Before Wagner, Chief Judge, and Terry and Schwelb, Associate
The opinion of the court was delivered by: Schwelb, Associate Judge
A Member of the Bar of the District of Columbia Court of Appeals
On Report and Recommendation of the Board on Professional Responsibility
Opinion for the court by Associate Judge Schwelb.
Dissenting opinion by Chief Judge Wagner at p. _.
The Board on Professional Responsibility has recommended that Matthew J. Marshall, Jr. be disbarred for misappropriation of client funds and for submitting fabricated documents to Bar Counsel during Bar Counsel's investigation of the allegations of misappropriation. Marshall has excepted to the Board's recommendation. He contends that a lesser sanction should be imposed because, according to Marshall, his conduct was the result of his addiction to cocaine, an addiction from which he claims to have been substantially rehabilitated. We conclude that the principles of In re Kersey, 520 A.2d 321 (D.C. 1987), should not be applied to Marshall's cocaine addiction, and we adopt the Board's recommendation that Marshall be disbarred.
A. Marshall's misconduct.
Marshall was admitted to practice in the District of Columbia in 1984. He was initially employed by the Council of the District of Columbia, but he was discharged in 1987 for cocaine use. Marshall subsequently became a solo practitioner in the District.
In December 1994, Bar Counsel filed a petition alleging that Marshall had misappropriated the funds of a client, Samuel Warrick, *fn1 that he had commingled client funds with his own, *fn2 and that he had misrepresented facts to Bar Counsel. *fn3 Bar Counsel requested that Marshall be disbarred. Marshall filed a pro se answer in which he admitted his misconduct but ascribed his behavior to "a dysfunctional emotional state" and to "emotional, irrational panic."
Bar Counsel's allegations came before Hearing Committee No. 7, which conducted an extensive evidentiary hearing. The facts regarding Marshall's violations were largely undisputed. The evidence showed, and the Hearing Committee found, that in August 1992, Mr. Warrick had retained Marshall to recover damages for personal injuries sustained by Mr. Warrick in an automobile accident. Mr. Marshall was to be paid a contingent fee of one third of any recovery. Warrick also executed two "Authorizations and Assignments" (A & A's) for the purpose of enabling Marshall to pay his treating physician and physical therapist from the proceeds of any recovery. Marshall agreed to withhold the money due to these providers, a total of $1,110.12, from any damages that he obtained on Warrick's behalf, and to pay the providers with the proceeds of the lawsuit.
In November 1992, Marshall settled Warrick's case for $3,500. Marshall took $100 in cash from the settlement proceeds, *fn4 and deposited the remaining $3,400 in a non-escrow account. During November 1992, the balance in this account fell from $3,429.07 to $1,423.99, and was subsequently reduced even further as a result of checks drawn on the account by Marshall. None of these checks was used to pay Mr. Warrick or his medical providers. Instead, Marshall used the funds for his own expenses, *fn5 and he spent approximately $700 to purchase crack cocaine. Mr. Marshall did not reveal to his client that he had used the settlement proceeds for his own purposes.
On May 16, 1994, having received nothing from his lawsuit, Mr. Warrick filed a complaint with Bar Counsel, alleging that Mr. Marshall had failed to disburse to Warrick the client's share of the settlement proceeds. Marshall then met with Warrick and belatedly paid him $2,100 or $2,200. According to Warrick, Marshall also asked him to "be quiet about it."
During Bar Counsel's investigation, Marshall submitted fabricated checks purporting to show that Marshall had paid Warrick's treating physician and physical therapist the amounts due to them. Marshall admitted that these checks were never sent to the medical providers, but were created solely to make it appear that the bills had been paid. Marshall also repeatedly lied to his client and to the health care providers regarding why they had not been paid, and he wrote letters to Bar Counsel containing false statements.
B. Marshall's Kersey defense.
Before the Hearing Committee and subsequently before the Board and before this court, Mr. Marshall admitted his misconduct, but he presented a Kersey defense in mitigation. This defense was based on our holding in Kersey that under some circumstances, alcoholism may be a mitigating factor to be considered in determining the appropriate discipline to be meted out against an attorney who has violated the Rules of Professional Conduct. 520 A.2d at 326. We stated in Kersey that, in order to be eligible for mitigation, the respondent must show
1. that he was an alcoholic at the time of his misconduct;
2. that his alcoholism was the cause of his misconduct and substantially affected it; and
3. that there was significant evidence of rehabilitation. Id. at 325-27.
In the present case, Bar Counsel did not contest Marshall's claim that he was an addict at the relevant times. Bar Counsel maintained, however, that Marshall had failed in his proof of the second and third prongs.
In support of his Kersey claim, Marshall testified that his conduct "was attributable pretty much to my addiction. I had gone on a binge." He acknowledged that he provided fabricated checks to Bar Counsel "in essence to cover up my misdealings or my misdeeds." In further support of his Kersey claim, Marshall called Dr. Thomas Goldman, a psychiatrist, and Dr. Nuha Abudabbeh, a clinical psychologist, as expert witnesses. It was the opinion of each of these experts that Marshall's addiction substantially affected his misconduct. Dr. Goldman testified at some length, and at times somewhat equivocally, on the issue of causation, and he was less than categorical with respect to any significant connection between Marshall's addiction and his fabrication of checks to cover up his misappropriation. Dr. Abudabbeh's opinion, though unequivocal, was quite conclusory.
C. The Hearing Committee's Report.
After finding the facts substantially as recited above, the Hearing Committee concluded that, absent Kersey mitigation, Mr. Marshall's conduct warranted disbarrment. As to the Kersey issue, the Hearing Committee credited the testimony of Dr. Goldman and Dr. Abudabbeh. The Committee found that Marshall had satisfied the "addiction" and "substantial connection" prongs of the Kersey standard. *fn6 The Committee concluded, however, that Marshall had failed to satisfy Kersey's rehabilitation prong. The Committee noted that, in November 1995, when the Committee held the portion of the hearing which was addressed to the issue of the appropriate sanction, Marshall claimed to have been free of cocaine for less than six months. The Hearing Committee noted Dr. Goldman's acknowledgment that "it is far too early to know whether [Marshall's rehabilitation] will succeed in the long ...