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In re Zakroff

DISTRICT OF COLUMBIA COURT OF APPEALS


October 25, 2007

IN RE ROBERT JOEL ZAKROFF, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS
(BAR REGISTRATION NO. 163337)

On Report and Recommendation of the Board on Professional Responsibility (BDN 205-05).

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

Argued January 5, 2007

Before KRAMER, FISHER, and THOMPSON, Associate Judges.

In this reciprocal disciplinary proceeding, the Board on Professional Responsibility (the "Board") has unanimously recommended that Robert Joel Zakroff, a member of the District of Columbia Bar, be disbarred. The Board's recommendation is based upon Zakroff's disbarrment by the Court of Appeals of Maryland (sometimes referred to hereafter as "the Maryland court") for conduct, including intentional misappropriation of client funds and dishonesty, that violated a number of Maryland's Rules of Professional Conduct ("MRPC"). We agree with the Board that reciprocal discipline is appropriate. However, for the reasons explained below, which relate to the Maryland court's finding that during the relevant time period Mr. Zakroff was impaired by "significant depression,"*fn1 we cannot conclude whether discipline identical to that imposed by Maryland is warranted. We remand the matter to the Board for a determination as to whether Respondent has been substantially rehabilitated and, if so, for a recommendation about what alternative sanction is appropriate.

I. Background: The Maryland Proceedings

The Maryland court entered its order of disbarrment on June 23, 2005, revoking Respondent's license to practice law in that jurisdiction.*fn2 In a 54-page opinion issued on the same date, the court sustained findings of law by the Honorable Durke Thompson of the Circuit Court for Montgomery County, Maryland, reached after six days of evidentiary hearings and arguments, that Respondent violated the following Maryland Rules of Professional Conduct (2005): Rules 1.15 (a) ("[a] lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property"); 1.15 (b) ("[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person"); 3.3 (a) ("[a] lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal"); 8.4 (a) (it is professional misconduct for a lawyer to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another"); 8.4 (b) ("[i]t is professional misconduct for a lawyer to . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects"); 8.4 (c) ("[i]t is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation"); and 8.4 (d) ("[i]t is professional misconduct for a lawyer to . . . (d) engage in conduct that is prejudicial to the administration of justice"). Judge Thompson also found that Respondent violated provisions of the Maryland Business Occupations and Professional Code (Md. Code Ann., Bus. Occ. & Prof. Art §§ 10-306 and 10-606, relating to a lawyer's use of trust money entrusted to the lawyer). With several corrections and exceptions, the Maryland Court of Appeals accepted Judge Thompson's findings of fact, which we summarize below.*fn3

A. Findings by the Circuit Court for Montgomery County

Respondent maintained an office for the practice of law in Bethesda, Maryland, practicing under the name Zakroff & Associates, P.C. He was the sole stockholder of the firm, which practiced primarily in the areas of personal injury, bankruptcy and collections. At the time of the hearing, the volume of the firm's cases was approximately 250 bankruptcy matters, 320-400 personal injury cases, and 1500-2000 collection matters. Respondent was the only person in the firm who could sign checks to make disbursements.

When a personal injury case was settled and the firm received settlement proceeds, clients were not promptly notified and "[n]o information was provided to the client as to the date of the actual receipt of the settlement proceeds by the law firm." 876 A.2d at 669. Some portions of the settlement proceeds were payable by the firm to clients' medical care providers, but Respondent often would not sign checks that had been prepared for his signature for periods of several months. On some occasions, respondent instructed his staff to respond to payment inquiries from medical care providers by telling them that cases had not settled, even when the cases had in fact settled and the law firm had received the settlement proceeds. Respondent also instructed his staff to provide clients of the law firm with misleading information when they called about settlement of their cases.

Respondent maintained several bank accounts in two different banks, including an escrow or trust account into which proceeds of client settlements were deposited and operating accounts for payment of firm expenses. When staff received calls from one of the banks indicating that an account balance was low, Respondent would direct staff to transfer funds between accounts. From time to time Respondent would also deposit personal funds into the client trust account to cover checks written from those accounts to clients and third parties. An auditor for the Maryland Attorney Grievance Commission found that for the audit period January 2, 2000 through July 31, 2002, the client trust account had a shortfall "ranging from a low of $174,000.00 to a high of approximately $421,000.00." Id. at 672. One specific finding by the auditor was that on May 11, 2000, the balance in the client trust account was less than $700. The next day, a settlement in the Diaz case resulted in a deposit into the trust account of $22,600. That amount was used to make disbursement to four other clients totaling $9,500, "causing insufficient funds to be available to satisfy the needs for the Diaz disbursement." Id. Respondent also withdrew from the trust account lump sums payable to Zakroff & Associates and "[o]nly rarely did the withdrawals represent sums properly earned as fees and costs advanced." Id.

