Lead Opinion
This matter was originally before the court on the Report and Recommendation of the Board on Professional Responsibility (the Board). The Board unanimously found that respondent Addams violated DR 9-103(A) (misappropriation) and DR 1-102(A)(4) (dishonesty) as a result of intentionally misappropriating client funds and misrepresenting the fact to his client. Four members of the Board recommended that respondent be disbarred and four members recommended that he be suspended for one year and a day. Before the court Addams contended that the record did not support the Board’s findings, and, alternatively, that the appropriate sanction was suspension for no more than one year. A division of this court held that the record supported the Board’s findings of disciplinary violations and that, in view of our decision in In re Buckley,
We now reaffirm that in virtually all eases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence. While eschewing a per se rule, we> adhere to the presumption laid down in our prior decisions and shall regard a lesser sanction as appropriate only in extraordinary circumstances. We have found such circumstances in In re Kersey,
I
The decision of the division sets forth in detail the evidence on which the Board unanimously found that Respondent Ad
II
Turning to the issue of sanction, the court is deciding de novo what is the appropriate sanction for Addams’ intentional misappropriation of client funds.
The four members of the Board recommending that Addams be disbarred relied on Buckley, supra,
The other four members of the Board, who recommended a suspension, relied on six mitigating factors, comparable to those in Buckley, in concluding that suspension for a year and a day was the appropriate sanction.
The Board did not find that Addams’ intent in misappropriating funds was “corrupt” or would satisfy the mens rea for theft or embezzlement under the criminal laws. No such finding is required, see note 9, infra, and the court, like the Board, has no occasion to stigmatize Addams’ conduct unnecessarily in this opinion as “theft” or “embezzlement.” Subject only to that qualification, it is appropriate to begin our discussion with an observation of the court a generation ago in In re Quimby,
The administration of justice under the adversary system rests on the premise that clients and the court must be able to rely without question on the integrity of attorneys. An act against a client evidencing moral turpitude, even though attributable to some aberration or stress that would warrant the prosecutor in abstaining from criminal prosecution, may nevertheless warrant severe disciplinary action concerning an officer of the court.
When a member of the bar is found to have betrayed his high trust by embezzling funds entrusted to him, disbarment should ordinarily follow as a matter of course. Such misconduct demonstrates absence of the basic qualities for membership in an honorable profession. Only the most stringent of extenuating circumstances would justify a lesser disciplinary action, such as suspension, which implies the likelihood that at some future time the court may again be willing to hold out the embezzler as an officer of the court worthy of clients’ trust. The appearance of a tolerant attitude toward known embezzlers would give the public grave cause for concern and undermine public confidence in the integrity of the profession and of the legal system whose functioning depends upon lawyers.
Other courts have reached a similar conclusion.
It is therefore important that we reemphasize that the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general.
$ jJs ‡ # >¡e jfs
There is nothing clearer to the public ... than stealing a client’s money and nothing worse. Nor is there anything that affects public confidence more — much more than the offense itself — than this Court’s treatment of such offenses. Arguments for lenient discipline overlook this effect as well as the overriding importance of maintaining that confidence.
Id.
The highest court in Maryland has long been in agreement, stating in Attorney Grievance Comm’n of Maryland v. Cockrell,
This court, sitting en banc, made clear in In the Matter of Burka,
The court noted in Hines, supra,
Buckley was the first, occasion after Hines in which the court addressed the appropriate sanction for intentional misappropriation. The court viewed the result of disbarment to be required under prior rulings,
Thus, we have declined to join those jurisdictions which treat intentional misappropriation of client funds as it would any other disciplinary violation. Not only do we agree that public confidence would be irreparably shaken were we to relax our vigilance in such matters at this late date, but we find that the standards used by these jurisdictions endorse the notion of degrees of corruptness, something that
For example, the Louisiana Supreme Court has attempted to devise categories of sanctions based on the moral corruptness of the misconduct. Louisiana State Bar Ass’n v. Hinrichs,
Other jurisdictions, while adopting a less subjective test than Louisiana, nevertheless place insufficient emphasis, in our view, on maintenance of public confidence in the bar. See In re Deragon,
The Bar of the District of Columbia hаs had sufficient notice of the gravity with which the court views intentional misappropriation, and we decline to restrict application of the presumption in favor of the sanction of disbarment in intentional misappropriation cases to circumstances involv: ing multiple clients over an extended period of time.
