Before Steadman and Ruiz, Associate Judges, and Gallagher, Senior
The opinion of the court was delivered by: Gallagher, Senior Judge
On Exceptions of Bar Counsel and Respondent to Report and Recommendation of Board on Professional Responsibility
(Argued March 19, 1999 Decided November 12, 1999)
The Board on Professional Responsibility ("the Board") recommended that respondent, Gregory L.A. Thomas, be disbarred. Attorney Thomas filed several exceptions to the Board's Report and Recommendation. Bar Counsel filed a limited exception contending the Board should have ordered restitution as a condition of reinstatement. We adopt the recommendation of the Board that Attorney Thomas be disbarred.
A. The Holmes Matter, Bar Docket No. 184-93
On July 20, 1989, Delores Holmes, while working for the American Federation of Teachers, slipped on a wet floor at the Washington Hilton Hotel ("Hilton") and suffered injuries. Holmes retained Gregory Thomas to represent her in a civil action for damages filed against Hilton. Attorney Thomas also filed a workers' compensation claim related to this incident on behalf of Holmes against her employer and its insurance carrier, INA. *fn1
INA paid for some of Holmes' medical bills which related to her July 20th injury. Attorney Thomas negotiated with INA in an attempt to obtain a waiver of INA's statutory lien on any proceeds from the civil action against Hilton.
On January 29, 1991, while Attorney Thomas and Hilton were negotiating a settlement of the civil action, INA informed Hilton that INA had paid medical bills on behalf of Holmes and was asserting its statutory lien on any settlement proceeds. Holmes reached a settlement with Hilton on February 7, 1991, in the amount of $8,500. On February 14, 1991, Attorney Thomas prepared a "Settlement Statement," proposing to distribute the proceeds in the following fashion: $2,833.33 to Attorney Thomas as his contingency fee, $4,087 to pay Holmes' medical bills and reimburse the insurance companies, and $1,579.67 to Holmes. Holmes signed this document. On February 18, 1991, Hilton sent a letter to INA, with a copy to Attorney Thomas, informing INA that the settlement draft of $8,500 would be made payable to Holmes, Thomas, and INA as the "lienholder." On February 20, 1991, INA sent a letter to Attorney Thomas stating that the amount of the lien was $2,272.85.
On March 18, 1991, Holmes and INA settled the workers' compensation claim, with INA agreeing to pay Holmes' medical expenses, incurred through November 1989, relating to her July 20th injury. INA confirmed the settlement and requested that Attorney Thomas submit all of Holmes' outstanding medical expenses. Attorney Thomas did not respond to this request. INA sent another letter to Attorney Thomas, confirming that Hilton agreed to recognize INA's lien of $2,272.85, and stating that the lien may be less depending on the amount of Holmes' unpaid medical bills through November 1989.
Attorney Thomas wrote a letter to Hilton objecting to the inclusion of INA as a payee on the settlement draft, suggesting Hilton issue a separate draft for INA. On April 2, 1991, Hilton issued a draft listing Holmes, Thomas, and INA as payees. Hilton responded to Attorney Thomas' letter, stating it was informed that INA had a "valid workmen's compensation lien in this matter." Meanwhile, INA continued its attempts to determine the amount of Holmes' unpaid medical bills by requesting the information from Attorney Thomas.
Attorney Thomas received the settlement draft for $8,500 from Hilton. Both Thomas and Holmes endorsed the draft. INA, however, did not. Attorney Thomas deposited the draft in his clients' escrow account with the Industrial Bank of Washington ("Industrial Bank"). Attorney Thomas did not advise INA that he had received the draft, or that he had deposited the draft in the escrow account without INA's endorsement. INA again requested information on Holmes' unpaid medical bills. Attorney Thomas did not respond.
On May 8, 1991, Attorney Thomas' escrow account had a balance of $12,947.56. Subsequently, Attorney Thomas wrote checks to himself, his employee, and others. On July 18, 1991, the account had a balance of $103.55. Holmes, however, had not received from Attorney Thomas any disbursement of funds relating to her settlement with Hilton.
In 1992, Holmes retained another attorney, Mark Schaffer, to represent her in an unrelated workers' compensation claim against her employer involving carpal tunnel syndrome. Holmes expressed her concern to Attorney Schaffer over the status of her settlement with Hilton, and that she could not receive a satisfactory explanation from Attorney Thomas. Schaffer made repeated attempts to learn from Thomas about the settlement. Thomas offered no explanation to Schaffer. In May 1993, Holmes filed a complaint with the Bar concerning Attorney Thomas' handling of her settlement with Hilton.
Subsequently, on December 3, 1993, Attorney Thomas deposited $8,093 into his clients' escrow account, which raised the balance to $8,112.36. On December 6, 1993, Attorney Thomas sent to his client, Holmes, a "revised settlement statement," which proposed a distribution of the Hilton settlement funds that differed from the distribution Thomas proposed on February 14, 1991. Under this new proposal, CIGNA/INA would receive $2,272.85 from the Hilton settlement. This correspondence was accompanied by a photocopy of a check from Thomas made payable to CIGNA/INA. But Attorney Thomas never actually forwarded the check to INA. Rather, he kept the money as his own attorney's fee in this matter.
The Board concluded that during this time, Attorney Thomas engaged in commingling of his personal funds with his clients' funds. In August 1991, Attorney Thomas received a settlement for a personal injury claim of his own and unrelated to his representation of Holmes. Attorney Thomas received a check for $8,822 from State Farm Insurance Company made payable solely to Thomas, and deposited it into his clients' escrow account.
Bar Counsel charged Attorney Thomas with six violations of the District of Columbia Rules of Professional Conduct: commingling (Rule 1.15 (a)), misappropriation (Rule 1.15 (b)), failing to notify a third party promptly of the receipt of funds in which the third party has an interest (Rule 1.15 (b)), failing to keep client reasonably informed (Rule 1.4 (a)), engaging in acts of dishonesty (Rule 8.4 (c)), and engaging in conduct seriously interfering with the administration of Justice (Rule 8.4 (d)). Bar Counsel chose not to pursue the latter violation of Rule 8.4 (d).
Hearing Committee Number Five ("the Committee") found Attorney Thomas had engaged in commingling and misappropriation, failed to keep his client reasonably informed, and had engaged in acts of dishonesty. *fn2 The Committee recommended disbarrment. Attorney Thomas filed an exception to the Committee's Report and Recommendation. Bar Counsel filed a limited exception to the Committee's report, challenging the Committee's finding that the evidence was insufficient to show Attorney Thomas had failed to notify a third party of the receipt of funds in which it had an interest.
The Board issued its Report and Recommendation on May 7, 1998. The Board found that Attorney Thomas had engaged in misappropriation, commingling, and dishonesty. In addition, the Board found that Attorney Thomas had failed to keep his client reasonably informed, and had failed to notify a third party of the receipt of funds promptly. The Board ...