For the January 2000 to July 2002 audit period, the auditor calculated the length of time between deposits of settlement proceeds and disbursement to third parties and clients and found that in twenty-four cases the time difference was more than six months, and in a few cases was as long as sixteen months, eighteen months, and nearly twenty-three months. Id. Judge Thompson found that "[w]hile some of the delay is accountable to a variety of possibilities, the pattern of delay together with the established balances in the trust account, demonstrate that the Respondent, who was the sole signatory for the accounts of the firm, knew there were insufficient balances to satisfy clients, medical and third party service providers because the Respondent had withdrawn money from the trust account and paid it into firm operating accounts in order to satisfy financial needs. The reason for the financial needs was, in part, due to the appropriation of monies from the business accounts to the Respondent personally."*fn4 Id. at 673.

During 1999-2000, Respondent, who "had experienced a dysfunctional family upbringing," encountered marital problems and sought therapy. Id. Licensed clinical social worker Paulette Hurwitz testified to her belief that Respondent's depression "interfered with [his] ability to think clearly and the depression interfered with the analysis of whether taking money from the trust account was more than a means to an end of solving some immediate problem." Id. at 673. Respondent "initially eschewed [taking] medication" for his depression because "his wife is a trained 'healer' using holistic treatment for ills." Id. at 674. Hurwitz opined that Respondent "did not think in terms of using the trust account monies as a wrongful act," id. at 673, but had no opinion as to whether Respondent "knew that taking monies was wrongful." Id.

Judge Thompson noted that Respondent "paints a picture of [his] practice as a chaotic affair with periodic crises" that was in this state because of "his own depression and his unwillingness to disappoint potential clients causing him to take on improvident cases"; that Respondent "asserts he never intended nor did he steal any monies from any client" and that "everyone who is due any monies have [sic] been paid in full"; and that Respondent "d[id] not deny the status of his trust account, but pleads ignorance to the precise balances and believed there were sufficient monies to cover the checks" he directed his staff to prepare. Id. at 674. However, Judge Thompson found "not credible" Respondent's assertion that he did not know of the deficiencies in the trust account and his professed ignorance of the multiple occasions of his depositing personal funds (including $80,000 in proceeds of a life insurance loan that Respondent took out) into the trust account. Id.

Judge Thompson also made findings about a bankruptcy matter handled by Respondent's law firm. The client, Patterson, had initially consulted Respondent about filing for bankruptcy. Associates in Respondent's firm presented for the client's signature and presented to the bankruptcy trustee bankruptcy schedules that did not list as an asset a claim that the client had against the Little estate, a claim being handled personally by Respondent. The claim also was not disclosed during a meeting of creditors when the bankruptcy trustee asked about the existence of any additional claims. See 876 A.2d at 675. After one of the associates who was the attorney of record for the bankruptcy matter learned of the claim, he advised the bankruptcy trustee of the claim. Id. at 676. The bankruptcy court sanctioned "counsel for the debtor" for the improper claim of an exemption. Id. at 685.

Judge Thompson also noted that several mental health professionals saw Respondent after the Attorney Grievance Commission commenced its investigation. Dr. Christianne Tellefsen, "a highly experienced psychiatrist," id. at 676, saw Respondent at the request of his counsel. Dr. Tellefsen "was not familiar with any allegations of wrongful conduct," id., but opined that Respondent had "depression with elements of mania and that the conditions were static for the entire adult life of Respondent," that he also evidenced "some attention deficit," that he "tended not to pay attention to problems until they became a crisis and then respondent provided a quick fix but did not address the root of the problem," and that he had "no deliberate intent to violate the rules, but only to cope." Id. at 676. Respondent "probably knew that taking the trust monies for his own use was wrong and that he felt badly about it. This dynamic only created more stress and more depression." Id. at 676-77.

Dr. Michael Spodak, a forensic psychiatrist, opined that Respondent had "mental difficulties [that] evidenced themselves in everyday life and not just in his practice" and "a debilitative mental condition that was the cause of the conduct in the allegations facing" him. Id. at 677. Respondent's symptoms included "disorganization, sleeplessness, irritability, stress, detachment, lack of emotion, procrastination, dishevelment, late payment of bills, expenditure of $40,000 for a pool to please his wife and then burying it, selling property at a loss, too much work, bad employees, late taxes, and the refusal to confront his daughter [who also suffered from depression] about remaining reclusive in the house." Id. Dr. Spodak "d[id] not believe that the Respondent intended to steal money" but his "depression caused the Respondent to not care about consequences and to not consider ethical responsibilities, although he did not let everything go to pieces." Id. Dr. Spodak agreed that Respondent "utilized quick fixes to meet his crises." Id. Dr. Spodak "felt that the Respondent had the ability to control his behavior, even though it was somewhat impaired." Id.

Dr. Jeffrey Janofsky, also a forensic psychiatrist, "agreed that the Respondent suffers from depression" but "believed it was much less than a major depression." Id. Dr. Janofsky cited to "Respondent's ability to restore the trust account by repayment, develop a methodology to cover shortages in the trust account, and [to] undert[ake] a determined assault on the medical insurers and medical providers for his clients." Id. Dr. Janofsky believed that Respondent is "much improved" as a result of taking Zoloft.*fn5 Id.

