Opinion
Case No. MC-3-01-27.
December 20, 2001
REPORT AND RECOMMENDATION OF SUSPENSION PURSUANT TO LBR 2090-2(c)
The Honorable Jeffery P. Hopkins, United States Bankruptcy Judge, files this report and recommendation of suspension pursuant to LBR 2090-2(c). It is hereby recommended that attorney Jack A. Jennewein be suspended indefinitely from the practice of law in the United States Bankruptcy Court for the Southern District of Ohio based upon noncompliance with DR 6-101(A)(3) and DR 3-101(A). Further, the undersigned recommends that the Chief Judge direct that should Mr. Jennewein wish to again practice in this District, he must file a Petition for Reinstatement to Practice with the Chief Judges of both said courts.
Special Procedure for Suspension or Disbarment.
(1) Bankruptcy Judge to Hear and Recommend. After notice and actual hearing, a bankruptcy judge may recommend suspension of an attorney from practice in the United States Bankruptcy Court for the Southern District of Ohio for a finite period of time, or under such other terms or conditions as the bankruptcy judge deems appropriate.
(2) Filing and Disposition of Recommendation. If a bankruptcy judge recommends suspension, the suspension recommendation (with an attached proposed order) shall be filed with the clerk of the district court and transmitted to the chief judge of the United States District Court for the Southern District of Ohio. Upon receipt, the chief district judge will consider the suspension recommendation without hearing, and will enter an interim order adopting the bankruptcy judge's recommendation or will reject the recommendation by order.
(3) Finality of District Judge Order. If the chief district judge adopts the recommendation and enters an interim order, the interim order shall become a final order upon the expiration of the objection period set forth in (4) below or, if a timely objection is filed, upon the conclusion of any proceedings in the district court convened to review that recommendation and the issuance of an order therefrom.
(4) Objections and Hearing. An attorney objecting to any interim order issued under (3) above must file such objection and a memorandum in support of the objection with the clerk of the district court within ten (10) days from the date the chief district judge's interim order is entered by the clerk of the district court. Any hearing on such an objection will not be a de novo hearing, but will be based upon the chief district judge's review of the bankruptcy judge's recommendation and the record of the bankruptcy court hearing.
This recommendation is comprised of three parts. Part One outlines the procedure that led to this recommendation, including the due process extended to Mr. Jennewein. Part Two sets forth the law of DR 6-101(A)(3) and DR 3-101(A) and the evidence of noncompliance therewith. Part Three provides a brief conclusion.
Apart from this recommendation for suspension, the Court, by separate decrees in the Spikes and Farrow cases, has ordered disgorgement of attorneys fees, payment of court costs and expenses, and the imposition of monetary sanctions against Mr. Jennewein which the Chief Judge may wish to consider in conjunction with this recommendation.
PART ONE: PROCEDURE
The record upon which this recommendation is predicated arises out of the following bankruptcy cases filed in the United States Bankruptcy Court for the Southern District of Ohio at Cincinnati: (1) In re Spikes, Ch. 13 Case No. 00-14279; and (2) In re Farrow, Ch. 7 Case No. 01-12471. The Court entered an order in each case directing Mr. Jennewein to appear and show cause why he should not be recommended for suspension pursuant to LBR 2090-2. ( Spikes Doc. 51; Farrow Doc. 27.) Both show cause orders expressly identified DR 6-101(A)(3) and DR 3-101(A) as the bases for potential action under LBR 2090-2. Both orders were entered on or before September 28, 2001 and set a hearing on the issue for October 11, 2001. Mr. Jennewein had fully two weeks to prepare a defense or move for a continuance. Although he acknowledges that he received notice of the hearing, Mr. Jennewein chose not to appear at the hearing and did not file a motion for a continuance.
The clerk of the bankruptcy court identifies every filed document with a number noted in the lower right hand corner of the document. All citations to the record arising out of the Spikes case are referenced as " Spikes Doc. ____" and all citations to the record arising out of the Farrow case are referenced as " Farrow Doc. ____" (with the variable referencing the particular document in question).
