The Ohio Supreme Court today suspended a Solon attorney for two years, with one year conditionally stayed, for failing to promptly deliver client funds from a personal-injury lawsuit settlement, and several other violations of professional conduct rules.

Debbie Kay Horton’s two-year suspension is the second she has received in the past eight years. In 2010, the Supreme Court also suspended her for two years, with the second year stayed, for settling the claims of clients without their authority and converting settlement proceeds to her own use.

In a per curiam opinion, the Court noted that the Board of Professional Conduct concluded that Horton demonstrated “she has difficulty understanding and implementing acceptable law-office practices,” based on her two suspensions and another complaint about Horton that was investigated.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion. Justice Mary DeGenaro did not participate in the case.

Dispute Arises from Accident Representation
In 2012, Raquel Green and her minor daughter were injured in a car crash, and Green hired Horton to represent her and her daughter in a personal-injury lawsuit. Green signed Horton’s standard contingent-fee agreement, which provided Horton with a 33.3 percent fee if the case was settled before a lawsuit was filed, and a 40 percent fee if a lawsuit was filed.

Horton failed to properly document the agreement and make required disclosures to Green, including providing a written statement that indicated Horton had no malpractice insurance, or obtaining Green’s written approval to hire another attorney to serve as co-counsel.

Horton filed the lawsuit in 2014, then voluntarily dismissed it, and refiled the suit in February 2015. At a final pretrial conference nearly a year later, Green agreed to settle her daughter’s claim against the person responsible for the accident for $100,000 and settle her own claim for $25,000.

Fee Amount Disputed
Because Green’s daughter was a minor, Horton had to file for probate court approval of the settlement. A probate court magistrate ruled that the attorney fee for a minor’s claim was limited to one-third of the settlement, which was around $33,000. The magistrate then awarded Green $7,000 from her daughter’s settlement for “loss of service.” Horton indicated the money to Green was intended to be used to pay the remainder of Horton’s 40 percent contingency fee.

Horton and Green met at the Warrensville Public Library to sign the settlement checks. They had a disagreement about the fees and a $5,500 discount Horton offered to Green. As a result of the verbal altercation, a Warrensville police offer ordered the two women not to have contact with each other.

At that point Horton ceased contact with Green to abide by the officer’s order, but she did not file a written motion to withdraw from representation as required by local court rules. Horton also failed to appear at a hearing requested by the opposing lawyer to enforce the settlement.

Green filed a grievance with the Cleveland Metropolitan Bar Association, claiming she had not received the $7,000 awarded to her by the probate court. Horton told the bar association she sent Green a $7,000 check in April 2016 when the magistrate issued the decision, but Green reported she had not received it. Horton then waited another five months before issuing a new check to Green and stopping the payment on the original check.

Lawyer Admits Rule Violations
The bar association filed a complaint against Horton with the Board of Professional Conduct, alleging she violated 17 rules governing the conduct of Ohio lawyers. A three-member board hearing panel found that she committed nine rule violations. Along with failing to get her client’s written acknowledgement regarding the lack of malpractice insurance and use of a co-counsel, Horton also acknowledged she failed to properly withdraw from a legal proceeding, did not promptly deliver funds that her client was entitled to receive, did not maintain adequate records of her client trust account, and failed to take other steps to protect her client’s interests.

Court Considers Sanction
The board recommended that Horton be suspended for two years, with one year stayed with conditions. When considering a sanction, the Court considers aggravating circumstances that would increase the punishment it imposes on a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court found Horton has a prior disciplinary record, engaged in a pattern of misconduct, and violated multiple professional rules. The opinion noted that in 2015, Horton was investigated by the bar association for a client-trust fund overdraft issue, and that Horton failed to meet required trust-account management practices after that investigation.

The Court also found the Horton demonstrated a cooperative attitude toward disciplinary proceedings, was forthright in discussing her past and present account mismanagement, and admitted to her rule violations.

The Court stayed the second year of her suspension on the condition that she not engage in further misconduct. To be reinstated to the practice of law in Ohio, Horton must prove she completed 12 hours of continuing legal education regarding law-office management, with three of the hours focused on client-trust-account management, and that she serve one-year of monitored probation.

2017-1416. Cleveland Metro. Bar Assn. v. Horton, Slip Opinion No. 2018-Ohio-2390.

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