[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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