Disciplinary Counsel v. Kraemer

[Cite as Disciplinary Counsel v. Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300.]

DISCIPLINARY COUNSEL v. KRAEMER.

[Cite as Disciplinary Counsel v. Kraemer,

126 Ohio St.3d 163, 2010-Ohio-3300.]

Attorney misconduct — Misappropriation of client fees belonging to law firm —

Two-year suspension with one year stayed on conditions and credit for

one year of interim suspension.

(No. 2009-2336 — Submitted March 31, 2010 — Decided July 21, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-052.

__________________

Per Curiam.

{¶ 1} Respondent, Bradley M. Kraemer of West Chester, Ohio, Attorney

Registration No. 0070329, was admitted to the practice of law in Ohio in 1998.

On July 10, 2008, we imposed an interim felony suspension on respondent’s

license pursuant to Gov.Bar R. V(5)(A)(4). In re Kraemer, 118 Ohio St.3d 1514,

2008-Ohio-3441, 889 N.E.2d 1031.

{¶ 2} The Board of Commissioners on Grievances and Discipline now

recommends that we suspend respondent’s license to practice for a period of two

years, all stayed on conditions, based upon stipulations and findings that

respondent misappropriated $7,157.10 in client fees belonging to his law firm.

Relator objects to the board’s report, arguing that our precedent requires an actual

suspension from the practice of law for respondent’s misconduct.

{¶ 3} We accept the board’s factual findings and its conclusion that

respondent’s conduct violated the ethical standards incumbent on Ohio lawyers.

However, we sustain relator’s objection and conclude that respondent’s

misconduct warrants an actual suspension from the practice of law. Accordingly,

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we suspend respondent for two years, with one year stayed on conditions, and

credit one year of respondent’s interim felony suspension toward the actual

suspension.

Misconduct

{¶ 4} The parties stipulated that respondent’s law firm employed him

pursuant to an oral agreement that he would receive 40 percent of the fees

collected from the cases on which he worked and the firm would receive the

remaining 60 percent. In 2007, respondent failed to remit the agreed 60 percent to

the firm in relation to nearly $12,000 he collected in fees. As a result of this theft,

respondent’s employment was terminated and he was charged with one count of

theft, a fifth-degree felony. He promptly entered a guilty plea and was sentenced

to three years of community control, fined $1,000, and ordered to pay $7,157.10

in restitution to his former employer.

{¶ 5} The parties stipulated that respondent’s misappropriation of the

firm’s share of these fees violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from

committing an illegal act that reflects adversely on the lawyer’s honesty or

trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting a lawyer from

engaging in “conduct that is prejudicial to the administration of justice”), and

8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on

the lawyer’s fitness to practice law). The panel and board accepted the stipulated

facts and misconduct, and so do we.

Sanction

{¶ 6} When imposing sanctions for attorney misconduct, we consider

relevant factors, including the ethical duties that the lawyer violated and the

sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio

St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

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listed in Section 10 of the Rules and Regulations Governing Procedure on

Complaints and Hearings Before the Board of Commissioners on Grievances and

Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 7} The parties stipulated that they believe the appropriate sanction for

respondent’s misconduct is a two-year suspension, with the second year stayed on

the conditions that respondent (1) continue regular mental-health treatment at an

interval to be determined by his treating professional, (2) submit to a law-practice

monitor appointed by relator upon his return to practice, and (3) refrain from any

further misconduct. The panel conducted a hearing to consider evidence and

arguments regarding mitigation.

{¶ 8} The parties stipulated and the board found that the following

mitigating factors weighed in favor of a less severe sanction: respondent’s lack of

a prior disciplinary record, his payment of restitution, his cooperative attitude

toward these disciplinary proceedings, and the imposition of other penalties or

sanctions. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (f). The board also found

that respondent’s good character and reputation and his diagnosis of “adjustment

disorder with mixed conduct and emotion” qualified as mitigating factors

pursuant to BCGD Proc.Reg. 10(B)(2)(e) and (g). Additionally, the board

concluded that respondent’s cessation of criminal activity before he was caught,

admission of wrongdoing when confronted by the police, and expression of

sincere remorse at the hearing weighed in favor of a lesser sanction.

{¶ 9} The only factors that the board cited in aggravation were

respondent’s dishonest or selfish motive in stealing his employer’s funds and his

pattern of misconduct involving multiple offenses. BCGD Proc.Reg. 10(B)(1)(b),

(c) and (d).

