 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Bailey9/15/2005
mptly pay Dr. Garmon. Finally, the Board defends its recommendation that Mr. Bailey be suspended for nine months, asserting that it carefully considered the seriousness of the offenses, the "ongoing and intentional nature of the violations," and case law showing that "the sanction in this case should fall between the one-year suspension in [In re] Arneja and the [thirty]-day suspension in [In re] Ross. "
In support of the Board's decision, Mr. Bailey argues that the record does not substantiate a finding that Dr. Garmon acted as an expert witness or had an interest in the settlement funds. He asserts that the authorization did not convey a property interest to Dr. Garmon because there was no reference to either a lien or assignment that would indicate that he held an interest in the settlement funds. Therefore, the Board's finding of no misappropriation was not error. However, Mr. Bailey does take exception to the Board's recommended sanction. He insists that because the Board did not find intentional or reckless misappropriation, and because he made "an honest mistake," a six-month suspension is more appropriate.
Standard of Review
"The scope of our review of the Board's Report and Recommendation is limited." In re Berryman, 764 A.2d 760, 766 (D.C. 2000) (quoting In re Ray, 675 A.2d 1381, 1385 (D.C. 1996)). We are obligated both to "accept the findings of fact made by the Board unless they are usupported by substantial evidence of record, and adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." In re Carlson, 802 A.2d 341, 347 (D.C. 2002) (quoting In re Berryman, supra, 764 A.2d at 766) (quotation marks omitted) (citation omitted)). In the same vein, "the Board is obligated to accept the hearing committee's factual findings if those findings are supported by substantial evidence in the record, viewed as a whole." Id. (citing In re Micheel, 610 A.2d 231, 234 (D.C. 1992) (other citation omitted)). "However, while the Board must defer to the subsidiary findings of basic facts, which include such things as credibility determinations, made by the [Board's] fact-finding body (the hearing committee)[,] . . . . the Board owes no deference to the hearing committee's determination of ultimate facts which are really conclusions of law." Id. (quotation marks and citations omitted). Therefore, we review de novo the question as to " hether underlying circumstances constitute misappropriation and whether any misappropriation resulted from more than simple negligence . . . ." In re Berryman, supra, 764 A.2d at 766 (quoting In re Utley, 698 A.2d 446, 449 (D.C. 1997) (other citation omitted)).
Rule 1.15 (a) and (b): Misappropriation
In order to determine whether Mr. Bailey engaged in misappropriation in this case, we turn first to (1) Bar Counsel's central argument that "Dr. Garmon's uthorization created legal rights in his favor, including interests, property, an assignment, and a lien, obligating [Mr. Bailey] to safeguard and promptly pay funds belonging to the doctor," and (2) the Board's opposing argument that Dr. Garmon did not have a "property interest" within the meaning of Rule 1.15 (a) because the authorization constituted neither an assignment nor lien. Resolution of these arguments begins with Rule 1.15 (a) and (b) of the District of Columbia Rules of Professional Conduct which provide:
(a) A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in a financ
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 District of Columbia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|