On Report and Recommendation of the Board on Professional Responsibility (BDN 436-96, 167-97, 519-97, 66-98, 53-99).
Before Steadman, Schwelb, and WASHINGTON,*fn1 Associate Judges.
The Board on Professional Responsibility ("Board") has unanimously recommended that respondent Lewis A. Rivlin, a member of our Bar, be disbarred. The Board found that Respondent intentionally or recklessly misappropriated thousands upon thousands of dollars entrusted to him. In In re Addams, 579 A.2d 190, 191 (D.C. 1990), the en banc court set forth the principle applicable here: "We now reaffirm that in virtually all cases of misappropriation, disbarrment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence." We have adhered firmly to that position. Indeed, the case before us presents the aggravating factor of a campaign of non-cooperation and affirmative frustration of Bar Counsel's inquiry, culminating with an order of this court finding Respondent in civil contempt and ordering imprisonment.*fn2
We see no need to duplicate in this opinion the details of Respondent's course of conduct. That has been done in a painstaking forty-five page report of the Board. We have annexed portions of the text of both the findings of fact and the analysis contained in the report. We can find no fault in either.
In Bar Counsel's correct characterization, "Respondent's principal contention [in his brief to us] is that the Court should adopt his version of events and reject the findings of the Hearing Committee and Board. In reciting his version of events, Respondent ignores the overwhelming evidence that supports the hearing Committee's and Board's findings." In a bar disciplinary proceeding, as with other appellate matters, this court is no place to reargue the facts. On the contrary, "we are required to 'accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.'" In re Johnson-Ford, 746 A.2d 308, 310 (D.C. 2000) (citingD.C. Bar R. XI, § 9(g)(1)). The findings are supported by substantial evidence and the recommended disposition is squarely in accord with precedent.*fn3 Accordingly, it is ORDERED that Lewis A. Rivlin be, and he hereby is, disbarred from the practice of law in the District of Columbia. We direct respondent's attention to the affidavit requirement of D.C. Bar Rule XI, § 14(g) and its effect on his eligibility for reinstatement. See D.C. Bar Rule XI, § 16(c). Any reinstatement shall be further conditioned upon a showing of repayment of misappropriated funds with interest thereon.
1. Respondent is a member of the Bar of the District of Columbia Court of Appeals, having been admitted to the Bar of the United States District Court for the District of Columbia on October 21, 1957.
B. Bar Docket No. 436-96: Count One (Commingling/Failure to Maintain Complete Records/Dishonesty)
2. Between June 1995 and September 1996, Respondent practiced with the law firm of Johnston, Rivlin & Foley, L.L.P. In addition to the law firm's operating and escrow accounts, Respondent maintained a separate, personal escrow account in his own name at NationsBank. The account, No. 20-86621406, was titled "Lewis A. Rivlin, Lawyer's Trust Account." ("NationsBank Trust Account"). Respondent's escrow account predated and postdated his affiliation with Johnston, Rivlin & Foley.
3. By at least June 1995, Respondent was using his NationsBank Trust Account as a business and personal account as well as an account for the deposit of client funds, including funds entrusted by third parties to Respondent. Respondent frequently referred to this account as his "triage" account.
4. During 1995 and 1996, Respondent deposited the following entrusted funds into his NationsBank Trust Account:
a) $3,000,000 provided by Piedmont Resolution, L.L.C.;
b) Funds from Anglo-Nordic for trading in bank debentures;
c) Funds entrusted to Respondent by investors in Am-C.A.R. Trading Corporation ("Am-C.A.R."). (In his solicitation to Am-C.A.R. investors, Respondent stated that their funds would be held in his lawyer's trust account.)
5. In addition to these various funds held by him in trust in his NationsBank Trust Account, Respondent deposited into the account:
a) Earned fees, including a $28,000 check from client Summit Management Corp.;
b) Funds from his wife's personal account;
c) Funds from his personal account;
d) Checks payable to Respondent as Trustee for Benjamin Rivlin;
e) Checks from his law firm received as compensation;
f) Funds provided by friends as "loans" or "assistance" -- to Respondent, to transfer to other clients, to pay Respondent's rent, and for his other personal purposes.
