. 0033622, was admitted to the pr actice of law in Ohio in 1986. On February 24, 2010, we suspended her for two years, with the second year stayed on conditions, for settling clients’ personal-injury claims a nd endorsing the settlement checks without the clients’ authority and converting the settleme nt proceeds to herS UPREME C OURT OF O HIO

2 own use. Disciplinary Counsel v. Horton , 124 Ohio St.3d 434, 2010-Ohio-579, 923 N.E.2d 141. We reinstated her license to practice law on May 11, 2011. Disciplinary Counsel v. Horton , 128 Ohio St.3d 1225, 2011-Ohio-2386, 947

N.E.2d 174. {¶ 2} In a March 2, 2017 complaint, rela tor, Cleveland Metropolitan Bar Association, alleged that Horton committe d 17 violations of the professionalconduct rules while pursuing personal-injury claims on be half of a woman and her minor daughter. Among other things, rela tor alleged that Horton failed to make required disclosures to her client, to obtain the client’s written consent to or acknowledgment of certain ci rcumstances affecting the re presentation, to formally withdraw from the case following a disagreement with the client, to promptly

deliver funds that the client was entitled to receive, and to maintain required records regarding her client trust account. {¶ 3} The parties submitted joint stipulations of fact and aggravating and mitigating factors, and Horton admitted to some of the charged misconduct. The parties jointly recommended that Horton be suspended from the practice of law for one year, with six months stayed on conditions. {¶ 4} The matter proceeded to a hearing before a panel of the Board of

Professional Conduct. The panel found that Horton committe d nine of the ten rule violations she admitted to committing, and it unanimously dismissed the remaining allegations. The panel reco mmended that she be suspende d for two years, with one year stayed on the condition that she enga ge in no further misconduct, and further recommended that her reinstatement be subj ect to additional conditions. The board adopted the panel’s findings of fact, conclusions of law, and recommended sanction, and no objections have been filed. {¶ 5} Having independently reviewed th e record, we adopt the board’s report and recommendation a nd suspend Horton from the practice of law for two years, with one year conditionally stayed.January Term, 2018

3 Misconduct {¶ 6} On April 13, 2012, Raquel Green retained Horton to represent herself and her minor daughter in a personal-injury case arising from an automobile collision. Green signed Horton’s standard contingent-fee agreement, which provided for a fee of 33.3 percent of the amount recovered if settlement occurred before suit was filed and 40 pe rcent of the recovery if a lawsuit was filed. Horton stipulated that she did not countersign th at contract—or any of her fee contracts— as required by Prof.Cond.R. 1.5(c)(1) (requiri ng a lawyer to set forth a contingentfee agreement in a writing signed by both the client and the lawyer). {¶ 7} Horton also failed to make and pr operly document other required disclosures. She did not inform Green that she did not carry professional-liability insurance or have her sign a written acknowle dgment of that fact, as required by Prof.Cond.R. 1.4(c) (requiring a lawyer to info rm the client if the lawyer does not maintain professional- liability insurance and to obtain a signed acknowledgment of that notice from the client). And althoug h Horton orally informed Green that she intended to engage another attorney to serve as co-counsel, the terms of that relationship were never reduced to a writing that was signed by Green and the other attorney, as required by Prof.Cond.R. 1.5(e )(2) (prohibiting certain fee divisions unless the lawyers have made certain factua l disclosures to the client and received the client’s written consent). Moreover, Horton admitted that she did not make these required disclosures to any of her other clients. {¶ 8} Horton filed a lawsuit on behalf of Green and Green’s daughter on April 4, 2014. She voluntarily dismissed th at suit in January 2015 and refiled it the next month. At the final pr etrial conference in January 2016, Green agreed to settle her daughter’s claim for the tortfeaso r’s policy limits of $100,000 and to settle her own claim for $25,000. {¶ 9} Because Green’s daughter was a minor, Horton filed an application for probate-court approval of the settlement. According to Horton, the magistrateS UPREME C OURT OF O HIO

4 at the probate hearing indicated that attorney fees for a minor’s claim were limited to one-third of the settlement. However, in approving the settlement, the magistrate also awarded Green $7,000 from her daughte r’s settlement for “loss of service,” which according to Horton, was intended for Green to use to pay the remainder of