In addition to Mr. Jennewein, the Court ordered the appearance of several individuals that were believed to possess personal knowledge of facts relevant to the issue at hand, including the Debtors in all the cases, Margaret A. Burks, the Chapter 13 Trustee, and Mr. Richard Nelson, the Chapter 7 Trustee in Farrow. With the exception of Mr. Jennewein, said persons all appeared at the October 11, 2001 hearing and some provided testimony and exhibits for the record. ( Spikes Docs. 53 56; Farrow Docs. 28 31.) The Court believes that the record from the October 11, 2001 hearing is sufficient, by itself, to support a recommendation of suspension under LBR 2090-2(c). However, because of Due Process considerations, the Court entered a second set of show cause orders ( Spikes Doc. 54; Farrow Doc. 29) on October 12, 2001, to afford Mr. Jennewein another opportunity to appear and be heard. The second hearing was held on December 7, 2001.
On November 27, 2001, Mr. Jennewein filed a pleading ( Spikes Doc. 65) whereby he requested, among other things, that the Court provide him with "any and all evidence" so that he could prepare a defense. At the time of this request, the record was comprised of the following: (1) the exhibits and transcripts from the October 11, 2001 hearing ( Spikes Doc. 56; Farrow Doc. 31); and (2) the November 1, 2001 report of Richard L. Shipp — a handwriting expert appointed by Court order ( Spikes Doc. 60). Mr. Jennewein had already been served with all evidence related to the report of Richard L. Shipp. In the interest of Due Process, the Court served Mr. Jennewein with certified copies of the October 11, 2001 transcripts by overnight mail on December 3, 2001. ( Spikes Doc. 67; Farrow Doc. 34.) Mr. Jennewein and Wayne Edward West, an individual that has been identified as Mr. Jennewein's employee or paralegal, appeared at the December 7, 2001 hearing.
The Court entered an order in the Spikes case directing Mr. Jennewein to show cause why Richard L. Shipp should not be appointed as a handwriting expert. ( Spikes Doc. 52.) Mr. Jennewein filed a response whereby he objected to the appointment of Mr. Shipp as an "unnecessary" measure because "I herein acknowledge that I have, on some occasions, had my paralegal to affix my mark on certain documents." ( Spikes Doc. 59.) Thereafter, the Court appointed Mr. Shipp as a handwriting expert. ( Spikes Doc. 60.) Appended as Exhibit A to the appointment order is the original November 1, 2001 report of Richard L. Shipp. Appended as Exhibit B to the appointment order are copies of the original documents that Mr. Shipp reviewed for the purpose of his report. The appointment order, with both exhibits attached, was served upon Mr. Jennewein on November 8, 2001.
PART TWO: LAW EVIDENCE
A. DR 6-101(A)(3) ("A lawyer shall not . . . [n]eglect a legal matter entrusted to him.")
The Supreme Court of Ohio found a violation of DR 6-101(A)(3) where a bankruptcy attorney: (1) failed to advise his clients concerning: (a) the advantages and disadvantages between relief under Chapter 7 and Chapter 13; and (b) surrender, redemption and reaffirmation; (2) failed to interview and counsel his clients before a course of action was chosen and pleadings drafted; (3) failed to appear at his clients' meeting of creditors; (4) failed to file pleadings necessary to advance his clients' interests; and (5) managed the representation in such a way that his clients' questions during the case were answered by his non-lawyer employee. See Columbus Bar Ass'n v. Flanagan, 77 Ohio St. 3d 381 (1997). Unfortunately, the record in this proceeding bears substantial similarity with that of Flanagan.
1. Failure to provide legal counsel concerning: (1) the advantages and disadvantages between Chapter 7 and Chapter 13; and (2) surrender, redemption and reaffirmation.
