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In re Anderson8/2/2001
On Report and Recommendation of the Board on Professional Responsibility
Argued April 11, 2001
The Board on Professional Responsibility (the Board) has recommended that respondent be suspended from practicing law in the District of Columbia for six months. The proposed discipline stems from findings by a Hearing Committee, accepted by the Board, that respondent had violated three Rules of Professional Conduct: Rule 1.15 (a) (commingling and misappropriation); Rule 1.15 (b) (failure to notify and deliver funds to third-party claimant); and Rule 1.17 (a) (failure to designate trust or escrow account). Contrary to the determination of the Hearing Committee, however, the Board concluded that respondent's misappropriation of client funds had not been either intentional or reckless, and it therefore rejected the Committee's recommendation of disbarrment, see In re Addams, 579 A.2d 190 (D.C. 1990) (en banc), instead proposing his suspension for six months.
Because the Board's report and the initial briefs filed with the court reflected some uncertainty about the governing legal principles, we requested supplemental briefs addressing, among other things, which party bears the burden of proof on whether misappropriation of funds by an attorney carried with it sufficient features of culpability to justify the presumptive sanction of disbarrment imposed by Addams. We remove any uncertainty in the answer our precedents give to that question and hold that the burden of proving misappropriation "result from more than simple negligence," Addams, 579 A.2d at 191, remains always with Bar Counsel. We then identify the kinds of aggravating circumstances that have caused the Board and this court to find intentional or reckless - rather than negligent - misappropriation in particular cases, and we conclude by explaining why we agree with the Board that respondent's unauthorized use of entrusted funds did not rise to that level and thus properly warrants suspension rather than disbarrment.
I.
Respondent (hereafter Anderson) became a member of the District of Columbia Bar in 1989 and worked as an associate at a law firm doing personal injury work. Thereafter, he opened his own practice, sharing office space with another attorney who was not a member of the D.C. Bar. In the spring of 1991, Mark Calligan hired Anderson to represent him in a personal injury matter arising from an automobile accident. From March 5 through April 12 of 1991, Calligan received medical treatment from the practice of Drs. Phillips & Green for injuries suffered in the accident. Up until March 1992, Phillips & Green made repeated telephone calls to Calligan and some to Anderson about the unpaid status of bills for the treatment. Eventually a collection agency became involved, and Calligan received regular calls from it regarding the bill. In turn, he repeatedly called Anderson and occasionally left messages at his door about the matter.
In March 1993, Anderson settled the personal injury claim for $6,500. On or about March 15, he deposited the settlement check into a checking account at Signet Bank, N.A., which was the only account he used in his practice. On March 24, 1993, Anderson presented Calligan with a settlement disbursement sheet reflecting that Anderson would receive $2,166.33 for his legal fee; $1,207.50 would be remitted to Phillips & Green for the outstanding medical bills; and Calligan would receive the balance (after deducting minor expenses) of $3,100. Although Anderson immediately paid Calligan his share, he made no payment to Phillips & Green at that time.
On or about April 2, 1993, the balance in Anderson's checking account fell below the
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