On Report and Recommendation of the Board on Professional Responsibility (BDN 202-98, 067-99).
Before Ruiz and Glickman, Associate Judges,and Kern, Senior Judge.
Submitted December 9, 2004
Following a hearing on this matter, the Board on Professional Responsibility issued a report and recommendation to this court that the respondent be disbarred and ordered to pay restitution of misappropriated funds to the Estate of Estella Jordan, less any amount he can establish he has already returned to the Estate, plus interest. We adopt the recommendation.
In its report, the Board found that after Estella Jordan's personal representatives had hired the respondent to help them administer Ms. Jordan's Estate, he embezzled "a total of at least $73,850" from that Estate. The Board also found that the respondent engaged in tax evasion involving client trust accounts, and knowingly misrepresented material facts to Bar Counsel about his management of Ms. Jordan's Estate. The Board recommends that this court find that the respondent violated: (1) Rule 1.3 (b)(2) for intentionally damaging his client; (2) Rule 1.15 (a) for commingling, intentionally or recklessly misappropriating client funds, and failing to maintain complete records of entrusted funds; (3) Rule 8.1 (a) for knowingly making a false statement of material facts in connection with a disciplinary matter; (4) Rule 8.4 (b) and (c) for committing theft and engaging in tax evasion, conduct which involves dishonesty; and (5) Rule 8.4 (d) for seriously interfering with the administration of justice by improperly accounting to the probate court and failing to cooperate in Bar Counsel's investigation.*fn1 Although he provided some (incomplete) responses to Bar Counsel during the investigation of this matter, respondent did not answer Bar Counsel's charges against him, and did not appear at the hearing, nor before the Board. He has made no submission to this court. Indeed, part way through these proceedings he disappeared.*fn2 As a result, the Board's findings of fact and conclusions of law are uncontested. "As the Board's findings of the foregoing violations are supported by substantial evidence, we accept them." In re Follette, 2004 D.C. App. LEXIS 636, at *4 (D.C. 2004) (citing D.C. Bar R. XI, § 9 (g)(1)).
As a sanction the Board recommends disbarrment and an order for restitution of any client funds that were misappropriated, which the Board calculated to be at least $73,850, less amounts already returned to the Jordan Estate or its beneficiaries. Fraudulent misappropriation and theft by a fiduciary attorney warrants disbarrment. See In re Taylor, 765 A.2d 546 (D.C. 2001). Misappropriation is "any unauthorized use of client's funds entrusted to [a lawyer], including not only stealing but also unauthorized temporary use for the lawyer's own purpose, whether or not [he] derives any personal gain or benefit therefrom." In re Berryman, 764 A.2d 760, 768 (D.C. 2000) (internal quotations omitted). "[I]n 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." Id. at 769. The findings of the Board in the case at bar show far more than simple negligence: they show a calculated pattern, over a period of time, of withdrawals from fiduciary accounts that were deposited into respondent's personal account, coupled with a deliberate effort to conceal this fact from Bar Counsel as well as from the representatives and beneficiaries of the Estate. We therefore adopt the Board's recommendation that the respondent be disbarred. We also adopt the further recommendation that respondent be ordered to restore to the Estate any unreimbursed funds he took from his client's fiduciary account without authorization. See In re Robertson, 612 A.2d 1236, 1240 (D.C. 1992).*fn3 Repayment shall be with accrued interest, compounded quarterly, at the legal rate of six percent per annum in order to compensate the Estate for the loss of the use of the misappropriated funds. See In re Huber, 708 A.2d 259, 260-61 (D.C. 2000) (imposing interest at six percent and noting that "[t]he obligation to pay interest is intertwined with the obligation to make restitution") (citing D.C. Bar R. XI, § 3 (b) and D.C. Code § 28-3302 (a)). Accordingly, it is:
ORDERED, that Koteles I. Alexander is disbarred from the practice of law in the District of Columbia. Moreover, since the respondent has not filed the affidavit required by D.C. Bar R. XI, § 14 (g), we direct his attention to the requirements of that rule and their effect on his eligibility for readmission to the Bar. See D.C. Bar R. XI, § 16 (c). It is further
ORDERED, that as a condition of reinstatement to the Bar, Koteles I. Alexander pay restitution to the Estate of Estella Jordan in the amount of $77,000, see supra, note 3, less any amount he can establish that he has already returned to that Estate,*fn4 plus interest at the rate of six percent per annum, compounded quarterly, on each unreturned withdrawal made from the Estate calculated from the date of withdrawal to the date of repayment.