On Report and Recommendation of the Board on Professional Responsibility
Rogers, Chief Judge, Farrell, Associate Judge, and Reilly, Senior Judge.
The opinion of the court was delivered by: Per Curiam
Upon its determination that respondent, an attorney, took funds of an estate without authority and so engaged in misappropriation, in violation of DR 9-103 (A), the Board on Professional Responsibility (the Board) has recommended that respondent be suspended from the practice of law for six months. The Board set forth its findings, Conclusions, and recommendation in a lucid and thorough report which we adopt and reproduce as an appendix hereto. *fn1 We accept the Board's findings of fact, which in essence sustained as supported by substantial evidence detailed findings made by a Hearing Committee. We also accept the Board's Conclusions, which differ in one critical respect from the Committee's.
The Committee found that respondent had relied upon a "side agreement" with the heirs to an estate he was administering to justify a deduction of attorney's fees over and above those authorized by statute. The Committee found that respondent reasonably believed that both heirs had consented to the additional fee, and hence concluded that -- although in fact one heir had not consented -- respondent had not engaged in conduct involving dishonesty, within the meaning of DR 1-102 (A)(4). The Board, over the Dissent of one member, found substantial evidence in the record to support the Committee's finding that respondent had an objectively reasonable, albeit erroneous, belief that his actions were proper, and therefore agreed with the Conclusion of no dishonesty.
The Board rejected, however, the Committee's Conclusion that respondent had not engaged in misappropriation prohibited by DR 9-103 (A). Citing and confirming the Committee's finding "that Respondent had not effected a valid 'side agreement' that actually permitted him to take the additional fee," the Board concluded:
When Respondent acted on his erroneous belief that Ms. Byrd [the non-consenting heir] had authorized the extra fee, he acted at his peril. When Respondent took Ms. Byrd's share of the extra attorney fee, he misappropriated her funds.
This Conclusion followed from the Board's recognition that "improper intent is not an element to be considered in determining whether there has been a misappropriation. . . . ather, it is essentially a per se offense." In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983). See also, In re Hessler, 549 A.2d 700 (D.C. 1988).
Just as the Board, when reviewing the findings of a Hearing Committee, "shall employ a 'substantial evidence on the record as a whole' test," Board Rules § 13.6, so this court must accept the Board's findings of fact so long as they are supported by substantial evidence of record. In re Gilchrist, 488 A.2d 1354, 1357 (D.C. 1985); D.C. App. R. XI, § 9 (g) (1989). Applying this deferential standard of review, we credit the finding of the Hearing Committee -- accepted by the Board -- that respondent reasonably but mistakenly believed that his actions were proper and so did not engage in conduct involving dishonesty. Contrary to respondent's contention, however, in rejecting the Committee's Conclusion that he did not engage in misappropriation, the Board did not supplant any factual finding rendered by the Committee; rather, the Board's Conclusion was necessitated by the Committee's own finding that respondent had not in fact received the consent of the heirs, at least of Ms. Byrd. We therefore adopt the Board's Conclusion that respondent misappropriated funds in violation of DR 9-103 (A).
We likewise adopt the Board's recommendation of a six-month suspension, bearing in mind our obligation to do so unless that course "would foster a tendency toward inconsistent Dispositions for comparable conduct or would otherwise be unwarranted." D.C. App. R. XI, § 9 (g). We reject respondent's argument that his conduct at worst was a "technical violation," for the reasons stated by the Board in its recommendation. In mitigation of the conduct, respondent essentially cites only the same absence of dishonesty which caused the Board to find a lesser violation, and what he terms his exemplary conduct both before and since the events in question. *fn2 On the record of this case, and in light of the precedents discussed by the Board, we conclude that a lesser sanction would be inappropriate and that a greater sanction is not required.
Accordingly, we order that respondent, Dorsey Evans, be suspended from the practice of law in the District of Columbia for a period of six months, effective thirty days from the date of this order.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
IN THE MATTER OF: DORSEY EVANS, Esquire, RESPONDENT.
REPORT AND RECOMMENDATION OF THE BOARD
Respondent was charged with a cluster of Code violations stemming from payment to himself of an allegedly unauthorized attorney fee out of an estate he was handling.1a An evidentiary hearing on these charges was held on January 5 and February 3, 1988 before Hearing Committee No. 9, whose members were attorneys Linda J. Ravdin (Chairperson) and Lynn Suzanne Spradley, and lay member Alice L. Norris. The Hearing Committee filed its Report with findings, Conclusions, and recommendations on August 25, 1988.
In that Report all three members of the Committee agreed that Respondent had violated DR 9-103(A) in that he had misappropriated funds from the estate. Two members felt that the misappropriation had been unintentional, so they found no violation of DR 1-102(A)(4). These members (whom we will refer to as "the majority") recommended the sanction of public reprimand. The Chairperson Dissented because she found that the misappropriation had been intentional and dishonest. She recommended a six-month suspension and restitution as appropriate sanctions.
Bar Counsel filed exceptions to the Hearing Committee Report and briefs were submitted. Oral argument was heard by the Board on October 20, 1988.
During the course of its post-argument deliberations, the Board decided that, because of apparent inconsistencies, certain points in the majority's opinion required clarification. On February 14, 1989, the Board remanded the case to the Hearing Committee for a supplemental report directed to three specific issues. A copy of the Board's Remand Order is appended to this Report as Exhibit A.
