On Report and Recommendation of the Board on Professional Responsibility
Steadman and Farrell, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam
In the attorney disciplinary case, the Board on Professional Responsibility has found that respondent Godfrey "intentionally and dishonestly misappropriated [his client's] funds," *fn1 and recommends disbarment. Pursuant to recent decisions of this court, we accept and apply that recommendation.
No testimony was offered by either side; the case proceeded by stipulation. In settlement of litigation in which Godfrey represented Anna Tomaselli, the insurance carrier sent him a check payable to his client and him. Ms. Tomaselli endorsed the check, and Godfrey cashed it on April 24, 1987. Godfrey offered no explanation of what then happened to the money, and that cannot otherwise be determined from the record. It was stipulated that Godfrey did not place or keep the money in an identifiable and separate trust account and failed to keep records of his client funds. After repeated requests, Godfrey finally disbursed to Ms. Tomaselli her share of the settlement on November 9, 1987.
We recently decided a companion case to that now before us which is controlling here. In In re W. Edward Thompson, 579 A.2d 218 (D.C. 1990), the respondent had withdrawn money from a client's bank account without authorization. Respondent gave an explanation of the money's use which was disbelieved by the Hearing Committee and the Board. We held that "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," id. at 218, could quite properly be considered a "significant -- and even decisive -- factor in proving dishonest misappropriation." Id. at 222. Appellant's argument that W. Edward Thompson is distinguishable since there the attorney testified and was disbelieved, while here the attorney simply stood silent, is meritless. In either case, the attorney has failed to provide "a satisfactory explanation." *fn2
"In virtually all cases of misappropriation, disbarrment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence." In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). In the case before us, the Board noted that "Godfrey has chosen to remain mute on the question of mitigating circumstances, and we can find none." Nor can we. We applied the Addams sanction in the W. Edward Thompson case (remanding only, upon an agreement of immediate suspension, for consideration of a claim of alcoholism in mitigation), and subsequently in In re Raymond B. Thompson, 583 A.2d 1006 (D.C. 1990), and In re Robinson, 583 A.2d 691 (D.C. 1990). We must do so again today.
Accordingly, it is ORDERED that David Godfrey shall be disbarred from the practice of law effective thirty days from the date of this opinion.