In re Krame

• Court: District of Columbia Court of Appeals
• Decided: November 3, 2022
• Docket: 19-BG-674
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-BG-674

IN RE EVAN J. KRAME, RESPONDENT.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 370772)

On Report and Recommendation of the Board on Professional Responsibility (Bar Docket Nos. 2007-D040 & 2012-D449) (Board Docket No. 16-BD-14)

(Argued June 24, 2021 Decided November 3, 2022)

Andrew H. Marks for respondent.

Becky Neal, Senior Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, was on the brief, for the Office of Disciplinary Counsel.

Stephen H. Marcus filed an amicus curiae brief on behalf of respondent’s clients, David Abramowitz, David Farber, Debra Friedmann, Peter Friedmann, Alan Golden, Neil Kishter, James A. Klein, Laurence Kline, Paul Rosengard, Steven Solomon, Jeffrey O. Spiegel, Ellen B. Kagan Waghelstein, Charles Weinberg, and Rabbi Shohama Wiener, in support of respondent.

Rachel F. Cotton filed an amicus curiae brief on behalf of District of Columbia Bar members Barry Coburn, Sherman L. Cohn, Anne W. Coventry, Myrna L. Fawcett, Leslie G. Fein, Steven W. Jacobson, Alban Salaman, Raymond J. Sherbill, Frederick J. Tansill, and Stefan F. Tucker, in support of respondent. 2

Before MCLEESE and DEAHL, Associate Judges, and THOMPSON,∗ Senior Judge.

DEAHL, Associate Judge: The Board on Professional Responsibility

recommends we disbar Evan J. Krame based on his conduct as trustee of three

special needs trusts. That recommendation stems from two central conclusions.

First is the Board’s conclusion that Krame “engaged in a pervasive dishonest

scheme for personal gain” by knowingly making false statements to the Probate

Division of the D.C. Superior Court when seeking compensation for administering

the trusts. Krame’s alleged scheme related to his persistent efforts to be

compensated based on a percentage of the trust funds he administered, with Krame

sometimes resorting to dishonesty to evade court orders directing that he instead be

compensated on an hourly basis.

Second is the Board’s conclusion that, on two separate occasions, Krame

misappropriated entrusted client funds when he issued duplicate payments to himself

(from the trusts) for the same services. While Krame maintained that those double

payments resulted from the administrative oversights of his staff, and not any

Senior Judge Thompson was an Associate Judge of the court at the time of ∗

argument. She began her service as a Senior Judge on February 18, 2022. 3

wrongdoing on his part, the Board found that Krame himself acted negligently with

respect to those duplicate payments. Disciplinary Counsel goes one step further and

now contends that a “culpable state of mind is not an element of misappropriation,”

which it deems “essentially a per se offense,” (quoting In re Cloud, 939 A.2d 653,

660 (D.C. 2007)), so that “[a]ny unauthorized use of entrusted funds is

misappropriation.”

Krame takes exception to the Board’s recommendation, as does Disciplinary

Counsel to a more limited extent. See infra Part III.E (addressing the lone exception

taken by Disciplinary Counsel). Krame contends the Board usurped the Hearing

Committee’s role as factfinder when it repeatedly rejected the Hearing Committee’s

factual findings. For instance, while the Hearing Committee credited Krame’s

testimony that he was not deliberately or intentionally dishonest with the probate

court in relation to the trusts he administered, the Board reached the opposite

conclusion. Krame contends the Board thereby improperly intruded into the Hearing

Committee’s exclusive role as factfinder. Krame also argues that Disciplinary

Counsel did not present clear and convincing evidence that he negligently

misappropriated funds because it failed to show his conduct fell below a standard of

reasonable care when he caused (and later corrected) the duplicate payments

described above. He disputes Disciplinary Counsel’s contention that 4

misappropriation is a per se offense that requires no finding of a culpable mindset.

Rather than disbar him, Krame asks that we impose a thirty- to sixty-day suspension.

We partly agree with Krame’s contentions that the Board improperly intruded

into the Hearing Committee’s role as factfinder. Namely, the Board failed to accept

certain credibility findings made by the Hearing Committee, and some of the more

serious violations found by the Board were infected by that misstep. As for the

negligent misappropriation charges, we agree with the Board that Krame engaged in

negligent misappropriation in at least one instance, and therefore do not need to

resolve the parties’ disagreement about the extent to which misappropriation is a per

se offense that can be found in the absence of a culpable mindset. Ultimately, based

on the type and number of Rule violations we sustain, we consider the Board’s

recommended sanction of disbarment to be too harsh. We instead suspend Krame

from the practice of law in the District of Columbia for eighteen months. 5

I.

Not long after Krame joined the District of Columbia Bar in 1983, he

developed an expertise in administering special needs trusts. 1 He preferred to be

compensated based on a flat percentage of trust assets, typically 1%, determined

annually. While that was once a fairly standard compensation scheme, by 2005,

much to Krame’s chagrin, judges in the Probate Division of the D.C. Superior Court

indicated that he and other trustees should instead be paid on an hourly basis. Krame

resisted that change in various ways, which eventually drew the attention of

Disciplinary Counsel and prompted an investigation into his handling of three

special needs trusts. The trusts at issue were for the benefit of severely disabled

minors: Vernice Seay (Seay trust), De’Shawn Mecco Brown (Brown trust), and Dion

Baker (Baker trust).

At the conclusion of its investigation, Disciplinary Counsel charged Krame

with violating seven Rules of Professional Conduct, most of them several times over.

1 Special needs trusts allow beneficiaries to “maintain their eligibility for need-based government benefits such as Medicaid and Supplemental Security Income (eligibility for which is tied to the applicant’s income and assets), while at the same time preserving their own assets to provide for supplemental items or services not covered by government programs.” In re D.M.B., 979 A.2d 15, 16 n.1 (D.C. 2009). 6

They largely stemmed from Krame’s efforts to continue being paid based on a

percentage of trust assets, contrary to the probate court’s directions, and the

dishonesty he engaged in to further that pursuit. After a ten-day evidentiary hearing,

the three members of the Ad Hoc Hearing Committee were ultimately divided as to

which violations Krame had committed and as to what sanction should be imposed.

There was some limited unanimity among the committee members, however.

The Hearing Committee unanimously found that Krame violated Rule

3.4(c)—knowingly violating an obligation to a tribunal—on two occasions. The first

was when he submitted a fee petition seeking thousands of dollars in compensation

for his personal crusade to be paid on a percentage basis, despite a court order

directing him not to do so. And the second was when he failed to promptly return

$200 in compensation following a court order to do so. The Hearing Committee also

unanimously found that Krame made a false claim in an appellate brief about the

non-existence of time records that could support an hours-based fee request, thereby

violating Rules 3.3(a)(1) (making a false statement to a tribunal), 8.4(c) (dishonesty),

and 8.4(d) (serious interference with the administration of justice). Finally, it

unanimously found that Krame again violated Rules 8.4(c) and 8.4(d) when he

recklessly (but not intentionally) submitted four altered time entries in support of a

trustee fee petition. 7

A majority of the Hearing Committee then determined that the remaining Rule

violation charges were not supported by clear and convincing evidence. One

Hearing Committee member, however, would have found additional violations of

Rules 3.3(a)(1), 3.4(c), and 8.4(c), including that the violations were made

intentionally, not recklessly, and that Krame also violated Rule 1.5(a) for charging

an unreasonable fee. A different Hearing Committee member would have found two

violations of Rule 1.15(a) for negligent misappropriation. Because the three Hearing

Committee members did not reach consensus on the charged violations, they

recommended three different sanctions, ranging from a suspension of six months to

eighteen months.

Both Krame and Disciplinary Counsel took exception to the Hearing

Committee’s report and recommendation. Disciplinary Counsel contested the

Hearing Committee’s determination that Krame did not commit negligent

misappropriation, charge an unreasonable fee, or commit additional knowing and

intentional violations of Rules 3.3(a)(1) and 8.4(c). It also argued that the Rule

8.4(c) violations that were found were intentional, not reckless. Krame, for his part,

conceded the violations of Rule 8.4(c) and 8.4(d) relating to the reckless alteration

of certain time entries, as well as the Rule 3.4(c) violations for disobeying a 8

tribunal’s order. But he contested the Rule 3.3(a)(1), 8.4(c), and 8.4(d) violations

relating to him making a false claim in an appellate brief.

