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December 14, 1990


A Member of the Bar of the District of Columbia Court of Appeals; On Report and Recommendation of the Board of Professional Responsibility

Steadman, Farrell and Wagner, Associate Judges.

The opinion of the court was delivered by: Per Curiam

This case is before the court on a Report and Recommendation of the Board on Professional Responsibility (the Board) that respondent be disbarred for violating Disciplinary Rules 9-103(A) (failure to preserve identity of client's funds) and 1-102(A)(4) (dishonesty involving the intentional misappropriation of client's funds). In making its report and recommendation, the Board agreed unanimously with the Report of Hearing Committee Number Seven (the Hearing Committee). Respondent contends that (1) the Hearing Committee improperly relied upon non-expert opinion and hearsay; and (2) the record does not support, and the Hearing Committee failed to find by clear and convincing evidence, intentional misappropriation or dishonesty which would warrant disbarment. Respondent argues that the record supports at most a finding of misappropriation resulting from simple negligence and that a lesser sanction should be imposed under the circumstances. We disagree and accept the Board's findings, Conclusions, and recommendation as set forth in its report which is reproduced in an appendix hereto.

Respondent's claim that hearsay and non-expert opinion was improperly admitted is raised for the first time with this court. The objection should have been raised before the Hearing Committee to preserve the issue for consideration. See Hughes v. District of Columbia Department of Employment Services, 498 A.2d 567, 570 (D.C. 1985). In any event, the strict rules of evidence do not control professional responsibility hearings. D.C. Bd. Prof. Resp. R. 11.2. This rule is similar to the rules for other administrative proceedings. See Martin v. Police & Firefighters Retirement and Relief Board, 532 A.2d 102, 109 (D.C. 1987). While we have held that an agency's "undue confidence in evidence that is too unreliable to justify the weight given to it" may warrant reversal (id. citing Jadallah v. District of Columbia Department of Employment Services, 476 A.2d 671, 676 (D.C. 1984)), *fn1 this is not such a case. In this case, the Hearing Committee heard, without objection, the testimony of respondent's former client's new attorney that he did not feel that the termination of the personal relationship between respondent and his client prompted the client to pursue a claim for the proceeds of her personal injury claim. The witness gave as reasons for this Conclusion the client's initial inquiry without revealing respondent's name, the client's caution in proceeding and her express statement that she did not want to cause respondent to lose his license. *fn2 Unlike Jadallah, the client-declarant testified and was available for cross-examination, and the statements elicited were made directly to the witness. Under the relaxed rules of evidence in this administrative proceeding, the admission of such testimony and reliance upon it by the Hearing Committee and the Board as corroborative of the client's testimony was not error.

We also reject respondent's second contention, that the record does not support, and the Hearing Committee failed to find by clear and convincing evidence that he intentionally misappropriated client funds or that his conduct was dishonest. Bar Counsel is required to prove disciplinary violations by clear and convincing evidence. D.C. Bd. Prof. Resp. R. 11.4. The Hearing Committee found that the burden was met that respondent used the client's settlement proceeds without her explicit consent and that such conduct was dishonest. It is respondent's contention that these findings do not eliminate the possibility that respondent had implied consent to use the funds or a reasonable basis to conclude that he did, given the nature of his personal relationship with the client. This position ignores that factually the Hearing Committee found that respondent availed himself solely of the use of a major portion of the funds, failed to state that there was an implicit understanding to that effect and admitted there was never any understanding at all between respondent and his client. The Hearing Committee rejected for want of evidentiary support the claim that the funds were jointly held for perpetuation of the relationship and rejected the defense that no attorney-client relationship existed due to the overwhelming evidence to the contrary. The Hearing Committee concluded that respondent never obtained explicit, or even implicit, permission to use his client's funds. These factual findings and Conclusions are supported by substantial evidence which is summarized in the Board's report.

Misappropriation of a client's funds is a serious violation of the Rules of Professional Responsibility for which disbarrment is the appropriate sanction unless the conduct results from mere negligence. In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). There is no basis for concluding on this record that respondent falls within the exception. On the contrary, the record supports the Board's recommendation which is consistent with cases involving comparable misconduct. See In re Wade, 526 A.2d 936, 939 (D.C. 1987); In re Burton, 472 A.2d 831 (D.C. 1984). *fn3

The Board must accept the fact finder's findings if supported by substantial evidence on the record as a whole. In re Evans, supra, 578 A.2d at 1142. The same standard governs our review of the Board's findings. Id. Substantial evidence means enough evidence for a reasonable mind to find sufficient to support the Conclusion reached. Liberty v. Police and Firemen's Retirement Relief Board, 410 A.2d 191, 192 (D.C. 1979). Applying these standards, we conclude that the findings of the Hearing Committee, upon which the Board's findings are based, are supported by substantial evidence. We agree with the Board's recommendation of disbarrment as the appropriate sanction for the conduct involved.

Accordingly, it is

ORDERED that respondent, Raymond B. Thompson, be and hereby is disbarred from the practice of law in the District of Columbia. This order shall be effective thirty days from the date of this opinion.

So Ordered.



Bar Docket No. 333-87


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