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In re Anderson8/2/2001
more than ordinary negligence. In another case, Thompson, decided shortly after Addams, the court was effectively confronted with that issue when asked to decide whether Bar Counsel's general obligation to prove disciplinary violations should be qualified to take account of the special difficulties of proof in misappropriation cases.
In Thompson, Bar Counsel had charged the attorney with "dishonest misappropriation of a client's funds" in violation of then-DR 1-102 (A)(4) (dishonesty) and DR 9-103 (A) (commingling and misappropriation). Thompson, 579 A.2d at 218, 220. The Board, although acknowledging Bar Counsel's burden to prove both dishonesty and misappropriation by clear and convincing evidence, had sought to overcome the extreme difficulty Bar Counsel sometimes faces in tracing funds from one attorney account to another when investigating possible unauthorized use of entrusted funds. The Board had therefore adopted and applied in Thompson a rule that
whenever a lawyer takes his clients' funds for any non-de minimis period of time without authorization and without any proper accounting for them, the law creates a rebuttable presumption that the lawyer has dishonestly misappropriated those funds, whereupon the burden of going forward with explanatory evidence shifts to the lawyer. Id. at 221 (quoting Board Opinion).
In this court, Thompson challenged that rule as effectively shifting the burden to him to prove that he had not acted dishonestly.
The court recognized that the Board had been careful to leave the burden of persuasion by clear and convincing evidence with Bar Counsel, id., but it was nonetheless concerned that, " n these circumstances, a shift in the burden of explanation may blend imperceptibly with a shift in the burden of proof." Id. at 223. The court therefore concluded "that it is neither necessary nor advisable to invoke a formal rebuttable presumption whenever Bar Counsel has proven an unauthorized taking of client funds for a non-de minimis period and without a proper accounting." Id. at 221. It held instead
that the Board may weigh, together with all of the other evidence, an attorney's explanation for - or conversely inability to explain satisfactorily - the use of a client's funds in deciding whether Bar Counsel has met its burden of proving dishonest misappropriation by clear and convincing evidence. Id.
It reiterated that "Bar Counsel may properly offer the inadequacy (or non-existence) of the attorney's explanation for the use of client funds as one significant - and even decisive - factor in proving dishonest misappropriation," id. at 222, but it limited the significance of that explanation "to circumstantial evidence which the Board may consider, along with all the other evidence, in determining whether Bar Counsel has proven dishonesty by clear and convincing evidence." Id. at 223.
When misappropriation is alleged separately to have also constituted "dishonesty," accordingly, Thompson makes clear that Bar Counsel retains the burden of proving that the misappropriation was of such character as to require presumptive disbarrment under Addams. That is true even though the respondent's explanation for the misconduct may be considered by the factfinder along with the other evidence in assessing the sufficiency of Bar Counsel's case. But what if Bar Counsel does not charge the misappropriation separately as an act of dishonesty? The Board informs us that since the decision in Addams, Bar Counsel's practice has changed and that in contrast to the former practice exemplified by Thompson of charging dishonesty for (and along with) misappropriation, Bar Counsel now regularly charges intentional or reckles
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