It is clear that Mr. Jennewein did not provide legal counsel either to Ms. Spikes or the Farrows concerning the advantages and disadvantages of filing under different chapters of the bankruptcy code. ( Spikes Doc. 70 at 38-21 to 39-3, 61-12 to 61-15, 68-11 to 68-14, 73-5 to 74-1.) In the Farrow case, a Chapter 7 case where important decisions had to be made concerning the surrender, redemption or reaffirmation of secured property, Mr. Jennewein utterly failed to counsel his clients concerning these important issues. ( Spikes Doc. 70 at 69-17 to 69-21, 77-16 to 77-24, 94-17 to 94-22.)
The foregoing issues are "serious matter[s] that deserve the attention of a qualified attorney." Flanagan, 77 Ohio St. 3d at 383. If an attorney fails to provide such counseling, he or she violates DR 6-101(A)(3). Dayton Bar Ass'n v. Andrews, 79 Ohio St. 3d 109, 112 (1997).
2. Failure to interview and counsel clients before a course of action is chosen and pleadings drafted.
Mr. Jennewein did not provide Ms. Spikes with legal counsel concerning her Application to Modify Debtor's Chapter 13 Wage Earner Plan (Ex. BB) or her Application to Suspend Payments (Ex. AA). ( Spikes Doc. 70 at 49-5 to 49-8, 51-21 to 52-1.) Neither did Mr. Jennewein provide the Farrows with legal counsel concerning their Motion of Redemption Under 11 U.S.C. 722 (Ex. EE). ( Spikes Doc. 70 at 74-15 to 74-18.)
The Supreme Court of Ohio, in light of DR 6-101(A)(3), has stated: "[w]e expect that . . . an attorney . . . would at least interview and counsel his clients before a course of action was chosen and the documents drafted." Flanagan, 77 Ohio St. 3d at 383.
3. Failure to appear at clients' meeting of creditors.
Mr. Jennewein did not appear at Ms. Spikes' meeting of creditors pursuant to 11 U.S.C. § 341(a). ( Spikes Doc. 70 at 40-15 to 40-18.)
The Supreme Court of Ohio, in light of DR 6-101(A)(3), has stated: "[w]e also expect that [a bankruptcy attorney] would appear at the meeting of creditors as an advocate for his clients." Flanagan, 77 Ohio St. 3d at 383.
4. Failure to file pleadings necessary to advance clients' interests.
Mr. Jennewein failed to file a timely motion to suspend Ms. Spikes' plan payments. ( Spikes Doc. 70 at 42-13 to 43-24.) Mr. Jennewein also failed to furnish documentation necessary for Ms. Spikes to obtain assistance from the Better Housing League. ( Spikes Doc. 70 at 44-9 to 46-10, 66-12 to 66-16.)
5. Clients' questions during the case were answered by non-lawyer employee.
Mr. Wayne Edward West, a non-lawyer employed by Mr. Jennewein ( Spikes Doc. 70 at 119-24 to 120-2), was the only person that Ms. Spikes interacted with at Mr. Jennewein's office. ( Spikes Doc. 70 at 60-3 to 60-10.) Ms. Spikes spoke with Mr. Jennewein only at court appearances. ( Spikes Doc. 70 at 61-6 to 61-11, 61-19 to 61-21.) Likewise with the Farrows, Mr. Jennewein was never at his office apart from the signing of the petition. ( Spikes Doc. 70 at 82-1 to 82-3.) The only time that the Farrows were able to reach Mr. Jennewein by phone was when they called him at his home one evening when a creditor attempted to repossess their car. ( Spikes Doc. 70 at 82-8 to 82-13.) When the Farrows explained the urgent nature of their call, Mr. Jennewein told them to call Mr. West. ( Spikes Doc. 70 at 91-10 to 92-17.) In the words of Ms. Farrow: "[Mr. Jennewein] said . . . I really don't have anything to do with that, you need to call Mr. West." ( Spikes Doc. 70 at 92-14 to 92-16.)
