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In re Anderson8/2/2001
e maintained no separate trust or escrow account, and that his system of documenting client transactions essentially consisted of making notations on case files, preparing a settlement sheet for receipts and disbursements after a settlement, and attempting to make all necessary distributions promptly while keeping record of them "in head." As the Board recognized, this "system" was obviously deficient and invited mistakes especially when two cases were settled at around the same time. But our decisions, by clear implication, have rejected the proposition that recklessness can be shown by inadequate record-keeping alone combined with commingling and misappropriation. In In re Reed, 679 A.2d 506 (D.C. 1996), for example, we sustained the Board's determination that the misappropriation had resulted from simple negligence even though the attorney's "accounting practices were practically non-existent and careless at best. She did not keep a running balance, her check ledger had no memos, and she did not keep track of the [entrusted] funds." Id. at 509. Likewise, In re Choroszej, 624 A.2d 434, 436 (D.C. 1992), we agreed that the misappropriation resulted from negligence even though the attorney had "failed to maintain documentation on his clients' fund " and "was unable to produce a ledger of the checks he wrote on the client trust account or bank statements and accounting records showing hat was paid or received from his clients." See also In re Harrison, 461 A.2d at 1036 (inadvertent misappropriation resulted from attorney's "failure to keep proper records"). The aggravating factors beyond poor record-keeping which the court has found indicative of recklessness are not present in this case: the proof that Anderson failed to pay a single client obligation is not evidence that he flagrantly disregarded the integrity of third-party funds; he did not indiscriminately write checks on the operating account; and he did not write checks that were dishonored or that caused the account to be in overdraft.
We do not minimize Anderson's failure to maintain either a separate trust account or more than what are charitably described as makeshift records for tracking client obligations. More than twelve years ago -before respondent was even a member of the Bar - the court warned "that in future cases of even simple `commingling'" a serious disciplinary sanction would be in order. In re Hessler, 549 A.2d 700, 703 (D.C. 1988). But the sanction of six months' suspension recommended by the Board in this case is a serious one, and the Addams sanction of presumptive disbarrment for misappropriation is, with one exception, the most severe one our system can impose. We are not prepared to hold - and our cases preclude us from holding - that Anderson's failure to pay the Phillips & Green bill as a result of inadequate record-keeping is enough to support a finding of recklessness with the consequence Addams would require, in the absence of some further aggravating circumstance.
Bar Counsel argues, however, that that circumstance is present in the fact, which the Hearing Committee found, that Anderson failed to respond to reminders by the client that the medical bill remained unpaid. If in fact Anderson ignored or willfully blinded himself to such reminders, then we would have no difficulty sustaining the Committee's determination of recklessness. But, as the Board correctly determined, that finding is not supported by substantial evidence in the record, see In re Evans, 578 A.2d 1141, 1142 (D.C. 1990), particularly when the Committee's "factual findings must be supported by clear and convincing evidence." Williams, 464 A.2d at 119. It appears that the Hearing Committee confused Calligan's repeated messages to respondent
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