The opinion of the court was delivered by: Oberly, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 325-02)
Before THOMPSON and OBERLY, Associate Judges, and BELSON, Senior Judge.
This case is before us on a report and recommendation from the Board on Professional Responsibility concerning respondent, James R. Boykins. We accept the Board's recommendation that respondent be suspended from the practice of law for two years. We reject, however, the Board's recommendation that a practice monitor be used to determine whether respondent is fit to resume the practice of law. Rather, we order that respondent's reinstatement be conditioned upon a showing of fitness established by clear and convincing evidence in accordance with D.C. Bar Rule XI, § 16.
The misconduct at issue in this case arises from two unrelated settlements of personal injury matters that respondent handled for two clients in the fall of 1998. The first client, Ericka Obeng, settled her claim with respondent's assistance for $3,300. The settlement provided for a disbursement of $1,150 to respondent to cover his fees and expenses, $1,550 to Ms. Obeng, and $600 to a doctor who had seen Ms. Obeng. In November 1998, respondent and Ms. Obeng endorsed the settlement check, and respondent deposited it in his trust account. On December 4, respondent issued checks to Ms. Obeng and to the doctor in the full amounts they were due under the settlement.
Ms. Obeng's check was lost, so on December 9 respondent executed a stop-payment order and issued a replacement check from his trust account for $1,525 (the $25 reduction was to cover the stop-payment fee charged by the bank). When Ms. Obeng tried to cash the check on December 21, however, it was refused for insufficient funds. Approximately one month later, respondent issued a third check to Ms. Obeng in the amount of $1,530 to replace the dishonored check. (Respondent could not explain why the check was for $5 more than the previous check.) The bank honored this check when Ms. Obeng presented it.
The second settlement at issue in this case involves respondent's representation of Donald Green in connection with a car accident in which the latter was injured in June of 1998. Two medical providers - a Dr. Bovell and Washington Open MRI - treated Mr. Green for the injuries he suffered in the accident. Dr. Bovell charged Mr. Green $635, and Washington MRI charged Mr. Green $1,076. In Assignment and Authorization (A&A) forms that respondent's paralegal signed on his behalf, respondent agreed to pay the providers directly out of the proceeds of any settlement recovery. Respondent also promised to notify the providers in writing about the status of their claims within 10 days of a request for information.
Mr. Green settled his claim with his insurance company for $3,500 in November 1998. On December 4, Mr. Green and respondent endorsed the settlement check, and the check was deposited in respondent's trust account - the same account in which the Obeng settlement funds had been deposited. Respondent's office then prepared a settlement sheet providing for a distribution of, as relevant here, $1,166.67 to respondent as a contingent fee, $150 to respondent as a fee for preparing a Personal Injury Protection (PIP) claim application, and $2,167.13 to Mr. Green. Consistent with the A&As, the settlement sheet also provided for distributions to Dr. Bovell and Washington MRI in the full amounts due each provider. (There also was a third provider who was a beneficiary of the Green settlement, but payments to that provider are not at issue here.)
On December 4, the same day that the Green settlement check was deposited in respondent's trust account, respondent issued a check to Mr. Green for $2,167.13 - the amount stated in the settlement sheet. Contrary to what he stated in the A&As, however, respondent did not reimburse either Dr. Bovell or Washington Open MRI, and notified neither provider that he had received the settlement funds. Instead, respondent's office submitted the PIP claim to Mr. Green's insurance company on behalf of Mr. Green, seeking the amount that the providers were due for their services in treating Mr. Green. In January 1999, respondent received four PIP checks payable to Mr. Green for the full amount requested. Respondent did not reimburse the medical providers from those funds.
On December 4, 1998 - the same day that he issued checks to Mr. Green and Ms. Obeng - respondent also issued a check to himself for $2,267. This sum represented respondent's $1,100 fee for Ms. Obeng's case and his $1,166.67 fee for Mr. Green's case. Respondent did not itemize the fee for each case. Respondent subsequently issued three additional checks to himself: (1) a check for $750, dated December 9 (the same day as the replacement check to Ms. Obeng was issued), stating that it was for attorneys' fees in the Green case; (2) a check for $300, dated December 14, which stated on the check stub that it was for "expenses in Green," but on the check itself that it was a "reimbursement in Donald Green and Ericka Obeng"; and (3) a check for $500, also dated December 14, which stated on the check stub, "expense for Green." In total, respondent paid himself $3,817 - roughly $1,300 more than the amount to which he was entitled according to the settlement sheets - for his services in the Green and Obeng matters. It was because of this overpayment to himself that respondent had insufficient funds in his trust account, causing the bank to refuse to honor the December 9 check that respondent issued to Ms. Obeng.
The bank promptly notified Bar Counsel of the overdraft, and Bar Counsel opened a formal investigation into respondent's handling of his trust accounts shortly thereafter. Bar Counsel first contacted respondent, however, in 2002. Over the next several years, respondent gave inconsistent explanations for the overdraft. First, respondent provided a document from the bank stating that the check had been dishonored erroneously. Later, respondent suggested to Bar Counsel that the stop-payment order for the initial check to Ms. Obeng might explain the bank error. After that, respondent told Bar Counsel that a bank representative had told him that she had forgotten to deposit a check from respondent, and that caused the trust account to have insufficient funds. Ultimately, at the March 2007 hearing before the Hearing Committee of the Board, respondent admitted that he was unable to determine why the overdraft had occurred.
Bar Counsel began to investigate respondent's conduct in the Green case in June 2003, about two weeks after Washington Open MRI sent respondent a fax inquiring about the $1,076 that it was owed for treating Mr. Green in 1998 (and which funds respondent received from Mr. Green's insurance company in January 1999). On June 9, Bar Counsel requested from respondent "copies of documents indicating that Mr. Green's bills were paid from his settlement funds." On June 19, respondent replied that, "as best as [he could] recall," the PIP "insurance carrier paid Mr. Green," and that Mr. Green "paid" the providers. Respondent agreed that he "signed both A&As" (in which he promised to pay the providers), but assured Bar Counsel that "the bills were paid." Respondent testified before the Hearing Committee that at some point after he sent this letter to Bar Counsel, he called Mr. Green's wife to ask her whether the medical bills had been paid and learned that they had not. On August 4, respondent informed Bar Counsel by letter that he was in contact with Washington Open MRI and that he was "sending the payment from [his] personal funds since [he was] ultimately responsible." Respondent also stated in the letter that "Dr. Bovell was paid."
In September 2003, Bar Counsel asked respondent to explain how he had handled Mr. Green's four PIP checks. Respondent replied that he would provide Bar Counsel an affidavit, executed by Mr. Green, to verify that the four PIP checks that he had obtained for Mr. Green "were given directly to Mr. Green," who "picked them up from [respondent's] office." Respondent also represented that he had "spoke[n] with Mr. Green," and that Mr. Green "remember[ed] the incident." And, indeed, in December 2003 respondent provided to Bar Counsel an affidavit signed by Mr. Green, in which Mr. Green averred that he had picked up the PIP checks.
One year later, in December 2004, Bar Counsel informed respondent that bank records revealed that the PIP checks had been "deposited in one of [respondent's] bank accounts in January 1999, and not given to Mr. Green as [respondent] earlier advised." Respondent answered that he could not remember "precisely what happened" because it had been so long but that he knew that the funds did not come to him. "It appears funds were placed in my business account but they ultimately went to Mr. Green," respondent explained. On April 20, 2005, respondent informed Bar Counsel that Mr. Green had signed the PIP funds over to him. Respondent explained that Mr. Green "owed [him] money for a favor [respondent] did for his ...