On Report and Recommendation of the Board on Professional Responsibility
Belson, Terry and Farrell, Associate Judges.
The opinion of the court was delivered by: Belson
This disciplinary proceeding arises from respondent's misconduct in connection with the representation of his sister-in-law in a personal injury case. The Board on Professional Responsibility (the Board) concurs in a hearing committee's determination that respondent misappropriated client funds, but not dishonestly, DR 9-103(A), and that respondent failed to maintain records and render appropriate accounts, DR 9-103 (B)(3). *fn1 The Board recommends that respondent be suspended from the practice of law for six months and, as a prerequisite to reinstatement, be required to prove fitness to resume practice. *fn2 We accept the Board's findings concerning infractions of the disciplinary rules; we remand this case, however, to the Board so that it may reconsider its recommendation regarding sanctions in light of this court's recent opinion in In re Addams, 579 A.2d 190 (D.C. 1990) (en banc).
In August, 1984, respondent agreed to assist his sister-in-law Francine Wright in processing her claim for personal injury protection benefits (PIP) that she would recover from her insurer, Colonial Insurance Company of California, in connection with an automobile accident that occurred on July 26, 1984. Respondent originally informed Steve and Francine Wright they did not need an attorney to process Francine Wright's claim. Nevertheless, after some urging by the Wrights, respondent agreed to handle the PIP claim for a one-third contingent fee. At issue here are two checks that Colonial Insurance Company transmitted to respondent to satisfy Ms. Wright's claim: one dated October 16, 1984, in the amount of $979.50 and a second issued on or about November 2, 1984, in the amount of $1,884.28. Both checks were endorsed by Francine Wright and respondent; he, in turn, deposited them into "The Wright Account" that he opened on or about October 23, 1984, at the National Bank of Washington.
During a period of four months, October 23, 1984, to February 4, 1985, respondent wrote four checks on the account payable to himself: on or about November 2, 1984, he withdrew $979.50; on November 30, 1984, $550.00; on or about December 10, 1984, $675.00; and finally on January 29, 1985, $110.00. *fn3 Francine Wright received only one check from respondent. It was in the amount of $550.00, and was received on or about November 30, 1984. By February 4, 1985, the Wright account balance reached zero. It is undisputed that between February 4, 1985, and June 6, 1985, respondent used the escrow account as his personal checking account although it was still designated the Wright account.
A dispute arose as to who was to pay Francine Wright's medical bills. Respondent maintained he had informed Francine Wright that she would have the responsibility of paying the medical bills from the funds she received, while the Wrights contended that respondent was to pay the bills from the escrow account funds. Complicating both the relationships among the parties involved and the task of assessing credibility was the fact that respondent separated from his wife, Mr. Wright's sister, after the occurrence of the events in question. Although at various times in 1986 the Wrights asked respondent for an accounting of the proceeds of the settlement, respondent never provided the Wrights a written account, nor did he produce records, with the exception of the Wright account checkbook.
According to respondent, he was allowed to deduct from the escrow account a fee of $933.00 as one-third of the sum of Ms. Wright's PIP benefits, along with fees for services he performed for the Wrights in unrelated legal matters consisting of $400.00 for assistance in a real estate transaction and $750.00 for research on a trust account that was being established for the Wrights' son. The Wrights disputed respondent's claims, asserting that the most he was authorized to withdraw from their escrow account was one-third of the insurance recovery, $933.00.
The Board accepted the hearing committee's finding that in 1985 the Wrights paid respondent $250.00, one-half of their $500.00 deposit that they received back in connection with a real estate matter in which respondent had assisted them. From this finding it is clear that the Board discredited respondent's assertion that he was entitled to $400.00 for his work on the real estate matter. The Board reached no Conclusion with respect to whether respondent was entitled to receive $750.00 for the trust-related research, deeming both the record and the hearing committee's second report "less than satisfactory" on the issue of whether an agreement had been reached between the Wrights and respondent and, if so, the amount of the fees and the manner in which they would be collected. The Board noted that it was not necessary for it to reach a determination on this point in order to conclude that respondent had taken more from the account than he was entitled to. It was upon this reasoning that the Board arrived at its finding of misappropriation.
Respondent offered, as a mitigating circumstance, his addiction to cocaine. Applying, however, the preponderance of the evidence standard as this court directed in In re Miller, 553 A.2d 201 (D.C. 1989), the Board concurred with the hearing committee's findings and Conclusions that respondent had failed to demonstrate a causal link between his misconduct and his addiction. The Board further agreed that respondent had not shown present rehabilitation or that his addiction would probably not recur in the foreseeable future.
This court, upon reviewing the Board's recommendation, "shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record." D.C. Bar Rule XI, § 9(g); see In re Buckley, 535 A.2d 863, 865-66 (D.C. 1987); In re Alexander, 466 A.2d 447, 448 (D.C. 1983), cert. denied, 466 U.S. 904, 104 S. Ct. 1680, 80 L. Ed. 2d 154 (1984). We agree with the Board that there is sufficient evidence of record to support the finding that respondent misappropriated his client's funds, DR 9-103 (A). *fn4 Misappropriation is defined as "any unauthorized use of client's funds entrusted to him, including not only stealing but also unauthorized temporary use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom." In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983) (citing In re Wilson, 81 N.J. 451, 455 n.1, 409 A.2d 1153, 1155 n.1 (1979)); accord, In re Franklin, 516 A.2d 171, 174 (D.C. 1986), cert. denied, 479 U.S. 1087, 107 S.Ct. 1291, 94 L.Ed.2d 148 (1987). Improper intent is not an essential element of misappropriation. In re Harrison, supra, 461 A.2d at 1036.
Respondent claimed that he was entitled to $933 for his work on the personal injury matter, $400 for the real estate transaction, and $750 for the trust-related research, totaling $2,083.00. He withdrew money from the Wright account, totaling $1,798.75. The Board, however, adopted the hearing committee's finding that the Wrights agreed to pay respondent only one-half of the $500 they received from the real estate matter, $250.00, and that the Wrights promptly paid respondent this amount. *fn5 Thus, when the $400 respondent claimed for the real estate matter is deducted from the total of $2,083.00 he claimed, it is seen that he could properly have withdrawn no more than $1,683.00. Even with the most generous interpretation of the dispute over the fee for trust-related research, it is clear that respondent withdrew at least $115.75 more than authorized.
Before the Board, Bar Counsel argued that the foregoing findings required the further finding that the misappropriation was dishonest. The Board was not convinced of that proposition by clear and convincing evidence, and therefore accepted the committee's finding of no dishonesty. *fn6 Before this court, Bar Counsel no longer contends that a finding of dishonesty was ...