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In re Anderson8/2/2001
y clear and convincing evidence." In re Williams, 464 A.2d 115, 119 (D.C. 1983); see also In re Mitchell, 727 A.2d 308, 313 (D.C. 1999) ("It is Bar Counsel's burden to establish by clear and convincing evidence that respondent violated the Rules of Professional conduct."). In the case of misappropriation, however, that proof requirement is not a demanding one, because misappropriation occurs whenever
the balance in [the attorney's operating] account falls below the amount due to the client. Misappropriation in such situations is essentially a per se offense; proof of improper intent is not required. Micheel, 610 A.2d at 233 (citations omitted).
In Addams, this court sat en banc to consider the proper sanction for misappropriation. Before us was the case of an attorney whose actions constituting misappropriation "were not the result of simple negligence but were, as he admit , intentional." 579 A.2d at 199. Because we were satisfied that " he Bar of the District of Columbia has had sufficient notice of the gravity with which the court views intentional misappropriation," id. at 198, we "reaffirmed 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." Id. at 191. While not adopting "a per se rule," we "adhere to the presumption [of disbarrment] laid down in our prior decisions" regarding non-negligent misappropriation, and held that we would "regard a lesser sanction as appropriate only in extraordinary circumstances." Id.
Bar Counsel, relying principally on Addams, contends that once misappropriation has been proved, the burden shifts to the attorney to persuade the Board and the court that the misconduct has "resulted from nothing more than simple negligence." Bar Counsel derives her position from the way we phrased the presumption of disbarrment in Addams ("disbarrment will be the . . . sanction unless it appears . . ."), as well as from her conviction that placing the burden to prove more than negligence on Bar Counsel would effectively create a "presumption" the other way - i.e., of negligent or inadvertent misappropriation - thereby "vitiat the . . . purpose of the strict sanction announced in Addams" (Supp. Br. for Bar Counsel at 8). The Board disagrees. It contends that a rule of presumptive disbarrment upon proof by Bar Counsel of an essentially per se offense, placing upon the attorney the burden to prove the lesser degree of culpability necessary to avoid that sanction, would be excessive and, equally important, inconsistent with our decisions, chiefly In re Thompson, 579 A.2d 218 (D.C. 1990). We think the Board has the better of the argument.
As pointed out, the issue before the court in Addams was "the appropriate sanction for Addams' intentional misappropriation of client funds." 579 A.2d at 192. Before and since Addams, however, our decisions have made clear that misappropriation "resulting from more than simple negligence" need not be intentional or purposeful to warrant disbarrment. Rather, as the Board aptly formulates the standard, disbarrment will be presumptively required if the attorney's conduct demonstrated an unacceptable level of disregard for the safety and welfare of entrusted funds, see, e.g., Micheel, 610 A.2d at 236, a showing the Board and the court have consistently summed up in the term "reckless." We discuss that standard further in part II.A.2., infra. For present purposes, however, the important fact about Addams is that the attorney's state of mind or level of culpability was not at issue there - he admitted intentionality - and the court thus had no occasion to consider who had the burden of proving
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