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In re Smith2/27/2003
y of settlement funds held for his client. Although there was enough money in respondent's business account when Saleh and Neurodiagnostic happened to present their checks for payment, respondent's account held a balance below the amount of undistributed, entrusted funds during four substantial periods of time totaling sixty-two of the eighty-nine days between September 15, when respondent deposited the settlement check, and December 12, when Neurodiagnostic, as the latter of the two client-related payees, cashed its check. In fact, the account began to dip below the amount of entrusted funds within two days after respondent deposited the settlement check, and it reflected a negative balance on twelve occasions.
Of compelling significance, moreover, we agree with the Board that - from respondent's frequent account inquiries during periods when the balance was significantly below the amount he was required to hold for his client - respondent knew that the balance was insufficient to cover the outstanding checks disbursed for his client. In re Micheel, 610 A.2d 231, 236 (D.C. 1992). The Hearing Committee's finding of negligence - suggesting that respondent's poor record-keeping may have left him unaware that he was misappropriating client funds - is unsupported by the record in light of the bank records that informed his many inquiries. The Board accordingly was correct in rejecting that Committee finding and its recommended sanction. Respondent's conduct while he was conscious of the account's deficiencies was so persistent, in contrast with the limited instances of misappropriation in Reed and Evans, that we cannot gainsay the Board's determination that his misappropriation was reckless, not merely negligent.
As a result, this division of the court is bound to accept the Board's recommendation of disbarrment, the sanction consistently imposed for reckless misappropriation. In re Withers, 769 A.2d 784 (D.C. 2001); In re Utley, 698 A.2d 446 (D.C. 1997); In re Pels, 653 A.2d 388 (D.C. 1995). There are misappropriation cases, to be sure, finding lawyers negligent, not reckless, in taking fees from estates before a formal accounting confirmed their entitlement. In re Travers, 764 A.2d 242, 245, 250 (D.C. 2000); In re Ray, 675 A.2d 1381, 1387 (D.C. 1996). But the Board distinguished these cases on the ground that the misappropriation rule, as applied in that context, was not fundamental to the ethical standards governing the legal profession. In contrast, according to the Board - and we agree -respondent has violated rules against commingling and related misappropriation so fundamental in protecting the client public that the many, prolonged derelictions evident here cannot be seen as mere negligence.
The Board also concluded, and we agree here as well, that there are no extraordinary, mitigating circumstances that would justify a lesser sanction or a suspension or stay of disbarrment. In re Addams, 579 A.2d at 191; In re Pels, 653 A.2d at 398. We therefore must order Smith's disbarrment from the practice of law in the District of Columbia effective thirty days from the date hereof. D.C. Bar R. XI ยง 14 (f).
So ordered.
SCHWELB, Associate Judge, concurring:
I concur in the judgment and join Judge Ferren's carefully documented opinion. I note only, as I did in my separate opinion in In re Addams, 579 A.2d 190, 203-10 (D.C. 1990) (en banc), that lawyers who have not misappropriated client funds, but who have nevertheless acted far more dishonorably than respondent Smith did, have received substantially more lenient discipline.
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