[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Dunn, Slip Opinion No. 2018-Ohio-4283.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2018-OHIO-4283
                         DISCIPLINARY COUNSEL v. DUNN.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Disciplinary Counsel v. Dunn, Slip Opinion No.
                                   2018-Ohio-4283.]
Judge misconduct—Violations of the Code of Judicial Conduct and the Rules of
        Professional Conduct—Six-month stayed suspension.
     (No. 2018-0813—Submitted July 18, 2018—Decided October 24, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-065.
                                  ________________
        Per Curiam.
        {¶ 1} Respondent, Howard Alan Dunn, of Solon, Ohio, Attorney
Registration No. 0021621, was admitted to the practice of law in Ohio in 1978. In
November 2017, relator, Disciplinary Counsel, alleged that while serving as a
magistrate in the Cuyahoga County Court of Common Pleas, Juvenile Division,
                              SUPREME COURT OF OHIO




Dunn violated the Code of Judicial Conduct and Rules of Professional Conduct by
failing to accurately report his work hours and leave on his time card.
       {¶ 2} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors and jointly recommended that Dunn be
suspended from the practice of law for six months, all stayed. Based on those
stipulations and the evidence adduced at the hearing, a panel of the Board of
Professional Conduct agreed that Dunn had committed the charged misconduct and
found that the parties’ recommended sanction was reasonable and appropriate. The
board adopted the panel’s report and recommendation of a six-month suspension
stayed in its entirety on the condition that Dunn engage in no further misconduct,
and no objections have been filed.
       {¶ 3} We accept the board’s findings and recommended sanction.
                                     Misconduct
       {¶ 4} As a magistrate, Dunn was required to work eight hours per day, 40
hours per week. If he worked less than eight hours a day, he was required to use
his accrued leave time to make up the difference. Pursuant to the juvenile court’s
flexible-schedule policy, Dunn submitted a request to work from 7:30 a.m. to 3:30
p.m. beginning in December 2015. The court approved his request.
       {¶ 5} Beginning on June 13, 2016, and continuing every two weeks
thereafter, Dunn received an automated e-mail from Kronos, the court’s electronic
time-card program, stating:


               Please review and approve your time card; your signature
       indicates that you have verified and approved the accuracy of your
       time card. Please be advised that falsification of electronic time
       records is a work rule violation and may result in discipline
       including removal from employment.




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The juvenile court audited the biweekly time cards that Dunn submitted from
March 15 to September 2, 2016. The court compared the times he reported on his
time cards to a record of his employee-identification-keycard swipes and video
footage from courthouse security cameras. The audit showed that Dunn had falsely
entered his start or end time into his Kronos time card on 90 of the 122 work days
during that period and received $5,051.04 in pay for 121.8 hours that he had not
worked.
       {¶ 6} Dunn’s time discrepancies ranged from a few minutes to over five
hours and inflated his work time by an average of 1.35 hours per day. For example,
on March 31, 2016, Dunn entered the parking garage at 8:18 a.m. and left the
parking garage at 10:52 a.m. On his time card, however, Dunn falsely reported that
he arrived at 7:30 a.m. and left at 3:30 p.m. that day, thereby inflating his work time
by 5.43 hours. Despite the fact that he failed to accurately record the times that he
commenced work, ended work, or used leave time, Dunn personally approved 10
of the 13 audited time cards.
       {¶ 7} At a September 2016 disciplinary hearing conducted by his employer,
Dunn submitted a written statement explaining that nausea and sleeplessness—the
side effects of cancer treatment—had caused him to be late for work and to take
longer breaks.    He also testified that his absences had not affected his job
performance and that he had kept current with his assignments.
       {¶ 8} Following that hearing, Dunn was found to have violated seven
workplace rules prohibiting (1) falsification of documents, (2) dishonesty and
misrepresentation, (3) misuse or theft of county property, (4) conduct unbecoming
a court employee, (5) job abandonment or failing to report for duty as scheduled,
(6) leaving one’s work area without permission, and (7) other acts of misfeasance,
malfeasance, or nonfeasance. He resigned from his employment effective October
3, 2016.