Having sought his advice and relying on his expertise, the client entrusts the lawyer with the transaction — including the handling of the client’s funds. Whether it be a real estate closing, the establishment of a trust, the purchase of a business, the investment of funds, the receipt of proceeds of litigation, or any one of a multitude of other situations, it is commonplace that the work of lawyers involves possession of client’s funds. That possession is sometimes expedient, occasionally simply customary, but usually essential. Whatever the need may be for the lawyer’s handling of clients’ money, the client permits it because he trusts the lawyer.
Wilson, supra,
Addams was entrusted by Ms. Jackson with the funds required to stave off the foreclosure of her home. He jeopardized her ability to do so when he took funds from the escrow account and tendered a cheek to the noteholder which was returned for insufficient funds. He took funds from the escrow account on more than one occasion. His actions were not the result of simple negligence but were, as he admits, intentional. In addition, he presented his client with an accounting that did not reveal the moneys that he had withdrawn from the escrow account in 1982. To make matters worse, he presented conflicting explanations of his actions to Bar Counsel, the Hearing Committee and the Board. That he promptly made good on the bounced check offers little reliable evidence of moral qualities since he knew he had no right to take the escrow money in the first place. His many years of practice makes suspect his claims of client authorization.
On the other hand we recognize, as did the Board, that this is not the usual case of intentional misappropriation. The client is not the complainant, but rather is fully satisfied with Addams’ representation of her. Addams undertook to represent Ms. Jackson vigorously even though she was continually behind in paying his legal fees and reimbursing him for costs associated with the litigation. As a result of his efforts, Ms. Jackson did not lose her house and she was relieved of liability to the noteholder when the note was declared null and void. All of this is commendable. In addition, Addams had practiced law for twenty-two years without disciplinary action. Furthermore, unlike the misconduct involved in many instances of misappropriation, Addams’ misconduct was not aggravated by commingling.
It also is understandable that Addams wanted to be paid for his work and reimbursed for his expenses. He was entitled to this and he had the right to look to Ms. Jackson and to insist on prompt payment. He also had the right to pursue legal remedies against her, such as filing a lien. But he did not have, and he knew he did not have, the right to take money from the escrow account without her permission.
In one sense this is an unusual case, but in another sense it is all too usual.
Accordingly, it is
ORDERED that Addams shall be disbarred from the practice of law effective thirty days from the date of this opinion.
So ordered.
Notes
. DR 9-103 Preserving Identity of Funds and Property of a Client.
(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
. DR 1-102 Misconduct.
(A)°A lawyer shall not:
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
. Under D.C.Bar Rule XI, § 7(3) thе court will "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted." Where the Board is evenly split, the court, "[wjithin the limits of the mandate to achieve consistency,” must decide each case on its own particular facts. In re Haupt,
. The usual mitigating factors include the absence of prior discipline, admission of wrongdoing, cooperation with Bar Counsel, and restitution to the client. See In re Reback, supra,
. The Board on Professional Responsibility had found five mitigating factors. Those factors were: (1) the confusion or uncertainty for a period of time about who was responsible for paying the medical bills; (2) the slight harm suffered by the client since Buckley eventually made the necessary payments; (3) misconduct limited to a single matter involving one client; (4) Buckley’s candor in the disciplinary proceedings; and (5) his thirty years of practice without prior discipline.
. The factors were (1) the absence of commingling, since all of the client's funds were properly deposited in a trust account; (2) withdrawals to pay a small portion of legal fees undisputedly owed Addams by his client; (3) client authorization for Addams to use some of the funds in 1983 to pay overdue legal fees, and, based on her "supportiveness” of Addams at the hearing, the likelihood that she would have authorized the 1982 withdrawals had she been so requested; (4) the absenсe of harm to the client and complete client satisfaction with Addams’ services; (5) misconduct limited to a single set of facts concerning a single client; and (6) Addams’ practice of law for twenty-two years without disciplinary violations.
. To the extent that these four members of the Board relied on In re Cefaratti, M-140-82 (D.C. June 28, 1983), their reliance was misplaced. See Buckley, supra,
.This view of the relationship between an attorney and the client is hardly new. More than a century ago it was stated:
The greatest trust between man and man is the trust of giving counsel. For in other confidences, men commit their parts of life; their lands, their goods, their children, their credit, some particular affair; but to such as they make their counsellors, they commit the whole; by how much the whole they are obligation to all faith and integrity.
Note, Attorneys’ Trust Accounts: The Bar’s Role in the Preservation of Client Property, 49 Ohio St.L.J. 275 (1988), quoting F. Bacon, Of Counsel in The Works of Lord Bacon 277 (1846). (Hereinafter Note: Attorney's Trust Accounts).
