On Report and Recommendation of the Board on Professional Responsibility
Ferren and Farrell, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Farrell
In this disciplinary proceeding, the primary charge brought against respondent by Bar Counsel, and found to have been established by both a Hearing Committee and the Board on Professional Responsibility (the Board), is that respondent engaged in dishonest misappropriation of a client's funds in violation of DR 1-102 (A) (4). *fn1 The principal issue before us is how much weight properly may be given to an attorney's failure to come forward with a satisfactory explanation for the use of client funds when it has been shown by clear and convincing evidence that the attorney took the funds without prior authorization for a non- de minimis period of time and kept no records of their use.
We sustain the Board's Conclusion that respondent's failure credibly to explain his use of a client's funds, when combined with the evidence of misappropriation established by Bar Counsel, supports a finding of dishonest misappropriation under DR 1-102 (A) (4). We also agree with the Board's Conclusion that, other things being equal, respondent's conduct would necessitate disbarment. We conclude, however, that a remand to the Board is necessary for further proceedings concerning an issue of possible mitigation under our decision in In re Kersey, 520 A.2d 321 (D.C.1987).
Bar Counsel alleged misconduct by respondent in his legal services on behalf of two different clients. One of these clients, Ms. Fannie Grossman, was incompetent to handle her own financial affairs and respondent was appointed her conservator. Because, as the Board recognized, the more serious misconduct occurred in connection with respondent's representation of Ms. Grossman, we shall set forth the facts concerning that conduct in the text and the facts relating to the other charged misconduct in the margin. *fn2
The Board summarized the facts of the Grossman matter, which are essentially undisputed, as follows: Respondent was given control over Ms. Grossman's bank account [in 1979], and thereafter he was responsible for the following transactions:
Date Transactions Involving
June 14, 1982 Respondent withdrew $5,000
without court authorization
Aug. 12, 1982 Respondent redeposited
Nov. 15, 1983 Respondent ...