{¶ 10} After considering these factors and respondent’s request for a

credit for time served under the interim suspension, the panel and board rejected

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the parties’ recommended sanction of a two-year suspension with one year stayed

on conditions. Instead, they recommend that we impose a two-year suspension,

all stayed on the conditions that respondent (1) continue to make regular visits to

his treating mental-health professional, at an interval to be determined by that

professional, (2) upon his return to practice, submit to a law-practice monitor

appointed by relator, and (3) refrain from any further misconduct.

{¶ 11} In support of its recommendation, the board cites Akron Bar Assn.

v. Carter, 115 Ohio St.3d 18, 2007-Ohio-4262, 873 N.E.2d 824, and Disciplinary

Counsel v. Brenner, 122 Ohio St.3d 523, 2009-Ohio-3602, 912 N.E.2d 1116. But

in each of those cases, we imposed two-year suspensions with only one year

stayed for similar misconduct.

{¶ 12} The board also noted that pursuant to precedent, factors relevant to

the determination of credit for time served for an interim suspension include the

presence of remorse and acceptance of responsibility, the length of time the

criminal conduct occurred and the amount of money involved, and whether the

conduct was “a one-time, out-of-character mistake.” Disciplinary Counsel v.

Margolis, 114 Ohio St.3d 165, 2007-Ohio-3607, 870 N.E.2d 1158, ¶ 26-27.

While the board found these factors present in this case, it did not recommend that

we credit the time respondent served under his interim suspension against the

actual suspension proposed by the parties. Instead, the board concluded that we

should stay respondent’s entire two-year suspension from the practice of law.

{¶ 13} At first, the distinction between a two-year suspension, all stayed

on conditions, and a two-year suspension with one year stayed, and a credit for

one year served under an interim suspension appears to be semantic, because

under either sanction, respondent will not spend any more actual time out of the

practice of law, provided that he complies with the conditions of the stay.

However, we have consistently held that the misappropriation of law-firm funds

warrants an actual suspension from the practice of law. Brenner, 122 Ohio St.3d

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523, 2009-Ohio-3602, 912 N.E.2d 1116, ¶ 21, citing Toledo Bar Assn. v.

Crossmock, 111 Ohio St.3d 278, 2006-Ohio-5706, 855 N.E.2d 1215 (indefinite

suspension for attorney's misappropriation of over $300,000 in law-firm funds);

Disciplinary Counsel v. Yajko (1997), 77 Ohio St.3d 385, 674 N.E.2d 684

(indefinite suspension for misappropriating law-firm funds on 20 occasions);

Disciplinary Counsel v. Crowley (1994), 69 Ohio St.3d 554, 634 N.E.2d 1008

(indefinite suspension for misappropriation of approximately $200,000 of law-

firm funds); Columbus Bar Assn. v. Osipow (1994), 68 Ohio St.3d 338, 626

N.E.2d 935 (indefinite suspension for repeated failure to report fees to firm,

misrepresenting expenses, and misappropriation). Indeed, we are unaware of any

disciplinary case involving a theft offense in which we have entirely stayed a

respondent’s suspension. Moreover, we have required attorneys to serve a period

of actual suspension for engaging in a course of conduct that involves dishonesty,

fraud, deceit, or misrepresentation. Disciplinary Counsel v. Rohrer, 124 Ohio

St.3d 65, 2009-Ohio-5930, 919 N.E.2d 180, ¶ 43, citing Disciplinary Counsel v.

Fowerbaugh (1995), 74 Ohio St.3d 187, 190, 658 N.E.2d 237.

{¶ 14} Consequently, we conclude that respondent’s conduct warrants an

actual suspension from the practice of law, and we therefore sustain relator’s

objection. However, in light of our findings that respondent accepted

responsibility and expressed sincere remorse for his conduct and that his offenses

occurred over a short period, four months, and involved only $7,157.10, and in

the absence of any objection from relator, we credit one year of respondent’s

interim suspension against his current sanction.

{¶ 15} Accordingly, Bradley M. Kraemer is hereby suspended from the

practice of law in the state of Ohio for two years, with one year stayed on the

conditions that he continue to participate in mental-health counseling and

complete a two-year term of probation monitored by relator in accordance with

Gov.Bar R. V(9) following his return to the practice of law. However, we hereby

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credit one year of respondent’s interim suspension against the one year of actual

suspension and terminate the interim felony suspension. Therefore, respondent

may immediately apply for reinstatement pursuant to Gov.Bar R. V(10)(A). But

if respondent fails to meet the stated conditions, the stay of his suspension will be

lifted, and he will serve the remaining one-year actual suspension from the

practice of law. Costs are taxed to respondent.

Judgment accordingly.

PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

BROWN, C.J., not participating.

__________________

Jonathan Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri and

Carol Acosta, Assistant Disciplinary Counsel, for relator.

Michael T. Gmoser, for respondent.

______________________

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