In re Robinson, 2013 D.C. App. LEXIS 509

Background

Kenneth M. Robinson, long-time D.C. criminal-defense lawyer, delegated daily administration of the firm's trust account to his son-in-law, Nikolaos Kourtesis, while remaining sole signatory and reviewing monthly statements.
In October 2005 a $5,000 deposit intended for the trust account was misapplied to the operating account; a subsequent $5,000 withdrawal from the trust account caused an October 21 overdraft that depleted funds belonging to clients O’Shaugnessy and Waddell.
Robinson covered the first overdraft with a $500 deposit and instructed Kourtesis to investigate, but did not diligently follow up; a second overdraft occurred on November 25, 2005 when a client cashed a check.
Waddell’s remaining $135 was not paid until 2008; PNC (which had acquired Riggs) notified Bar Counsel, leading to an investigation and disciplinary proceedings.
The Hearing Committee found misappropriation but concluded Robinson reasonably relied on Kourtesis and recommended a 30-day suspension; the Board found negligent misappropriation and a Rule 5.1(a) supervisory violation and recommended a seven-month suspension.
The court accepted the Board’s findings that Robinson was negligent after the first overdraft, violated Rules 1.15(a) and 1.15(b), and violated Rule 5.1(a), and imposed a seven-month suspension.

Issues

Issue	Bar Counsel's Argument	Robinson's Argument	Held
Whether misappropriation occurred and whether Robinson was negligent	Misappropriation occurred (account balance fell below client funds) and Robinson was negligent in failing to correct after first overdraft	Robinson reasonably relied on Kourtesis and was not negligent prior to or after the first overdraft	Court: Misappropriation occurred; Robinson was not negligent before the first overdraft but was negligent in failing to follow up after it, extending the misappropriation
Whether Robinson violated Rule 1.15(b) (prompt delivery/notice)	Failure to promptly deliver funds (Waddell unpaid until 2008)	Did not contest this point	Held: Violation of Rule 1.15(b) proven
Whether Robinson violated Rule 5.1(a) (duties to assure firm compliance/supervise)	After the first overdraft he failed to provide the necessary follow-up supervision and thereby failed to assure compliance	Reasonable to rely on experienced subordinate and existing review practices; no prior violation of supervision duties	Held: Violation of Rule 5.1(a) — supervision was adequate before the first overdraft but inadequate thereafter when notice of trouble existed
Appropriate sanction for negligent misappropriation and supervisory failure	A six-month suspension for negligent misappropriation plus 30 days for Rule 5.1(a) (total seven months); Board’s recommendation should be adopted	Robinson urged deference to Hearing Committee’s 30-day recommendation and argued seven months is disproportionate to comparable cases	Held: Court adopted the Board’s seven-month suspension, noting negligent misappropriation typically starts at six months and giving deference to the Board’s considered sanction

Key Cases Cited

In re Addams, 579 A.2d 190 (en banc) (attorney misuse of client funds generally warrants severe sanction; disbarment except when only simple negligence)
In re Anderson, 778 A.2d 330 (misappropriation defined as any unauthorized use and is essentially a per se offense when trust balance is short)
In re Micheel, 610 A.2d 231 (misappropriation jurisprudence and sanctioning principles)
In re Cater, 887 A.2d 1 (standards for supervisory responsibilities and internal controls)
In re Edwards, 808 A.2d 476 (standard for accepting Hearing Committee factual findings)
In re Romansky, 938 A.2d 733 (de novo review for ultimate factual questions like negligence or recklessness)
In re Silva, 29 A.3d 924 (deference to Board sanction recommendations unless unreasonable or inconsistent)
In re Herbst, 931 A.2d 1016 (six-month suspension as a starting point for negligent misappropriation)
In re Pleshaw, 2 A.3d 169 (misappropriation occurs irrespective of personal gain)
In re Wendell Robinson, 583 A.2d 691 (disbarment for misappropriation even where amounts are small)