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In re Berryman12/28/2000
propriated funds, in violation of former DR 9-103 (A) and Rule 1.15 (a). In concluding that respondent engaged in negligent misappropriation, the Hearing Committee stated: "Respondent has convinced the Committee that initially he sincerely believed the requirement [to obtain court approval of his legal fee] was not applicable to him under the circumstances." Furthermore, the Committee found no recklessness or intent to conceal: "Respondent's actions in obtaining the consents of the heirs and filing those consents with the Court, we believe support a finding that he was not reckless and that he was no way trying to mislead or conceal his conduct." The Hearing Committee also determined that respondent's failure to pay the judgment against him seriously interfered with the administration of justice under Rule 8.4 (d). However, the Committee concluded that he did not engage in conduct prejudicial to the administration of justice, under former DR 1-102 (A) (5), when he failed to seek approval of the Probate Division before he took his legal fee, stating: "if anything [respondent has been] over zealous in engaging in a dialogue with the courts regarding this issue." This court accepted the Hearing Committee's findings.
Ms. Berryman's situation does not fall neatly into any of the intentional and negligent misappropriation cases discussed above. Unlike the various intentional misappropriation cases, Ms. Berryman did not misappropriate client funds on more than one occasion nor engage in protracted mishandling of estate funds, nor present checks which were dishonored for insufficient funds. However, unlike the different negligent misappropriation cases, there was no finding by Bar Counsel or the Board that Ms. Berryman's misappropriation was traceable to an "honest, but erroneous belief"; Ms. Berryman specialized in probate matters; and backdated a deposit slip. Thus, Ms. Berryman is not in the same posture as the respondents in Ray and Reed, supra, who had not handled a probate matter prior to their misappropriation. Nor can she rely on the lack of evidence of intentional misappropriation, that is, the absence of any backdated document, as in Travers or Haar, supra, or any honest but erroneous belief, as in Choroszej, supra, that client funds had been properly used for a client matter. Nor, as in Travers, supra, can she assert that she took the $939.84 with the consent of the heirs, or with the concurrence of a third party.
What draws Ms. Berryman closer to the intentional misappropriation cases are two factors. First, the absence of a prior disciplinary record in Ms. Berryman's case, even when coupled with other mitigating factors, is not a sufficient to overcome the presumption of disbarrment. The respondent in Pierson, supra, not only was relatively inexperienced, but also had a clean disciplinary record prior to writing checks for client matters that were dishonored. In fact, Ms. Pierson's "past history of pro bono work, the absence of a prior disciplinary record, and her forthrightness with the Board and hearing committee," id. at 950, were insufficient to "substantially outweigh the aggravating factor of dishonesty." Id. As we reiterated in that case:
Given the holding of Addams, the mitigating factors in this case - - the relatively small amount of money, the relatively short period of time during which the client was denied the misappropriated funds, the absence of financial harm to the client, the fact that the misappropriation involved a single client, the relative inexperience of respondent, the absence of a prior disciplinary record, and the character testimony offered on respondent's behalf - - are insufficient to overcome the presumption of disbarrment. . . . Even with a stronger
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