Taking into account the testimony of all of the mental health professionals, Judge Thompson found it "clear" that

Respondent suffered from significant depression and the depression affected both his personal and professional relationships and lifestyle. The depression interfered with Respondent's ability to think through the problems he perceived were plaguing him and to develop acceptable solutions and to implement them. As a result, Respondent was crisis driven which caused him to abuse his trust account and utilize monies deposited therein for others for his personal use.

Id. at 678. Judge Thompson found that Respondent acted "without malice toward clients or with intent to steal" and that "no client or medical assignee experienced any actual loss." Id. at 678. He also found, however, that "[t]he sheer magnitude of the imbalance of the trust account, the repeated conduct of drawing upon it, the methodology used by the Respondent, and his apparent appreciation of the wrongfulness, albeit rationalized away contradicts his claims of ignorance." Id.

Judge Thompson found "clear and convincing evidence" that Respondent "knowingly used client funds for unauthorized purposes," id.; that he misrepresented to the Attorney Grievance Commission investigator "the use of $50,000.00 deposited into the trust account purportedly to cover payroll when, in fact, it was used to pay proceeds to a client on a personal injury matter which could not be covered by existing balances," id. at 679; that he "delay[ed] in paying third party assignees [] monies due the assignees after a settlement was reached in a personal injury matter," id.; that the balance of Respondent's client trust account "was insufficient for much, if not all, of the period examined by the Petitioner's investigator," id. at 680; that "Respondent commingled funds by depositing his personal funds on nineteen separate occasions from April 2000 until July 30, 2002," id.; and that Respondent "directly or through those he directed, failed to promptly notify clients or other interested parties of the receipt of funds to which they were lawfully entitled" and "'kited' other settlements or supplied funds from his personal accounts to cover shortfalls," id.

Regarding the Patterson matter, Judge Thompson found that "Respondent was also fully aware of the Patterson bankruptcy proceedings even though he did not personally handle the matter" but, after filing a lawsuit in an effort to recover monies for Patterson, "made no effort to notify the bankruptcy trustee" and "deliberately withheld information from the bankruptcy schedules." Id.

B. The Maryland Court of Appeals Decision

The Court of Appeals of Maryland found that the "facts of this case support a finding of both intentional dishonesty and misappropriation on the part of the respondent." Id. at 690. Having accepted Judge Thompson's findings summarized above, the court stated that the "only remaining question" was the appropriate sanction.*fn6 Id. at 689. The court noted that the "standard for determining the appropriate sanction when an attorney's conduct involved intentional dishonesty and misappropriation," id., was stated in the case of Attorney Grievance Comm'n. v. Vanderlinde,773 A.2d 463 (Md. 2001). The court quoted Vanderlinde:

In cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept, as "compelling extenuating circumstances," anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the "root cause" of the misconduct and that also result in an attorney's utter inability to conform his or her conduct in accordance with the law and with the MRPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarrment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise.

773 A.2d at 485. The court then considered whether there existed "compelling extenuating circumstances" that warranted the imposition of a lesser sanction than disbarrment and concluded that there were not. The court acknowledged that it was "undisputed that respondent suffers from 'significant' depression." 876 A.2d at 690. It noted that the mental health professionals disagreed about whether Respondent's disorders were the "root cause" of his behavior, id. at 691, but concluded that "[a]ssuming for the sake of argument that we accept the opinion that respondent's disorders were the root cause of his misbehavior, respondent would still fail to satisfy the Vanderlinde mitigation standard," since that standard "requires that the disability be nothing 'less than the most serious and utterly debilitating' mental condition and that the condition be not only the 'root cause' of the misconduct but also result in the attorney's utter inability to conform his or her conduct in accordance with the law and with the MRPC." Id. The court concluded that nothing in the record indicated that Respondent suffered from a disorder that rendered him utterly unable in that way. To the contrary, the court observed, during the relevant time period Respondent maintained a successful and high-volume law practice where he worked 70-80 hours a week. Noting that Respondent had presented to the court "a list of remedial actions that he alleges to have undertaken," the court stated that even "[a]ssuming . . . that respondent testified to these facts and that they are part of the record,*fn7 they would not change our disposition of this matter." Id. at 686 n.17. The court concluded that the appropriate sanction was disbarrment.

C. Proceedings in This Jurisdiction

On July 19, 2005, the District of Columbia Bar Counsel moved this Court to disbar Respondent by reciprocal discipline under D.C. Bar Rule XI, § 11. We entered an order suspending Respondent from the practice of law in this jurisdiction and directed the Board either to recommend the appropriate discipline based upon reciprocity or to proceed with this matter de novo. Declining to proceed de novo, the Board filed its December 28, 2005 Report and Recommendation with this court, urging us to disbar Respondent on the basis of Maryland's full adjudication and subsequent order of disbarrment. See Board Report at 14 ("We conclude that identical reciprocal discipline of disbarrment is entirely appropriate").