On review, the Board largely agreed with Disciplinary Counsel. It determined

that Krame negligently misappropriated entrusted client funds on two occasions

when he paid himself twice for the same work in violation of Rule 1.15(a); that he

charged for the time he spent litigating the fee issue in violation of Rule 3.4(c); that

he committed additional and intentional (rather than reckless) violations of Rules

3.3(a)(1), 8.4(c) and 8.4(d); and that he charged an unreasonable fee in violation of

Rule 1.5(a). It did, however, agree with Krame that he did not make a false statement

in an appellate brief. As a sanction, the Board recommends we disbar Krame.

Krame has now filed exceptions to the Board’s report and recommendation

with this court. He challenges a variety of the violations found by the Board along

with its recommended sanction of disbarment. Because this appeal raises a host of

fact-intensive questions, we flesh out the facts more below, in the context of the

particular rule violations they relate to. 9

II.

Before delving into the particular rule violations, the parties spar over an

overarching question that affects much of the analysis below: Whether the Board

relied upon its own de novo factual and credibility findings regarding Krame’s state

of mind, contrary to the factual findings of the Hearing Committee, and thereby

impermissibly intruded upon the Hearing Committee’s purview as factfinder.

Krame asserts that the Board so intruded into the Hearing Committee’s role, while

Disciplinary Counsel maintains it did not do so, as the Board is free to review

questions of “ultimate fact” de novo.

Two principles in this arena are clear, but in some tension. First, the Board

“must accept the Hearing Committee’s evidentiary findings, including credibility

findings, if they are supported by substantial evidence in the record.” In re Klayman,

228 A.3d 713, 717 (D.C. 2020) (quoting In re Bradley, 70 A.3d 1189, 1193 (D.C.

2013)). Second, “[t]he Board . . . owe[s] no deference to the Hearing Committee’s

determination of ‘ultimate facts,’ which are really conclusions of law and are thus

reviewed de novo.” Id. (quoting In re Bradley, 70 A.3d at 1194). What is less clear

from our precedents is how these two principles interact. Some factual questions,

like whether an individual acted with knowledge or intent, at least resemble legal 10

questions of “ultimate fact,” so that both the Hearing Committee and the Board have

a claim to being the final arbiter of such facts. To reconcile these principles, it helps

to examine what our precedents mean when they speak of questions of ultimate fact.

An “ultimate fact” is a term of art that was first introduced to our Bar

disciplinary jurisprudence in a case called In re Micheel, 610 A.2d 231 (D.C. 1992). 2

In that case, this court was confronted with the question of how much, if any,

deference was owed to the Hearing Committee’s finding that respondent’s

misappropriation was negligent as opposed to reckless. Id. at 234-35. Because we

had never addressed that question in a Bar discipline matter, we turned to

administrative case law for guidance, given the similar governing standards between

this court’s review of Bar discipline matters and agency actions. Id. at 234 & n.10.

More specifically, we turned to Washington Chapter of American Institute of

Architects (AIA) v. D.C. Department of Employment Services, 594 A.2d 83 (D.C.

1991), in which this court explained the difference between how “ultimate facts” and

2 The phrase appears in just one of our prior disciplinary cases, albeit in a dissent (and only in a parenthetical quotation of another case). In re Dwyer, 399 A.2d 1, 15 (D.C. 1979) (Mack, J., dissenting) (“We will nevertheless give serious consideration to the findings and recommendations of the trier of fact when the determination of ultimate facts rests on the weight and credibility of witnesses who have testified in person before that committee.” (cleaned up) (quoting In re Lurie, 546 P.2d 1126 (Ariz. 1976))). 11

“subsidiary findings of basic fact” are reviewed by an appellate body. In re Micheel,

610 A.2d at 234 (quoting AIA, 594 A.2d at 87). The former are facts that have a

“legal consequence,” which are reviewed de novo, id. at 235 (quoting AIA, 594 A.2d

at 86-87), while the latter are facts “which, taken together, lead to an ultimate

fact/legal conclusion,” and which must be accepted by the reviewing body unless

unsupported by substantial evidence. AIA, 594 A.2d at 87. Relying on this guidance,

we concluded in In re Micheel that a Hearing Committee’s finding of negligence

was an ultimate fact that the Board owed no deference to. 610 A.2d at 235. That

was because a finding of negligence, as opposed to recklessness, had a “clear ‘legal

consequence’: it directly affected the severity of the action to be imposed.” Id. In

re Micheel, therefore, makes clear that the question whether a respondent possessed

a certain state of mind is at least sometimes a question of ultimate fact that the Board

reviews de novo.

That does not mean that a Hearing Committee’s factual and credibility

findings have no bearing on, or are never controlling as to, a respondent’s state of

mind. In re Micheel makes clear that neither we nor the Board can simply brush

such findings aside because they affect determinations of ultimate fact. In that case,

we did not ignore the Hearing Committee’s findings; we accepted them and

determined that, as compared to other disciplinary cases, those findings showed that 12

respondent’s conduct was reckless rather than negligent. Id. at 235-37. This point

was also crucial to the outcome in AIA, the case that informed In re Micheel’s

analysis. See AIA, 594 A.2d at 87 (“[The reviewing body] did not overrule the

appeals examiner’s subsidiary factual findings. Rather, [it] accepted the essential

facts, including credibility determinations, in the [factfinder’s] ruling.” (internal

quotation marks and citation omitted)).

As this court has reasoned since In re Micheel, sometimes a Hearing

Committee’s factual and credibility findings preclude the Board from reaching a

particular conclusion regarding an ultimate fact. That point is illustrated by In re

Temple, 629 A.2d 1203 (D.C. 1993), decided the year after In re Micheel. In In re

Temple, the ultimate fact at issue was whether respondent had been significantly

rehabilitated so as to support a mere probationary sanction. Id. at 1208. Although

we agreed with the Board that it owed no deference to the Hearing Committee’s

conclusion that respondent was rehabilitated given that it was an ultimate fact, we

faulted the Board for supplanting the Hearing Committee’s factual and credibility

findings with its own when conducting its de novo review. Id. at 1208-09 (“The

factfinder who hears the evidence and sees the witnesses is in a better position to

make [credibility] determinations, having the benefit of those critical first-hand

observations of the witness’ demeanor or manner of testifying which are so 13

important to assessing credibility.”). After applying the correct deference, we

accepted the Hearing Committee’s credibility findings as supported by “substantial

evidence,” and ruled that those findings compelled the conclusion that the

respondent had been significantly rehabilitated. Id.

In re Evans teaches the same lesson. 578 A.2d 1141, 1142 (D.C. 1990). 3

There, the ultimate fact at issue was whether respondent had an intentional state of

mind when he misappropriated client funds. Id. Both the Board and this court

reasoned that because the Hearing Committee credited respondent’s belief that he

had permission to disburse the client funds that were ultimately misappropriated,

respondent could not have acted intentionally. Id. As In re Temple and In re Evans

show, although a respondent’s state of mind might be an ultimate fact that is

reviewed de novo, a Hearing Committee’s credibility findings can still constrain the

determination of ultimate fact. 4

3 In re Evans predates In re Micheel by two years, and does not speak in terms of questions of “ultimate fact,” but of an “ultimate conclusion.” In re Evans, 578 A.2d at 1149. While it is perhaps less informative than In re Temple because it did not grapple with In re Micheel’s later pronouncement that the Board does not owe deference on questions of ultimate fact, we nonetheless think it informative, if only as presaging our later analysis in In re Temple. 4 See also In re Martin, 67 A.3d 1032, 1050-51 (D.C. 2013) (credibility finding compelled conclusion that respondent made false statements); In re Godette, 919 A.2d 1157, 1163-66 (D.C. 2007) (rejecting Board’s finding that respondent’s 14

With that said, as we recently observed in In re Tun, “in some circumstances,

a Hearing Committee’s finding as to a respondent’s credibility ‘does not warrant the

normal deference.’” 195 A.3d 65, 73 (D.C. 2018) (quoting In re Anderson, 778 A.2d

330, 341-42 (D.C. 2001)). In re Tun highlighted two such scenarios. The first occurs

when the Hearing Committee’s findings are not supported by substantial evidence.