Horton’s contracted fee. {¶ 10} When Horton and Green met at the Warrensville Public Library to sign the settlement checks in April 2016, th ey had a disagreement about Horton’s fees and a $5,500 discount that she had offere d to Green. As a result of their verbal altercation, a Warrensville police officer or dered the two women to have no contact with each other. Horton testified that she felt compelled to obey that order even though it had not been issued by a court. Although she ceased contact with Green, she failed to file a written motion for leave to withdraw from the representation as required by the local court rules. She also failed to appear at a May 19, 2016 hearing on defense counsel’s motion to enforce the settlement. Horton stipulated that her failure to formally withdraw from the case violated Prof.Cond.R. 1.16(c) (prohibiting a lawyer from withdrawing from representation in a proceeding

without leave of court if the rule s of the tribunal so require). {¶ 11} In a May 2016 grievance, Green claimed that she had not received the $7,000 awarded to her by the probate cour t. Horton told relator that she had sent Green a letter with a $7,000 check on April 19, 2016, but Green reported to relator that she had not received it. Horton waited until approximately five months after the grievance was filed before she issued a new check to Green and stopped payment on the original check. Horton admitted that her conduct violated Prof.Cond.R. 1.15(d) (requiring a lawyer to promptly deliver funds or other property that the client is entitled to receive). {¶ 12} Horton also stipulated that she failed to maintain proper records to

document the funds held in he r client trust account, and she testified that she used that account to pay at least one persona l expense. She admitted that her conductJanuary Term, 2018

5 violated Prof.Cond.R. 1.15(a)(2) through (5 ) (requiring a lawyer to hold the property of clients in an interest-bearing client trust account, separate from the lawyer’s own property; to maintain a reco rd for each client on whose behalf funds are held setting forth the name of the acc ount, the date, amount, and client affected by each credit and debit, and the balance in the account; and to perform and retain a monthly reconciliation of the la wyer’s client trust account). {¶ 13} Based on this evidence, the pa nel found that Horton’s conduct violated Prof.Cond.R. 1.4(c), 1.5(c)(1), 1.5(e)(2), 1.15(a)(2) through (5), 1.15(d), and 1.16(c). 1 But the panel rejected the parties’ stipulation that Horton violated Prof.Cond.R. 1.15(a)(1) (requiring a lawyer to maintain a copy of any fee agreement with each client) and unanimously dismissed that allegation, four allegations that relator had agreed to dis miss, and three others in support of which relator had presented no evidence. {¶ 14} The board adopted the panel’s findi ngs of fact and misconduct, and we adopt those findings as our own.

Sanction {¶ 15} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, relevant aggravating and mitigating factors, and the sanctions imposed in similar

cases. See Gov.Bar R. V(13)(A). {¶ 16} As aggravating factors, the partie s stipulated and the board found that Horton has a prior disciplinary recor d, engaged in a pattern of misconduct, and violated multiple profe ssional-conduct rules. See Gov.Bar R. V(13)(B)(1), (3), and (4). Notably, as evidence of a pattern of misconduct, both the parties and the board

1 Although the complaint charged Horton with a violation of Prof.Cond.R. 1.16(d) (requiring a lawyer withdrawing from representation to take st eps reasonably practicable to protect a client’s interest), the parties stipulated and the board found that her conduct actually violated Prof.Cond.R. 1.16(c).S UPREME C OURT OF O HIO

6 cited not only Horton’s failure to sign he r fee agreements with and make required

disclosures to Green and other clients but al so Horton’s failure to correct her clienttrust-account management practices fo llowing relator’s dismissal of a 2015 overdraft investigation. {¶ 17} In mitigation, the board found that Horton demonstrated a cooperative attitude toward th e disciplinary proceeding. See Gov.Bar R. V(13)(C)(4). Specifically, Ho rton was forthright and honest in discussing her past and current mismanagement of her client trust account, waived confidentiality with regard to relator’s 2015 disciplinary invest igation, and readily admitted to her rule violations. The board noted that Horton had demonstrated a willingness to make necessary changes to her practice going fo rward but that her conduct since her 2010 suspension demonstrates that she has di fficulty understanding or implementingacceptable law-office practices and complying with the applicable professionalconduct rules regarding those matters. {¶ 18} The board recommends that we suspend Horton for two years, with one year stayed on the condition that she en gage in no further misconduct. It also recommends that as a condition of reinstatement, she be required to submit proof that she has completed 12 hours of con tinuing legal educati on (“CLE”) addressing law-office management—with three of those 12 hours focused on client-trustaccount-related instruction—in addition to the CLE requirements of Gov.Bar R. X. The board recommends that upon reinstatemen t, Horton be required for one year to work with a practice monitor, approved by relator, who will serve as Horton’s mentor with regard to law-office management. {¶ 19} In reaching its recommendation, the board considered several cases in which we disciplined attorn eys for comparable misconduct. {¶ 20} In Toledo Bar Assn. v. Royer , 133 Ohio St.3d 545, 2012-Ohio-5147, 979 N.E.2d 329, the attorney failed to deposit one client’s funds into his client trust account, failed to maintain re quired client-trust-account records, lost evidence thatJanuary Term, 2018