. In In re Harrison,
. See ABA Standards for Lawyer Discipline and Disability Proceedings Standard 7.1 (courts should avoid adoption of rules that mandate dispositions for certain forms of misconduct since fixed penalties limit ability to address complexity and variety of circumstances in each case). See Disciplinary Counsel v. Kanuck,
. Kersey was charged with 24 violations of the Code of Rеsponsibility, including two for misappropriation of client funds and one for commingling, occurring over a two-year period. The court found that Kersey’s professional conduct was "substantially affected” by his alcoholism and held that rehabilitation efforts were a "significant factor" in determining the appropriate sanction for the widespread and persistent pattern of violations. Id. at 327. The court stayed execution of disbarment and placed Ker-sey on probation for five years subject to several conditions. Id. at 328.
. For example, the Supreme Court of California has had occasion to consider the effect of attorney incapacity arising from extensive professional and personal problems. Acknowledging that "personal problems may legitimately explain a period of inattention to an attorney’s law practice,” the court, in a case of multiple and devastating personal and professional tragedies, resulting in severe depression for a time, placed an attorney on probation for five years when the usual sanction would have been disbarment. Silva-Vidor v. State Bar of California,
. Compare In re Burton,
. Rule 1.15 (Safekeeping Property) and Comment [1], Rules of Professional Conduct, Order of the District of Columbia Court of Appeals, March 1, 1990, printed in Special Supplement of the Bar Report, February/March 1990.
. The court cited In re Burton, supra, note 13,
.See In re Schneider,
. In In re Iulo,
. The court relied on the following factors as indicating that the attorney was not morally unfit to practice law: (1) the attorney, although grossly negligent in his treatment of his client’s funds, had not committed any other fraudulent acts in connection with the conversion; (2) while "the client was seriously injured in his day-to-day living and in his dealing with creditors,” the attorney fully repaid the client, with damages, albeit it eight months later; (3) the attorney had practiced law for thirty-two years and while the subject of sixteen prior complaints, none had been for commingling or conversion of client funds. Id. at 123.
. We reject as meritless Addams’ contention that he should not be disbarred because his actions occurred prior to our decision in In re Hines, supra,
. See Note, Attorneys’ Trust Accounts, supra note 8, at 275 (ethical violations involving the mishandling of client funds are common). See also In re Hines, supra,
. On September 26, 1989, the court granted petitioner’s motion for a stay pending thе filing and disposition of his petition for rehearing en banc.
Concurrence Opinion
concurring in the result:
I concur in the result of the court’s opinion disbarring respondent, but my analysis differs. I agree with the majority that a presumption of disbarment applies to intentional misappropriation cases and that, after all the mitigating and aggravating factors are evaluated in this case, respondent has failed to overcome that presumption. I write separately, however, for two reasons. First, I differ both with the majority and with Judge Schwelb about the implications of In re Hines,
I.
I agree with the majority that disbarment has been the normal sanction in this jurisdiction for intentional misappropriation of client funds — without regard to whether the intent was “corrupt” or “non-corrupt” —at least since In re Burka,
The court in Hines quoted a recommendation from the Board on Professional Responsibility as follows:
[T]he District of Columbia Court of Appeals has not yet ruled that misappropriation of the sort engaged in in this case will ordinarily result in disbarment. We think that such conduct should result in disbarment, but only after the bar has been put on notice by the District of Columbia Court of Appeals that misappropriation of client funds in cases involving more than simple negligence will ordinarily result in disbarment even though the proof does not rise to the level of willful corruption.
II.
I turn to mitigation. I subscribe to the majority’s basic thesis that misappropriation cases are different from other disciplinary cases and therefore call for “a more stringent rule.” See ante at 198. On the other hand, as the majority states, “this court, like others, has recognized that a per se rule would be inequitable since there may be circumstances in which disbarment will not be the appropriate discipline for intentional misappropriation of client funds.” Ante at 194. I believe that the majority, by excluding certain potential mitigating factors from the equation and by making the presumption of disbarment unusually difficult to rebut, has gone beyond the rule we announced in Hines and effectively created a per se rule.
The majority today rejects, as did the majority in Buckley, the notion that the degree of corruptness is a factor to be considered in assessing the appropriate sanction in a misappropriation case. My colleagues state that “the notion of degrees of corruptness ... seems alien to so basic a part of an attorney’s obligation to the client.” Ante at 197. While it is clear that the lack of a “corrupt” intent is no defense to a charge of misappropriation
Moreover, I agree with Judge Schwelb that, given the importance we generally place on the lack of a prior disciplinary record in determining appropriate disciplinary sanctions, see, e.g., In re Reback,
The majority’s approach is particularly anomalous in light of the post-argument submission we have received from the Board.
