Wednesday, March 9, 2016

A Matter Of Time

The web page of the Ohio Supreme Court has the story of a case argued today:

Disciplinary Counsel v. Roger S. Kramer, Case no. 2015-2000
Cuyahoga County

The Board of Professional Conduct recommends that a former hearing officer with the Cuyahoga County Board of Revision be suspended from the practice of law for one year, all stayed. Specifically, the board concluded that Roger Kramer of Shaker Heights knowingly falsified employee time records and purposefully ignored the employee handbook and subsequent communication relating to time records. By doing so, Kramer cost Cuyahoga County significant time and money and violated attorney conduct rules prohibiting dishonesty, fraud, and deceit and banning actions prejudicial to the administration of justice.

The Office of Disciplinary Counsel, which investigates complaints against lawyers statewide and filed the charges against Kramer in this case, agrees with the board’s findings but objects to its recommendation to stay the suspension and urges the Court to impose an actual suspension.

Attorney Resigns After Falsifying Time Records
In May 2011, Kramer was appointed to the board of revision as a hearing officer. Kramer resigned in September 2012 after an investigation conducted by the Cuyahoga County inspector general found he falsified 129 of his time records between January 2012 and July 2012.

The inspector general filed a grievance with the Cleveland Metropolitan Bar Association (CMBA), which determined the issue was an employee/employer matter and chose not to pursue the claim. Then in December 2015, the disciplinary counsel filed a grievance based on an anonymous source who alleged that Kramer’s timekeeping practice and subsequent financial benefit violated professional rules of conduct.

Disciplinary Counsel Conducts Own Analysis
During the investigation, the disciplinary counsel found that Kramer entered more hours on his time record than he actually worked. The independent review, which covered a longer timeframe than the inspector general’s report, indicated that between May 2011 and July 2012 Kramer incorrectly stated the hours he worked on 196 occasions.

The disciplinary counsel also found that in addition to misstating his arrival and departure times, Kramer claimed one hour of “exchange time” when he worked eight hours, but worked through lunch. Kramer’s reasoning was that since employees in his office are paid for a one-hour lunch he could work through the hour and earn an additional hour of exchange time. This reasoning, according to the disciplinary counsel, is flawed because Kramer was receiving nine hours of compensation for only eight hours of actual work.

Disciplinary Counsel Seeks Actual Timeout
The disciplinary counsel maintains that the recommended one-year suspension should be actual, not stayed, because Kramer’s misconduct was serious and his rationales for his behavior are disturbing.

Over the span of 14 months, Kramer stole more than 100 hours of exchange time from the county, which translates to more than $3,000, counsel calculated. During his disciplinary hearing, Kramer testified that he thought it was “okay” to log his time the way he did because nobody said anything to him about it. The disciplinary counsel contends in objections that Kramer wants the “Court to believe that he didn’t know what he was doing was wrong because no one told him it was wrong.”

The disciplinary counsel also points to several aggravating factors: Kramer never acknowledged any wrongdoing, changed his story on multiple occasions to fit his defense of the matter, and made no effort to repay the county for the unearned time that he then used as paid leave.

Attorney Argues Stayed Suspension Is Warranted
Kramer counters the demand for actual suspension isn’t because of his refusal to acknowledge any wrongdoing but instead is due to his lawyer’s “motion practice” throughout the proceedings, which Kramer claims was an effort by his lawyer to protect his due process rights.

In addition to other requests, Kramer filed a motion to dismiss because he contends the CMBA’s dismissal of the first grievance precluded another disciplinary entity from filing its own complaint. However, the board maintains nothing in the rules prevents another person or entity from filing a new complaint. Kramer also filed motions to compel production of documents and other tangible things and to delay the hearing, as well as an emergency motion for summary judgment.

Kramer also claims a Garrity warning violation occurred since the statements he made during the inspector general’s investigation were used in the disciplinary proceedings. Garrity warnings arise out the U.S. Supreme Court case Garrity v. State of N.J. (1967) where the court held that government employees have the right to be free of compulsory self-incrimination in a subsequent criminal matter. However, in Kramer’s case, the board stated in its report that it “…was not persuaded to extend the benefits of the Garrity warning to a noncriminal, attorney disciplinary matter.”

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/03/a-matter-of-time.html

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