Id. (citing In re Bradley, 70 A.3d 1189, 1194-95 (D.C. 2013) (rejecting Hearing

Committee’s conclusion that respondent “seemed honest” because there was “no

factual support in the record” for the Hearing Committee’s credibility conclusion

and other evidence directly contradicted it)). The second occurs when the Hearing

Committee’s credibility findings are based upon a mistake of law, as opposed to the

witness’s demeanor or manner of testifying. Id. (“[T]he Hearing Committee’s

conduct was not deliberate because the Hearing Committee’s contrary finding was supported by substantial evidence and was thus owed deference); In re Cloud, 939 A.2d 653, 661 (D.C. 2007) (Hearing Committee credited respondent’s testimony, which precluded Disciplinary Counsel from proving misappropriation was reckless); In re Kline, 11 A.3d 261, 264 (D.C. 2011) (Hearing Committee credited respondent’s belief that the money he withdraw from a trust account belonged to him, which precluded a finding of intentional misappropriation); In re Mba-Jones, 993 A.2d 1071, 1073 (D.C. 2010) (“factual and credibility determinations in the Maryland proceedings” precluded a finding of intentional or reckless misappropriation); In re Pye, 57 A.3d 960, 973 (D.C. 2012) (adopting appended Board report) (Hearing Committee’s conclusion that misappropriation “was a mistake based on its assessment of Respondent’s credibility” compelled finding of negligence where Board had “no basis to question the Hearing Committee’s credibility determination”). 15

disbelief was based on an ‘analysis . . . in the nature of a legal conclusion.’” (quoting

In re Anderson, 778 A.2d at 341-42)); see also In re Martin, 67 A.3d 1032, 1050

(D.C. 2013) (“We do not give deference to a Hearing Committee’s credibility

determination where that determination is predicated upon a conclusion of law rather

than the demeanor of testifying witnesses.” (citing In re Anderson, 778 A.2d 341-

42)). 5

Our recognition of those limited bases for revisiting the Hearing Committee’s

credibility determinations does not affect our prior rulings that credibility findings

must be accepted and can have a foreclosing impact on ultimate facts and legal

conclusions, so long as they are supported by substantial evidence and uninfected by

legal error. For instance, In re Tun accepted as settled the Hearing Committee’s

credibility findings where substantial evidence supported them, and rejected only

those that could not be reconciled with the record evidence. 195 A.3d at 73-74

5 In re Tun also cited In re Romansky, 938 A.2d 733, 739 (D.C. 2007), for the general principle established by this court in In re Micheel: that an ultimate fact (such as state of mind) is a legal conclusion reviewed de novo. In re Tun, 195 A.3d at 73. As we have already explained, that general principle does not detract from the Board’s obligation to accept the Hearing Committee’s factual and credibility findings that inform the Board’s legal conclusions. Like In re Micheel, In re Romansky merely considered the facts found by the Hearing Committee that were supported by substantial evidence and determined whether those facts demonstrated intentionality as opposed to recklessness. 938 A.2d at 740-42. 16

(accepting Hearing Committee’s finding that respondent made an intentionally false

statement in a court filing because that finding was based on substantial evidence);

id. at 75 (rejecting Hearing Committee’s finding that respondent gave intentionally

false testimony because that finding was not based on substantial evidence or

respondent’s demeanor in testifying).

Neither we nor the Board have carte blanche to revisit the Hearing

Committee’s credibility determinations simply because we disagree with them and

they speak to some ultimate fact. To hold otherwise would “endanger th[e] basic

allocation of decisionmaking responsibility” between the Board and the Hearing

Committee. In re Anderson, 778 A.2d at 341. While our precedents have admittedly

not always been clear on this point, we are not aware of any that conflict with the

principles articulated above—stemming from In re Micheel, In re Temple, and In re

Evans—and Disciplinary Counsel points to no genuinely conflicting authority. 6

6 Of the cases Disciplinary Counsel relies upon, only In re Berryman, 764 A.2d 760 (D.C. 2000), appears to be in some superficial tension with the principles we have articulated above. That tension dissipates upon scrutiny. In Berryman, the Hearing Committee found respondent had negligently misappropriated funds, but both the Board and this court determined the misappropriation was in fact intentional. Id. at 764-65, 772-74. That would present some tension with our analysis only if the Hearing Committee’s determination in Berryman were grounded in a credibility finding, but nothing in Berryman suggests that it was. Instead, it appears that the Hearing Committee, on the one hand, and the Board and this court, on the other, simply disagreed about the legal import of a set of circumstantial facts, 17

We therefore conclude that Disciplinary Counsel paints with too broad a brush

when it asserts that Krame’s “intent is an ultimate fact for the Board and Court to

consider de novo,” at least to the extent it suggests that review is free from the

constraints of the Hearing Committee’s credibility findings. It is not. Both the

Board and this court must accept the Hearing Committee’s credibility findings as

determinations of subsidiary fact, so long as substantial evidence in the record

supports them and they are not infected by any mistake of law.

III.

We turn now to the charged Rule violations relating to Krame’s administration

of the Brown and Baker trusts, which is where Krame directs his argument that the

Board impermissibly ignored the Hearing Committee’s credibility findings related

to his state of mind. Our consideration of the negligent misappropriation charges,

related to the Seay trust, is addressed in Part IV of this opinion.

which unlike a credibility finding, is a legal question subject to de novo review. Id. at 772-73. In fact, Berryman distinguished a case finding that a misappropriation was merely negligent—In re Chang, 694 A.2d 877 (D.C. 1997)—on the basis that in Chang, “[t]he Hearing Committee credited the respondent’s [exonerating] explanation and Bar Counsel found it ‘entirely credible,’” Berryman, 766 A.2d at 771, suggesting the same was not true of the respondent in Berryman, and if it had been, there likely would have been a different result. 18

A. False/dishonest statements to the Probate Court (Brown trust)

Factual Background

In 2003, the probate court approved the following compensation provision for

the Brown trust:

A Trustee shall be entitled to reasonable compensation for his or her services as Trustee hereunder, consistent with industry standards, which may be expressed as a percentage of Trust assets. All trustee compensation is subject to review by the Superior Court, to be approved if reasonable and modified if unreasonable. In considering the reasonableness of fees reported in the accounting by the Trustee, the Court may consider the industry practice and any other factors.

A year later, Krame filed his first accounting reflecting the services he performed as

trustee on behalf of the Brown trust during the course of that year, as well as the

costs for those services. In accordance with the compensation provision above, the

petition calculated Krame’s fees as a percentage of the total trust assets. Krame’s

fees were approved by the probate court.

Krame filed his second accounting about a year later, again reflecting his

services for the preceding year. As he had done with the first accounting, Krame’s

fees equated to 1% of the trust’s assets. By that point, the probate division had 19

started moving away from compensating trustees on a percentage basis. Judge Peter

H. Wolf, the judge assigned to the Brown trust at that time, rejected the accounting

and ordered Krame to file “a thorough explanation of the ‘quarterly fees’ . . . so that

the court [could] determine their reasonableness.” Krame objected and filed a

twenty-page memorandum arguing that “his fees calculated as one percent of the

trust assets and paid quarterly were reasonable.” He further argued that because “[a]

percentage fee was agreed upon by the parties,” and because “a percentage fee of

one percent was previously approved by [the probate court] when it approved the

first accounting,” it had “not been necessary to keep detailed time records for” the

Brown trust.

Judge Wolf again denied Krame’s request that he receive compensation based

on a 1% fee and ordered him “to file a petition for compensation . . . with full

documentation of time expended and hourly rates.” Krame, through counsel, 7 then

filed a document entitled “Trustee’s Explanation of Services,” which gave an

overview of the services Krame provided during the relevant time period. It did not,

however, include any time records because, as Krame explained, he had “not kept

time for specific services as trustee in this case.” Judge Wolf interpreted that

7 Krame verified under oath that the facts provided in the “Explanation of Services” were true and correct. 20

statement to mean that Krame could not “provide an hourly statement of services.”

