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In re Gregory1/31/2002
, fiduciary responsibility that cannot be transferred and is not excused by ignorance, inattention, incompetence, or dishonesty. Although lawyers may employ non-lawyers to assist in fulfilling this fiduciary duty, lawyers must provide adequate training and supervision to ensure that ethical and legal obligations to account for clients' monies are being met." Ann. Model Rules of Prof'l Conduct R. 5.3 cmt (1983)(Supervision of Trust Account Management).
We agree with Bar Counsel that the undisputed facts on this record demonstrate that Respondent was reckless in his attention to the money he was required to safeguard for his client's medical providers. Respondent abdicated his responsibility for those funds to a non-lawyer. He did not check the account balance or the case records to make sure that entrusted funds were secure and delivered to the medical providers, even after he was told that his assistant was writing unauthorized checks on the account. He wrote checks himself on the account without checking the bank records. He was advised repeatedly by at least one of the medical providers that payment had not been made and he did not check records to determine the source of the problem. When he did check the bank records in January of 1997, he gave up when he could not evaluate them. Even after there can be no doubt that Respondent was fully aware that the medical providers had not been paid, by August of 1997, he still did not pay them.
As the Hearing Committee recognized, Respondent's unwillingness to doubt his assistant may be understandable, given his personal relationship with her. We do not believe that his personal relationship can excuse his failure to take the responsibility he was ethically obligated to take to ensure the safety of entrusted funds. But even if it could explain Respondent's writing of checks that drew down the trust account in June of 1995, Respondent's continued inattention to the doctors' requests for payment and to his own records would warrant a finding of recklessness and, ultimately, intent. See In re Utley, 698 A.2d 446, 450 (D.C. 1997)(negligence ripened into reckless misappropriation when lawyer refused to return money once she became aware that she owed it).
We find that Respondent's misappropriation was the result of recklessness. Respondent's actions demonstrate an unacceptable disregard for the safety and welfare of entrusted funds. Based on the same evidence, of lack of supervision and independent verification of the records and case files, even after receiving notice that his assistant was writing unauthorized check on the IOLTA account, we find that Bar Counsel has met her burden of proving that Respondent violated Rule 5.3(b). Because we conclude that Respondent engaged in reckless misappropriation, we recommend that he be disbarred. In re Pels, 653 A.2d 388 (D.C. 1995); In re Micheel, 610 A.2d 231 (D.C. 1992).
BOARD ON PROFESSIONAL RESPONSIBILITY
By: Elizabeth G. Taylor
Dated: July 16, 2001
All members of the Board concur in this Report and Recommendation except Mr. Wolfson, who did not participate.
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