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In re Woodard

February 3, 1994


On Report and Recommendation of the Board on Professional Responsibility

Before Terry and Farrell, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: In In re Temple, 596 A.2d 585 (D.C. 1991), we held that addiction to prescription drugs lawfully obtained, like alcoholism, can be treated as a mitigating factor in sanctioning an attorney for misconduct. In the present matter, which is before us on the recommendation of the Board on Professional Responsibility that respondent be disbarred, the Board assumed for argument's sake that respondent had established his addiction to prescription drugs at the time of the misconduct in question. The Board agreed with the Hearing Committee, however, that respondent had failed to prove either that the addiction substantially affected his professional conduct or that he was substantially rehabilitated. See In re Temple, 596 A.2d at 589-91; In re Kersey, 520 A.2d 321, 327 (D.C. 1987); D.C. Bar Rule XI, § 13 (g).

Respondent makes no challenge to the findings of the Hearing Committee and the Board that he engaged in repeated acts involving reckless misappropriation of client funds, and that ordinarily the proper sanction for this conduct would be disbarment. See In re Micheel, 610 A.2d 231, 233 (D.C. 1992) ("there is a presumption of disbarrment in all cases involving misappropriation resulting from more than simple negligence"); In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). Respondent's sole exceptions pertain to the Board's Conclusions with regard to causation and rehabilitation. We reject these challenges for the reasons stated by the Board in its comprehensive report, the greater part of which we append hereto. *fn1 Only two additional observations are necessary.

First, we decline to extend to this case the Disposition adopted in In re Thompson, 579 A.2d 218 (D.C. 1990), where, following receipt of the Board's recommendation of disbarment, we remanded for consideration of alcoholism as a possible mitigating factor conditioned upon the attorney's agreeing to voluntary suspension of his practice in the meantime. Id. at 225. Unlike in Thompson, the issue of mitigation has been thoroughly explored in this case at both the Hearing Committee and Board levels; indeed, respondent sought a remand from the Board on the precise ground asserted here, *fn2 and the Board rejected the request for reasons (also recited in its report, (infra)) that we find persuasive.

Second, the Board's report provides sound reasons why the Hearing Committee could properly credit Dr. Ratner's Conclusion on the issue of causation over that of respondent's primary expert, Dr. Burbach. In the disciplinary context, as in all others, "It is elementary that a trier of fact may elect to pick and choose which evidence to rely upon." Attorney Grievance Comm. of Maryland v. Nothstein, 300 Md. 667, 480 A.2d 807, 816 (Md. 1984); see also In re Micheel, 610 A.2d at 234 ("The Board is obliged to accept the hearing committee's factual findings if those findings are supported by substantial evidence in the record, viewed as a whole"). While it appeared to the Hearing Committee that "none of the experts who testified knew enough about Respondent," both the Committee and the Board found Dr. Ratner's opinion of no-causation to be more thoroughly substantiated than the opinions of respondent's experts, *fn3 and confirmed by the active trial practice which respondent carried on during the period of misconduct and assumed addiction.

Accordingly, it is ORDERED that respondent is disbarred from the practice of law in the District of Columbia, effective 30 days from the date hereof. See D.C. Bar R. XI, § 14 (e). Respondent's attention is called to the provisions of D.C. Bar Rule XI, §§ 14 (f) and 16 (c).

So ordered.




Docket Nos. 250-89, et al.


After eight days of hearings that included the testimony of fourteen witnesses as well as the admission of numerous exhibits, Hearing Committee Number Eight found that Respondent recklessly and carelessly misappropriated the funds of four clients in violation of DR 9-103(A), commingled the funds of four clients in violation of DR 9-103(B)(3), and failed to maintain complete records and render appropriate accounts for two clients in violation of DR 9-103(B)(4).

Respondent admitted misappropriating funds of three clients. He also admitted the charges of commingling of funds, and did not contest the charges of failure to maintain complete records and render appropriate accounts.

Respondent claimed in mitigation of sanction that he was addicted to prescription drugs during the relevant period of time, that his misconduct was substantially caused by that addiction, and that he is now substantially rehabilitated. He urges that the sanction of disbarrment be mitigated, and that he be allowed to continue the practice of law under Kersey-type conditions.

