Before Schwelb, Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility
Opinion for the court by Associate Judge Reid.
Concurring opinion by Associate Judge Farrell at p. .
Contrary to the views of its hearing committee, the Board on Professional Responsibility has recommended that Matilene Berryman, Esq. be disbarred for intentional misappropriation of client funds, dishonesty, and other violations of the District of Columbia Rules of Professional Conduct. In light of our decision in In re Addams, 579 A.2d 190 (D.C. 1990) (en banc), and subsequent cases which recognize that although the sanction of disbarrment is harsh, it is nonetheless necessary to ensure public confidence in the integrity of the Bar; we adopt the Board's recommendation and order that Ms. Berryman be disbarred.
The record before us shows that Ms. Berryman was admitted to the District of Columbia Bar on January 10, 1975. *fn1 She practiced law part-time from 1975 to 1983, when she began practicing full-time as a solo practitioner. Her specialty was probate law, but she also handled some personal injury cases.
Bar Counsel's specification of charges against Ms. Berryman, signed on May 23, 1997, related to her handling of the affairs of Mary Patterson. Prior to rendering services to Ms. Patterson, Ms. Berryman was retained by Edward A. Patterson, the man with whom Mary Patterson resided and to whom Ms. Berryman believed she was lawfully married when Mr. Patterson died. Ms. Berryman handled the probate of Mr. Patterson's estate after his death. Subsequently, when Ms. Patterson suffered an arm injury during apparently negligent dialysis treatment, she prevailed upon Ms. Berryman to take legal action in her behalf, with respect to her injury, for a legal fee of $30,000. Ultimately, Ms. Berryman was successful in persuading the hospital to cancel Ms. Patterson's $499,000 debt to the hospital.
Instead of paying Ms. Berryman's $30,000 legal fee directly to her, Ms. Patterson asked Ms. Berryman to open a joint account with her at Citizens Bank and to permit her to personally use the $32,400, which she would deposit into the account. Ms. Berryman agreed because Ms. Patterson was experiencing cash flow difficulties at the time. *fn2 Since Ms. Patterson used some of the funds in the joint account for her personal use, the account eventually lacked funds sufficient to cover all of Ms. Berryman's $30,000 legal fee, and at the time of Ms. Patterson's death on May 31, 1993, Ms. Berryman estimated that she was still owed approximately $6,000 of her legal fee. *fn3
Bar Counsel's charges that Ms. Berryman violated Rules 1.15 (a) and 1.15 (c) of the District's Rules of Professional Conduct relate to money which Ms. Patterson still owed Ms. Berryman at the time of her death, and the manner in which Ms. Berryman sought to retrieve what was owed to her. Bar Counsel's specifications regarding these rules read as follows:
Rule 1.15 (a), . . . Respondent knowingly and/or recklessly (1) failed to hold property of a client and/or third persons in her possession in connection with a representation separate from her own property (commingling) and/or (2) intentionally and/or recklessly misappropriated funds belonging to a client and/or third persons;
Rule 1.15 (c), . . . [D]uring the course of the representation, Respondent came into possession of funds in which another person and she claimed an interest and failed to keep those funds separate from her own funds until the dispute was resolved[.]
The record before us is not crystal clear as to how the Citizens Bank joint account and Ms. Patterson's indebtedness to Ms. Berryman were handled during the period April 1993 to September 1993. In her testimony of May 1, 1998, before a hearing committee, Ms. Berryman stated that Ms. Patterson, who owned rental property, gave her an "April rent" check or money order and "wanted [Ms. Berryman] to take the May rent check." Subsequently, Ms. Patterson received two other checks, one from T. Rowe Price, and the other from Pennzoil. In addition, Ms. Berryman asserted that Ms. Patterson informed her that another check, in the amount of $7,000 would arrive in June, "and that she [Ms. Patterson] would use that to finalize the last payment that she owed to [Ms. Berryman]."
Ms. Patterson died before the rental money orders, and the T. Rowe Price and Pennzoil checks were deposited. Subsequent to Ms. Patterson's death, Ms. Berryman took a deposit slip, dated May 30, 1993, and four money orders and checks to the Citizens Bank for deposit. The deposit, which amounted to $939.84, consisted of the following:
Money Order #1, dated June 14, 1992 $150.00
Money Order #2, dated June 14, 1992 $500.00
T. Rowe Price Check $139.87
Instead of May 30, 1993, a copy of the deposit slip revealed that the deposit was made on July 17, 1993. However, accounting records presented to the hearing committee showed a deposit date of September 3, 1993.
Ms. Berryman maintained that after she received the April rental money orders, Ms. Patterson retrieved them for her own use. Ms. Berryman attached to her amended reply brief in this case copies of money orders in the amount of (1) $150 with a handwritten notation of "April Rent 1993" and (2) $500, with the same notation. The endorsement on the back of these money orders, executed on May 14, 1993, bears the signature, "Mary Patterson." Ms. Berryman said that she later received two money orders, one for $150, the other for $500, each bearing the handwritten notation, "May Rent 1993." *fn4 Initially, Ms. Berryman asserted that she used the deposit slip that she had filled out on May 30, 1993 to make the deposit, even though the actual deposit did not occur on May 30th. On cross-examination, Bar Counsel established that the April rent money orders were cashed by Ms. Patterson on May 14, 1993, and the May rent money orders were not purchased until June 14, 1993. Therefore, none of the April or May money orders were in Ms. Berryman's possession as of May 30, 1993.
Ms. Berryman testified that the difference in the July 1993 deposit date on the deposit slip, and the September deposit date reflected in the accounting records, was traceable to her action of freezing the Citizens Bank joint account after Ms. Patterson's death. Ms. Berryman indicated that some $9,000 remained in the account at the time it was frozen. Banking records for the Citizens Bank joint account show the following balances: (1) as of May 13, 1993, $14,084.37; (2) June 11, 1993, $9,552.27; and (3) July 14, 1993, $9,275.02. On cross-examination by Bar Counsel during Ms. Berryman's May 1, 1998 testimony before the hearing committee, she stated that ...