Without the aid of time records, Judge Wolf resigned himself to determining

reasonableness based on a 1% fee, the very compensation structure he had

previously rebuffed. From that starting block, Judge Wolf then approved $5,320.41

of Krame’s $6,737.88 request for fees.

During its investigation, Disciplinary Counsel discovered that Krame had in

fact kept time records via his billing software called PCLaw, and that those records

justified time-based fees of $5,600, not the $6,737.88 Krame had sought. Believing

Krame intentionally misrepresented to Judge Wolf the non-existence of his time

records so that he could collect his desired 1% fee, which exceeded the amount

reflected in his time records, Disciplinary Counsel charged Krame with violating

Rule 3.3(a)(1) (knowingly making a false statement to a tribunal), Rule 8.4(c)

(dishonesty), and Rule 8.4(d) (interference with the administration of justice).

Before the Hearing Committee, Krame testified that his limited time records

were incomplete, and that those he had kept did not reflect all of the services he was

seeking compensation for in the second fee petition. He also claimed that he made

no misrepresentations to Judge Wolf because his statement that he had “not kept

time for specific services” was “a completely truthful statement” “for specific 21

services [he] had not kept track” so it “was not an all-inclusive statement.” Lastly,

he testified that he did not produce his time records because he “was being an

advocate for the proposition that . . . [a] percentage fee compensation was

appropriate” and had he “presented time records” he would have “conced[ed] the

point.”

The Hearing Committee found that Disciplinary Counsel did not provide clear

and convincing evidence to establish the charged violations of Rules 3.3(a)(1),

8.4(c), and 8.4(d). It credited Krame’s testimony that he did not believe he made

any false statements to Judge Wolf because what he said was technically true, and

concluded that Disciplinary Counsel did not present any direct or circumstantial

evidence to show that Krame’s statements were intentionally false or inaccurate.

The Board disagreed as to the first two charged violations. 8 It first

emphasized that “technically true” statements may nonetheless violate Rules

3.3(a)(1) and 8.4(c) if those statements omit material information with the intent to

mislead. See In re Shorter, 570 A.2d 760, 768 (D.C. 1990) (dishonesty includes

8 Disciplinary Counsel did not take exception to the Hearing Committee’s conclusion that this charged Rule 8.4(d) violation was not supported by clear and convincing evidence, so the Board did not consider that violation, and neither do we. 22

suppression of the truth, not just affirmative misrepresentations); In re Samad, 51

A.3d 486, 499 n.8 (D.C. 2012) (Rule 3.3(a)(1) is violated where an omission of

information is “the equivalent of an affirmative misrepresentation” (quoting Board

Prof. Resp. R. 3.3(a)(1), cmt. 2)). Given the context in which Krame’s statements

were made (“the court’s explicit and repeated efforts to assess the time [Krame]

spent as a trustee”), as well as the reason Krame did not disclose his time records

(because he did not want to compromise his 1% fee advocacy), the Board concluded

that Krame’s “statements were deliberately crafted to skirt the truth so as not to

jeopardize his hoped-for percentage fee recovery.”

Legal Analysis

We agree with the Board that, although Krame’s statement that “he had not

kept time for specific services” was true in one technical sense, Krame violated

Rules 3.3(a)(1) and 8.4(c) by not divulging the time records he did have. Judge Wolf

twice rejected Krame’s request that he receive compensation on a percentage basis

and twice requested that Krame submit detailed records to support his fee petition.

When Krame failed to do so, Judge Wolf reasonably understood that Krame did not

have the kind of records that would have been useful for a reasonableness inquiry.

This is evident both from Judge Wolf’s stated belief that Krame could not “provide 23

an hourly statement of services,” and from Judge Wolf’s lament that the “total lack

of information supplied by [Krame]” meant his review of Krame’s requested fees

would involve an “appearance of arbitrariness.” But Krame did have useful time

records. In fact, his time records accounted for the vast majority of the costs

reflected in the second fee petition. He simply chose not to provide them because

doing so would have hurt his chances at obtaining the percentage-based fee that he

wanted.

These facts are similar to the evasive conduct we reprimanded in In re Shorter.

There, respondent drew the attention of the IRS after he failed to pay his income

taxes for over a decade. 570 A.2d at 763. During the course of that investigation,

IRS agents met with respondent on several occasions to inquire about his personal

assets to determine what was available for the IRS to seize. Id. Respondent told

them truthfully that he had no personal assets, but omitted that the reason for that

was because all of his expenses were paid by his firm from accounts held solely in

the name of his law partner. Id. at 763-64. He explained he did not offer that

information to the agents because they never asked about anything except his

personal assets. Id. We concluded that although respondent’s answers to the IRS

agents’ questions were “technically true,” respondent still acted dishonestly because

he “knew what information the IRS was after, but for his own benefit refrained from 24

supplying that information even when asked questions that grazed the truth.” Id. at

768. In other words, “[a]s long as the IRS did not ask just the right questions,

respondent was prepared to deprive it of the right answers.” Id. Krame’s conduct is

similar. What he informed the court may have been “technically true” on one

reading, but it was sufficiently misleading for him not to disclose the time records

he had. He knew those records would have aided Judge Wolf, but opted not to

provide them because it would have jeopardized his chances of receiving his 1% fee.

That omission amounted to a material misrepresentation in violation of Rules

3.3(a)(1) and 8.4(c).

Krame contends the Hearing Committee’s factual and credibility findings

precluded the Board, and prevent us, from reaching that conclusion. Not so. The

only credibility finding rendered by the Hearing Committee was that it believed

Krame thought he was technically telling Judge Wolf the truth about not having time

records as to all of the services he rendered. But it would be a legal mistake to

conclude, from that premise, that Krame did not violate Rules 3.3(a)(1) and 8.4(c)

because technical truths may still violate those rules where they are intentionally

misleading via omission. That credibility finding says nothing about whether Krame

knowingly misled Judge Wolf by failing to notify the court that he could have

produced time records as to some of the services he rendered. As for the Hearing 25

Committee’s finding that there was “no . . . evidence” that Krame’s statements were

made with an intention to mislead Judge Wolf, we agree with the Board that the

record is in fact replete with such evidence, so that the Hearing Committee’s finding

lacks substantial evidence in the record. For instance, as the Board emphasized,

Judge Wolf’s order—ultimately resigning to paying Krame on a percentage basis—

made clear his understanding that Krame could not “provide an hourly statement of

services” putting the court in a quandary due to “the total lack of information

supplied by” Krame. By that point at the latest, Krame’s failure to correct the court’s

clear misimpression that he had no hourly records cannot be chalked up to good

faith, and can only be explained by Krame’s deliberate and successful design to

mislead the court. See generally In re Ukwu, 926 A.2d 1106, 1116 (D.C. 2007)

(“[I]n assessing intent, the court must consider the entire context. ‘A play cannot be

understood on the basis of some of its scenes, but only on its entire performance.’”

(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990))).

B. False/dishonest statements to the Probate Court (Baker trust)

In March 2005, a petition was filed in probate court to establish the Baker

trust, naming Krame as trustee. The compensation provision of the trust instrument 26

was originally the same as the one entered in the Brown trust, which allowed for

compensation to be expressed “as a percentage of Trust assets.” Before approving

the Baker trust, Judge Franklin Burgess, Jr., the judge assigned to the matter at the

time, held a two-day hearing to address the issue of trustee compensation. During

the hearing, Judge Burgess said he did not want compensation “expressed as a

percentage” and that it should instead be “judged on the standard of reasonableness.”

In light of this preference, Judge Burgess amended the compensation provision in

the trust instrument to say:

A Trustee shall be entitled to reasonable compensation for his or her services as Trustee hereunder, consistent with industry standards, not to exceed one percent (1%) of the trust corpus, determined annually. . . . In considering the reasonableness of fees reported in the accounting by the Trustee, the Court shall consider the custom of the community; the trustee’s skill, experience and facilities; the time devoted to trust duties; the amount and character of the trust property; the degree of difficulty, responsibility and risk assumed in administering the trust, including in making discretionary distributions; the nature and costs of services rendered by others; and the quality of the trustee’s performance and any special skills in support of that performance.