The Board does not believe that disbarment shоuld automatically be imposed in all intentional misappropriation cases. In determining the appropriate sanction in intentional misappropriation cases, the Court should not preclude consideration of mitigating factors. See In re Reback,513 A.2d 226 , 231 (D.C.1986) (en banc); In re Haupt,422 A.2d 768 , 771 (D.C.1980); In re Smith,403 A.2d 296 , 303 (D.C.1979).
The use of mandatory sanction or so-called “per se rules” should be avoided in the disciplinary system. Using per se rules leads to the perception that discipline is imposed in a mechanistic or even arbitrary manner. Although predictability may be fostered by per se rules, this benefit is offset by a real risk of injustice when the individual circumstances of a case cannot be taken into account in imposing sanctions. This is especially so when the per se rule leaves no choice but to impose the ultimate sanction of disbarment.
It is often said that “hard cases make bad law.” The Board has seen evidence that, because of a perception that a determination of intentional misappropriation mandates disbarment, hearing committees may have tried to fashion their fact-findings in order to avoid this result.[7 ] Evasive action of this type is, of course, the response to be expected from tribunals bound by rules that are felt to be Draconian when applied to a “hard” case. Per se rules and the resulting evasive actions are likely to lead to the issuance of sui generis precedents that cannot logically be reconciled. If this happens, the credibility of the disciplinary system would be undermined.[8 ]
Apparently, every judge on this court, as well as every membеr of the Board, believes a per se disbarment rule would be inequitable and unworkable. I am therefore puzzled as to why the majority, while ostensibly eschewing a per se rule, has chosen to make the presumption of disbarment in misappropriation cases so strong that it will effectively eliminate the discretion, on the part of the Board and the court, necessary to deal fairly with the facts of each case. The majority’s standard will inevitably lead to the very inequities we all seek to avoid. I believe that in determining the sanction in a non-negligent misappropriation case, we should begin with a presumption of disbarment and then evaluate and apply all mitigating and aggravating factors as we would in any other disciplinary case.
III.
Applying the standard I propose, I believe respondent should be disbarred. Respondent’s twenty-two years of legal practice without disciplinary action, his client’s satisfaction with his representation, and the fact that his client owed him fees substantially in excess of the amount he misappropriated are all factors to be weighed in mitigation. The third factor should not, in my view, be given much weight, however, for two reasons. First, respondent should have known that the proper course of action was to assert a retaining lien on the escrowed funds. See Hines,
. The respondent in Burka made an unspecified number of deposits (totalling $29,446) from unidentified sources into the estate checking account at issue, in addition to 15 unauthorized withdrawals (totalling $41,000) from the same account.
. As mentioned in the division opinion in this case, the Board explicitly rejected the Hearing Committee’s finding that respondent's action showed only "reckless disregard" and found that respondent’s misappropriation was intentional.
. See In re Harrison,
. In Hines we stated:
[W]e take this occasion to notify the bar thаt in future misappropriation cases disbarment will ordinarily be the sanction imposed by this court. We stress the word "ordinarily,” for every case must turn on its own particular facts. There may be instances of misappropriation which, for any number of reasons, may call for a lesser sanction.
. The majority’s approach, however, does allow for an exception to the rule when an attorney's misconduct is found to be causally related to some sort of disability. See ante at 191, 194-195 & n. 12; In re Kersey,
. This submission apparently represents the views of all members of the Board except one who recused himself.
. Indeed, it is possible that Buckley was an example of factfinding that was skewed in an attempt to avoid a perceived unjust result. In Buckley, the attorney misappropriated all but $12 of a $5,288 fund that was to go either to the client or to pay the client’s medical bills.
.In its submission, the Board goes on to suggest that "[t]o the еxtent some recent disciplinary decisions of the Court and the Board may be read as implying that stricter sanctions are to be imposed in all ‘money’ cases, this erroneous perception should be eliminated.” I believe that to adopt the Board's suggestion on this point would send out the wrong signal to the legal community and to the general public, in light of our previous statements in Hines and other cases. Nonetheless, I think the Board’s submission should give the court considerable pause in
Dissenting Opinion
dissenting:
Although this is obviously a close case— one-sided ones do not come to us with four members of the Board on Professional Responsibility having concluded that a lawyer should be disbarred and with four others having voted for suspension — I am of the opinion that disbarment is too harsh a sanction on these particular facts. I reach that conclusion largely for the reasons stated by Charles Donnenfeld, Esq. in the opinion which reflects his own views and the views of three other members of the Board. A copy of that opinion is attached hereto and, subject to a single caveat,
I
THE BUCKLEY DECISION
The four members of the Board who recommended disbarment relied heavily on this court’s 2:1 decision in Buckley. Chief Judge Rogers has assembled an imposing array of authorities — many of them involving far more extensive wrongdoing than that here presented — in support of the position that Addams should be disbarred, but she too relies significantly on Buckley. Whether or not disbarment of the respondent in Buckley was aрpropriate — and, like Judge Mack, who dissented, I have some reservations on that score — I think that we should reject at least some of the language in the Buckley opinion.
