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In re Travers

December 28, 2000


Before Wagner, Chief Judge, Terry, Associate Judge, and King, Senior Judge. *fn1

The opinion of the court was delivered by: Terry, Associate Judge

On Report and Recommendation of the Board on Professional Responsibility

Argued January 21, 1998

The Board on Professional Responsibility ("the Board") found that respondent Matthew J. Travers, a member of our bar, accepted an illegal fee and engaged in conduct that seriously interfered with the administration of justice. Given these findings, the Board has recommended that Mr. Travers be suspended for ninety days and that his reinstatement be conditioned on satisfaction of a $3,652.74 judgment against him. Mr. Travers contends that the record does not support a finding that he committed misconduct and that the recommended sanction is not warranted. Bar Counsel argues that there was substantial evidence that Mr. Travers engaged in misappropriation and that he should therefore be disbarred. We reject both of these arguments and adopt the recommendation of the Board.

I. Factual Background

The misconduct charges against Mr. Travers arose in 1983 when he accepted attorney's fees from an estate without filing with the court a petition for such fees, as was then required by D.C. Code § 20-751 (1981). *fn2 That statute provided in part:

(a) Reasonable compensation for work performed by a personal representative, special administrator or attorney with respect to administration of the estate pursuant to this title may be paid upon approval by the Court of a request filed as provided in subsections (c) through (g).

(c) Each personal representative or special administrator shall submit a written request to the Court for compensation for services performed by such personal representative or administrator or any attorney employed by either of them. This request shall be accompanied by verified documentation of the following:

(1) the reasonable relationship of proposed compensation to the nature of the work performed;

(2) a statement by any attorney employed by the personal representative that as soon as feasible the attorney gave to the personal representative an estimate of costs and any change in costs for work to be performed with respect to administration of the estate;

(3) the reasonableness of the time spent, including the number of hours spent and the usual hourly compensation for the work performed;

(4) the results achieved; and

(5) a statement by the personal representative or special administrator that all of the time limitations imposed by the provisions of this title or by the Rules have been met . . . .

(f) The Court shall consider the factors set forth in subsection (c), as well as any exception filed to the request for compensation, prior to authorizing such compensation. [Emphasis added.]

On February 20, 1982, Ruth Mills died intestate with one principal asset in her estate: a house on Fairmont Street, N.W. ("the property"). After her heirs contacted him for legal advice in September 1983, Mr. Travers successfully prevented a threatened foreclosure on the property and agreed to assist them in the administration of the estate. On October 3, 1983, Mr. Travers prepared a petition for appointment of Sylvia Mills Simmons, Ruth Mills' daughter, as personal representative of the estate and filed consent and waiver forms signed by all interested parties. The forms stated that the signers agreed and consented to: (1) the sale of the property; (2) a five percent commission from the sale of the property, to be paid to Ms. Simmons; and (3) payment to Mr. Travers for his services in the amount of ten percent of the sale proceeds, plus expenses. At the hearing before the Board's hearing committee, Mr. Travers admitted that at the time he prepared and filed the consent forms, he was "very familiar" with section 20-751 of the Code, which clearly stated that compensation for an attorney's services could not be paid from estate assets without prior court approval.

Four days later, on October 7, Ms. Simmons was appointed personal representative of the estate, and she and Mr. Travers established an estate checking account. The signatures of both Ms. Simmons and Mr. Travers were required on any check drawn on the account. On October 18, 1983, they both signed a check for $3,000, drawn on the estate account, payable to Mr. Travers and intended as a retainer for his legal services. Neither Ms. Simmons nor Mr. Travers obtained court approval for this payment. After the property was sold for $36,000 on May 2, 1985, Ms. Simmons and Mr. Travers drew a second check on the estate account payable to Travers, this time in the amount of $652.74. Once again, neither Ms. Simmons nor Mr. Travers filed the appropriate petition with the court before signing the check.

Mr. Travers filed a statement of account for the estate on December 4, 1986. Because Ms. Simmons had failed to complete the requirements for the final accounting of the estate, she was removed as personal representative on May 12, 1988. Werner Strupp was appointed as her successor, and on November 17, 1988, he filed a motion to refer the matter to the court's auditor-master for an accounting of Ms. Simmons' administration of the estate. The auditor-master found in her report that Mr. Travers had been paid legal fees in the amount of $3,652.74 from the estate without prior court approval and recommended that judgment be entered against him and Ms. Simmons if that amount were not forwarded to the estate within ten days. Mr. Travers filed exceptions to the auditor-master's report, but after a hearing the probate court ratified the report and entered judgment against Mr. Travers. This court affirmed that decision in an unpublished Memorandum Opinion and Judgment. Travers v. Strupp, No. 91-PR-1427 (D.C. April 16, 1993). *fn3 We specifically held that since Mr. Travers had been retained to assist in the administration of the estate, he was subject to the requirements ...

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