Citing In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003), the Board noted that there is a rebuttable presumption in favor of the imposition of identical reciprocal discipline unless the court finds that one or more of the exceptions set forth in D.C. Bar R. XI, § 11 (c) applies.*fn8 See Board Report at 4-5. The Board rejected Respondent's argument that he was denied due process in the Maryland disciplinary proceedings, concluding that Respondent failed to show that he was denied "notice or a meaningful opportunity to explain or defend against the allegations of misconduct." Id. at 6. The Board also rejected Respondent's claims as to infirmity of proof, concluding that there was "more than sufficient evidence of misconduct," id. at 7, including misappropriation, dishonesty, and knowing omission of an asset from his client's schedule of assets filed in the bankruptcy court. The Board rejected Respondent's assertion that "the problems in the bankruptcy proceeding arose from his failure to properly supervise an associate."*fn9 Id. at 9. The Board determined further that the Maryland Rules that Respondent was found to have violated "are substantively similar to District of Columbia Rules," id., and that "Respondent's misconduct in Maryland constitutes misconduct in the District of Columbia." Id. at 9, 10.

The Board then turned to Respondent's argument that, in the District of Columbia, the misconduct found by the Maryland court would warrant discipline substantially different from disbarrment. The Board concluded that "[t]he sanction imposed in Maryland [disbarrment] is precisely the sanction that would be imposed in the District of Columbia." Id. at 10 (citing In re Addams, 579 A.2d 190, 191 (D.C. 1990)) (en banc) ("in virtually all cases of misappropriation, disbarrment will be the only appropriate action unless it appears that the misconduct resulted from nothing more than simple negligence"). The Board rejected Respondent's argument that "his disability warrants mitigation of the sanction in this jurisdiction even though such mitigation was denied by the Maryland court." Board Report at 11. The Board quoted the Maryland standard for mitigation articulated in Vanderlinde and then described the mitigation standard in this jurisdiction:

[I]n the District of Columbia mitigation is warranted when the respondent establishes that (1) he suffered from an impairment at the time he misappropriated funds; (2) a preponderance of the evidence supports a finding that his impairment "substantially caused him to engage in [the] misconduct;" and (3) he is now substantially rehabilitated.

Board Report at 12 (quoting from In re Stanback, 681 A.2d 1109, 1115 (D.C. 1996)). The Board reasoned that "[a]lthough the standard for disability in mitigation in the District of Columbia is different than the standard in Maryland, both jurisdictions require a showing that the disability caused the misconduct." Id. at 11. The Board concluded that

[t]he Maryland Court's findings demonstrate that the record evidence failed to establish the requisite causal nexus between the disability and the violations under Kersey -- that Respondent's psychological impairments 'substantially caused him to engage in the misconduct.' Accordingly, Respondent is not entitled to Kersey mitigation for his intentional misappropriation and dishonesty.

Id. at 12-13.*fn10

II. Discussion

In his petition to this court, Respondent continues to urge that reciprocal discipline pursuant to D.C. Bar Rule XI, §11 (c), should not be imposed because he was denied due process in the Maryland disciplinary proceedings as a result of the Maryland court's failure to review the transcript of his September 13, 2004 hearing testimony before issuing its ruling; that there was an infirmity of proof as to intentional misappropriation of funds; and that any misconduct established warrants substantially different discipline in this jurisdiction because, in light of Respondent's depression and its effect on his conduct, the Kersey mitigation standard is met.

A. Standard of Review

As already noted, see note 8 supra, in reciprocal discipline proceedings, this court must "impose the identical discipline unless the attorney demonstrates, or the Court finds on the face of the record on which the discipline is predicated, by clear and convincing evidence, that one or more of the grounds set forth in [D.C. Bar Rule XI, § 11 (c)] of this section exists." D.C. Bar R. XI, § 11 (f)(2). The Respondent has the burden of establishing by clear and convincing evidence that a lesser sanction is warranted. Zdravkovich, 831 A.2d at 967. Clear and convincing evidence "is such evidence as would produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." In re Estate of Walker, 890 A.2d 216, 222 (D.C. 2006) (citation and internal quotation marks omitted).

B. Respondent's Due Process and Infirmity of Proof Claims

We consider first Respondent's due process and infirmity of proof arguments, and reject both. The record amply shows that Respondent was afforded notice and a full hearing before a trial judge in Maryland and obtained review of that trial judge's findings of fact and conclusions of law from the Court of Appeals of Maryland. See In re Edelstein, 892 A.2d 1153, 1157 (D.C. 2006) ("due process is afforded when the disciplinary proceeding provides adequate notice and a meaningful opportunity to be heard" (quoting In re Day, 717 A.2d 883, 886 (D.C. 1998)). As noted, Respondent complains specifically about the fact that the transcript of the September 13, 2004 hearing before Judge Thompson and exhibits to which Respondent referred during his testimony on that date*fn11 were not transmitted to the Maryland court before it issued its June 23, 2005 ruling.*fn12 However, although the Maryland court did not review the September 13 transcript before issuing its opinion, the court was apprised of its contents through Respondent's Exceptions to Judge Thompson's findings, and the court concluded that the testimony given would not have changed its disposition of the matter. See Zakroff, 876 A.2d at 686 n.17. Also, as the Board found, "[t]he four challenges Respondent made to the trial court's findings based upon the missing [September 13, 2004] transcript related to findings of fact that the Maryland Court did not rely upon for its conclusions of law." Board Report at 6 (quoting Zakroff, 876 A.2d at 686).