B. DR 3-101(A) ("A lawyer shall not aid a non-lawyer in the unauthorized practice of law.")
The Supreme Court of Ohio has defined the practice of law as, inter alia, the rendering of legal advice and counsel. See Cincinnati Bar Ass'n v. Kathman, 92 Ohio St. 3d 92, 96 (2001) (citing Land Title Abstract Trust Co. v. Dworken, 129 Ohio St. 23 (1934)). Moreover, the Supreme Court of Ohio has found a violation of DR 3-101(A) where an attorney directed non-lawyer employees to sign his signature to pleadings filed in bankruptcy cases. See Office of Disciplinary Counsel v. Dahling, 90 Ohio St. 3d 246 (2000).
1. The rendering of legal advice and counsel by a non-lawyer employed by Mr. Jennewein.
Mr. West, a non-lawyer employed by Mr. Jennewein ( Spikes Doc. 70 at 119-24 to 120-2), advised Ms. Spikes to file a Chapter 13 petition and attempted to explain at least some of the nuances thereof. ( Spikes Doc. 70 at 39-9 to 39-12, 39-23 to 39-24, 41-16 to 41-17.) Similarly with the Farrows, Mr. West explained the advantages and disadvantages between Chapter 7 and Chapter 13. ( Spikes Doc. 70 at 68-11 to 68-16.) Mr. West himself testified as follows:
I don't advise anybody of anything. What I do, I may relay advice, and most of these cases or many of the cases, Jack is kind of a quiet fellow and I'm more outspoken and he has me do most of the talking. He'll give me instructions what to tell them and that's what I do. In that case and based on my experience there was no question the Farrows needed Chapter 7[.]
( Spikes Doc. 70 at 106-8 to 106-16.) Mr. West also advised the Farrows that they possessed certain rights concerning the doctrines of redemption and reaffirmation. ( Spikes Doc. 70 at 75-1 to 75-5, 79-13 to 79-22.)
2. Directing a non-lawyer employee to sign attorney's signature to pleadings filed in bankruptcy cases.
Both Mr. Jennewein and Mr. West admit by pleading that Mr. West, on multiple occasions, has signed Mr. Jennewein's signature to pleadings filed in the bankruptcy court. ( Spikes Doc. 57 at 5; Spikes Doc. 58 at ¶ 2; Spikes Doc. 59 at ¶ 2; Spikes Doc. 65 at 1-2; Farrow Doc. 32 at 1, 3-4; Farrow Doc. 33 at ¶ 2.) Mr. West also testified to the same. ( Spikes Doc. 70 at 120-14 to 120-19, 122-4 to 122-20, 123-1 to 123-6, 123-24 to 124-10.)
PART THREE: CONCLUSION
Based upon the record, the undersigned is persuaded that Mr. Jennewein has abandoned his bankruptcy practice to Mr. West, a non-lawyer, in violation of DR 6-101(A)(3) and DR 3-101(A). This conclusion is supported by the Ohio Supreme Court's recent decision in Cincinnati Bar Ass'n v. Bertsche, 84 Ohio St. 3d 170 (1998) (violation of DR 6-101(A)(3) where attorney exercised little supervision over non-lawyer employee who interviewed clients, prepared documents and secured signatures). Interestingly, Wayne Edward West happens also to be the same non-lawyer employee that was involved in Bertsche. ( Spikes Doc. 70 at 128-3 to 129-17.) Accordingly, it is hereby recommended that attorney Jack A. Jennewein be suspended indefinitely from practice in the United States Bankruptcy Court for the Southern District of Ohio.
Indefinite suspension is recommended because the undersigned is not persuaded that Mr. Jennewein, after a finite suspension, would possess the physical capabilities necessary to represent clients competently. See EC 2-29 ("Employment should not be accepted by a lawyer when he is unable to render competent service[.]"). Mr. Jennewein's inability to hear observed in this proceeding and others before this Court is of particular concern. The record from the December 7, 2001 hearing reflects at least nine separate instances where Mr. Jennewein exhibited serious difficulty hearing the proceedings. ( Spikes Doc. 70 at 4-19 to 4-20, 36-7 to 36-8, 39-15 to 39-16, 42-9 to 42-10, 55-21 to 55-22, 59-5 to 59-6, 100-11, 101-17, 142-21 to 143-9.)