Before Wagner, Chief Judge, and Farrell and KING,[fn*] Associate
[fn*] Judge King was an Associate Judge of the court at the time of
argument. His status changed to Associate Judge, Retired on
September 1, 1998.
The opinion of the court was delivered by: Per Curiam:
Respondent, N. Jerome Willingham, a member of the bars of the State of North Carolina and the District of Columbia, was suspended from the bar of North Carolina for three years for commingling personal funds with entrusted funds in his escrow account, failing to maintain proper trust account records, and neglecting a criminal appeal. On December 13, 1996, upon notification by Bar Counsel of the proceedings in North Carolina, this Court suspended respondent on an interim basis pursuant to District of Columbia Bar R. XI, § 11(d) (1998) and requested the Board on Professional Responsibility (Board) to recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline or whether the Board, instead, elects to proceed de novo. Concluding that discipline imposed in North Carolina was outside the range of sanctions that would be imposed for the violations in the District, in its Report and Recommendation to the Court on July 30, 1997, the Board recommended a sixty-day suspension. See D.C. Bar R.XI, § 11(c)(4). *fn1 Before the Board, Bar Counsel recommended a sixty-day suspension, but also recommended a fitness requirement for reinstatement. Bar Counsel filed an exception to the Board's report and recommendation, challenging only the Board's failure to include a fitness requirement. *fn1 For the reasons hereinafter stated, we adopt the recommendation of the Board.
Respondent was suspended from the practice of law in North Carolina for violating the following disciplinary rules: Rules 10.1(a) of the North Carolina Rules of Professional Conduct (commingling); 10.1(c)(2) (depositing legal fees into, and failing to withdraw undisputed legal fees from trust account); 10.2(c)(1) (failure to identify deposits to trust account); 10.2(c)(2) (drawing instruments on trust account payable to cash); 10.2(c)(3) (failure to keep ledgers of entrusted funds); 10.2(d) (failure to reconcile trust account on quarterly basis), and Rule 6(b)(3) (failure to act with reasonable diligence and promptness). The factual basis for the commingling violations was that respondent had deposited personal funds into his trust account, wrote checks from the account to cash and for personal and business expenses, failed to withdraw promptly his attorney's fees from the account, and made several deposits without indicating the source of the funds. Respondent did not keep ledgers for individual clients to track funds in the account. The Disciplinary Hearing Commission of North Carolina (North Carolina Commission) determined that the evidence was insufficient to sustain a charge of misappropriation because the record failed to show that at the time of shortfalls in the account, respondent was holding entrusted funds as opposed to legal fees or unreimbursed expenses that had not been withdrawn timely. The Commission also found that respondent did not exhibit the criminal intent or dishonesty necessary to show misappropriation.
Respondent's violation of Rule 6(b)(3) (failure to act with reasonable diligence) arose out of his representation of a defendant in a criminal case. The North Carolina Commission determined that respondent had failed to perfect his client's appeal timely, and the government filed a motion to dismiss. Respondent moved to withdraw as counsel, another attorney was appointed, and the appeal was reinstated. [717 A2d Page 344]
Respondent was suspended for three years in North Carolina, two of which were stayed conditioned upon his compliance with Article IX, § 25(B)(3) of the Rules and Regulations of the North Carolina State Bar (now Rule .0125(b)(3)). This rule requires every suspended attorney to file a verified petition for reinstatement and demonstrate compliance with notice requirements similar to our Rule XI, § 14, *fn2 refrain from ethical violations, and refrain from the practice of law. The order further provided that respondent verify his attendance at a practical skills course and that he prove satisfaction of continuing legal education requirements and that his bookkeeping system complied with ethical rules.
Respondent's initial request for reinstatement in North Carolina, filed after one year of the suspension, was denied. The North Carolina Commission determined that respondent: (1) had failed to send notice of suspension to the District of Columbia and to the U.S. District Court for the Eastern District of North Carolina; (2) had continued to represent clients after the Effective date of his suspension of May 6, 1995; and (3) had misrepresented himself as a licensed attorney during a visit to a Federal prison. Respondent was reinstated in North Carolina on May 13, 1998, upon a finding by the Commission that respondent had satisfied the conditions for reinstatement.