Krame later testified before the Hearing Committee that he understood the cap of

1% as permitting him to calculate his fees at a 1% rate rather than on an hourly basis. 27

A majority of the Hearing Committee credited Krame’s testimony regarding his

interpretation of the provision.

Over a year later, Krame filed his first fee petition for his work performed on

the Baker trust. The petition requested $17,264.18 in fees, “calculated at 1% of the

value of the trust.” Around the same time, Krame generated a document from

PCLaw that set forth the time records for the services claimed in the fee petition.

That document showed a total of $12,350.59 for fees and costs—$4,913.59 less than

what was requested in the fee petition. He did not attach these time records to his

fee petition or at any point alert the probate court to their existence. According to

Krame, the amounts were different because the time entered into PCLaw was

incomplete and did not capture all of the work he did. A majority of the Hearing

Committee credited this explanation.

Judge Ronald P. Wertheim, the judge overseeing the Baker trust at the time

the first fee petition was submitted, denied Krame’s fee request and ordered him to

supply “accompanying information establishing the reasonableness of such fees.”

Krame filed a response to Judge Wertheim’s order, stating that he “receives

compensation for his services, set by agreement of the parties at one percent (1%) of

the trust corpus, per year, payable quarterly.” He further stated that, according to 28

his records, “at least 40 hours of service was” performed, for which a 1% fee was

“reasonable compensation.” Krame later testified before the Hearing Committee

that he believed the requested fees were “appropriate compensation for” the work he

was doing, and that he was “entitled to take a percentage fee” since the “language of

[the] trust allowed for [that].” The Hearing Committee credited this testimony.

Judge Wertheim found that Krame acted contrary to Judge Burgess’s

direction, which he believed to be that “no fixed percentage was to be used as a

standard or measurement of reasonableness.” He then expressed frustration at the

lack of documentation supporting Krame’s fee request, stating that Krame provided

no breakdown for the forty hours of service he claimed to have provided. With no

other way to determine the reasonableness of Krame’s fees, Judge Wertheim divided

the total costs requested ($17,264.18) by the number of hours Krame claimed to have

worked (40), which calculated to a $431.60 hourly rate; a rate that Judge Wertheim

found unreasonable. Applying what he thought was a more reasonable hourly rate

($210), Judge Wertheim then approved $8,400 of the requested fees.

Disciplinary Counsel again charged Krame with violating Rules 3.3(a)(1),

8.4(c), and 8.4(d), contending that Krame (1) intentionally misled Judge Wertheim

into believing he did not have useful time records and (2) misrepresented his 29

understanding of the trust instrument as permitting him to collect a flat 1% fee. The

Hearing Committee disagreed with both points. It concluded that Disciplinary

Counsel produced no evidence for its argument that Krame intentionally withheld

his time records to mislead the court into granting his desired 1% fee. It then found

the compensation provision of the Baker trust unclear as to whether Krame could

charge a 1% fee and credited Krame’s belief that he could. The Board disagreed

with both of those Hearing Committee conclusions. 9 The Board found that Krame

intentionally “misled Judge Wertheim into believing that [Krame] had ‘scant

information about his time’” when he failed to disclose his time records, and then

“misrepresented to Judge Wertheim” his understanding “that his compensation had

been set at 1%.” We agree with the Board on the first point, but disagree with it on

the second.

For largely the same reasons discussed supra in Part III.A, we agree with the

Board that Krame intentionally misled the court by not disclosing his time records

9 The Board did not, however, find a Rule 8.4(d) violation for this conduct, because, as with the Brown trust, supra note 7, Disciplinary Counsel did not take exception to the Hearing Committee’s conclusion that the Rule 8.4(d) violation had not been established by clear and convincing evidence. 30

after Judge Wertheim expressed frustration over having no information to calculate

the reasonableness of Krame’s requested fees. It was clear from Judge Wertheim’s

orders that time records—or really any records—would have aided the court in its

reasonableness analysis. Krame had those records but chose not to disclose them,

not because he believed they would be of no use to the court, but per his own

testimony, because he was taking a “righteous stand” and “standing up for a

principle” that he was entitled to the 1% compensation he sought. The Hearing

Committee made no credibility finding that we must defer to on this question; it

merely concluded that Disciplinary Counsel did not present sufficient evidence to

support the charge, a legal conclusion that is at odds with the record. We therefore

conclude that Krame violated Rules 3.3(a)(1) and 8.4(c) by failing to disclose his

time records to Judge Wertheim.

However, we cannot agree with the Board’s conclusion that Krame

misrepresented his understanding that the trust instrument permitted him to collect

a flat 1% fee. Even if that is not a reasonable interpretation of the trust instrument,

the Hearing Committee credited Krame’s testimony that he nonetheless interpreted

it that way. The Board was not free to reject that credibility finding—which has

substantial evidentiary support (Krame’s testimony) and is not premised on any legal

mistake—and neither are we. The Board was obligated to accept that credibility 31

finding in determining whether Krame intentionally violated Rules 3.3(a)(1) and

8.4(c). It did not do that. Had it done so, it would have been precluded from

determining that Krame made knowing misrepresentations to Judge Wertheim in

saying his compensation for the Baker trust was “set by agreement of the parties at

one percent (1%) of the trust corpus, per year, payable quarterly.” Neither the Board

nor Disciplinary Counsel argues the Hearing Committee’s credibility finding lacked

substantial support in the record, nor do they suggest it was infected by any legal

mistake. It is therefore not for us, or for the Board, to second guess that credibility

finding.

C. Disobeying court orders

As the facts recounted above make clear, Krame was persistent in resisting

the probate division’s decision to shift from percentage-based to hours-based

compensation for trustees. Krame believed his advocacy in this arena was a service

to the beneficiaries of the trusts he was administering, and so he thought he was

entitled to reimbursement for his time in advocating this position. Judge Wolf

disagreed and ordered him not to include his litigation-related fees or costs in his fee

petitions. Despite that order, Krame tried to expense litigation fees and costs to the 32

Brown trust on two occasions: once on November 17, 2006, when he billed the

Brown trust for a $200 litigation filing fee, and again on November 22, 2006, when

Krame filed a requested $8,700 worth of fees for advancing the position that he was

entitled to be paid on a percentage basis. Judge Wolf disallowed both amounts.

Because the $200 filing fee had already been paid out to Krame, Judge Wolf also

ordered Krame to “reimburse the filing fee ‘forthwith.’” Krame did not comply with

that order until two and a half years later.

Both the Hearing Committee and the Board concluded that clear and

convincing evidence existed to support the conclusion that Krame twice refused to

obey a court order, each a separate violation of Rule 3.4(c). He violated the court’s

initial order not to include his litigation-related fees or costs in his fee petitions, and

then violated its order to return the $200 “forthwith” when he failed to comply with

that order for more than two and a half years. Krame concedes on appeal that he

committed those violations, so we adopt the Board’s conclusion that Krame violated

Rule 3.4(c) in both instances. 33

D. Altering time records

Krame directly appealed three orders discussed above: (1) Judge Wolf’s

disallowance of $1,417.47 worth of requested fees in Krame’s second accounting

for work performed on the Brown trust; (2) Judge Wertheim’s approval of only

$8,400 in fees for work on the Baker trust—a reduction from the $17,264.18 Krame

requested; and (3) Judge Wolf’s order prohibiting Krame from expensing litigation-

related costs. See In re D.M.B., 979 A.2d 15, 17-21 (D.C. 2009). Krame was unsure

how those appeals would pan out, so while they were pending he did not file any fee

requests for the work he performed on behalf of the Brown and Baker trusts. He did,

however, start tracking his time more diligently in PCLaw in case his appeals were

unsuccessful and he had to then submit time-based fee petitions. Several years later,

in In re D.M.B., this court affirmed each of Judge Wolf’s and Judge Wertheim’s

orders. Id. at 21-26.

Following that loss, Krame filed his outstanding fee requests (covering several

years) for the Brown and Baker trusts. Attached to both fee petitions was a PCLaw-

generated document titled “Pre-Bill” which contained time entries for the work

Krame had performed on behalf of the Brown and Baker trusts from 2006 to 2009. 34

Both petitions were approved by the probate court ($43,055.00 in fees for the Brown

trust and $47,642.50 in fees for the Baker trust).