7 was vital to the client’s cl aim, and neglected three lega l matters involving another client. Although Royer ha d committed multiple offenses that affected vulnerable clients, he had no prior di scipline during his 46 years of practice, had not had a dishonest motive, had made restitution to his clients, had fully cooperated in the disciplinary process, and had shown remorse. Therefore, we suspended him for one year, fully stayed on the conditions that he serve a two-year period of monitored probation without additional vi olations of the professiona l-conduct rules, retain a certified public accountant to review his bookkeeping procedures, and establish his compliance with Prof.Cond.R. 1.15 with in six months of our order. {¶ 21} In Akron Bar Assn. v. Tomer , 138 Ohio St.3d 302, 2013-Ohio-5494, 6 N.E.3d 1133, the attorney failed to file motions on behalf of a client, failed to secure signed notices from clients regarding her lack of professional-liability insurance, failed to refund unearned fees, failed to maintain required records regarding her client trust account, and sub mitted fabricated and backdated letters to the relator during a disciplinary investig ation. We recognized that Tomer had committed multiple offenses and had enga ged in dishonest conduct during the disciplinary investigation, but we also acknowledged that she had no prior discipline, had lacked adequate training when she entered private practice after 16 years of “exemplary service” as an assistant prosecutor, had presented evidence of her excellent character and reputation, and had shown significant remorse. Consequently, we suspended Tomer for two years, all stayed on the conditions that she complete a two-year period of monito red probation, complete 12 hours of CLE focused on law-office management, a nd engage in no further misconduct. {¶ 22} And in Disciplinary Counsel v. Corner , 145 Ohio St.3d 192, 2016- Ohio-359, 47 N.E.3d 847, we imposed a two-year suspension, with the second year stayed on conditions, for misconduct that included several overdrafts of the attorney’s client trust account, misuse of that account for personal expenses, commingling of personal and client funds, misappropriation, and fa ilure to maintainS UPREME C OURT OF O HIO

8 required client-trust-account records. Co rner also failed to provide competent representation to a client in a bankrupt cy proceeding and engaged in conduct prejudicial to the administration of justice by failing to comply with two disgorgement orders issued by the bankruptcy court. Mitigating factors included the absence of a prior disciplinary record and a mental-health diagnosis that

contributed to Corner’s misconduct. {¶ 23} We find that Horton’s misconduct is comparable to that of Royer and Tomer, though perhaps not as egregious as that of Corner, whose misconduct extended well beyond the sloppy office pr actices exhibited here. We agree, however, with the board’s assessment that Horton’s prior disciplinary record and her failure to make agreed changes to her client-trust-account management practices following relator’s 2015 overdraft investigation weigh in favor of a sanction more severe than the one we imposed on Royer and Tomer, and comparable to that which we imposed on Corner. {¶ 24} Accordingly, Debbie Kay Horton is suspended from the practice of law in Ohio for two years, with one year stayed on the condition that she engage in

no further misconduct. As a condition of reinstatement, Horton shall submit proof that she has completed 12 hours of CLE addressing law-office management, with

three of those hours focused on client-tru st-account-related inst ruction; those hours shall be in addition to the CLE requirements of Gov.Bar R. X. Upon reinstatement, Horton shall serve a one-year period of monitored probation in accordance with Gov.Bar R. V(21). If Horton fails to comply with the condition of the stay, the stay

will be lifted and she will serve the full tw o-year suspension. Costs are taxed to

Horton. Judgment accordingly.

O’C ONNOR , C.J., and O’D ONNELL , K ENNEDY , F RENCH , F ISCHER , and

D E W INE , JJ., concur.

D E G ENARO , J., not participating.January Term, 2018

9 _________________ Tucker Ellis, L.L.P., Seth H. Wame link, and Jon W. Oebker; and Heather M. Zirke, Bar Counsel, and Kari L. Burn s, Assistant Bar Counsel, for relator. Debbie Kay Horton, pro se.

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