6. Respondent used his NationsBank Trust Account to pay his business and personal expenses, including drafting checks to himself, his wife, his ex-wife, cash, Giant Food, PEPCO, Washington Gas, Hechingers, Capitol One, parking, his attorneys, Radio Shack, the IRS, Maryland's Comptroller of the Treasury, the District of Columbia Bar, the National Association of Criminal Defense Lawyers (his landlord as of July 1997), Texaco, his law firm, Publishers Clearing House, J.C. Penny, Sears, and the Sports Authority.
7. Respondent wrote numerous checks on his NationsBank Trust Account when there were insufficient funds to cover the checks. From June 1995 to February 1998, the Account was overdrawn on more than forty occasions. Bank statements show thirteen overdrafts between June 1995 and November 1996. The bank sent overdraft notices to Respondent for fifteen checks drawn on insufficient funds between November 1996 and January 1997. More than a dozen overdrafts occurred between October 1997 and February 1998.
8. Notwithstanding NationsBank's frequent notices to Respondent when there were overdrafts, Respondent continued to write checks on his trust account when there were insufficient funds. This continued for more than a year after Bar Counsel opened its investigation into Respondent's overdrawing of his trust account. Respondent testified that he "didn't see any reason to change. If I was already doing something wrong, it couldn't make it much wronger to continue doing it."
9. For at least during the mid-1995 to mid-1998 time period that Respondent continued to use his NationsBank Trust Account for his personal and business affairs, Respondent had millions of dollars in judgments against him. These judgments included a $4 -- 5 million judgment against Respondent by investors in Coaxial Systems, a $1 million judgment by Anglo-Nordic, a $300,000 judgment by a Mr. Lowe, and other judgments. In addition, the IRS had tax liens against Respondent.
10. Respondent was served in 1997 and 1998 with subpoenas by Bar Counsel to produce complete records of the funds deposited into his NationsBank Trust Account -- records which he was required to maintain. Respondent claimed that he had such records, but searching for them was not a "very high priority" as Bar Counsel had already obtained his bank statements from NationsBank.
C. Bar Docket No. 436-96: Count Two (Misappropriation)
11. In early 1996, Proforma Partners, through its general partners Paul Weinstein and G.W. Munn, retained Respondent in connection with potential litigation in Virginia.
12. In February 1996, attorney Edgar Browder introduced Respondent to Ambassador Henry Koba of the Central African Republic (C.A.R.). Respondent, the Ambassador and others discussed the possibility of starting a company to purchase diamonds and gold in the C.A.R. for resale. On February 22, 1996, Respondent had Am-C.A.R. incorporated in Delaware.
13. On March 1, 1996, Respondent received and deposited into his NationsBank Trust Account an $8,000 check from Ray Zimmerman as an investment in the gold and diamond trading venture in the C.A.R. Zimmerman, who had been introduced to Respondent by Paul Weinstein, was at the time the Vice President of the Investment Banking Department of DeMachy Worms & Company in Paris.
14. Mr. Zimmerman wrote a check payable to Respondent's NationsBank Trust Account, with such funds to be held pending the preparation of the necessary paperwork for Am-C.A.R. and the collection of additional funds. When Zimmerman delivered his funds to Respondent, he was not sure whether he was investing in a corporation, a partnership or a limited partnership.
15. In early March 1996, Respondent asked his firm's client, Paul Weinstein, to invest in the venture to purchase and resell gold and diamonds in the C.A.R. In a general letter received by Mr. Weinstein that was written on Respondent's law firm letterhead, Respondent advised that his firm was counsel to the Embassy of the C.A.R. and that they had been asked to organize the sale of diamonds and gold through the newly formed Am-C.A.R. Respondent wrote that he was Chairman of the Board of the new company and that Madame Juliette Koba, the wife of the C.A.R. Ambassador to the United States, was the company's president. He further advised that the company's cash, at least initially, would be kept in his lawyer's trust account. Following his signature on this general letter, Respondent added:
Please note that, despite the stationery used, this is not an authorized or endorsed activity of the firm, and that the firm has no knowledge of the details of this project or of the truth ...