The Committee, after considering the pertinent lay and expert testimony, rejected the mitigation claim, and recommended that Respondent be disbarred. Bar Counsel agreed with the Hearing Committee. The Board, for the reasons stated herein, agrees with the findings and recommendations of the Hearing Committee.


Respondent's Expert Testimony

In support of his mitigation claim, Respondent offered the expert testimony of Ms. Susann Makepeace, a counselor to individuals suffering from drug or alcoholic abuse; Dr. Rodney V. Burbach, a board certified psychiatrist, Dr. Amazair McAllister, a family practitioner; and Dr. Linda Berg-Cross, a clinical psychologist.

Ms. Makepeace evaluated Respondent on January 24, 1990. (1/3/91, at 73) Based on a history given by Respondent, Ms. Makepeace ascertained that he had a long-standing problem with drugs and alcohol. (Id. at 75) She subsequently spoke to Respondent a few times on the telephone, and saw him once, in March of 1990. (Id. at 76). At that time, he "appeared to be committed to his recovery." (Id. at 96) She referred him to Dr. Burbach. (Id. at 75)

Dr. Burbach first saw Respondent in January of 1991. In Dr. Burbach's opinion, Respondent was a "very sick person." He was "unfocused and disorganized and repetitious." (Id. at 199) Dr. Burbach learned that Respondent had suffered from Bells' Palsy, and had undergone surgery in June of 1984. Dr. Burbach concluded that Respondent was addicted to benzodiazepines -- Valium, Klonopin, Ativan, and Xanax. (Id. at 221) He had Respondent admitted to Suburban Hospital for detoxification. (Id. at 224)

Dr. Burbach was informed that, as of January 1990, Respondent's IQ was 88, and was 100 about a year later. He testified that the increase in IQ showed that Respondent "is better, but he has a ways to go." In his opinion, Respondent's IQ must have been "more than a hundred" before his illness. (Id. at 225)

It was Dr. Burbach's understanding that Respondent, after leaving Suburban Hospital, continued going to meetings of Alcoholic Anonymous "about three times a week." He also continued to attend Dr. Burbach's weekly therapy sessions. (Id. at 231)

In Dr. Burbach's opinion, the primary cause of Respondent's misconduct was "the drug ingestion and the toxicity." (Id. at 249) Dr. Burbach testified that, but for his impairment, Respondent's misconduct would not have occurred. (Id. at 256) However, he also testified that he believed Respondent knew he should not "be doing that," i.e, misappropriating clients' funds. (Id. at 255)

Dr. Burbach had not read the complaints or the specifications of charges against Respondent, but he said he understood in "sort of a general way" that "there was a problem with bookkeeping and with misappropriation of funds." (Id. at 269)

On the issue of rehabilitation, Dr. Burbach stated that "there appears to be a level of impairment that would prevent from functioning as an attorney." Nevertheless, Dr. Burbach believed that Respondent was sufficiently rehabilitated "so that he is not likely to repeat the misconduct of the type" that he "understood Respondent was engaging in . . . prior to January of 1990." (Id. at 278)

In a later hearing on the issue of rehabilitation, Dr. Burbach testified to his understanding, based on representations of Respondent, that Respondent had been attending Alcoholic Anonymous meetings two or three times a week since February of 1990, whereas, in fact, he had, as of the date of the hearing (October 21, 1991), only been attending meetings for a period of four or five months of a group that met once a week. (10/21/91 at 88, 241) *fn7

Dr. Burbach believed it "very important" for Respondent to attend AA meetings two or three times a week. He considered it "indicative of his continuing to get well," (Id. at 243), and would be "troubled" if Respondent had misrepresented to him the number of times he had attended AA meetings "because I think AA is a good thing that recovering people ought to do, but also honesty is the hallmark of recovery. Somebody to be explicitly dishonest in an important kind of way would lead me to question the recovery a lot." (Id. at 245)

Respondent testified that he attended AA meetings "primarily every Monday when my schedule does not conflict." (Id. at 88) Although Dr. Burbach also believed it important that Respondent have an active sponsor in the AA program, Respondent had no sponsor. (Id. at 90, 244)

Respondent entered a weekly group therapy session under the supervision of Dr. Burbach after being released from Suburban Hospital as an outpatient. However, he has attended only about 70 percent of the time. (Id. at 250) Respondent is receiving no other rehabilitative therapy (Id. at 83-97), and has ...

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