Finally, Respondent filed with the Maryland court a Motion for Reconsideration in which he raised the missing transcript issue and to which -- he confirmed at oral argument before us -- he appended the theretofore missing transcript.*fn13 Thus, the Maryland court had an opportunity to review the transcript before it denied Respondent's motion (on August 9, 2005). We owe "due deference" to the Maryland court's ruling in which, notwithstanding the court's opportunity to review Respondent's September 13, 2004 testimony, the court rejected Respondent's due process challenge. In re Roberston, 618 A.2d 720, 723 (D.C. 1993). In light of all these factors, we conclude that Respondent has not established by clear and convincing evidence that he was denied due process in the Maryland disciplinary proceedings.

In essence, Respondent's infirmity of proof argument is that the Maryland court's factual findings do not establish by clear and convincing evidence that Respondent engaged in any intentional wrongdoing. However, "the infirmity of proof exception is not an invitation to the attorney to relitigate in the District of Columbia the adverse findings of another court in a procedurally fair hearing." In re Gansler, 889 A.2d 285, 288 (D.C. 2005) (quoting In re Bridges, 805 A.2d 233, 235 (D.C. 2002)). We conclude here, as we did in Gansler, that Respondent's assertion "falls well short of meeting [the] 'heavy' burden" that must be met by a Respondent seeking to avoid the factual findings of another disciplining court. 889 A.2d at 288. The Maryland court's findings rested in part on Judge Thompson's credibility determinations, and "we are not in as good a position as the trier of fact was to judge who is and who was not telling the whole truth." In re Shillaire, 549 A.2d 336, 343 (D.C. 1988) (quoting In re Gamblin, 458 S.W.2d 321, 323 (Mo. 1970)). We conclude -- borrowing the terminology used in Gansler -- that the Maryland court "devoted substantial attention to the issue" of whether Respondent intentionally misappropriated client funds and misled the bankruptcy trustee, and we discern no infirmity in its ruling. Gansler, 889 A.2d at 288.

C. Substantially Different Discipline

We now consider whether respondent has overcome the "rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction," In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992), on the ground that his misconduct warrants "substantially different discipline" in this jurisdiction. D.C. Bar Rule XI, § 11 (c)(4). We must consider "(1) whether the misconduct would have resulted in the same punishment in the District; and (2) if the sanction would have been different, whether it is substantially so." In re Meaden, 902 A.2d 802, 815 (D.C. 2006) (citation omitted).

There is no question that in this jurisdiction, a finding that a lawyer knowingly misappropriated client funds supports the sanction of disbarrment. We have said that "[i]n this jurisdiction misappropriation of funds warrants disbarrment in virtually all cases." In re Larsen, 589 A.2d 400 (D.C. 1991);*fn14 see also In re Reid,540 A.2d 754, 759 (D.C. 1988) (citing the "well established rule in this jurisdiction that, with limited exceptions, the sanction for misappropriation of client funds is disbarrment"). While Respondent emphasizes that there has been no finding that he had the intent to steal, that is beside the point, because a showing of an intent to steal is not required to disbar an attorney for misusing client funds. See In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983) (defining misappropriation as "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"); see also In re Carlson, 802 A.2d 341, 348 (D.C. 2002) (misappropriation occurs whenever the balance in an attorney's escrow account falls below the amount due to the client); In re Edwards, 808 A.2d 476, 484 (D.C. 2002) ("misappropriation revealing an unacceptable disregard for the safety and welfare of entrusted funds will warrant disbarrment" (quoting In re Anderson, 778 A.2d 330, 338 (D.C. 2001)).

The foregoing does not end our analysis, however. We must determine (if we can on the Maryland record) whether Respondent's misconduct actually would have resulted in substantially different discipline had he engaged in misappropriation of client funds within the District of Columbia. Respondent argues that the findings of dishonesty and misappropriation of client funds would warrant substantially different discipline here because the depression from which he suffered during the relevant time period "substantially affected his misconduct." Stanback, 681 A.2d at 1114-15. This means, Respondent argues, that even in the absence of "utter inability" to conform his conduct to the rules of professional conduct, the mitigation standard established in Kersey is met. Bar Counsel, on the other hand, urged at oral argument that our decision last year in Meaden requires us to accept the Maryland court's ruling that a mitigation of sanction is not warranted.

In Meaden, the respondent had been suspended from the practice of law by the Supreme Court of New Jersey for, inter alia, lying on seven applications to purchase handguns (by failing to disclose his psychiatric history) and for using another individual's credit card information without authorization to purchase golf clubs and bags. See 902 A.2d at 805, 806. Police also found in Meaden's possession mail and credit card statements of two other individuals. Id. at 805 n.5. In mitigation, Meaden presented to New Jersey disciplinary authorities evidence that he suffered from bipolar disorder. Id. at 806-07. The New Jersey Supreme Court upheld a finding by the state's disciplinary review board that Meaden's evidence regarding purported mitigation fell short of the standard established by In re Jacobs, 469 A.2d 498, 501 (N.J. 1984) (finding that mitigation was "unavailing" where the disciplinary review board "correctly determined that respondent's medical presentation failed to establish any 'causal connection' between [Jacobs'] condition and his financial depredations," the hearing panel and ethics committee were not persuaded that Jacobs' medical condition was "an exclusive or major cause of his ethical derelictions," and there was "no demonstration by competent medical proofs that [Jacobs] suffered a loss of competency, comprehension or will of a magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful"). The New Jersey court suspended Meaden for three years with a fitness requirement.

