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In re Anderson8/2/2001
serving testimony on inadvertence and regret are not credible given the time taken to pay the medical providers and the failure to respond to Mr. Calligan's payment status inquiries."
Before the Board, Anderson excepted only to the determination of recklessness and hence the recommendation for disbarrment. The Board agreed with the Committee that he had violated all three ethical rules, but rejected the Committee's conclusion that the misappropriation was reckless. After analyzing this court's decisions at length, the Board concluded that they do not permit a conclusion that "the lack of any system of documentary bookkeeping," without additional circumstances in aggravation, supports a determination that misappropriation stemmed from recklessness. And, in the Board's view, the kinds of aggravating circumstances that support such a finding were absent in this case. Second, although acknowledging its duty to defer to the Hearing Committee on questions of credibility, the Board rejected as flawed the Committee's finding that Anderson's claim of inadvertence was not credible. That finding, it said, was "explicitly predicated . . . upon [the Committee's] conclusion that [Anderson] had failed to respond to Calligan's payment status inquiries over an extended period of time," a finding that lacked substantial support because no clear and convincing evidence contradicted Anderson's testimony "that no one reminded him about the outstanding medical provider bill after the settlement check was received." The Board therefore found no record basis for rejecting his explanation that he had been confused and simply forgotten to make the medical payment. Since, under this court's precedents, the Board considered Anderson's misappropriation to have resulted only from negligence, it recommended his suspension for six months.
II.
Anderson does not dispute, and the Board and Bar Counsel are in agreement, that he engaged in commingling, failure to maintain funds in a trust account, and failure to make prompt payment of funds owed to a third party. Anderson also does not dispute the Board's conclusion that he misappropriated funds that he was required to pay on Calligan's behalf when the balance in his operating account fell (repeatedly) beneath the amount needed to pay the medical bills. See, e.g., In re Micheel, 610 A.2d 231, 233 (D.C. 1992) (citations omitted). Finally, Anderson accepts the Board's recommendation of a six month suspension. Bar Counsel, on the other hand, takes strong exception to the Board's rejection of the Committee's determination of recklessness. At the very outset, moreover, it disagrees with the Board's allocation of the burden of proof on the issue of whether misappropriation has been intentional or reckless so as to require disbarrment, as a presumptive matter, under Addams. We therefore begin our discussion by setting forth the relevant legal principles, including the burden of proof, and then assess the Board's recommendation in light of them.
A. Principles
1. Burden of Proof
Our disciplinary cases define misappropriation as "any unauthorized use of client's funds entrusted to [the lawyer], including not only stealing but also unauthorized temporary use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom." In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983) (citation and quotation marks omitted). Bar Counsel must prove unauthorized use of client funds by clear and convincing evidence, see, e.g., In re Gilchrist, 488 A.2d 1354, 1357 (D.C. 1985), in keeping with the general rule that " he burden of proving the [disciplinary] charges rests with Bar Counsel[,] and factual findings must be supported b
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