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       {¶ 9} Dunn attempted to make restitution in October 2016 by personally
delivering a cashier’s check to the Cuyahoga County Court of Common Pleas,
Juvenile Division. Although the court initially returned the check to Dunn, it
eventually accepted his payment.
       {¶ 10} In accord with the parties’ stipulations, the board found that Dunn
had violated Jud.Cond.R. 1.2 (requiring a judge or magistrate to act at all times in
a manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and to avoid impropriety and the appearance of
impropriety) and Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in
conduct that involves dishonesty, fraud, deceit, or misrepresentation).
       {¶ 11} We accept these findings.
                                     Sanction
       {¶ 12} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties the lawyer violated, the aggravating
and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in
similar cases.
       {¶ 13} As aggravating factors, the parties and board agree that Dunn acted
with a dishonest or selfish motive and engaged in a pattern of misconduct. See
Gov.Bar R. V(13)(B)(2) and (3). Agreed mitigating factors include the absence of
prior discipline; a timely, good faith effort to make restitution; full and free
disclosure to the board and a cooperative attitude toward the disciplinary
proceedings; and the imposition of other penalties or sanctions (i.e., Dunn’s loss of
employment as a magistrate). See Gov.Bar R. V(13)(C)(1), (3), (4), and (6). The
board also found that Dunn submitted positive character evidence. See Gov.Bar R.
V(13)(C)(5).
       {¶ 14} “Public confidence in the judiciary is eroded by improper conduct
and conduct that creates the appearance of impropriety.”          Jud.Cond.R. 1.2,
comment [1]. For that reason, judges and other persons authorized to perform




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                               January Term, 2018




judicial functions—like magistrates—are subject to the highest standards of ethical
conduct. See, e.g., Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-Ohio-
4700, 979 N.E.2d 289.       In determining the appropriate sanction for Dunn’s
misconduct, the board examined Disciplinary Counsel v. Kramer, 149 Ohio St.3d
425, 2016-Ohio-5734, 75 N.E.3d 1174.
       {¶ 15} Kramer was found to have falsified his time records while serving as
a hearing officer at the Cuyahoga County Board of Revision. Investigations
revealed at least 129 discrepancies between the times Kramer reported on his
timesheets and records of his parking-garage activity. Though he was not subject
to the Code of Judicial Conduct because he did not perform judicial functions
within a court, we found that Kramer had violated Prof.Cond.R. 8.4(c) and 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice). And because Kramer’s misconduct was limited to his
timekeeping practice and he was unlikely to commit future misconduct, we
suspended him from the practice of law for one year, with the suspension stayed in
its entirety on the condition that he engage in no further misconduct.
       {¶ 16} Like Dunn, Kramer had no prior disciplinary record, submitted
evidence of his good character, and had other sanctions imposed for his misconduct
(he was forced to resign from his employment). And both attorneys acted with a
dishonest or selfish motive and engaged in a pattern of misconduct. But while Dunn
immediately accepted responsibility for his actions, Kramer failed to acknowledge
the wrongful nature of his misconduct. In his resignation letter, he denied having
committed any violation of law. At his disciplinary hearing, he testified that his
false entries were mistakes and sloppy bookkeeping, but the panel did not find this
testimony to be credible. Kramer did eventually state that his conduct was wrong.
       {¶ 17} While recognizing that Dunn’s misconduct “tarnished the reputation
of the judiciary,” the board concluded that his immediate acceptance of
responsibility for his misconduct combined with his immediate offer of repayment




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and his cooperative attitude toward the disciplinary process warranted the
imposition of a lesser sanction than that imposed in Kramer. Therefore, the board
recommended that Dunn be suspended from the practice of law for six months and
that the entire suspension be stayed on the condition that he engage in no further
misconduct. Having reviewed the record, we agree with the board’s findings and
recommendation.
       {¶ 18} Accordingly, we suspend Howard Alan Dunn from the practice of
law for six months, with the entire suspension stayed on the condition that he
engage in no further misconduct. If Dunn fails to comply with the condition of the
stay, the stay will be lifted and he will serve the full six-month suspension. Costs
are taxed to Dunn.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                               _________________
       Scott J. Drexel, Disciplinary Counsel, and Joseph M. Caligiuri, Chief
Assistant Disciplinary Counsel, for relator.
       Howard Alan Dunn, pro se.
                               _________________




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