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In re Berryman12/28/2000
s," see Micheel, supra; disagreed, concluding that Ms. Berryman's actions fell within the ambit of Addams, supra; In re Godfrey, 583 A.2d 692 (D.C. 1990), and Pierson, supra, because she: (1) "backdated the deposit slip to make it appear that the deposit occurred prior to [Ms.] Patterson's death"; (2) "insisted that [Ms.] Patterson gave her the [money orders] in May of 1993," despite the fact that the money orders were not purchased until June; and (3) maintained that she was entitled to take the $939.84, "without reporting it to the Probate Court." A determination as to whether Ms. Berryman's case falls within our precedent pertaining to negligent or intentional misappropriation requires a review of our relevant past cases.
We begin with our intentional misappropriation cases. In Addams, supra, the respondent attorney held funds needed to prevent foreclosure on his client's home. He removed funds from the escrow account, and consequently, the check he sent to the noteholder was returned for insufficient funds. He engaged in the action of taking funds from the escrow account on more than one occasion, and made a false accounting report to his client, which did not show the funds that he had taken. When the hearing committee and Bar Counsel questioned him about his actions, he gave conflicting explanations. 579 A.2d at 199. We concluded that the respondent "knowingly used his client's money as if it were his own . . . ." He did so "on more than one occasion, and . . . attempt to hide his actions from his client . . . ." In affirming the Board's finding of intentional misappropriation, we said:
We now reaffirm that in virtually all cases of misappropriation, disbarrment 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. . . . s a matter of course, the mitigating factors of the usual sort . . . will suffice to overcome the presumption of disbarrment only if they are especially strong and, where there are aggravating factors, they substantially outweigh any aggravating factors as well. Id. at 191.
During oral argument, Bar Counsel, on behalf of the Board, relied heavily on In re Robinson, 583 A.2d 691 (D.C. 1990). There, the respondent attorney cashed and used a client settlement check. When the client made repeated demands for the settlement funds, the respondent refused to honor the request, and subsequently, tendered a check for which there were insufficient funds in the account, as well as assured the client that "the bank had told him the check would be honored." Id. at 692. When the client protested the non-payment and threatened to report him to Bar Counsel, the respondent offered to pay the settlement funds in exchange for the client's agreement not to make a report to Bar Counsel. Id. We determined that the mitigating factors could not overcome the presumption of disbarrment. Id. Among the mitigating factors were "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." Id. We concluded that the aggravating factor of "knowing dishonesty" would not have overcome an " ven . . . stronger showing of mitigating factors. . . ."
The respondent in Micheel, supra, received rather substantial client
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