In re Gray

• Citation: 673 S.E.2d 442
• Decision Date: 17 February 2009
• Docket Number: No. 26602.,26602.
• Court: United States State Supreme Court of South Carolina
• Parties: In the Matter of Glenn Oliver GRAY, Respondent.

673 S.E.2d 442

In the Matter of Glenn Oliver GRAY, Respondent.

No. 26602.

Supreme Court of South Carolina.

Heard December 4, 2008.

Decided February 17, 2009.

Lesley M. Coggiola, Disciplinary Counsel, and C. Tex Davis, Jr., Senior Assistant Disciplinary Counsel, both of Columbia, for the Office of Disciplinary Counsel.

Desa Ballard, of West Columbia, for Respondent.

PER CURIAM.

This is an attorney disciplinary matter involving a grievance against Glenn Oliver Gray (Respondent) by his former law firm for engaging in improper billing and reimbursement requests. After a hearing before the Commission on Lawyer Conduct Full Panel (Panel), the Panel recommended that Respondent, who admitted to the alleged misconduct, be suspended for a period of not more than 180 days.

The Office of Disciplinary Counsel (ODC) appeals and argues that the facts and similar case law warrant a harsher sanction. We agree and impose a nine-month suspension. In addition, Respondent is to: (1) pay the costs of this disciplinary proceeding; (2) reimburse the law firm for improper travel requests; (3) continue counseling for one year after the date of his suspension, during which time his therapist shall file a report every six months with the ODC documenting Respondent's progress; and (4) appear before the Committee on Character and Fitness before his reinstatement.

FACTS

After being admitted to the South Carolina Bar in 1989, Respondent moved to New York to practice law. Respondent was admitted to the New York Bar and New Jersey Bar in 1990. In 2001, Respondent moved back to South Carolina when he was hired as an associate by the Law Firm. In December 2003, Respondent's group manager expressed concern to the Law Firm's management committee regarding Respondent's performance. Based on Respondent's year-end performance evaluation, the management committee formalized an "exit strategy," which would provide for Respondent to continue working at the firm for a period of time in order that Respondent could pursue other employment. In preparation for the meeting with Respondent, a member of the management committee accessed Respondent's "timekeeper's records." In doing so, he found a number of improper billing entries in which there were discrepancies between the time billed and the time actually spent on the item. Based on this discovery, the management committee determined that the appropriate course of action was to immediately terminate Respondent on February 4, 2004.

After Respondent's termination, members of the management committee conducted an audit of Respondent's time entries and reimbursement requests from January 1, 2003, through February 4, 2004. During their investigation, they found a file in Respondent's desk containing old airline tickets, altered copies of those tickets, blank reimbursement forms, scissors, tape, and "white-out" solution.

Due to Respondent's actions, the Law Firm filed a letter with the ODC on May 25, 2004. In this letter, the Law Firm outlined Respondent's misconduct leading up to his termination and explained the results of Respondent's post-termination audit. According to the Law Firm, this investigation revealed "excessive and fictitious time entries on client files during the audit period" and "fictitious travel invoices and tickets." In light of this improper billing, the Law Firm claimed it reimbursed $14,163.31 to the affected clients. The Law Firm also discovered that it had reimbursed Respondent in excess of $600 based on his fictitious travel invoices and airline tickets.

Following a full investigation, the investigative panel authorized formal charges against Respondent. On June 18, 2007, the ODC filed formal charges against Respondent. In his initial Response dated July 18, 2007, Respondent admitted misconduct but denied some of the charges. In an Amended Response, Respondent again admitted misconduct but also admitted to all of the charges. Additionally, Respondent requested that he only be sanctioned to a definite suspension of 180 days.

On December 12, 2007, the Panel conducted a hearing. At the hearing, Disciplinary Counsel presented two members of the Law Firm as witnesses. The first witness, a member of the firm's management committee, explained in detail what transpired before and after Respondent's termination. He testified that in conducting an audit of Respondent's time records he discovered that Respondent had billed more than necessary for his travel and the work performed on clients' cases. He made the decision to further investigate into Respondent's case files after he found billing irregularities. In executing this decision, he searched Respondent's office the morning after Respondent's termination, which led to the discovery of a folder containing materials used to "doctor" the firm's reimbursement forms. Upon further investigation, he determined that Respondent had improperly charged clients and the firm for travel time, travel expenses, airline tickets, and mileage.