In reciprocal proceedings in our jurisdiction, Meaden argued that "he would have prevailed on his claim of mitigation of sanction under the standard set forth in Kersey," 902 A.2d at 813, and that, assuming reciprocal discipline was warranted, this jurisdiction should impose nothing more than probation with conditions. Id. at 808. In rejecting Meaden's argument that reciprocal discipline was not warranted, we relied on In re Benjamin,698 A.2d 434 (D.C. 1997), quoting it for the proposition that "[u]nder principles of collateral estoppel, in reciprocal discipline cases we generally accept the ruling of the original jurisdiction, even though the underlying sanction may have been based on a different rule of procedure or standard of proof." 902 A.2d at 814 (quoting Benjamin, 698 A.2d at 440 (rejecting respondent's argument that reciprocal discipline should not be imposed based on a New York disciplinary action because New York uses a lower standard of proof in attorney discipline cases than the District of Columbia uses, reasoning that "the difference in evidentiary standards between New York and the District of Columbia in disciplinary cases does not, on its face, establish an infirmity of proof," id. at 439)).*fn15 We concluded that Meaden had "provided no persuasive reasons why we should depart from general principles of collateral estoppel and reject reciprocal discipline in this case," 902 A.2d at 814, and that Meaden "cannot avoid reciprocal discipline by attacking collaterally the New Jersey tribunal's . . . application of that jurisdiction's law to the facts of the case." Id. at 815. We reasoned that "[a]lthough the Jacob standard differs somewhat from the Kersey standard, that distinction alone is not sufficient in itself to avoid a reciprocal discipline proceeding." Id. at 814.

Thus, under Meaden, Maryland's different standard for mitigation provides no basis for us to decline to impose (some form of) reciprocal discipline on the basis of the Maryland court's findings. And, if the standard for mitigation in Maryland were merely "somewhat different" from our Kersey standard, Meaden would also require us to impose a sanction identical to the discipline that the Maryland court imposed, so long as that discipline falls within the range of sanctions that we would impose, in an original proceeding, for the violations in issue. See id. at 815 ("the question is whether the upper range of any sanction here would be 'substantially different' from the sanction imposed in New Jersey" (emphasis added in the original) (quoting In re Garner, 576 A.2d 1356, 1357 (D.C. 1990)). But we do not read Meaden or any of our other precedents as requiring us to impose such an identical sanction if -- as we conclude infra -- Maryland's mitigation standard is more than "somewhat different" from our own standard.

Maryland's Vanderlinde standard requires proof of a lawyer's "utter inability to conform his or her conduct" to the rules of professional conduct. 773 A.2d at 485. Vanderlinde also requires a showing of nothing less than "the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the 'root cause' of the misconduct." Id. By contrast, Kersey mitigation requires Respondent to show "(1) by clear and convincing evidence that [he] had a disability; (2) by a preponderance of the evidence that the disability substantially affected [his] misconduct; and (3) by clear and convincing evidence that [he] has been substantially rehabilitated." In re Verra, ___ A.2d ___, 2007 D.C. App. LEXIS 484, *5 (D.C. 2007) (emphasis added), quoting In re Lopes, 770 A.2d 561, 567 (D.C. 2001). We explained in Kersey that the "substantially affected" test is met if an attorney shows that "but for [his disabling condition], his misconduct would not have occurred." 520 A.2d at 327. We found that a mitigated sanction was warranted even while acknowledging that "it is an impossible burden to prove that Kersey's alcoholism caused each and every disciplinary violation," id. at 326, meaning that we did not require a showing that each offending act was caused by his impairment; it was enough that "Kersey's professional conduct was substantially affected by his alcoholism" and that his "alcohol abuse affected his thoughts and judgment." Id. In In re Temple, 596 A.2d 585 (D.C. 1991), we explained further that the "but for" test does not require proof that the attorney's disability was the "sole cause" of the attorney's misconduct. Id. at 586. We instructed that in applying the Kersey test, the issue is whether "'a sufficient nexus between [the respondent's disability] and his misconduct' had been established," id. at 589 (quoting Kersey, 520 A.2d at 327), and whether "removal of the substantial contributing factor . . . would eliminate the offensive conduct," even if there are other reasons for some of the misconduct. Id. (citing Kersey,520 A.2d at 327n.16); see also Temple, 596 A.2d at 590 (explaining that "there must be a close nexus between the misconduct and the mitigating factor proffered, whether alcoholism, drug addiction or mental illness," and holding that this test was met even though Temple "was able to manage an appearance of normalcy in his law practice").*fn16

We conclude that Maryland's Vanderlinde standard is substantially different (not merely "somewhat different") from our Kersey standard.*fn17 The Maryland standard sets a substantially higher bar and will require an unmitigated sanction in some cases in which, in our jurisdiction, a mitigated sanction would be warranted. To read Meaden as requiring us to impose identical reciprocal discipline in this case even in light of this difference would enervate Rule XI, §§ 11 (c)(4), which establishes an exception to reciprocal discipline where the "misconduct established warrants substantially different discipline in the District of Columbia," and 11 (f)(2), which provides that "the Court shall impose the identical discipline unless the attorney demonstrates . . . that one or more of the grounds set forth in subsection [c]*fn18 of this section exists." We hold instead that if the factual findings of record establish that Respondent met the Kersey mitigation standard (albeit not the Vanderlinde standard), the presumption in favor of identical reciprocal discipline must fall away.

