On Report and Recommendation of the Board on Professional Responsibility (BDN 83-00 & 299-00).
Before Terry, Reid, and Glickman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
The Board on Professional Responsibility ("the Board") has recommended that respondent, Bernard Bettis, be publicly censured for violating Rules 1.5 (c) (failure to put contingency fee agreement in writing), 1.15 (b) (failure to notify and deliver funds to third-party claimant) and 1.17 (a) (failure to designate trust or escrow account) of the District of Columbia Rules of Professional Conduct. Bar Counsel noted an exception to the sanction recommended by the Board, arguing that respondent's disciplinary history required a thirty-day suspension with a fitness review. Respondent has not challenged either the Board's conclusion that he violated the three rules or the sanction that it recommended. We adopt the Board's recommendation that respondent be publicly censured. We conclude, however, that in light of respondent's prior disciplinary history, a mere censure is inadequate to protect the public. We therefore direct that, in addition to the censure, respondent be placed on probation for a period of two years under certain conditions, including the appointment of a practice monitor, as set forth in part III of this opinion.
A. Respondent's Disciplinary History
In 1984 respondent was disbarred by consent for commingling funds. See In re Bettis, 644 A.2d 1023 (D.C. 1994) ("Bettis I"). The charges that brought about his disbarrment stemmed from two separate matters. In the first case, respondent was charged with illegal conduct involving moral turpitude (Disciplinary Rule (DR) 1-102 (A)(3)), dishonesty (DR 1-102 (A)(4)), commingling funds (DR 9-103 (A)), failing to maintain records (DR 9-103 (B)(3)), and neglect (DR 6-101 (A)(3)). These charges arose out of his unauthorized use of funds which he held as successor guardian of the estates of five minor children. In his Affidavit of Consent to Disbarrment, respondent acknowledged only a violation of DR 9-103 (A) (commingling funds).*fn1 Bettis I, 644 A.2d at 1028. In the second case, he was charged with neglecting a legal matter (DR 6-101 (A)(3)) and failing to carry out a contract of employment with a client (DR 7-101 (A)(2)). These charges related to his representation of a client in an appeal from an adjudication of paternity and the entry of a support order. Id.
Several years later respondent filed a petition for reinstatement. He informed the court that if he were readmitted, he would not handle fiduciary cases and that he intended to associate with other attorneys who had established bookkeeping systems. He also indicated that he was aware of the need to maintain separate accounts for client funds. Id. at 1029. We granted his petition for reinstatement on July 25, 1994. Id. at 1030.
B. Respondent's Recent Violations
On April 10, 2001, Bar Counsel filed a new petition instituting formal disciplinary proceedings against respondent. The petition contained two separate counts. In Count I (the Whitehead matter, BDN 83-00), Bar Counsel alleged that respondent had violated Rule 1.5 (c) by failing to put a contingency fee agreement in writing.*fn2 In Count II (the Wells matter, BDN 299-00), respondent was charged with violating Rule 1.15 (b) by failing to pay a health care provider from settlement funds in which the health care provider had an interest.*fn3 Count II also alleged that respondent had violated Rule 1.17 (a) by failing to deposit settlement funds in an escrow account.*fn4
In March of 1998, respondent was retained to represent David Whitehead in a malpractice action against Mr. Whitehead's former attorney. The two agreed that respondent's fee would be one-third of the recovery, but that agreement was not put in writing. After the case was settled in August of 1998, Mr. Whitehead fired respondent in an apparent attempt to avoid paying the one-third contingency fee.
Respondent, however, received his fee after executing an attorney's lien on one-third ...