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In re Anderson8/2/2001
s misappropriation as a violation of Rule 1.15 (a) only (the successor to DR 9-103 (A) (misappropriation)), alleging dishonesty (Rule 8.4 (c)) only when there has been separate though related conduct of that description. We agree with the Board, nonetheless, that the fact that misappropriation is not alleged to have been dishonest - but rather intentional or reckless - should not mean a reallocation of the burden of proof. The Addams sanction of near-automatic disbarrment for misappropriation resulting from more than negligence is a strict one; it should not be triggered, in our judgment, solely by proof by Bar Counsel - even by clear and convincing evidence - that the attorney let the funds in his operating account drop below the obligated level, leaving it to him to prove that he lacked the requisite intent or level of culpability.
Addams itself does not imply the contrary. There we were careful to state that "disbarrment would be the usual sanction for misappropriation not involving simple negligence," 579 A.2d at 196 (emphasis added), and that once that level of misconduct is established the inquiry turns to whether "mitigating factors" have been shown "sufficient to rebut the presumption" of disbarrment. Id. at 199 (emphasis added). The clear implication is that the attorney's obligation to "rebut" arises only when non-negligent misappropriation has been demonstrated by Bar Counsel. In Pels, we read Addams as having "placed upon the attorney the burden of proving `extraordinary circumstances' that justify departure from the presumptive rule of disbarrment," 653 A.2d at 389 (quoting Addams, 579 A.2d at 191), but the reference to Kersey-equivalent "extraordinary circumstances" (see note 1, supra) clearly indicated our understanding that the attorney must prove that the presumed sanction of disbarrment is inappropriate for his particular case of intentional or reckless misappropriation. See also id. at 397-98. Despite ambiguous language in some of our decisions, we are convinced that our law places the burden of proving the requisite level of culpability on Bar Counsel. As was stated in In re Ray, 675 A.2d 1381, 1388 (D.C. 1996), "If [the attorney's] conduct was not deliberate or reckless, then Bar Counsel proved no more than simple negligence."
2. Recklessness
We pointed out earlier that misappropriation "resulting from more than simple negligence," hence subject to Addams disbarrment, does not require proof that the attorney acted intentionally or deliberately. Although the question of sanction under Addams has sometimes been posed as whether the misappropriation was "intentional or [instead] negligent," see, e.g., In re Berryman, 764 A.2d 760, 768 (D.C. 2000), we have consistently recognized that misappropriation revealing an unacceptable disregard for the safety and welfare of entrusted funds -in short, that is reckless - will warrant disbarrment under Addams. The hallmarks of such misconduct revealed by our cases include: the indiscriminate commingling of entrusted and personal funds; a complete failure to track settlement proceeds; total disregard of the status of accounts into which entrusted funds were placed, resulting in a repeated overdraft condition; the indiscriminate movement of monies between accounts; and the disregard of inquiries concerning the status of funds. See, e.g., Utley, 698 A.2d at 450; Pels, 653 A.2d at 390-91; Micheel, 610 A.2d at 232-33. All of these actions reveal an intent by the attorney "to deal with and use funds escrowed for clients as his own" or an unacceptable disregard for the security of client funds. Hines, 482 A.2d at 380.
In Micheel, for example, we held that recklessness was shown by the attorney's indiscriminate writing o
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