On Report and Recommendation of the Board on Professional Responsibility (Bar Docket No. 127-97)
Before Schwelb, Ruiz and Glickman, Associate Judges.
The opinion of the court was delivered by: Per Curiam
Submitted September 18, 2001 *fn1
The Board on Professional Responsibility recommends that respondent Jay M. Berkowitz be disbarred for intentional misappropriation of funds in violation of Rules 1.15 (a) and 1.15 (b) of the District of Columbia Rules of Professional Conduct. Neither Bar Counsel nor respondent has taken exception to the Board's report. We accept the Board's findings of fact as they are supported by substantial evidence, and we adopt its recommended disposition. See In re Addams, 579 A.2d 190 (D.C. 1990) (en banc); D.C. Bar R. XI, § 9 (g)(1). Accordingly, it is hereby
ORDERED that Jay M. Berkowitz is disbarred from the practice of law in the District of Columbia. We direct respondent's attention to the requirements of D.C. Bar R. XI, § 14 (g) and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16 (c).
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of JAY M. BERKOWITZ, ESQUIRE, Respondent
REPORT ON RECONSIDERATION
On March 8, 2001, the Board issued a Report and Recommendation in which it concluded that Respondent had engaged in misappropriation that was not the result of simple negligence and recommended that Respondent be disbarred. In re Berkowitz, Bar Docket No. 127-97, (BPR March 8, 2001). Neither Respondent nor Bar Counsel filed exceptions with the Court and the Report was placed on the Court's summary calendar for September 18, 2001.
By Order dated September 18, 2001, the District of Columbia Court of Appeals (the "Court") remanded this matter to the Board for reconsideration of its recommendation in light of the Court's opinions in In re Anderson, 778 A.2d 330, (D.C. 2001) and In re Fair, 780 A.2d 1106 (D.C. 2001). By Order dated September 21, 2001, the Board requested briefs from Bar Counsel and Respondent on the issues of (i) whether a finding of misappropriation is appropriate; (ii) if so, whether the misappropriation was intentional, reckless or negligent; and (iii) the appropriate sanction. Bar Counsel urges a finding of intentional misappropriation and a recommendation of disbarrment. Respondent in his brief acknowledges that a misappropriation occurred *fn2 , but contends that sanction should be suspension for one year. Summary of Facts
The facts of this case were undisputed. Bar Counsel and Respondent stipulated as to the essential facts. Bar Counsel submitted exhibits which were admitted without objection. Respondent's counsel participated in the hearing before the Hearing Committee, but Respondent himself was not present and did not testify.
The Board's Report set forth the findings made by the Hearing Committee. Respondent was retained by a Ms. Wilson to represent Ms. Costin, who was then appointed a successor personal representative to the Estate of Robert O. Costin. The original representative, Ms. Crystal Hill, had petitioned to resign due, in part, to disputes with Ms. Wilson and Ms. Costin. Under his written fee arrangement with Ms. Wilson, Respondent was to be paid from non-estate funds.
On March 1, 1996, about nine months after he was retained, as a result of a request he made for funds he believed she was holding, Respondent received from Ms. Hill, the original personal representative, a check in the amount of $357.64 payable to "Estate of Robert O. Costin." Respondent deposited this check into his firm's escrow account the date he received it.
On March 29, 1996, Respondent withdrew this money from the escrow account and deposited it into his firm's operating account. *fn3 On the same day, he submitted an invoice to Ms. Wilson showing an outstanding balance of $1,181.61 and total payments of $1,000 (reflecting a $1,000 money order he had received on about March 6, 1996). This invoice did not disclose the receipt of the $357.64. On April 30, 1996 and for seven months thereafter, Respondent submitted monthly invoices to Ms. Wilson showing outstanding balances on fees; none of these invoices showed or credited the $357.64 payment for outstanding fees.
On April 21, 1996, Respondent sent a proposed inventory of the estate to Ms. Wilson, for signature by Ms. Costin, the successor personal representative. This inventory did not disclose the $357.64 which Respondent had received. The inventory was signed by Ms. Costin and filed with the Probate Division. On December 5, 1996, the Probate Division removed Ms. Costin as personal ...