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In re Berryman12/28/2000
n property . . . ." As we said in In re Hessler, 549 A.2d 700, 702 (D.C. 1988): "By mingling client funds with the attorney's own, the client's funds become more difficult to trace and are subject to the risk that they may be taken by creditors of the attorney." Furthermore, "the totally improper action of placing a client's funds in the attorney's own account . . . . alone puts the client's funds at risk, regardless of the adequacy of the balance." Id. at 701-02 (footnote omitted). Here, when Ms. Berryman placed the $939.84 that represented rental and royalty payments to Ms. Patterson in the Citizens Bank Account, she commingled her client's funds with her personal funds, and thus, violated Rule 1.15 (a).
Sanctions for the single act of commingling generally have ranged from censure accompanied by a requirement for continuing legal education in professional responsibility, see In re Millstein, 667 A.2d 1355, 1356 (D.C. 1995); In re Ingram, 584 A.2d 602, 603 (D.C. 1991); to suspension, see In re Ross, 658 A.2d 209, 212 (D.C. 1995) (thirty day suspension for commingling and failure to make prompt payment of settlement funds). In the case of commingling and inadvertent misappropriation or negligent misappropriation, we have imposed a sanction of suspension. See Hessler, supra, 549 A.2d at 703 (six months suspension).
In Ms. Berryman's case, unlike Hessler, supra, we are faced with more serious charges of commingling and intentional misappropriation. Misappropriation is "'any unauthorized use of client's funds entrusted to [a lawyer], including not only stealing but also unauthorized temporary use for the lawyer's own purpose, whether or not derives any personal gain or benefit therefrom.'" Pierson, supra, 690 A.2d at 947 (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983)) (other citations omitted). "Improper intent need not be shown." In re Ray, 675 A. 2d 1381, 1386 (D.C. 1996) (citing Harrison, supra). In this case, after Ms. Patterson's death, Ms. Berryman deposited $939.84 in the Citizens Bank Account, a joint account created by Ms. Patterson and Ms. Berryman, which as of the date of Ms. Patterson's death, belonged to Ms. Berryman because of her right of survivorship. The $939.84 consisted of money orders and checks made payable to Ms. Patterson, and thus, clearly belonged to her estate. Although Ms. Berryman claimed that the money belonged to her as part of Ms. Patterson's outstanding $6,000 indebtedness to her, Ms. Berryman received no authorization to take the funds and place them in her account. Hence, she misappropriated the funds even though the Probate Division later declared that she was entitled to the Citizens Bank Account because of the right of survivorship; and despite the fact that Ms. Patterson owed her $6,000 at the time of her death. See Utley, supra.
The question remains whether the misappropriation was intentional or negligent, and whether disbarrment or suspension is the appropriate sanction. Our misappropriation rule "does not require scienter; rather, it is essentially a per se offense." Harrison, supra, 461 A.2d at 1036. In this case, the Hearing Committee and the Board disagreed as to whether Ms. Berryman engaged in negligent or intentional appropriation. The Hearing Committee concluded that Ms. Berryman "negligently backdated the deposit slip for the $939.84, making it appear that the deposit had been made prior to [Ms.] Patterson's death," and that her "actions are similar to the negligent misappropriation which occurred in In re Chang, D.N. 389-92 (BPR July 29, 1996); In re Chorosezj, 624 A.2d 434 (D.C. 1992); In re Reed, 679 A.2d 506 (D.C. 1996)." The Board, which was not required to give deference to the Hearing Committee's finding of "ultimate fact
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