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In re Bailey9/15/2005
(D.C. 2005). Disbarment is the appropriate sanction in most cases where intentional [or reckless] misappropriation is found. In re Addams, supra, 579 A.2d at 190.
Seven of the nine Board members recommended a nine-month suspension for Mr. Bailey's violations of the Rules of Professional Conduct. Included were the four Board members who determined that Mr. Bailey engaged in misappropriation, but that "Bar Counsel did not satisfy her burden of establishing that the misappropriation was intentional or reckless." Although a six-month suspension is the usual sanction for negligent misappropriation, see Davenport, supra, the board majority recommends a nine-month suspension because of the serious nature of all of Mr. Bailey's violations. Indeed, in addition to commingling and negligent misappropriation, Mr. Bailey failed to respond when Dr. Garmon inquired about Ms. Haile's settlement and demanded payment. Dr. Garmon was compelled to file a complaint with Bar Counsel. Moreover, when Mr. Bailey's role with Ms. Haile changed from advocate and counselor to borrower, Mr. Bailey did not withdraw from representing her. Nor did he advise her to see other counsel. We conclude that a nine-month suspension in this case "would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, ยง 9 (g)(1); see also In re Mitchell, 822 A.2d 1106, 1110 (D.C. 2003). Consequently, we accept the Board majority's recommendation.
Accordingly, it is therefore ORDERED that Samuel Bailey, Jr., is suspended from the practice of law in the District of Columbia, for nine months, effective thirty days from the date of this opinion.
SCHWELB, Associate Judge, concurring: I agree with the sanction that the court imposes and with much of my colleagues' analysis, including the conclusion that Mr. Bailey engaged in negligent misappropriation. I do not join the opinion, however, because in my view, much that the court has written is dictum addressing two questions the resolution of which, in the final analysis, can have no effect on the outcome of the case.
The court focuses at some length on whether the authorization executed by the client effected an assignment of settlement proceeds to Dr. Garmon and whether Dr. Garmon was an expert witness and therefore had a lien on the recovery. These are not easy questions, and the court answers each of them in the negative, or favorably to Mr. Bailey. Any encouragement that this may have brought Mr. Bailey was short-lived, however, for my colleagues then proceed to hold -- and I agree -- that Mr. Bailey's conduct constituted misappropriation, albeit negligent misappropriation.
Obviously, the court's resolution of the "assignment" and "expert witness" issues makes no difference to its disposition of the case. If the authorization had effected an assignment, and if Dr. Garmon were entitled to a lien as an expert witness, the court would still conclude, perhaps a fortiori, that misappropriation occurred. In my opinion, we should not ordinarily undertake to resolve difficult issues which do not affect the end result. Regardless of how diligently counsel have argued these issues and crossed rhetorical swords on them, the court's resolution of them is still dictum. Perhaps the court's discussion will provide "guidance" to the Board and to counsel, but in my view, we should resist the temptation to provide guidance by dictum.
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