A second member of the firm testified he also got involved in the audit of Respondent's files. He testified he was "tasked" with retrieving the original time slips from Respondent's office on February 3, 2004. Around 7:30 p.m. that evening, he went into Respondent's office and found Respondent's time records next to his computer. He then proceeded to copy these records, return the originals, and then left the office around 9:00 p.m. When he returned to his office the next morning around 7:00 a.m., he discovered that the copies he had made the night before were missing from his desk. He also discovered that the original time records were no longer in Respondent's office. After checking with the Law Firm's building security, it was discovered that Respondent had been let into the building some time during the evening of February 3rd.

Although this second witness testified he reviewed Respondent's billing records, he stated he primarily focused on Respondent's improper reimbursement requests as evidenced by the file folder found in Respondent's desk. Based on his investigation, he testified to the following examples of improper reimbursement requests: on several occasions Respondent had altered hotel bills so that he would be reimbursed for a greater amount than was actually charged; Respondent had submitted the same airline ticket or travel expenses twice for reimbursement; and Respondent had altered airline tickets for an amount greater than the actual cost of the ticket.

As part of his case, Respondent called two character witnesses who testified Respondent has a reputation as a "person of honesty" and "he is a truth teller." Both testified as to Respondent's good reputation in his church and in the community. Based upon their knowledge of Respondent, both witnesses believed the allegations of misconduct were "out of character" for Respondent.

Respondent, the final witness at the hearing, testified regarding the details of his law career leading up to his employment as an associate with the Law Firm. When questioned about the misconduct allegations, Respondent admitted to the misconduct and did not dispute the amount the Law Firm calculated for the improper billing and reimbursements. He further admitted that he did in fact alter the amounts and did so while at work and at home. Respondent, however, could not give an estimate as to the amount of time it took for him to alter the documents. Additionally, he claimed that he sent the firm a certified check in the amount of $669.20 for travel reimbursements that had been paid to him. He also denied that he took his original time records and the copies from the Law Firm the night before his termination. Respondent believed that a sanction of a definite suspension of 180 days would be appropriate.

After the hearing, the Panel found Respondent engaged in misconduct in violation of the following Rules of Professional Conduct (RPC), Rule 407, SCACR: Rule 1.5, RPC (fees); Rule 8.4(a), RPC (misconduct); Rule 8.4(d), RPC (misconduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e), RPC (misconduct that is prejudicial to the administration of justice). The Panel also found Respondent violated the following Rules for Lawyer Disciplinary Enforcement (RDLE), Rule 413, SCACR: Rule (7)(a)(1) (violates the RPC, Rule 407, SCACR); Rule 7(a)(5) (engages in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or conduct demonstrating an unfitness to practice law;); and Rule 7(a)(6) (violates the oath of office taken to practice law in this state and contained in Rule 402(k), SCACR).

Based on these admitted violations of misconduct, the Panel recommended a sanction of definite suspension for a period of 180 days. In making this recommendation, the Panel primarily relied on this Court's decision of In the Matter of Lee, 370 S.C. 501, 636 S.E.2d 624 (2006) (holding suspension for 180 days was appropriate sanction for attorney who overcharged client by charging fees for traveling to depositions in which he had participated by telephone from his law firm's office).

DISCUSSION

The ODC challenges the Panel's recommendation of a definite suspension of 180 days. Although the ODC urges this Court to adopt the Panel's findings of fact and conclusions of law, it requests that this Court impose a sanction of: (1) a definite suspension for at least 180 days; (2) a requirement that Respondent be examined by the Committee on Character and Fitness prior to his reinstatement; (3) a requirement that Respondent reimburse the Law Firm in the amount of $14,163.31; and (4) a requirement that Respondent pay to Disciplinary Counsel the costs of the proceeding in the amount of $1,124.29.

"This Court has the sole authority to discipline attorneys and to decide the appropriate sanction after a thorough review of the record." In the Matter of Thompson, 343 S.C. 1, 10, 539 S.E.2d 396, 401 (2000). "Although...