D.C. Bar R. XI, § 11(c) provides that reciprocal discipline shall be imposed unless one of five specified exceptions apply, which the attorney must establish by clear and convincing evidence. See In re Gardner, 650 A.2d 693, 695 (D.C. 1994). Among the exceptions is that "[t]he misconduct established warrants substantially different discipline in the District of Columbia. . . ." Rule XI, § 11(c)(4). Both the Board and Bar Counsel agree that this exception is applicable to respondent's case in that the three-year suspension imposed in North Carolina is substantially different from the sanction which would be imposed in the District for the same misconduct. See In re Garner, 576 A.2d 1356, 1357 (D.C. 1990) (For application of the "substantially different discipline" exception of D.C. Bar R. XI, § 11(f), there must be a substantial difference between the discipline imposed in the original jurisdiction than that imposed in the District).
A survey of our cases reveals that the discipline imposed by North Carolina in this case is, indeed, substantially outside of the range of sanctions which would be imposed in this jurisdiction. Commingling and trust violations, not amounting to misappropriation, have resulted in thirty-day suspensions under circumstances similar to those in this case. See, e.g., In re McGann, 666 A.2d 489, 491-92 (D.C. 1995) (thirty-day suspension imposed as reciprocal discipline for commingling, use of trust account funds for personal and business expenses, failure to maintain trust account records); In re Ross, 658 A.2d 209, 210 (D.C. 1995) (thirty-day suspension for commingling and failure to deliver funds promptly). Single instances of neglect in which there were other violations or aggravating circumstances have also resulted in a thirty-day suspension. See, e.g., In re Joyner, 670 A.2d 1367, 1368, 1370 (D.C. 1996) (failure to file client's claim within statute of limitations); In re Sumner, 665 A.2d 986, 987 (D.C. 1995) (failure to provide competent representation, to keep client reasonably informed, to return client's papers and refund fee); In re Dietz, 633 A.2d 850, 850 (D.C. 1993) (neglect of divorce case, failure to complete work on case and to return fee); In re Foster, 581 A.2d 389, 389 (D.C. 1990) (neglect, intentional failure to seek client's lawful objectives and to carry out employment contract). [717 A2d Page 345]
Bar Counsel argues that a fitness requirement should be imposed in this case based on the principles of reciprocal discipline and because of the "gravity and pervasiveness" of respondent's misconduct and his failure to appreciate his ethical responsibilities. The Board found that respondent had an otherwise unblemished career as a lawyer and a record of public service; that the North Carolina Commission found that his misconduct resulted from careless record keeping and poor office management, rather than dishonest motives; that there was no evidence of problems with his present character as to require a hearing to evaluate them; and that a showing of fitness was not a part of the original North Carolina sanction. The Board also considered that respondent has taken steps to remedy past wrongs by participating in the North Carolina management course and gaining approval of his current system of bookkeeping, as required by the North Carolina Commission.
District of Columbia Bar R. XI, § 9(g)(1) provides that "the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence or record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." See also In re Chisholm, 679 A.2d 495, 502 (D.C. 1996). The Board's findings are supported by substantial evidence, and its recommended sanction is within the range of sanctions imposed in this jurisdiction in comparable cases. Similar cases in this jurisdiction where a thirty-day suspension has been imposed for neglect or commingling and failure to keep complete records have not required a showing of fitness for the lawyer's reinstatement. See, e.g., Sumner, supra, 665 A.2d at 986; Ross, supra, 658 A.2d at 209; McGann, supra, 666 A.2d at 489; Dietz, supra, 633 A.2d at 851; Foster, supra, 581 A.2d at 389; see also Joyner, supra, 670 A.2d at 1370. *fn3
Bar Counsel contends that the guidelines outlined in In, re Chisholm, supra, 679 A.2d 495 support the imposition of a fitness requirement in this case. Chisholm is factually distinguishable from this case in that the Board found in Chisholm a protracted neglect of a client's appeal for some five years by the attorney which resulted in dismissal of the client's appeal and the client's subsequent arrest and detention for almost one month by the Immigration and Naturalization Service. The Board also found that the attorney had engaged in "persistent, intentional dishonesty, resulting in the needless incarceration of the client." Id. at 503. This court required that Chisholm show fitness as a precondition to reinstatement because of "the number of disciplinary rules that Chisholm violated, the severity of his misconduct, the fact that it was intentional, his protracted and continuing dishonesty, his refusal to accept responsibility for his actions, his lack of contrition, and the Hearing Committee's assessment of Chisholm's condition and character. . . ." Id. at 505. In contrast, as the Board found, Willingham's conduct was not protracted, and the North Carolina Commission found that the misconduct giving rise to his suspension resulted from carelessness and poor office management rather than dishonesty.
In Chisholm, supra, we determined that our guidelines used to evaluate petitions for reinstatement are instructive in determining when to impose a fitness ...