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In re Weiss

December 11, 2003

IN RE RANDY A. WEISS, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS ON REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY


Before Steadman, Ruiz and Washington, Associate Judges.

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

Argued March 6, 2001

Dissenting Opinion by Associate Judge RUIZ at p. 8.

The Board on Professional Responsibility (the "Board") recommended that respondent, Randy A. Weiss, be suspended from the practice of law for a period of three years, with one year suspended in favor of probation for a period of two years or until his therapist concludes that therapy is no longer necessary, for illegally taking funds from his law firm.

The suspension, does not require a showing of fitness. Weiss filed an exception to the Board's Report and Recommendation arguing that a suspension for more than one year is too harsh a sanction in light of his mitigating circumstances. Despite Weiss' claims, we adopt the recommendation of the Board.

I.

In May of 1997, Weiss notified his law firm and the Bar Counsel that he had improperly diverted funds from the firm. Specifically, Weiss admitted that in a number of transactions he handled on behalf of the firm between April 1993 and May 1997 he diverted portions of title insurance fees from the firm's escrow accounts to his own personal account. He obtained the funds either by having checks made payable directly to him or by placing the fees into one of the firm's escrow accounts over which he had effective control. Weiss took funds from the firm on fifty-four occasions totaling $676,465.99. Weiss placed those funds in a money market account the existence of which was not disclosed to anyone. Ultimately, Weiss repaid the firm the entire amount of money that he had improperly obtained. Based on Weiss' admissions, Bar Counsel filed a Specification of Charges alleging that Weiss had violated DISTRICT OF COLUMBIA R. OF PROF'L CONDUCT 8.4 (b) and (c) (2001). *fn1

On March 18 and May 6, 1998, hearings were held and Weiss offered the following in mitigation of his charges. First, Weiss noted that he voluntarily notified the firm of his misconduct. Second, two psychiatrists concluded that Weiss' actions were the result of a psychological need for security born of his father's depression-era fear of poverty. Third, neither psychiatrist believes that Weiss will likely repeat this conduct. Finally, Weiss helped the firm institute new procedures to help reduce the risk of future funds being diverted from the firm.

On December 29, 1998, the Hearing Committee issued its report stating that misconduct had been established and that Weiss had violated Rule 8.4 (b) and (c). Despite the seriousness of the misconduct, however, the Hearing Committee, persuaded by the evidence offered in mitigation, recommended that Weiss be suspended for one year without a fitness requirement and then placed on probation for two years. The recommended probation required Weiss to submit quarterly certificates from his therapist confirming his good faith participation in therapy.

The Board agreed with the Hearing Committee that Weiss violated Rule 8.4 (b) and (c), but recommended that Weiss be suspended from the practice of law for a period of three years with one year suspended in favor of probation for two years or until his therapist advised Bar Counsel that therapy was no longer necessary. The only condition of probation was that Weiss' treating therapist submit quarterly certificates confirming his continued good faith participation in therapy.

II.

Weiss contends that the Board's recommendation that he be suspended for more than one year is excessive and fails to adequately take into account the mitigating factors that were presented on his behalf. When reviewing a recommended disciplinary sanction against an attorney, this court must adopt the Board's recommended sanction "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." See D.C. Bar R. XI, § 9 (g)(1). When deciding whether there is the possibility for inconsistent dispositions, this court should compare "the gravity and frequency of the misconduct, any prior discipline, and any mitigating factors such as cooperation with Bar Counsel, remorse, illness, or stress" between the present case and past decisions. In re Steele, 630 A.2d 196, 199 (D.C. 1993). In determining whether a particular recommendation is warranted, this court should examine "the nature of the violation, the mitigating and aggravating circumstances, [and] the need to protect the public, the courts, and the legal profession." In re Haupt, 422 A.2d 768, 771 (D.C. 1980).

While the evidence offered in mitigation in this case is unique among those cases where attorneys have improperly diverted funds, see In re Appler, 669 A.2d 731, 741 (D.C. 1995) (disbarring an attorney for asking clients to bill him directly rather than the firm); see also In re Gil, 656 A.2d 303, 306 (D.C. 1995) (disbarring an attorney who took funds from a friend outside the attorney-client context), the Board determined that Weiss should neither be disbarred nor receive a suspension for one year or less, as recommended by the Hearing Committee, but should be suspended for three years with one year suspended in favor of two years probation and no fitness requirement. The question before us is whether the Board's recommended sanction is inconsistent with prior dispositions for comparable conductor is otherwise unwarranted underthe circumstances.

Weiss argues that in other cases where it was a law firm's funds that were diverted, this court supported the imposition of lesser sanctions than those recommended by the Board in this case, and, therefore, the Board's recommendation should be rejected as inconsistent with prior dispositions for comparable conduct. As support for this proposition, Weiss relies on two reciprocal disciplinary cases, In re Paragono, 747 A.2d 1189, 1190 (D.C. 2000) and In re Berg, 694 A.2d 876, 877 (D.C. 1997). In both of those cases the respondents were suspended for one year or less for diverting funds from their law firm. This court, ...


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