Wednesday, March 9, 2016
Disciplinary Counsel v. Roger S. Kramer, Case no. 2015-2000
Cuyahoga County
Cincinnati Bar Association v. Justin E. Fernandez, Case no. 2015-2001
Hamilton County
Attorney Discipline
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.”
Larger Issues at Stake?
Kramer claims that the issues he’s raised haven’t been addressed in prior Ohio disciplinary cases.
He asks the Court to weigh-in on whether a certified grievance committee’s dismissal not appealed by a grievant is final; whether Garrity warnings apply to disciplinary cases; and whether exercising the right to make motions to protect a client’s due process rights is an appropriate basis for increasing a disciplinary sanction. Kramer suggests that the Court interpretation of the facts and circumstances of his case could have a broad impact on the state’s entire disciplinary system.
- Rachael S. Ingram
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256
Representing Roger S. Kramer: Mary Cibella, 216.344.9220
Attorney Discipline
Cincinnati Bar Association v. Justin E. Fernandez, Case no. 2015-2001
Hamilton County
The Board of Professional Conduct has recommended to the Ohio Supreme Court that Cincinnati attorney Justin Fernandez be publicly reprimanded because he failed to reasonably communicate with his client, violating attorney conduct rules.
The Cincinnati Bar Association (CBA) filed the complaint against Fernandez alleging violations of six professional conduct rules. After a hearing, the board dismissed four claims and agreed with the CBA’s findings on two. The CBA maintains that the attorney also violated the dismissed charges, but didn’t include a recommended sanction in its brief to the Court.
Lawyer Outsources Matter to California Company
In February 2014, Madelyn Harvey paid Fernandez $1,492 to assist her in settling outstanding debts. Shortly after hiring Fernandez, Harvey received a packet of materials bearing Fernandez’s name, former address, and typewritten signature. However, Harvey was directed to return a signed fee agreement and disclosure statement to an address belonging to Morgan Drexen Inc. (MD), located in Costa Mesa, California.
In the brief filed with the Court, Fernandez describes MD as a company that provides integrated support systems to attorneys with a focus on paralegal and other professional services. Fernandez used MD to assist him with cases, including Harvey’s. According to testimony presented at the hearing, by outsourcing, attorneys like Fernandez can charge minimal attorney fees and provide greater access to justice for lower-income clients.
MD sent letters to Harvey’s creditors on Fernandez’s letterhead. The correspondence advised the creditors to contact Fernandez not at his Cincinnati office but at MD’s Costa Mesa office.
According to the board’s report, Fernandez admits that he didn’t work directly on Harvey’s case for four months but provided MD’s log notes, which revealed contact between MD, his client, and her creditors. Aside from their initial discussion where she secured his services, Harvey didn’t speak with Fernandez for several months. She instead talked to support staff at MD. Harvey finally spoke directly to Fernandez when she terminated her relationship with him and asked for a refund.
MD issued Harvey a refund of 90 percent of the fees paid to Fernandez. At that time, Fernandez hadn’t personally performed any billable work on behalf of his client, the board noted.
Bar Association Argues Attorney Aided in Unauthorized Practice of Law
Despite the board’s ruling that the CBA failed to prove by clear and convincing evidence four of the six claims against Fernandez, the association still contends that he failed to adequately advise his client, he didn’t supervise MD’s non-attorney employees, and he aided in the unauthorized practice of law. Specifically, the CBA argues that by not properly counseling his client and by failing to oversee MD’s work, he supported the unauthorized practice of law.
The CBA objects to the dismissal of the four charges and counters Fernandez failed to supervise MD staff who determined the needs of his client. MD’s staff also corresponded with Harvey’s creditors and solicited and negotiated settlement agreements – both of which constitute the practice of law, the CBA concludes.
Fernandez Accepts Board’s Recommendations
Fernandez accepts with the board’s findings of fact, conclusions of law, and recommendations, including the proposed public reprimand.
Regarding the allegation that he failed to properly counsel his client, Fernandez maintains that the cases the CBA relies on to prove its case against him don’t align with the facts of his case and therefore don’t prove any wrongdoing on his part.
In his brief, Fernandez describes in detail his contact with MD to contradict the CBA’s claim that he failed to supervise his client’s case. Among other things, Fernandez paid MD and reviewed documentation and recordings of staff/client interaction to ensure professional standards were met.
Fernandez claims that he didn’t allow non-attorneys to solicit or negotiate settlement agreements on behalf of Harvey. Professionals of MD would indeed elicit figures creditors would be willing take – but actual acceptance, rejection, or counter-offers would have been made by Fernandez or Harvey, the attorney argues.
- Rachael S. Ingram
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cincinnati Bar Association: Justin Flamm, 513.357.9667
Representing Justin E. Fernandez: James Brudny, 614.458.1800
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