During its investigation, and with the aid of PCLaw’s built-in audit feature

(tracking changes to billing statements), Disciplinary Counsel discovered that four

of the Pre-Bill time entries submitted in support of the Brown and Baker fee petitions

were altered by Krame after he lost his appeal in In re D.M.B. The altered entries

omitted any reference to work Krame performed for his litigation-related activities

(which Krame was not permitted to receive compensation for per Judge Wolf’s then-

affirmed order), but offered alternative justifications for the same fees, totaling $860.

For instance, one line item in Krame’s contemporaneous time entries noted $525 for

1.5 hours of “work on notice and petition for fees,” but after Krame lost his appeals,

that entry was altered to the same $525 for 1.5 hours of “work on notice and petition

for fees on accounting.” Believing that and three similar alterations were a deceptive

way for Krame to circumvent Judge Wolf’s order and obtain compensation for his

litigation fees, Disciplinary Counsel charged Krame with violations of Rules

3.3(a)(1) (“Making a false statement of fact or law to a tribunal”); 8.4(c)

(“Engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation”);

8.4(d) (“Engag[ing] in conduct that seriously interferes with the administration or

justice”); and 1.5(a) (charging an unreasonable fee). Krame testified that, for each 35

of the four alterations, he reviewed his files and determined that he had performed

equivalent compensable work that he had previously failed to record, and simply

substituted that work for the now-omitted amounts for litigation fees.

The Hearing Committee “credited [Krame’s] testimony regarding [his]

preparation of the [time entries].” But because it recognized the “unlikelihood” and

“implausibility” of Krame’s ability to reliably remember work he performed years

after the fact, it concluded that he recklessly (but not intentionally) violated Rules

8.4(c) and (d). See, e.g., In re Ukwu, 926 A.2d at 1113-14 (Rule 8.4(c) may be

violated recklessly). In concluding that Krame’s deception was merely reckless, the

Hearing Committee opined that Krame did not intentionally falsify time records, but

instead sloppily pieced through his records without adequate regard for their

accuracy. Because it did not believe Krame intentionally falsified the four time

entries or that he gave intentional false testimony about his preparation of those

entries, the Hearing Committee concluded that Krame did not violate Rule 3.3(a)(1),

which requires a knowing mens rea. It also found that Krame did not violate Rule

1.5(a) because Disciplinary Counsel presented no evidence showing that the fees

charged in the recklessly submitted time entries were ultimately unreasonable. 36

The Board disagreed that Krame did not deliberately falsify his time records,

concluding that Krame’s “justifications [for the alterations were] not credible.”

Having determined Krame acted intentionally, rather than recklessly, the Board then

found that Krame also violated Rule 3.3(a)(1) when he submitted the altered time

entries and that his testimony before the Hearing Committee “seeking to justify that

conduct was intentionally false.” It also found that Krame, by billing the Brown and

Baker trusts for impermissible litigation costs in violation of Judge Wolf’s order,

charged an unreasonable fee in violation of Rule 1.5(a).

Krame concedes that he acted recklessly in violation of Rules 8.4(c) and (d)

when he altered the four time entries, but he argues the Board impermissibly ignored

the Hearing Committee’s credibility findings when it elevated his conduct to

intentional and then found additional violations of Rules 3.3(a)(1) and 1.5(a). We

agree with him as to Rule 3.3(a)(1) but disagree as to Rule 1.5(a).

For the reasons explained supra, Krame’s state of mind is a question of

ultimate fact that the Board was permitted to review de novo. But, as we have also

explained supra, in doing so, the Board was obligated to accept the Hearing

Committee’s subsidiary credibility findings, especially given that those findings 37

were based on Krame’s demeanor while testifying. See, e.g., In re Temple, 629 A.2d

at 1208-09. That did not happen here. Rather than accept the Hearing Committee’s

finding that Krame testified credibly regarding how he prepared the four time

entries, and thus did not intentionally falsify his time records, the Board conducted

its own de novo review of the record and determined Krame’s “justifications [were]

not credible.” That was not a determination for the Board to make, even if it found

Krame’s explanation implausible.

Had the Board accepted the Hearing Committee’s credibility finding—that

Krame did not intentionally falsify his time entries, but instead tried to recreate them

based on his experience and records (however misguided that attempted recreation

might have been)—it would have had no choice but to accept that Krame’s conduct

was no more than reckless, rather than intentional. The only way around that would

have been for the Board to conclude that the Hearing Committee’s credibility finding

was not supported by substantial record evidence or was infected by some legal

error. The Board made neither of the predicate determinations that would permit it

to revisit the Hearing Committee’s credibility findings, and Disciplinary Counsel

does not urge us to do so on appeal. We therefore conclude that Krame’s alteration

of his time entries was reckless, but not intentional, in violation of Rules 8.4(c) and 38

(d). Because we cannot say that Krame knowingly falsified his time entries, we

further conclude that he did not violate Rule 3.3(a)(1).

Finally, we turn to the alleged violation of Rule 1.5(a), which prohibits

charging an unreasonable fee. The Hearing Committee declined to find a violation,

stating that it had “no District of Columbia authority for [the] proposition” that

“recklessly dishonest” time entries are “unreasonable per se.” Yet, in In re Cleaver-

Bascombe, we said “[i]t cannot be reasonable to demand payment for work that an

attorney has not in fact done,” with no reference to any requirement that this demand

be intentionally false. 892 A.2d 396, 403 (D.C. 2006). Relying on In re Cleaver-

Bascombe, the Board found that Krame had violated Rule 1.5(a) based on the fact

that he had “submitted two fee petitions that included false and dishonest entries . . .

that the Hearing Committee found to be ‘baselessly inflat[ed].’” Whether Krame’s

recklessly dishonest time entries were unreasonable is a question of law that the

Board was entitled to review de novo. In concluding that they were, the Board

credited the Hearing Committee’s finding that the entries were “baselessly

inflat[ed]” and did not rely on its own opinion that the inflation was intentional. We

agree with the Board that to demand payment for work not done, even if the demand

is merely reckless and not intentional, is to demand an unreasonable fee, and so

Krame violated Rule 1.5(a). 39

E. Supplemented time entries

Disciplinary Counsel also discovered during its investigation that after Krame

lost his appeal in In re D.M.B., he added new charges and services to his time entries

within PCLaw before submitting his outstanding fee requests for the Brown and

Baker trusts. As described by Disciplinary Counsel, “[t]hese additional time charges

were for services [Krame] claimed to have completed six months to three years

earlier—over 50 additional time charges in Brown and over 40 additional time

charges in Baker.” The additional time charges increased the fees claimed for the

Brown trust by $10,800, which roughly approximated the $10,317.47 in fees Judge

Wolf disallowed in Krame’s various fees requests relating to the Brown trust

($1,417.17 in the second fee petition, $8,700 in the third fee petition, and the order

to return a $200 litigation-related expense). They also increased the charged fees

for the Baker trust by $8,775, which brought his total request to “about 1% of the

original [trust] corpus . . . when annualized”—1% being the compensation fee

Krame had requested and been denied in In re D.M.B. Believing the additional

charges were a way for Krame to collect his desired 1% fee as well as his litigation 40

costs related to that desired fee, Disciplinary Counsel charged Krame with violating

Rules 3.3(a)(1) and 8.4(c). 10

While both the Hearing Committee and the Board expressed concern over

Krame’s ability to accurately and reliably recall services he performed months and

years after the fact, they concluded that Disciplinary Counsel did not carry its clear

and convincing burden on these charges. Disciplinary Counsel takes exception to

this finding, arguing that the Hearing Committee and the Board “ignore[d] common

sense and personal experience” when determining there was no evidence to support

Disciplinary Counsel’s charges. We agree, to an extent.