A. Equating the inequatable: corrupt intent makes a difference.
In Buckley, the majority rejected as “rather imprecise and unhelpful” the Board’s view that it was proper, for purposes of determining what discipline should be imposed, to differentiate between “corrupt” and “non-corrupt” misappropriations.
The basic purpose of disciplinary proceedings is to protect the public, the courts, and the legal profession from the depredations of unethical practitioners. See, e.g., In re Haupt,
“Our purpose in imposing discipline is not to visit punishment upon an attorney.” In re Kersey,
The majority in Buckley probably did not mean to suggest that temporary and non-corrupt misappropriation is just as bad as its permanent and corrupt counterpart. It did hold, however, that the former ought to be punished just as harshly as the latter; that taking property without right will incur the same consequences as grand larce
B. The spotless record as irrelevant: rig- or selectively applied.
In Buckley, the court also effectively held that, even in “non-corrupt” misappropriation cases, conventional mitigating factors will not justify less severe discipline. The court acknowledged that the “ultimate harm suffered by [Buckley’s] client was relatively slight,” that Buckley had been cooperative and candid during the Board’s investigation,
In In re Reback,
Most important is the fact that both Reback and Parsons have had unblemished records of professional conduct during 30 and 15 years of practice, respectively. This factor weighs heavily in favor of imposing upon them the lightest sanction that will serve the purposes of Bar discipline.
Id. at 233 (emphasis added).
In my opinion, the respondents in Reback sullied the name of our profession, and more severe discipline might well have been in order. Nevertheless, if one views the case in the context of the purposes of the disciplinary process, the court was surely right in concluding that a respondent’s prior record must be given significant consideration. I believe that this holds true generally, at least in those cases in which the underlying violation does not call for automatic disbarment. An attorney who commits a single violation which represents an isolated aberration from the norm of ethical professional conduct is far less likely to be a danger to the public, the court, or to the Bar than a colleague who has a significant record of prior misconduct. From the perspective of moral fitness, the recidivist is uniformly viewed as more culpable, more dangerous, and more
It may be that an unblemished record, standing alone, ought not to preclude disbarment in a misappropriation case. Perhaps this should be true even where the misappropriation was “non-corrupt,” although one might reasonably argue for a contrary result. But where, as here, there are significant case-specific mitigating factors, I think that basic fairness requires us to accord considerable weight to Addams’ favorable prior record.
C. “From this moment on!”
In In re Hines,
[T]he District of Columbia Court of Appeals has not yet ruled that misappropriation of the sort engaged in in this case will ordinarily result in disbarment. We think that such conduct should result in disbarment, but only after the bar has been put on notice by the District of Columbia Court of Appeals that misappropriation of client funds in cases involving more than simple negligence will ordinarily result in disbarment even though the proof does not rise to the level of willful corruption.
Id. at 386 (emphasis added). This court looked with favor on the Board’s recommendation, and proclaimed, presumably without musical accompaniment, that
from this moment on, in disciplinary cases involving attorneys who misappropriate their clients’ funds, disbarment will be the norm unless it appears that the misconduct resulted from nothing more than simple negligence.
Id. at 386-87 (emphasis added). Although Hines had commingled the funds of two of his clients with his own money, and even though he was found to have engaged in conduct involving dishonesty, he was not disbarred. Rather, the court ordered that Hines be suspended for two years.
I think it obvious from the sanction which was ultimately imposed that the four underscored words from the popular song were included in the Hines opinion for a reason. “From this moment on,” the Bar would be on notice of a new, tougher policy. Earlier cases, by necessary implication, would be governed by the previous and less draconian one. This is the only reasonable explanation for the outcome, for the respondent in Hines was suspended, not disbarred.
