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In re Carlson

July 03, 2002

IN RE GLENN H. CARLSON & DIANE E. CAFFERTY, RESPONDENTS. MEMBERS OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Before Steadman, Ruiz 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

Argued June 4, 2002

The Board on Professional Responsibility ("the Board") has recommended the disbarrment of respondent Diane E. Cafferty, who practiced law with Glenn H. Carlson as Carlson & Cafferty. The Board found that Mr. Carlson engaged in intentional misappropriation and other violations of the Rules of Professional Conduct ("the Rules"); he filed no exception to the Board's Report. *fn1 The Board recommended that Diane E. Cafferty be disbarred for conduct amounting to reckless misappropriation and failure to render accountings promptly to clients upon request, but not for failure to deliver client funds promptly or for conduct manifesting dishonesty; she took exception to part of the Board's Report and Recommendation. Bar Counsel noted an exception to the Board's findings that Ms. Cafferty did not engage in conduct that was dishonest, and did not fail to promptly deliver funds due to her clients.

Ms. Cafferty contends that Bar Counsel failed to establish, by clear and convincing evidence, that she violated the Rules as charged. She argues, in part, that she did not recklessly misappropriate client funds or fail to render prompt accountings of client funds upon request, because (a) she never managed the accounts of the firm, including the client trust account, and (b) took actions related to the firm's accounts, including the client trust account, only at the express direction of Mr. Carlson. Ms. Cafferty also maintains that her due process rights were violated, in part, because of the alleged prejudicial consolidation of her case with that of Mr. Carlson. Bar Counsel argues that it presented clear and convincing evidence that Ms. Cafferty engaged in dishonest conduct and failed to promptly deliver funds to her clients, in addition to her other violations of the Rules.

We reject the contentions of Ms. Cafferty, and adopt the recommendation of the Board that Ms. Cafferty be disbarred for reckless misappropriation and failure to render accountings promptly to her condominium clients upon request. *fn2

FACTUAL SUMMARY

The record before us shows the following events. Bar Counsel filed the specification of charges against Ms. Cafferty on December 30, 1997. The specification alleged that:

[Ms. Cafferty's] conduct violated the following provisions of the Rules of Professional Conduct:

(a) Rule 1.15 (a), in that [she] intentionally and/or recklessly (1) failed to hold property of one or more clients 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 one or more clients and/or third persons.

(b) Rule 1.15 (b), in that [she] failed to deliver to one or more clients funds that the clients were entitled to receive and/or promptly to render a full accounting regarding such funds upon request of one or more clients.

(c) Rule 8.4 (b), in that [she] committed criminal acts (theft and fraud) that reflect adversely on her honesty, trustworthiness, or fitness as a lawyer in other respects; and

(d) Rule 8.4 (c), in that [she] engaged in conduct involving dishonesty, fraud, deceit, and/or misrepresentation.

Mr. Carlson was charged with identical violations of the Rules. Following the filing of the specification of charges against Ms. Cafferty and Mr. Carlson, Bar Counsel moved to consolidate their cases because they arose out of Carlson & Cafferty's representation of owners of condominium units located at 1927 17th Street, N.W., ("the 17th Street condominium") in the District of Columbia. Ms. Cafferty opposed the consolidation on the ground that Mr. Carlson's case would "taint" her due to his conduct and his failure to cooperate with Bar Counsel. The Board determined that Ms. Cafferty would not be prejudiced by the consolidation, and "that in the interests of judicial economy and a coherent resolution of the charges against [Mr. Carlson and Ms. Cafferty], consolidation . . . is appropriate."

Following consolidation, a hearing committee heard four days of testimony, in 1998, from witnesses for Bar Counsel and those for Ms. Cafferty. *fn3 Approximately two years after hearings were held, the hearing committee issued its Report, which the Board reviewed and modified. * ...


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