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In re Anderson8/2/2001
f checks on a commingled account, with no attempt to keep track of client funds, at a time when the attorney "knew or should have known the account was overdrawn." Micheel, 610 A.2d at 236. In Pels, the determination of recklessness was based on (i) the indiscriminate mingling of personal and client funds for over nearly a year, with the drawing of a large number of personal checks and unrelated checks on an operating account where settlement funds had been deposited; (ii) the repeated overdraft condition of the account and repeated dishonoring of checks to a medical provider; (iii) the pervasive failure to maintain contemporaneous records of client funds in accounts; and (iv) the failure to account for or to deliver to the client funds owed her, which may have been the result of "accounting records and procedures . . . so hopelessly inadequate that [respondent] may have been incapable of rendering an accounting." Pels, 653 A.2d at 392 n.8. And in Utley, we stated that " espondent's flagrant disregard of the court's inquiries [into her actions in taking unauthorized fees from an estate] for nearly two years is an aggravating factor of sufficient magnitude to compel us to conclude that she was reckless [in taking unauthorized commissions and retaining unauthorized estate funds]." Utley, 698 A.2d at 450.
These and other decisions, see Berryman, 764 A.2d at 768-70 (summarizing cases), demonstrate that the central issue in determining whether a misappropriation is reckless is how the attorney handles entrusted funds, whether in a way that suggests the unauthorized use was inadvertent or the result of simple negligence, or in a way that reveals either an intent to treat the funds as the attorney's own or a conscious indifference to the consequences of his behavior for the security of the funds. See Micheel, 610 A.2d at 236 (respondent's conduct revealed a "recklessness disregard for the security of his client's funds); Black's Law Dictionary 1277 (7th ed. 1999) (recklessness is a "state of mind in which a person does not care about the consequences of his or her action"); 57 Am. Jur. 2d Negligence ยง 302 (1989) (" eckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts that would disclose this danger to any reasonable person.").
B. Application of Principles
To establish reckless misappropriation in this case, then, Bar Counsel had to prove, by clear and convincing evidence, conduct sufficient to support an inference that Anderson purposely dealt with and used the funds owed to Phillips & Green as his own, or else that he consciously disregarded the risk that those funds would be used for unauthorized purposes. Specifically, Bar Counsel could have demonstrated recklessness by proof that Anderson engaged in a pattern or course of conduct demonstrating an unacceptable disregard for the welfare of entrusted funds, such as the indiscriminate commingling of entrusted and personal funds, the failure to track settlement proceeds, the disregard of the status of accounts into which entrusted funds were placed, or permitting the repeated overdraft condition of an account. Alternatively, it would have been sufficient for Bar Counsel to prove that Anderson failed to pay the Phillips & Green bill despite knowledge that it remained unpaid, for then the inference would be permissible -indeed, compelled - that he had chosen to use client-obligated funds for unauthorized purposes.
Bar Counsel failed to prove by clear and convincing evidence a pattern of conduct by Anderson manifesting a reckless disregard of his duty to safeguard the Phillips & Green funds. It is true that h
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