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In re Bailey9/15/2005
On Report and Recommendation of the Board on Professional Responsibility. (BDN 442-92 & BDN 483-92).
Argued April 8, 2004
Before SCHWELB and REID, Associate Judges and FERREN, Senior Judge.
Concurring opinion by Associate Judge SCHWELB at page 34.
A majority of the Board on Professional Responsibility ("the Board") has recommended that Samuel Bailey, Jr. be suspended from the practice of law for nine months and be required to complete a course in ethics and a course in trust accounting as a condition of reinstatement, due to his violation of the District of Columbia Rules of Professional Responsibility. The Board found that Mr. Bailey had commingled funds, failed to maintain complete trust account records, failed to notify a physician of a client's settlement, and entered into an impermissible business transaction with a client.
The Board majority rejected the hearing committee's finding of misappropriation. Because the hearing committee automatically recommended disbarment after having found that Mr. Bailey engaged in misappropriation, the Board conducted its own sanctions analysis and concluded that a nine-month suspension was appropriate. Bar Counsel and Mr. Bailey noted exceptions to the Board's report and recommendation.
Bar Counsel contends that the Board erred when it rejected the hearing committee's finding of misappropriation. Specifically, Bar Counsel asserts that the authorization gave Dr. Franklin Garmon an interest in the settlement funds thus obligating Mr. Bailey to "safeguard and promptly pay funds belonging to [Dr. Garmon]." Therefore, when Mr. Bailey "failed to honor Dr. Garmon's uthorization, and instead spent the doctor's share on personal and business expenses without Dr. Garmon's authority, he engaged in misappropriation in violation of Rule 1.15 (a). His failure to notify or promptly pay Dr. Garmon, constituted a violation of Rule 1.15 (b)." Bar Counsel notes exception to the recommended nine-month suspension, insisting that disbarment is warranted. Mr. Bailey contends that the authorization did not give Dr. Garmon a property interest in the settlement funds, and therefore the Board did not err when it found no misappropriation. Mr. Bailey, however, disagrees with the Board's recommended sanction and argues that because he made an "honest mistake" he should only be given a six-month suspension.
FACTUAL SUMMARY
The record before us, which includes the findings of the hearing committee, shows that Mr. Bailey represented Almaz Haile, an immigrant from Eritrea. Ms. Haile sustained an injury in 1989, at a Giant Food store, when she slipped and fell. She retained Mr. Bailey, then a member of Lee & Harvey, to represent her in a personal injury action.
In the course of his representation, Mr. Bailey referred Ms. Haile to Dr. Garmon, who treated her injuries. On June 19, 1989, an " uthorization" form provided by Dr. Garmon to Ms. Haile and Mr. Bailey was executed. The section of the " uthorization" under which Ms. Haile's signature appears, provided in pertinent part:
I hereby authorize and direct you, my attorney, to pay directly to said doctor such sums as may be due and owed to him for medical services rendered to me, my son, or daughter, and any other bills that are due his office which shall include fees for his appearance in court on my behalf (including those accrued after he has been placed on alert for purposes of court appearance, whether or not he actually makes that appearance).
If required as an expert witness, whether he testifies or not for reports made or depositions given in this matter, I further authorize you my attorney,
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