On Report and Recommendation of the Board on Professional Responsibility
Before Steadman and Schwelb, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Gallagher
GALLAGHER, Senior Judge: Respondent, Robert D. Powell, a member of the bars of Maryland, New York, and the District of Columbia, was found by the Court of Appeals of Maryland to have unintentionally *fn1 misappropriated a client's funds and was suspended indefinitely from the practice of law in Maryland, with right to reapply and make a showing of fitness in not less than six months. Powell, supra note 1. The District of Columbia Board on Professional Responsibility ("the Board") considered the Maryland court's findings and concluded that respondent's behavior was also violative of the District's rule against misappropriation of funds, DR 9-103 (A), *fn2 but that the misconduct "warrants substantially different discipline in the District of Columbia." D.C. Bar R. XI, § 11 (c) (4). *fn3 Thus, the Board recommended a six-month suspension with automatic reinstatement.
Both respondent and Bar Counsel oppose the Board's recommendation. Respondent argues that he did not violate the District's rule against misappropriation of funds and that he should not be reciprocally disciplined by the District. *fn4 Bar Counsel maintains that reciprocal discipline, including a showing of fitness as a condition of reinstatement, is appropriate. We find persuasive Bar Counsel's analysis of this case and, therefore, reject the Board's recommendation that respondent be automatically reinstated at the Conclusion of a six-month suspension.
The facts of this case, presented in summary here, are more fully elucidated in the opinion by the Maryland Court of Appeals. Powell, supra note 1, 614 A.2d at 104-07. The complaint giving rise to disciplinary action against respondent arose from his representation of Hester Taxay ("the client"). She was the substituted plaintiff in a civil suit which concluded in a settlement whereby defendants made a cash payment to her in exchange for an order of dismissal with prejudice of the suit.
Prior to dismissal of the client's case on March 17, 1988, respondent received nine settlement checks on her behalf. Six of these checks, totaling $17,500, were deposited into a trust account which was intended to be the repository of all settlement funds and which had a balance of $110.76 prior to the deposits. Three of these checks, totaling $65,000, were mistakenly deposited into respondent's law firm's operating account which had a balance of $2,365.52 prior to the deposits.
In the months following dismissal of the case, the client sought disbursement of the settlement funds. According to respondent's accounting, $12,500 of the total collected was owed the client. *fn5 Respondent did not promptly forward the $12,500 to the client and instead requested that the client make an interest-bearing personal loan to him of the entire amount, citing his personal and financial difficulties. The client ultimately signed a promissory note prepared by respondent which was backdated to March 1, 1988.
The principal and interest accrued on the loan was due in January 1989. However, despite the client's repeated requests respondent made no payment until April 1989, when he mailed a check to his client in the amount only of the interest then due. *fn6 When the client had received no further payment from respondent by August 1989, she made complaint to disciplinary authorities in the states in which respondent was licensed to practice. *fn7
In the Maryland proceedings, respondent admitted that his client's frinds were misappropriated but argued that it was unintentional. 614 A.2d at 108-09. He said that the three checks deposited into the law firm's operating account had been erroneously deposited by a temporary employee. He said that he did not discover that a check for $12,500 had been misdeposited into that account until September 1988, nearly a year after the fact. Respondent became aware that an additional $52,500 had been misdeposited into that account in November 1987, shortly after the error was made. However, he allowed that money to remain in the firm's operating account because he determined that his fees and unpaid expenses exceeded $52,500.
The Maryland Court of Appeals found that respondent unintentionally misappropriated his client's funds through conduct, that if not grossly negligent, was "'perilously close' to gross negligence." 614 A.2d at 112 (citation omitted). As a result, he was suspended from the practice of law indefinitely with the right to reapply in not less than six months.
We have held that D.C. Bar R. XI, § 11 (c) "creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992) (citing In re Velasquez, 507 A.2d 145, 146-47 (D.C. 1986) (footnote omitted)). The presumption of reciprocal discipline may be rebutted upon a showing by clear and convincing evidence that one of the five exceptions to the imposition of reciprocal discipline enumerated in § 11 (c) is applicable. *fn8
The Board concluded that § 11(c) (4), which allows an exception where "the misconduct established warrants substantially different discipline in the District of ...