In Buckley (and in the present case as well) the violations predated the Hines decision. The court opined in Buckley, supra,
MITIGATION AND AGGRAVATION
My colleagues in the majority take the position that misappropriation cases differ from other proceedings, that putting a client’s money to the attorney’s own use is sui generis, and that mitigating factors such as lack of corrupt intent, an exemplary prior record, and the absence of meaningful injury to the client ought not to relieve the lawyer from disbarment. Besides Buckley, my colleagues rely largely on In re Quimby,
Financially embarrassed as a result of an unsound investment in a personal business venture, Quimby withdrew a total of $18,-000 from the accounts of two incompetents, which accounts had been entrusted to him. He converted the money to his own use. The court concluded that Quimby’s conduct constituted embezzlement and evidenced moral turpitude. It held that, under those circumstances, “disbarment should ordinarily follow as a matter of course,” notwithstanding Quimby’s “long and otherwise unstained record before the bar.” Quimby, supra,
In Wilson, the respondent attorney was the subject of numerous disciplinary complaints. Two of them involved misappropriation. In one case, the attorney had retained $23,000 — the proceeds of the sale of a house — and failed for two years to turn the money over to his client.
In a thoughtful and literate opinion by Chief Justice Willentz, however, the court in Wilson went well beyond the facts presented by the case at hand and attempted to fashion a rule of general application. The court discussed a number of possible mitigating circumstances which were often presented in disciplinary proceedings based on misappropriation of client funds,
recognition of the nature and gravity of the offense suggests only one result— disbarment. Such conduct is of so reprehensible a nature as to permit of only one form of discipline.
Wilson, supra,
The Quimhy and Wilson opinions ought not to be removed from their moorings. As this court explained, in Kraft v. Kraft,
It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.
Accord, Armour & Co. v. Wantock,
The present case is strikingly different from Quimby and Wilson and, indeed, from all of the authorities on which the majority relies, because Addams’ client owed him money,
It is one thing to steal money from someone, leaving the victim impoverished. It is quite another to appropriate funds which are only a small portion of what the “victim” owes you, when the debt demains substantial even after the improper withdrawal and the evidence points to the conclusion that she
In Wilson, supra, the court expressed concern, in ordering disbarment, about “the pressures on the attorney that forced him to steal.”
the sympathy engendered by the plight of the attorney which caused him to steal is offset by the fact that he did so, most often, without regard to the possibility*209 that he might be inflicting the same misery, or worse, on his innocent client.
Id. at 461 n. 6,
My colleagues in the majority quote People v. Radosevich,
It is true that Addams compounded his misappropriation by attempting to cover it up. He did so both by presenting a false accounting and by providing disingenuous and mutually contradictory explanations of his conduct during the disciplinary proceedings. Unfortunately, the instinct for self-preservation at any cost exerts so much pressure on a wrongdoer seeking to avoid discovery that considerations of reason and honor are often relegated to a subordinate role. Addams was not the first wrongdoer to try to conceal his misdeeds in less than forthright fashion in a vain effort to forestall exposure and disgrace. Human beings under pressure do not always act as nobly as they might on a calmer day when the sky is serene and they feel no all-encompassing apprehension of impending doom. But while judges can surely understand why he who has transgressed may lie when cornered, we cannot condone such conduct, especially on the part of those who have east their lot with a noble and honorable profession and are bound to uphold its standards.
Unlike Mr. Donnenfeld and his colleagues, I am of the opinion that Addams substantially aggravated his initial violation when he was, to put it charitably, less than forthright in explaining it. Indeed, his attempted deception of his client with a false accounting and by concealment of his withdrawals has led me to pause for more than a moment before casting my dissenting vote. Deplorable as the cover-up was, however, to me it was not bad enough to convert this particular misappropriation into an offense warranting the disbarment of an attorney with a previously unblemished record. Rather, I believe that the mitigating factors which I have enumerated — Addams’ clean record, the lack of significant injury to the client, and the money that the client owed him — substantially outweigh his human but culpable reaction to the discovery of his misdeed.
I might conclude otherwise if it were our uniform practice to deal sternly with dishonorable conduct on the part of members of an honorable profession. But recognizing that every case is unique, and that comparisons are especially difficult when different kinds of ethical violations are being placed under the scrutiny of the same judicial microscope, I am nevertheless of the opinion that Addams’ disbarment is very harsh medicine when compared with the far less draconian sanctions imposed in other recent cases in which the attorney’s conduct was at least as dishonorable. See, e.g., Hutchinson, supra;
I share the majority’s concern that the public’s trust in the legal profession could be eroded if we were unduly lenient in misappropriation cases. But given the client’s satisfaction with Addams, the fact that on balance he did her so much more good than harm, and the source of the accusations against Addams — a defeated and apparently disgruntled adverse litigant — I do not believe that reasonable members of the public who were apprised of all of the relevant facts would have less confidence in the profession, or in this court’s supervision of it, if Addams were suspended for some significant period rather than disbarred.
