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In re Berryman12/28/2000
underlying circumstances constitute misappropriation and whether any misappropriation resulted from more than simple negligence are questions of law concerning 'ultimate facts.'" 698 A.2d 446, 449 (D.C. 1997) (citing Micheel, supra, 610 A.2d at 234).
The Probate Division Ruling and Res Judicata
Ms. Berryman argues that rulings by the Probate Division of the trial court constituted res judicata because (1) even though there was an effort to remove her as Personal Representative, that effort failed; and (2) Judge Long found that the Citizens Bank Account belonged to her by right of survivorship, and that Ms. Patterson owed her $6,000 when she died. The record shows that while there was an initial effort by Mr. Thorne to remove Ms. Berryman as personal representative of Ms. Patterson's estate, he waived issues regarding her removal when Ms. Berryman recognized his status as surviving spouse. Given the waiver, the Probate Division never considered the substance of Mr. Thorne's arguments. More important, however, is the fact that the Probate Division and the Board were faced with different matters.
The Probate Division had to resolve legal issues pertaining to the probate of Ms. Patterson's will, while the Board considered questions pertaining to the conduct of an attorney in relation to client affairs. The difference is apparent from footnote 16 in Judge Long's August 2, 1995 memorandum opinion and order:
This Court has considered the rather quirky demands of the client of Ms. Berryman. It was risky, in retrospect, for [Ms.] Berryman to conduct business in the manner that she did because it so easily appears to be a self-serving explanation for why she paid herself the $6,000. However, based upon the totality of circumstances and this Court's observation of Ms. Berryman's credibility and demeanor, this Court is satisfied that she is not attempting to deceive anyone and that she is honestly reporting what occurred during the lawyer- client relationship. In retrospect, it would have been better practice to document this unique payment scheme concretely. The poor judgment in failing to do so, however, does not prove that Ms. Berryman is attempting to enrich herself for work that she never performed or that she is attempting to reserve for herself some asset that more properly belongs to the estate. The whole episode involving the bank account only looks suspicious because [Ms.] Berryman took on the role of Personal Representative, while still being a claimant. The law, however, does not preclude those dual roles.
Judge Long's footnote does not purport to address the serious issues of professional conduct that are the subject of the disciplinary action against Ms. Berryman. Moreover, Bar Counsel was not a party to the probate proceeding involving Ms. Patterson's will, and is entitled to be heard on the issue. In short, we see no res judicata bar to Bar Counsel's and the Board's action against Ms. Berryman. See In re Utley, 698 A.2d 446, 450 (D.C. 1997) (an attorney who took unapproved payments representing conservator's fees and commissions, even though later ratified by the Probate Division, "used her client's funds without authorization" in violation of the rule against misappropriation).
Rules 1.15 (a) and 1.15 (c): Commingling and Misappropriation
Commingling is the less serious of the charged violations pertaining to Rules 1.15 (a) and 1.15 (c). It involves the failure to keep a client's funds separate from those of the attorney. As the Board stated: "Rule 1.15 (a) requires a lawyer to 'hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's ow
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