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December 30, 1992


Before Terry and Wagner, Associate Judges, and Newman, Senior Judge. Concurring opinion by Associate Judge Wagner.

The opinion of the court was delivered by: Per Curiam

On Report and Recommendation of the Board on Professional Responsibility

PER CURIAM: This matter is before the Court on the Report and Recommendation of the Board on Professional Responsibility (the Board) that respondent be suspended from the practice of law for six months for violating Disciplinary Rules 9-103(A) (misappropriation of client funds), 9-103(A)(2) (commingling), and 9-103(b)(3) (failure to maintain complete records). The Board's report, which was based upon evidence adduced before a Hearing Committee (the Committee), affirmed all of the Committee's findings and Conclusions except those concerning alleged violations of Disciplinary Rules 9-103(b)(4) (failure to pay client funds upon request) and 6-101(A)(3) (neglect). We accept the findings of fact and Conclusions reached by the Board with the exception that we need not consider whether respondent violated Disciplinary Rule 9-103(A)(2) (commingling). The Board's recommended sanction, which took into account a commingling violation, is appropriate for the remaining violations, and consistent with sanctions for comparable misconduct in other cases. Accordingly, we adopt the Board's recommendation for sanctions.


The pertinent facts as found by the Committee and adopted by the Board are as follows. As of November 1, 1986, respondent, a member of the District of Columbia Bar since 1965, had an association with Diamond Cab Company (the "company"), which provided respondent with office space and a secretary, who also served as respondent's office manager. In addition to defending suits against the company, respondent sometimes represented the company's drivers in personal injury cases on a contingent fee basis. Lewis J. Floris, a taxi driver with the company, retained respondent to represent him in a claim for damages for personal injuries Floris sustained as a result of a fall on property owned by Dupont East Condo Association. Mr. Floris and respondent agreed that respondent would receive a contingent fee of one-third of any settlement and that Mr. Floris would receive the balance remaining after deduction for the attorney's fee and payment of any medical bills.

In early July 1987, the company terminated its association with respondent. After a brief transition period, the company ceased providing respondent with a secretary and office space. On July 8, 1987, State Farm General Insurance Company, the insurer for Dupont East, issued a check to "Lewis John Floris and Walter R. Choroszej, Attorney-at-Law" for $840 in partial settlement of Mr. Floris' claim. Respondent was to pay these funds to Dr. Jeffrey Goltz on behalf of his client.

Respondent and Mr. Floris endorsed the check, and respondent deposited it in his client trust account. On July 27, 1987, State Farm issued a second check to "Lewis John Floris and Walter R. Choroszej, Attorney-at-Law" for $750. Respondent also deposited this check in the same escrow account. Since the claim was so small and did not require litigation, respondent reduced his fee from $530 to $150, and on August 4, 1987, respondent issued Mr. Floris a check for $600, representing the client's share of the $750 check. Respondent told Mr. Floris that he would try to persuade Dr. Goltz to reduce his fee in order to increase the proceeds of settlement to Mr. Floris. Respondent had an arrangement with certain doctors, including Dr. Goltz, who agreed to defer payment of bills until settlement or verdict. During August 1987, respondent delivered to Mr. and Mrs. Floris an additional check for $250, which he explained represented the reduction in Dr. Goltz' fee. He assured Mrs. Floris that the doctor's bill had been paid. Although respondent genuinely believed that he had paid Dr. Goltz, apparently the doctor had not sent respondent the bill. Dr. Goltz began sending bills to Mr. and Mrs. Floris.

In March 1988, Mr. and Mrs. Floris called on respondent at his apartment concerning a different matter and showed him bills received from Dr. Goltz. Again, respondent assured them that he had paid the doctor. Respondent called the doctor's office to inquire about the bill and was told by a staff person that the matter would be checked into and that they would get back to him. Respondent heard nothing further from the doctor's office, and respondent continued to hold an honest, but erroneous, belief that the doctor had been paid. At this time respondent believed that the client trust account contained only funds to which he was entitled as legal fees, and he wrote checks from the client trust account for rent and other personal expenses. The balance in the trust account dropped below the amount entrusted to respondent to cover Dr. Goltz' bill: $706.98 on August 10, 1987, and $206.98 on August 11, 1987. Respondent closed the account on September 15, 1987.

Respondent moved to Boston a short time later. Upon receiving another bill from the doctor in August and being unable to reach respondent, Mr. Floris complained to Bar Counsel. After being contacted by Bar Counsel, respondent paid Dr. Goltz $840. Respondent was unable to locate and produce financial records showing how he handled the settlement proceeds for this case. The Committee concluded that respondent's conduct was negligent and not dishonest.


A. Misappropriation

The Board concluded that respondent violated Disciplinary Rule 9-103(A) (misappropriation) through negligence rather than dishonesty, when he reduced the client trust fund below the balance which was to be paid to the client's doctor. The finding and Conclusion reached by the Board on this issue are supported by substantial evidence in the record; therefore, we accept them. See D.C. Bar R. XI, § 9(g); see also In re Evans, 578 A.2d 1141, 1142 (D.C. 1990). We have adopted a definition for misappropriation as any unauthorized use by an attorney of a client's funds entrusted to him or her, whether or not temporary or for personal gain or benefit. In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983). Misappropriation is essentially a per se violation for which improper intent is not an element. Id.; Evans, 578 A.2d at 1142. Therefore, respondent's conduct, although inadvertent and negligent, violated Disciplinary Rule 9-103(A).

B. Failure to Maintain Complete Records

We agree with the Board's Conclusion that appellant violated Disciplinary Rule 9-103(B)(3), failure to maintain complete records. Its reasoning as set forth in ...

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