I respectfully dissent.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
Bar Docket No. 270-85 SEPARATE OPINION OF MEMBERS COHEN, KEEP, KAISER AND DON-NENFELD AS TO RECOMMENDED SANCTION
In its Buckley decision
We feel that a fair consideration of the mitigating factors of the present case justifies a suspension of a year and a day, rather than disbarment. A suspension of a year and a day is justified, first, when measured by the general criteria for imposing discipline on lawyers, as articulated in In re Reback and Parsons,
Applying these criteria to this case, there is little question that funds of a client (or their legal equivalent)
We see no aggravating circumstances in this case and, in mitigation, note the following:
1.There was no commingling; all of the client’s funds were properly deposited in a trust account.
2. The withdrawals were made to pay a small portion of legal fees that were undisputedly owed to Respondent.
3. Several months after the withdrawals were made, the client approved of Respondent’s use of some of the trust funds to pay overdue legal fees; based on her supportiveness of Respondent expressed at the hearing, the client would likely have authorized the withdrawals at the time they occurred had she been requested to do so thеn.
4. The client, the supposed “victim” of the misappropriation, suffered no harm whatever. In fact, she was completely satisfied with Respondent’s services, and did not dispute the fees owed him or the propriety of his withdrawals.
5. The misconduct was limited to a single set of facts concerning a single client.
6. Respondent has practiced law for 22 years without any disciplinary violations.
These circumstances persuade us that the extreme remedy of disbarment is inappropriate.
We also note in mitigation that the client was not the complainant in this case and, as noted above, expressed her concurrence in Respondent’s withdrawals from the trust fund. The complaint was the defendant in the lawsuit that Respondent brought on Mrs. Jackson’s behalf, in which suit the Respondent was ultimately successful. The suit resulted in having a promissory note voided, thereby saving Mrs. Jackson a substantial amount of money — all to the detriment of the complainant.
In July of 1985, the complainant complained to Bar Counsel that Respondent issued a worthless check almost three years earlier (September 11, 1982), drawn on his trustee account. The cheek was
Our colleagues on the Board suggest that our reliance on these mitigating factors is only an effort to probe thе degree of “corruptness” of Respondent’s intent with respect to the misappropriation. It is not. To fail to consider these factors in recommending a sanction would be tantamount to adopting the mechanistic per se approach that the Court expressly eschewed in Buckley and Hines. We are not parsing degrees of “misappropriation”; we are, rather, determining how severely this Respondent should be sanctioned for his misconduct.
In terms of the consistency of our recommended sanction with other disciplinary cases, we believe that Respondent’s misappropriation is more comparable to that involved in In re Cefaratti, M-140-82 (D.C. June 28, 1983), than to the misappropriations in In re Quimby,
In cases in which disbarment was ordered for misappropriation, there were circumstances present which distinguish them from this case. In In re Quimby,
In re Buckley, supra, is the Court’s most recent misappropriation case. The attorney there failed to disburse approximately $5,300 received in settlement of a personal injury claim, and used those funds for personal purposes. Two years later, only after a complaint was filed with Bar Counsel, the attorney made proper distribution of the funds. The Court ordered the attorney disbarred.
What distinguishes this case from Buckley and the other disbarment cases is that the Respondent here was owed the money he withdrew from the trust account. In none of the other cases did the attorney have any claim to the misappropriated funds. Here, had the fund withdrawals occurred at the times shown on Respondent’s accounting to his client in March 1983, there would have been no misappropriation because the withdrawals (to pay overdue legal fees) would have been authorized by the client. Respondent’s misconduct occurred because he took the money first, and got permission later. We do not view this as an insignificant lapse of judgment or inadvertence, but it causes us to pull back from recommending the ultimate sanction of disbarmént.
In sum, based on the mitigating factors in this case — seen in the light of the cited precedents — we do not feel that this is a
/s/ Charles R. Donnenfeld/Bec Charles R. Donnenfeld
June 30, 1988
. Mr. Donnenfeld states in his opinion, infra at p. 211, that "we see no aggravating circumstances in this case.” He also recognizes, on the same page, that "an inaccurate accounting as to those funds was presented to the client.” I would regard Addams’ attempt to cover up his wrongdoing by this false accounting as a substantial aggravating factor, even though human nature is such that many trapped miscreants reflexively react in this manner. See, pp. 209-210, infra. But see In re Buckley,
. Cf. In re Wilson,
. I recognize that many respondents may and do claim that they intended to return funds which they misappropriated. Whether such a claim is credible in a particular case is a determination to be made initially by the trier of fact, ordinarily the Hearing Committee.
. Addams was not at all candid during the investigation of his violations, however. He can therefore take no comfort from my view that the court in Buckley should have accorded more significance to the respondent's candor after the fact.