Accordingly, before determining what sanction is appropriate, we must consider whether the Maryland court's factual findings establish that the Kersey standard was met. As noted, the Maryland court found that Respondent suffers from "significant depression." 876 A.2d at 678. Because we have previously recognized that depression is a disability that may warrant Kersey mitigation, see, e.g., Peek, 565 A.2d at 631-32, the first prong of the Kersey test is met ("an attorney must demonstrate (1) by clear and convincing evidence that he had a disability," Lopes, 770 A.2d at 567). The Maryland court also found that Respondent's depression did not render him utterly unable to conform his conduct in accordance with his ethical obligations, see 876 A.2d at 691, and that he abused his trust account in a "determined and knowing" manner. id. at 678. From this the Board concluded that "[t]he Maryland Court's findings demonstrate that the record evidence failed to establish the requisite causal nexus between the disability and the violations under Kersey -- that Respondent's psychological impairments 'substantially caused him to engage in the misconduct.'" We cannot agree.

Except for a handful of findings that are not pertinent to our discussion, the Maryland court adopted Judge Thompson's findings. Judge Thompson found by clear and convincing evidence that Respondent's "depression affected both his personal and professional relationships and lifestyle"; that his "depression interfered with Respondent's ability to think through the problems he perceived were plaguing him and to develop acceptable solutions and to implement them"; and that "[a]s a result, Respondent was crisis driven which caused him to abuse his trust account and utilize monies deposited therein for others for his personal use." 876 A.2d at 678. We think these conclusions amount to findings -- factual findings by which we are bound*fn19 -- that Respondent's depression "substantially affected his misconduct," Lopes, 770 A.2d at 567, and "substantially caused" him to misappropriate the funds in his client trust accounts, Stanback, 681 A.2d at 1115; and that "but for" Respondent's depression, the conduct in issue would not have occurred. Kersey, 520 A.2d at 327. We must conclude, therefore, that with respect to his misappropriation of client funds, Respondent has satisfied the second prong of the Kersey test, and we must reject the Board's conclusion to the contrary. Cf. In re Appler, 669 A.2d 731, 739 (D.C. 1995)("we conclude that there was no significant evidence of record that could have led the Board majority to find that respondent had not met his burden to prove that the bipolar condition substantially affected his conduct. . . . Therefore, we conclude that the Board's finding on this question is 'unsupported by substantial evidence of record'").*fn20

What we cannot conclude on the record before us is whether Respondent satisfied the third prong of the Kersey test, i.e., that he "prove by clear and convincing evidence that he now is substantially rehabilitated." Stanback, 681 A.2d at 1115. Judge Thompson made no findings regarding rehabilitation,*fn21 and the Maryland court, having found that Respondent was not utterly unable to control his conduct, deemed any facts pertinent to rehabilitation unavailing. See 876 A.2d at 686 n.17. Yet, as the Maryland court's opinion notes, Respondent offered testimony that he is now taking medication for depression, has taken courses in accounting and office management, attended a Maryland Bar Association workshop for solo practitioners and small firms, hired an accountant to review his financial transactions on a weekly basis, was counseled by the Maryland State Bar Association Lawyer Assistance Program, was seeing his clinical social worker on a weekly basis, and was being monitored by a psychiatrist. See id. at 678, 686 n.17. Respondent also testified that he was willing to submit to monitoring by a practice monitor and to mentoring on ethical issues. Id. at 678. Because the imposition of discipline is intended not to punish the attorney but to protect the public, these facts, though not necessarily pertinent to rehabilitation, are relevant to a determination of whether a sanction less than disbarrment may be appropriate in this case. See Temple, 596 A.2d at 591 ("[d]isciplinary sanctions are not imposed as punishment, but as a means of assuring the attorney's fitness to practice and for protecting the public from misconduct by attorneys which may cause harm") (citation omitted).

On the other hand, the Board's Report states that "although suspended[,] Respondent appears to have signed papers in a Superior Court case and federal bankruptcy proceedings . . . ." Board Report at 16. For this reason and possibly others, whether Respondent can demonstrate that he is rehabilitated remains a serious question that is appropriately considered by the Board in the first instance.