We agree with Disciplinary Counsel that clear and convincing evidence exists

to conclude that Krame supplemented his time entries recklessly and in violation of

Rule 8.4(c), and that the Hearing Committee and Board’s contrary conclusion is not

10 It is not entirely clear if Disciplinary Counsel charged this conduct as also violating Rules 8.4(d) (conduct that is prejudicial to the administration of justice) and 1.5(a) (charging an unreasonable fee). But neither the Hearing Committee nor the Board considered such an argument, and Disciplinary Counsel does not appear to assert these violations on appeal, contending only that Krame “dishonestly padded both fee petitions.” We therefore do not consider whether Krame violated Rules 8.4(d) or 1.5(a) on account of these supplemental time entries. 41

supported by substantial evidence. The Board and the Hearing Committee were too

wary of applying their common sense in a way that cannot be reconciled with our

(and their) earlier conclusions that Krame’s altered time entries were at least

reckless. As we made clear in In re Godette, the Hearing Committee and the Board

are “not precluded from using their common sense in evaluating the record.” 919

A.2d 1157, 1165-66 (D.C. 2007). And here, commonsense is paramount.

Both the Board and Hearing Committee acknowledged that “delayed

recordation inevitably diminishes the accuracy and credibility of time entries.”

While parties might reasonably debate the reliability of time entries submitted at the

conclusion of a month’s worth of work, there can be little debate regarding the

diminished reliability of entries first recorded several months or years after the work

was completed. That reality, in tandem with (i) the lack of detailed record evidence

substantiating Krame’s work on the Brown and Baker trusts during the appeals

period, (ii) the “implausibility” of several of Krame’s explanations for how he was

able to remember certain services he conducted years earlier noted by the Hearing

Committee, and (iii) the fact that the additional charges to the Baker trust gave

Krame his desired 1% fee, and that the additional charges to the Brown trust offset

the various fees disallowed by Judge Wolf, clearly establishes that Krame’s

supplemented time entries were recklessly submitted in violation of Rules 8.4(c). 42

We cannot say that those time entries were intentionally falsified so as to

constitute violations of Rule 3.3(a)(1), however. For the reasons explained supra

regarding the Hearing Committee’s crediting Krame’s explanation of how he

prepared the supplemented time entries for the Brown and Baker fee petitions, we

would have to reject the Hearing Committee’s credibility findings to find a violation

of 3.3(a)(1), and we have no basis for doing so. We thus agree with the Hearing

Committee and the Board that Krame did not violate Rule 3.3(a)(1) in submitting

these supplemented time entries.

* * *

In sum, with respect to Krame’s oversight of the Brown and Baker trusts, we

conclude that Krame violated Rules 3.3(a)(1) and 8.4(c) when he intentionally

misled Judge Wolf into believing he did not have useful time records pertaining to

the first fee petition filed in relation to the Brown trust; Rules 3.3(a)(1) and 8.4(c)

when he intentionally did the same to Judge Wertheim pertaining to the second fee

petition filed in relation to the Baker trust; Rule 3.4(c) when he defied Judge Wolf’s

orders by expensing litigation costs to the Brown trust and failing to promptly repay

certain of those costs; and Rules 1.5(a) and 8.4(c) and (d) when he recklessly

submitted altered time entries. 43

IV.

We turn now to the negligent misappropriation charges, which stem from two

duplicate disbursements Krame made to himself from the Seay trust.

The first duplicate payment occurred on January 2, 2002, when Krame

disbursed $7,178.80 to himself from the Seay trust after the probate court approved

his fourth fee petition. That payment was duplicative of services Krame had already

paid himself a year earlier on February 21, 2001 when he first submitted the fourth

fee petition. Krame testified that the duplicate payment occurred as a result of the

“passage of time between February 12, 2001 [the date he submitted the fourth fee

petition and made the first disbursement] and January 2, 2002 [the day the probate

court approved the fourth fee petition and he made the duplicate disbursement],”

“personal and administrative difficulties” at his firm, as well as his reliance on

instructions from his administrative staff for when disbursements were appropriate.

The Hearing Committee credited this testimony.

The second duplicate payment occurred on September 18, 2002, when Krame

disbursed $6,770.38 to himself from the Seay trust after the probate court approved 44

a portion of his fifth fee petition. That payment was duplicative because Krame had

already disbursed the approved amount to himself on February 5, 2002, the day he

submitted the fifth fee petition. Krame again testified that the error occurred given

the passage of time between the submission of the fee petition and the court’s

approval order, his “continued press of heavy work,” as well as instruction by his

administrative staff to disburse the funds. The Hearing Committee credited this

testimony as well.

On February 24, 2003, Krame discovered the second duplicate payment while

preparing the sixth accounting for the Seay trust, and two days later he reimbursed

the trust for the errant double-billing and notified the probate auditor of the error.

The first duplicate payment, however, was not discovered until seven years later, on

November 30, 2010, when Krame was reviewing his records in response to

Disciplinary Counsel’s investigation. Krame testified that discovery of the first

duplicate payment was delayed “because [the payment] fell into separate accounting

periods, so it wasn’t readily apparent in preparing accountings that there had been a

double payment.”

A majority of the Hearing Committee found that the duplicate payments did

not amount to negligent misappropriation. It emphasized that the erroneous 45

disbursements were the result of innocent mistakes “made not by [Krame] but by his

employees,” and that Disciplinary Counsel had presented no argument or evidence

to establish that Krame’s bookkeeping system or supervision of his staff were

inadequate. Under such circumstances, the Hearing Committee reasoned that

misappropriation had not been proven.

The Board disagreed for two reasons. First, it found that the erroneous

disbursements were not a mistake made only by Krame’s staff. It noted that Krame

not only “personally signed [the] checks disbursing” the excessive funds, but

“reviewed and signed the accountings that listed the improper payments.” Had

Krame been more diligent in those responsibilities, the Board determined, the

duplicate payments would not have occurred. Citing In re Robinson, 74 A.3d 688,

695 (D.C. 2013), it also concluded that Krame was negligent for not discovering the

first duplicate payment sooner because discovery of the second duplicate payment

should have been “a serious wake-up signal” for Krame to review his records for

other erroneous payments. Second, the Board reasoned that misappropriation is

essentially a nondelegable per se offense, so even if the duplicate payments were an

honest mistake made entirely by Krame’s staff, Krame would still be at fault. Based

on these findings, the Board determined that Krame violated Rule 1.15(a) by

misappropriating the Seay trust funds. 46

Krame takes exception to the Board’s negligent misappropriation findings.

He argues the Board was wrong on both the law and the facts. As to the law, he

contends that while this court has referred to misappropriation as “essentially a per

se offense,” it is not a strict liability offense; some level of negligent culpability is

still required to establish a violation of Rule 1.15(a). Thus, if the erroneous duplicate

payments were the product of an innocent, good faith mistake that did not violate a

standard of reasonable care, by law, he could not have negligently misappropriated

the Seay trust funds. As to the facts, Krame argues his conduct did not fall below a

reasonable standard of care because Disciplinary Counsel presented no evidence to

indicate that he did not have adequate bookkeeping practices in place, that he did not

adequately train or supervise his staff, or that it was negligent for Krame to rely upon

his staff to inform him when it was appropriate to disburse funds from the Seay trust.

While we might agree with Krame’s legal contention, 11 we need not resolve

it because we disagree with his contention that none of his conduct fell below a

11 This court has suggested that misappropriation is “essentially a per se offense,” but we have never sustained a Rule 1.15(a) charge absent some finding of a culpable mindset at least rising to the level of negligence. See In re Haar, 698 A.2d 412, 427, 428 & n.7 (D.C. 1997) (Ruiz, J., dissenting) (collecting cases); see 47

standard of reasonable care. Krame reviewed the single-page sixth accounting for

the Seay trust after discovering one duplicate payment, and that accounting showed

three legal fees listed as disbursements to himself: one for $7,178.50 disbursed on

January 2, 2002; one for $6,835.38 disbursed on February 6, 2002; and one for

$6,770.38 disbursed on September 18, 2002. 12 The three disbursements should have

been an immediate tip-off that something was amiss. After all, these were annual

fees—meaning, there generally should have been only one per annual accounting.

