In re Bailey9/15/2005
lement," he nevertheless borrowed monies from the settlement funds. On September 26, 1991, the day before he received the $25,000 settlement funds, and at a time when his client's Trust Account showed a balance of $931.38, Mr. Bailey drafted and signed two documents. The first, also signed by Ms. Haile, was a settlement disbursement sheet showing sums due and owing to Mr. Bailey, the hospital, Dr. Garmon, Dr. Davis, Pain and Therapy Group, Neurodiagnostic Associates, and Ms. Haile. The settlement disbursement sheet also contained the following sentence: "Further, your [Ms. Haile's] authorization has been given for my office to borrow the funds awarded to use as deemed appropriate." The second document, signed only by Mr. Bailey was a promissory note of $5,425.86 at 5% interest, reflecting Ms. Haile's loan to Mr. Bailey, his promise to repay Ms. Haile the loan sum plus 5% interest, and his promise to pay Ms. Haile any funds attributable to his successful effort to persuade the medical providers to accept a lesser sum than that owed. Mr. Bailey then proceeded to borrow virtually all of the settlement funds received on September 27, 1991, and did not pay Dr. Garmon until around October 23, 1992, and began to pay Ms. Haile's other medical providers in January 1993.
Since Dr. Garmon had a "just claim" when Mr. Bailey received the settlement monies from Ms. Haile's case, we now turn to Bar Counsel's argument that Mr. Bailey engaged in misappropriation. This court has reiterated on many occasions that " isappropriation is defined as any 'unauthorized use by an attorney of a client's funds entrusted to him or her, whether or not temporary or for personal gain or benefit.'" In re Davenport, 794 A.2d 602, 603 (D.C. 2002) (quoting In re Choroszej, 624 A.2d 434, 436 (D.C. 1992)). " isappropriation occurs when the balance in the account where entrusted funds are deposited falls below the amount that the attorney is required to hold on behalf of the client and/or third party." Id. at 603. "Improper intent need not be shown." In re Berryman, supra, 764 A.2d at 768 (quoting In re Ray, 675 A.2d 1381, 1386 (D.C. 1996) (other citation omitted)). "Misappropriation cases decided after In re Addams, supra, generally have fallen into three categories: (1) intentional misappropriation, (2) reckless misappropriation, and (3) negligent misappropriation." In re Carlson, 802 A.2d 341, 348 (D.C. 2002).
"Because of the seriousness of a misappropriation offense, we have adhered to a standard of presumptive disbarment since 1990, except in cases of negligent misappropriation, or extraordinary circumstances. In re Carlson, supra, 802 A.2d at 348. "To ensure that we reach consistent dispositions, we necessarily compare the instant case with prior cases in terms of the misconduct issue, the attorney's disciplinary history, and any legitimate mitigating or aggravating circumstances." In re Edwards, 870 A.2d 90, 94 (D.C., 2005). "The ultimate issue - whether a particular sanction is warranted or not in a given case - requires us also to consider the individual qualifications and fitness of the attorney whose case is before us and, especially, the paramount need to protect the public, the courts, and the legal profession." Id.
We are satisfied that, on this record, Bar Counsel established Mr. Bailey's misappropriation of Ms. Haile's settlement funds by clear and convincing evidence. Under Rule 1.15 (a) and (b) Dr. Garmon had a "just claim" to the settlement funds. Nevertheless, Mr. Bailey persuaded Ms. Haile, an immigrant from Eritrea whose command of English was not strong, to let him borrow the settlement money, which included the $2,240.30 owed to Dr. Garmon. Although Mr. Bailey signed a promissory note signaling the loa
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