In determining whether a mitigated sanction is warranted, the Board will also need to take into account the absence of any finding by the Maryland court that Respondent's depression or other disorders caused or affected his misconduct in regard to the Patterson bankruptcy matter. While a mitigated sanction may be warranted for Respondent's misappropriation of client funds and related violations (e.g., his dishonesty toward medical care providers who were awaiting payment from settlement proceeds), the Board will need to determine whether there is any basis for mitigation as to his dishonesty in withholding information from the bankruptcy trustee and (whether or not mitigation is warranted) what sanction is appropriate in light of that misconduct. Cf. Verra, 2007 D.C. App. LEXIS 484, *5 (holding that a stay of disbarrment was warranted as to misappropriation of client funds because of Verra's depression, but that because Verra had not shown that her impairments affected her misrepresentations and other misconduct vis a vis Bar Counsel's investigation, a thirty-day suspension was warranted).*fn22

Before concluding our analysis, we must address the Board's suggestion that, under our case law, Kersey mitigation is not available in cases involving intentional dishonesty. See Board Report at 13 n.7. We have never adopted such a per se rule. To the contrary, as we said in Appler, 669 A.2d at 738, "we have recognized certain situations where the most egregious misconduct may qualify for mitigation"; see also Reid, 540 A.2d at 759 ("[t]he sanction imposed in Kersey did not necessarily turn on the egregiousness of the conduct at issue there"). Notably, the mitigated sanction that we imposed in Kersey (disbarrment, with a stay of execution and a five-year period of conditional probation) was for "a widespread and persistent pattern of violations" that included "commingl[ing] client funds and [] us[ing] them for [Kersey's] own purposes." 520 A.2d at 324.

Bar Counsel correctly notes that, in several cases involving intentional misappropriation of funds, we concluded that Kersey mitigation was not warranted.*fn23 However, just as often, we have applied Kersey mitigation to reduce the sanction for impaired lawyers' misappropriation of client funds. See, e.g., Verra, 2007 D.C. App. LEXIS 484, *1-2, 5 (D.C. 2007) (during her representation of a client in connection with an automobile accident, Verra held funds belonging to the client in her personal bank account, overdrew the account before the client received her funds and eventually wrote a check to the client on insufficient funds, and failed to pay the client's medical bills arising from the accident; we stayed disbarrment and placed Verra on conditional probation for misappropriation of client funds, accepting the Board's finding that Verra had demonstrated a causal relationship between her depression and her misconduct); In re Mooers, 910 A.2d 1046 (D.C. 2006) (Mooers allowed the amount in his trust account to fall below the amount owed to a client's medical providers and acknowledged having used funds in the account for personal and business expenses; we accepted the Board's determination that Mooers suffered from major depression (caused by an acrimonious divorce and custody proceeding) and that his misconduct would not have occurred but for his depression, and followed the Board's recommendation that we disbar respondent but stay the disbarrment and impose a three-year period of conditional probation); In re Cappell, 866 A.2d 784 (D.C. 2004) (Cappell collected monies for his clients but failed to pay outstanding medical providers' bills for some months thereafter, using the funds instead for personal and business expenses; a hearing committee found that the misconduct would not have occurred but for Cappell's major depression, which was caused by the breakup of his marriage and significant health problems, and we accepted the Board's recommendation that we disbar respondent but stay the disbarrment and impose a three-year period of conditional probation); Larsen, 589 A.2d at 402 (a reciprocal discipline matter in which we relied on findings by the Maryland Court of Appeals that Larsen "collected a check from an insurance company in the amount of $2,050 to reimburse the physician's medical charges" and "instead of paying the money to the physician, . . . used the funds for his own purposes," and that Larsen's misconduct resulted from his bipolar or manic depressive disorder and that respondent could practice law responsibly and professionally with treatment and support; we disbarred Larsen but stayed the disbarrment and imposed a period of conditional probation); Reid, 540 A.2d 754 (Reid settled a client's claim but deposited the proceeds in his personal checking account and then misrepresented to his client the amount of settlement and failed to pay the client's medical bills; noting that Reid's alcoholism was the proximate cause of his misconduct, we disbarred him but stayed the execution of disbarrment, and we placed him on probation for a period of five years subject to conditions recommended by the Board). As these cases demonstrate, a sanction less an absolute disbarrment, such as an order of disbarrment stayed during a period of conditional probation, may be an appropriate sanction for Respondent's intentional misappropriation if there is clear and convincing evidence of rehabilitation. We cite these cases not to suggest a sanction, but merely to illustrate the range of discipline that has been imposed when mitigation was found to be appropriate.

Accordingly, for the foregoing reasons, we accept the recommendation of the Board that we impose reciprocal discipline on Respondent Robert Joel Zakroff. We defer judgment on the recommendation that Respondent be disbarred and instead remand the matter to the Board for a determination of (1) whether Respondent can demonstrate by clear and convincing evidence that he has been substantially rehabilitated and that, for his misappropriation of client funds, a sanction lesser than immediate disbarrment is appropriate (and, if so, what lesser sanction is appropriate); and (2) how Respondent's misconduct in connection with the Patterson bankruptcy matter should impact the sanction to be imposed. See Rule XI, § 11 (f)(2) ("If the Court determines that the identical discipline should not be imposed, it shall enter such order as it deems appropriate, including referral of the matter to the Board for its further consideration and recommendation").

So ordered.


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