.The junior respondent dealt with the client. The more experienced one took responsibility for the case.
. For reasons discussed below at p. 208, I also believe that the lack of any significant injury to the client ought to be a significant factor in determining whether the presumption of disbarment has been rebutted.
. I agree with the majority that the sanctions to bе imposed for an attorney's dishonorable conduct are not circumscribed by ex post facto restrictions. See maj. op. at 198 n. 19. I simply suggest that retroactive application of a new rule which was designed to apply "from this moment on” renders those words superfluous and changes the basic thrust of this portion of the Hines decision. The violations in Buckley, like those in Hines, predated the decision in Hines. The respondents in the two cases were similarly situated. The same standards ought to have been applied to them, and to Addams as well.
In his concurring opinion, ante at 200-201, Judge Ferren says that Hines announced a new rule only for "reckless misappropriation cases.” I think he is cutting it too fine. As I read the
. Wilson ultimately paid the client after the ethics complaint was filed. He never accounted for the location or use of the funds in the interim.
. E.g., restitution after apprehension, an intent to "borrow" rather than to steal, the inexperience (or outstanding career) of the lawyer, the lawyer’s financial problems, etc.
. The passage quoted in the text above suggests that the court intended to adopt a per se rule requiring disbarment in all misappropriation cases.
. In Hines, the client also owed the respondent money for his services, but the circumstances were significantly different from those presented here. See the court’s discussion of the issue,
. I agree, however, with the statement by the Board in the unanimous portion of its Report that
it is not clear whether the funds belonged to [the client] or to the noteholder at the time of the misappropriation. In either event, Addams had no right to the money.
Even if the client's testimony were to be treated as a retroactive after-the-fact consent, the withdrawal would still have been improper.
It is worth noting, though, that the trust account in question consisted of money provided to Addams by the client, albeit for the purpose of making any necessary payments to the note-holder, not to her attorney. To the extent that Addams knowingly took somebody else’s money, he may well have viewed it as belonging to his client, the person from whom he got it and who owed him a much larger amount. In any event, there was no finding or proof that Addams thought he was converting the noteholder’s money.
. In Reback, supra,
. Admittedly, however, there is no indication that the noteholder, a potential claimant to the money, would have consented to the withdrawal.
. In Radosevich, the court quoted the American Bar Association's Standards for Imposing Lawyer Sanctions § 4.11 (1986):
Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
. In Hutchinson, the respondent lied under oath to a federal administrative agency. The Board recommended that he be suspended from practice for a year. This сourt suspended him for six months.
. In Reback, as described above at pp. 205-206, the respondent attorneys forged their client’s signature and secured notarization of the false signature. They also lied to their client. Each received a six month suspension.
. In Sandground, the respondent knowingly assisted his client in the concealment of his assets in connection with a discovery request in a pending divorce suit. He did so, among other ways, by taking title in his own name to a home being purchased by his client. He wrote to his client that this would be “a secret transaction because of the matrimonial situation, and as soon as the divorce is final, the property will be transferred to you and all documents entered into will be destroyed.” In spite of its finding that Sandground had engaged, inter alia, in conduct involving dishonesty, fraud, deceit or misrepresentation, the Hearing Committee recommended only that he be publicly censured. The Board recommended that he be suspended for ninety days. Bar Counsel proposed suspension for nine months. This Court adopted the recommendation of the Board.
. In Kersey, the respondent committed a total of twenty-four violations over a two-year period. Three involved misappropriation of client funds, and there were several additional counts of commingling and of failure to maintain complete records of client funds.
This case is not the occasion for a protracted debate over alcoholism as a mitigating factor in bar discipline cases. I agree that it is unconscionable to penalize someone for being ill. I suggest, on the other hand, that an alcoholic who is under an irresistible compulsion to drink is not thereby compelled to operate a motor vehicle, and his disease is no defense to a charge of drunken driving. A similar reality may apply to attorneys who suffer from the same affliction. The consequences to the victimized client are no less severe where the offending lawyer is an alcoholic, and the need to protect the public is just as compelling. In any event, from Addams’ perspective, the discipline meted out to him and to Kersey may reasonably appear to represent less than equal justice. It may also present a counter-incentive to sobriety.
. The subject funds were under some sort of "escrow” arrangement to facilitate payments under a disputed mortgage obligation while the enforceability of that obligation was being litigated. Thus, at the time of withdrawal, the opposing party in that litigation may have had a claim to those funds as strong as that of the client, although the latter was ultimately held entitled to the funds. While there are no cases construing the “funds of a client” requirement in DR 9-103(A), we are assuming for purposes of this opinion that a misappropriation took place nevertheless.