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In re Smith2/27/2003
Argued November 14, 2002
Concurring opinion by Associate Judge SCHWELB at p. 14.
The Board on Professional Responsibility has recommended that we disbar respondent, Hendrith V. Smith, from practicing law in the District of Columbia. The proposed discipline is premised on Hearing Committee findings, accepted by the Board, that respondent had violated two Rules of Professional Conduct: Rule 1.15 (a) (commingling and misappropriation), and Rule 1.17 (a) (failure to designate trust or escrow account). Contrary to the Hearing Committee's ultimate finding, however, the Board concluded that respondent's misappropriation of client funds was reckless, not merely negligent, and thus warrants disbarrment, not the one-month suspension recommended by the Hearing Committee. On this record we must agree with the Board and order disbarrment.
I.
Respondent was sworn in to the District of Columbia Bar on January 6, 1997. The following month, in opening his own, solo law practice, he established two accounts at Nations Bank: a business checking account and an IOLTA (trust) account. Five months later, respondent took on an automobile personal injury lawsuit for plaintiff Salha Saleh, a client referred by Roberta Wright, Esquire after Wright had executed on Saleh's behalf an Assignment and Authorization (A & A) agreement with a medical provider, Neurodiagnostic Associates. After negotiating a recovery for Saleh, respondent deposited the settlement check for $2,920.36 (which Saleh had endorsed) in his business checking account on September 15, 1997. Included in that amount was an unquestioned attorney's fee of $972.47, leaving $1,947.89 allocable to Saleh.
To fulfill the A & A agreement, respondent sent Neurodiagnostic a check on Saleh's behalf dated October 23, 1997 for $1,220. By October 30 Neurodiagnostic had not received the check, but told respondent to wait for awhile before issuing a new one in order to see whether the check would arrive. After several weeks the check apparently had been lost. Respondent issued another on December 4, which Neurodiagnostic deposited on December 12. The check cleared.
On the day he wrote the first check, October 23, respondent also wrote Saleh to say that he had paid Neurodiagnostic $1,220. He included a copy of the check. Saleh became angry that respondent had paid Neurodiagnostic, because she had been pressuring him to give the settlement funds to her while promising that she would pay the medical bills herself. Respondent initially believed - as the Hearing Committee and Board found - that he was duty-bound to pay the other medical providers in full rather than sending Saleh the money to pay them (as he believed she would) "on an installment basis." After conferring with referral attorney Wright, however, respondent decided that it would be appropriate to send Saleh $727.89 - the account balance remaining after payment of his fee and Neurodiagnostic's bill - while expressing his expectation that Saleh would pay the rest of her medical bills. Respondent mailed a check for that amount on October 29; Saleh deposited it on November 18; and that check also cleared.
During the period between September 15, 1997, when respondent deposited the settlement check, and December 12, 1997, when the checks issued to Saleh and Neurodiagnostic, respectively, had been deposited and cleared, respondent wrote checks for business and personal expenses that caused his business account - containing the settlement funds - to fall on many days considerably below the amount required to cover his client's entrusted funds. Specifically, within two days of the settlement check deposit, respondent's business account dipped t
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