Before Reid and Washington, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Per Curiam
On Exception of Respondent to Report and Recommendation of the Board on Professional Responsibility
Respondent Gregory C. Mitchell takes exception to the recommendation of the Board on Professional Responsibility ("The Board") that he be suspended from the practice of law for ninety days for violating the following Rules of Professional Conduct: Rule 1.15 (b); *fn1 Rule 4.1 (a), *fn2 and Rule 8.4 (c). *fn3 We accept the Board's recommendation and suspend Mr. Mitchell from the practice of law for ninety days.
The record before us shows that the disciplinary action against Mr. Mitchell, a member of the District of Columbia Bar since 1980, grew out of his initial representation of his wife in a personal injury lawsuit. Mrs. Mitchell was injured in an automobile accident in February 1989.
To ease the pain resulting from her injuries, Mrs. Mitchell began renting an electronic pain-reducing device known as a "TENS unit" from W.S. Medical Systems, Inc. ("W.S. Medical") in March 1989, at a monthly fee of $90.00. Later, in June 1990, Mr. and Mrs. Mitchell executed an Authorization and Assignment Agreement under which Mrs. Mitchell authorized her attorney (Mr. Mitchell) to pay W.S. Medical from any monies received in satisfaction of her personal injury claims, and Mr. Mitchell agreed "to withhold such sums from any settlement, judgment, or verdict as may be necessary to adequately protect W.S. Medical Systems, Inc." Subsequently, in March 1991, Mrs. Mitchell purchased a new TENS unit from W.S. Medical at a cost of $790.00.
When efforts to negotiate a settlement of Mrs. Mitchell's claims failed, Mr. and Mrs. Mitchell filed a lawsuit against the other motorist on February 21, 1992. According to the Board's Report and Recommendation, "Robert Boraks entered an appearance as co-counsel with [Mr. Mitchell]." A jury awarded Mrs. Mitchell $150,000, later reduced to $125,000, and Mr. Mitchell $20,000; interest was added to each award.
In partial satisfaction of the judgment, Mr. Mitchell was sent two checks on April 25, 1995, one in the amount of $125,000, and the other $20,000. He placed the funds in his client trust account, but did not notify W.S. Medical that the judgment funds had been received. He distributed $36,250 to Mr. Boraks in payment of his legal fee; and the remaining $108,750 to Mrs. Mitchell. Later in 1995, Mr. Mitchell received interest payments on the judgment totaling $16,849.08, which he retained as a loan to his law firm. Mrs. Mitchell approved the loan.
Beginning in May 1989, W.S. Medical kept a record of its attempts to collect sums owed for the rental and purchase of the TENS unit for Mrs. Mitchell. The record shows that calls made to Mr. Mitchell's office, primarily by Pamela S. Malott, continued into 1999. Ms. Malott testified that she sometimes spoke with one of Mr. Mitchell's employees, and sometimes to Mr. Mitchell. She asserted that Mr. Mitchell falsely told her four times in 1995 that the Mitchell's lawsuit was on appeal. *fn4 Ms. Malott spoke with Daniel Fisher, one of Mr. Mitchell's employees, in November 1996 to inquire about the status of the appeal; in a return call, Mr. Fisher advised her that the appeal was still pending. On February 19, 1999, William Solomon, the founder and initial owner of W.S. Medical, spoke with Mr. Mitchell about the outstanding bill for Mrs. Mitchell. Mr. Mitchell at first took the position that the matter had been "taken care of a long time ago," but eventually agreed to settle the account for $550.00. However, Mr. Mitchell did not send a check to W.S. Medical in accordance with his oral agreement. In fact, no payment was made until February 2002, long after this disciplinary action commenced.
During the hearing on the charges against him Mr. Mitchell essentially took the position that he had instructed Mr. Fisher to return the new TENS unit in 1992, and that his failure to pay W.S. Medical's bill was inadvertent. Mr. Fisher stated that Mr. Mitchell told him to return the new TENS unit, but he put it in the basement and failed to do so. In 1998, Mr. Mitchell discovered that the TENS unit had not been returned to W.S. Medical. During his testimony before the Hearing Committee, Mr. Mitchell stated that he again instructed Mr. Fisher to return the unit to W.S. Medical.
The Hearing Committee discredited the testimony of Mr. Mitchell and Mr. Fisher, stating in part:
The Hearing Committee accords no weight to the highly improbable, contradictory testimony given in this case by [Mr. Mitchell] and [Mr.] Fisher. We conclude that the evidence clearly and convincingly establishes that [Mr. Mitchell] was well aware of his wife's outstanding indebtedness to W.S. Medical in April or May 1995 and that his failure to notify W.S. Medical of his receipt of the judgment payment and deliver the funds to which W.S. Medical was entitled out of those payments was intentional and with full knowledge of what he was doing.
The Board accepted the credibility determination of the Hearing Committee, and declared that: "[Mr. Mitchell's] credibility also was impeached by his own testimony that, when [Mr.] Solomon called him in 1999, he falsely denied his wife's debt to W.S. Medical, even though, by his own testimony he became aware in 1998 that [Mr.] Fisher had not taken care of the debt." The Board concluded that Mr. Mitchell violated Rules 1.15 (b), 4.1 (a), and 8.4 ...