The Hearing Committee filed a Response to the Remand Order on April 4, 1989, advising that the majority had revised their earlier opinion, amended some of their prior fact findings, and "significantly changed the Conclusions originally offered." The majority now concluded that Bar Counsel had proven no disciplinary violations. A copy of the Response to the Remand Order is appended as Exhibit B.
The Chairperson, who had Dissented from the original Hearing Committee Report, adhered to her previous position. Bar Counsel filed no exceptions to the revised majority findings and Conclusions, and the matter is now before the Board for review.
After careful consideration of the record, the briefs and arguments of counsel, precedents established in comparable cases, and the revised Hearing Committee report, the Board agrees with the Conclusion originally reached by the Hearing Committee that Respondent misappropriated client funds. We also agree with the majority's Conclusion that Bar Counsel has not proven that the misappropriation was dishonest. The Board recommends suspension for six months as the appropriate sanction.
The Board adopts the revised Findings of Fact of the Hearing Committee majority, although some of these have been rephrased and expanded for purposes of clarity. The Board also makes additional findings of its own. The facts in the record upon which we base our Conclusions are as follows:
1. Respondent, Dorsey Evans, is an attorney who was admitted to the practice of law in the District of Columbia in 1960. He has extensive experience in probate matters. Transcript of 2/3/88 (hereinafter "Tr. II"), p. 149;2a Respondent's Brief of 10/17/88, p. 1.
2. On November 23, 1978, Carl W. Smith died intestate in the District of Columbia. BX 18(a). He was survived by two sisters: Lucille Byrd, who resided in Dayton, Ohio, and Pauline Carter, who resided in the District of Columbia. Tr. II, pp. 9-10, 41-42.
3. On April 4, 1979, Respondent filed a Petition for Letters of Administration on behalf of Cleopatra W. L. McLean, a step-daughter of Mr. Smith. Letters of Administration were granted to Ms. McLean by the Superior Court on, June 6, 1979. BX 18, 18(a), 18(b), 18(c); Tr.II, pp.10, 11, 43.
4. On or about June 12, 1979, Respondent deposited the sum of $2,843.75 (the proceeds of an insurance policy) into a bank account that was established for the estate. BX 19, 26(c).
5. On October 9, 1979, Ms. McLean died. On September 10, 1980, Respondent filed a Petition for Letters of Administration, DBN, on his own behalf (as a creditor of the estate). This Petition was granted on November 5, 1981, and Letters were issued on April 2, 1982. BX 18, 18(b), 18(c). *fn3 Respondent thus became the personal representative of the estate as well as its counsel.
6. On April 7, 1982, Respondent filed the "First & Final (DBN) Account" for the estate with the Probate Division. In that document, Respondent listed assets of $2,843.75 and, as "Administrative Expenses," the amount of $284.37 (ten percent of the estate assets) for: Dorsey Evans, Attorney Fees." The "Balance for Distribution" on the Account was stated to be $389.73 to Lucille Byrd and a like sum to Pauline Carter. The other estate assets were accounted for as disbursements for funeral expenses ($1,595.93), bond premium, notice publication expenses, and filing fees. BX 19. This filing made no mention of the $600.00 attorney fee figure that had been listed in Respondent's Petition. See footnote 3 ((supra) ).
7. On April 14, 1982, Respondent addressed a letter to Ms. Carter (BX 20(a)), informing her that he had "filed the final accounting in the Carl Smith Estate." The letter went on to inform Ms. Carter that a Rule 14 consent form was required to be filed with the Court to reflect "that you and Lucille Byrd are aware that the final accounting is being filed." The letter went on to say:
If you will sign where the X is your name Pauline Carter and if you feel that it's Okay, you may also sign Lucille Byrd's name. Forward it back to this office and I will get it filed so that we can get this matter concluded.
Although the letter to Ms. Carter enclosed the Rule 14 consent form, it did not enclose a copy of the Final Account itself. Tr.I, pp. 112-116; BX 20(a). The other heir, Ms. Byrd, received neither a copy of the letter, a consent form, nor a copy of the Final Account.
8. On April 26, 1982, Respondent filed an executed consent form with the Probate Division. The executed form was dated April 19, 1982, and it was signed "Pauline B. Carter" and "Lucille Byrd/P.B.C." BX 20(b). Pauline Carter had signed Lucille Byrd's name to the consent form without informing Ms. Byrd that she was doing so. Tr.II, pp. 14, 44.
9. On July 26, 1982, Respondent filed a "Restated First and Final (DBN) Account" with the Probate Division. BX 23. This was apparently required because funeral expenses of the estate, previously listed as $1,595.93, had to be reduced to $1,000. As a result of this change, the amount to be distributed to each heir was changed to $687.69. On the Restated Account, under the heading "Administrative Expenses," the following entry appeared: "Dorsey Evans, Attorney Fees (commission 10%) . . . $284.37." The heirs were not sent a copy of this filing. *fn4
10. The Restated Account was approved by the Court on February 23, 1983. BX 24(a).
11. On April 6, 1983, Respondent wrote to Ms. Carter and Ms. Byrd stating that "the first and final accounting on the above estate has been approved." His letter went on to furnish a calculation as follows:
Total Amount Received: 1,269.16
For Lucille Byrd: $434.58
For Pauline Carter: $434.58
With her copy of this letter each heir received a check in the stated amount of $434.58. BX 5(a), 5(b). This letter was the first communication to the heirs that mentioned an amount of compensation for Respondent and the precise amounts that the heirs were to receive. There was no mention that Respondent would be paid a ten percent commission over and above the $400 attorney fee, nor did ...