Ohio has two parallel disciplinary mechanisms: the certified grievance committees of local bar associations and the state disciplinary counsel. If the local disciplinary counsel decides not to prosecute a case, can disciplinary counsel prosecute anyway?
Last week, the Ohio Supreme Court addressed that question for the first time in a case called In Disciplinary Counsel v. Kramer. The Court split 4 to 3 and held that the state's disciplinary counsel can pursue a case against a lawyer even though another agency had already decided not to do so.
In Kramer, a prosecutor was investigated by the Cleveland Metro Bar Association (CMBA) because of discrepancies in his time sheets. The CMBA determined that, because Kramer had resigned, no further disciplinary action was warranted. However, before the CMBA formally sent a letter dismissing the matter, Ohio disciplinary counsel received an anonymous complaint based on the same misconduct. Kramer argued that the CMBA dismissal should be final, and that its decision should be given full faith and credit, but the Supreme Court closely split on whether the rules governing Ohio attorneys allowed the disciplinary counsel to pursue charges against Kramer under those circumstances.
The Legal Profession Blog has a good summary of the decision here.
Thanks to Patrick B. Cavanaugh, of Kitch Drutchas Wagner Valitutti & Sherbrook for sending me information on the case.
UPDATE 9-18-16: Mike Frisch of the Legal Profession blog has a comment on the case here. His conclusion: "I agree with the majority on policy grounds. If the Ohio rules of
discipline accord quasi-double jeopardy status to grievance panel
dismissals, the rules defeat the purpose of bar discipline - protection
of the public from unethical lawyers."