Krame recognized that oddity with respect to the $6,770.38 disbursed on September

18, 2002, concluding that it was a duplicate payment of the amount disbursed on

also generally Nancy J. Moore, Mens Rea Standards in Lawyer Disciplinary Codes, 23 Geo. J. Legal Ethics 1 (2010) (providing overview of mens rea requirements in disciplinary rules). Nor have we ever held that an attorney can violate Rule 1.15(a) based on a third party’s actions absent some negligent contributory conduct by the attorney (e.g., failing to adequately supervise said third party as required under Rule 5.3). See, e.g., In re Robinson, 74 A.3d 688, 694 & n.12 (D.C. 2013) (deferring on question whether non-negligent supervision of a third party can amount to a violation of Rule 1.15(a)); cf. In re Beauregard, 189 A.3d 1236, 1246-47, 1252 (Del. 2018) (where recordkeeping duties have been delegated to a third party, an attorney cannot violate Rule 1.15(a) unless negligent in training or supervising third party). Those questions remain for another day, however, because we conclude Krame was negligent. 12 The $65 difference between these latter two duplicative payments was the result of an additional cost that Krame had initially reimbursed himself for in the February disbursement, but later concluded was in error. He reimbursed the trust with the higher amount upon detection of the double payment, i.e., the full amount of the February disbursement, inclusive of the errant $65 in costs. 48

February 6, 2002. But he did not recognize the same regarding the $7,178.50

disbursement, and his failure to investigate further under these circumstances was at

least negligent.

If Krame had merely glanced back at the fifth accounting from the prior year

he would have seen what he ultimately did not learn until seven years later: that the

$7,178.50 disbursement in January 2002 was also a duplicate of a disbursement he

received in February 2001. 13 Having already been put on notice of one duplicate

payment in that very same year, a reasonably diligent attorney should have taken the

five minutes to review the fifth accounting to make sure he had not made the same

error before. That is especially so here where the sixth accounting reflected three

“annual” fees, not just two, and where Krame described his law firm at the time of

these disbursements as being in “turmoil” and experiencing “administrative

difficulties,” which further increased the likelihood that more than one duplicate

error existed. Particularly when an attorney is aware that their office is in

13 As with the September 2002 duplicate payment, there was a slight discrepancy between the January 2002 duplicate payment and the original amount disbursed, to the tune of $88. We do not attribute any importance to that, because to the extent Krame believed the January 2002 payment was for services rendered in the prior year, a brief review of the prior year’s single-page accounting should have immediately notified him that he had already reimbursed himself for those services. 49

administrative turmoil, they ought to be especially diligent in ensuring that one

substantial accounting error is, in fact, just the one.

As the Board correctly recognized, Krame’s less-than-diligent response to his

review of the sixth accounting is analogous to the negligent misappropriation that

occurred in In re Robinson. There, respondent entrusted an employee with managing

the firm’s trust account, which held client funds. 74 A.3d at 691. After five years

without incident, the trust account’s funds were mistakenly overdrawn when the

employee managing the account accidentally placed client funds in the operating

account rather than the trust account. Id. Respondent’s bank notified him of the

overdraft, but respondent did not take the appropriate steps to investigate or rectify

the issue. Id. at 692-93, 695. As a result, the firm’s trust account was overdrawn a

second time. Id. at 693. This court found that respondent’s failure to investigate

and fix the overdraft issue “in a more diligent fashion,” despite being “clearly . . . on

notice that something was amiss,” caused the second overdraft, which amounted to

negligent misappropriation. Id. at 695-96. The same is true here. Krame’s

discovery of the second duplicate payment in the sixth accounting should have been

“a serious wake-up signal” that “something was amiss.” Id. His failure to respond

accordingly by investigating his records to determine whether other duplicate

payments had been made delayed his discovery of yet another duplicate payment by 50

seven years. That unreasonably delayed detection turned what could have been a

non-culpable mistake into negligent misappropriation. 14

V.

We turn now to the appropriate sanction. The Board and Disciplinary Counsel

recommend that we disbar Krame. That is a far harsher sanction than either the six-

to eighteen-month suspensions recommended by the members of the Hearing

Committee or the “brief suspension” of thirty to sixty days that Krame advances as

appropriate. Considering the Rule violations detailed above, we conclude that an

eighteen-month suspension—the harshest sanction recommended by a member of

the Hearing Committee—is the appropriate sanction.

Although “we normally adopt the Board’s recommendation as long as it ‘falls

within the wide range of acceptable outcomes,’” In re Ekekwe-Kauffman, 210 A.3d

775, 797 (D.C. 2019) (quoting In re Martin, 67 A.3d 1032, 1053 (D.C. 2013)), that

14 The Board and Disciplinary Counsel put forth several other arguments for why the two erroneous payments resulted in negligent misappropriation, including that the disbursements themselves were negligent. We can put those theories aside, because Krame’s substantially delayed detection of one duplicate payment suffices to conclude that Krame engaged in negligent misappropriation, and we would not think a stiffer sanction is warranted even if we were to find a second negligent misappropriation. See In re Robinson, 74 A.3d at 695 n.14; id. at 694 n.12. 51

deference is not warranted here where we have rejected some of the most serious

violations found by the Board. See id. (no deference given where we disagreed with

the Board’s misappropriation finding). The Board erred when it rejected several of

the Hearing Committee’s credibility findings, causing it to find more intentional and

egregious violations of certain Rules. If not for those additional and more severe

violations that we do not sustain—each of which involved the intentional submission

of fabricated documents—we think it unlikely the Board would have recommended

disbarment.

The Board relied heavily on those now-rejected violations as animating its

recommendation, citing a host of cases where disbarment was the appropriate

sanction for deliberately submitting fraudulent documents. See In re Cleaver-

Bascombe, 986 A.2d 1191 (D.C. 2010) (attorney disbarred for intentionally

submitting a fraudulent voucher and then later lying about it); In re Goffe, 641 A.2d

458 (D.C. 1994) (attorney disbarred for manufacturing evidence and lying to both

the Tax Court and the Hearing Committee); In re Howes, 39 A.3d 1 (D.C. 2012)

(attorney disbarred for deliberate and repeated false sworn statements and

certifications to the government that resulted in the misuse of public funds). Because

we conclude that Krame recklessly, but not intentionally, submitted dishonest time

records to the probate court, we do not consider those cases animating the Board’s 52

recommendation especially analogous to Krame’s conduct, and thus find disbarment

inappropriate.

So we are left to fashion our own sanction, and do so knowing that this “is not

an exact science but may depend on the facts and circumstances of each particular

proceeding.” In re Goffe, 641 A.2d at 463. Non-disbarment sanctions this court has

imposed for Rule violations involving false or dishonest statements “range from a

suspension of thirty days to a suspension of three years,” In re Guberman, 978 A.2d

200, 207 (D.C. 2009); see also id. at 207 n.7 (collecting cases), and a six-month

suspension is the usual discipline “meted out in this jurisdiction for negligent

misappropriation,” In re Mirsky, 860 A.2d 363, 365 (D.C. 2004). Given the number

of Rule violations committed here, some of which were the product of intentional

conduct meant to mislead the probate court and circumvent its orders, we think the

brief suspension that Krame urges us to impose is not appropriate and would not

serve a strong enough deterrent for future misconduct. See In re Martin, 67 A.3d at

1053 (more severe sanction is appropriate “where dishonesty is accompanied by

other serious violations or is protracted”). This is particularly so when we consider

the vulnerability of the trust beneficiaries Krame was serving as a trustee for. 53

However, we also acknowledge the following substantial mitigating factors:

Krame’s otherwise unblemished record; his cooperation with Disciplinary Counsel’s

investigation; his long history of serving the disabled and elderly communities; the

significant time Krame has devoted to the profession, including his service on the

steering committee of the Bar’s Estates, Trusts, and Probate Section; and the amicus

brief that over a dozen of Krame’s longstanding clients filed on his behalf, attesting

to his valuable services, professionalism, upstanding character, and ethical conduct.

On balance, we conclude that these aggravating and mitigating considerations

counsel in favor of an eighteen-month suspension for Krame’s violations of Rules

1.5(a), 1.15(a), 3.3(a)(1), 3.4(c), 8.4(c), and 8.4(d).

VI.

It is therefore ORDERED that Evan J. Krame is suspended from the practice

of law in the District of Columbia for eighteen months. For purposes of

reinstatement, we refer Krame to the requirements under D.C. Bar R. XI, § 16(c),

and further direct his attention to D.C. Bar R. XI, § 14, governing the responsibilities

of suspended attorneys.

So ordered.