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In Re Michael R.

August 16, 2012

IN RE MICHAEL R. CARITHERS, JR., RESPONDENT.


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

A Member of the Bar of the District of Columbia Court of Appeals (BDN-305-11)

(Bar Registration No. 434113)

On Report and Recommendation of the Board on Professional Responsibility

(Submitted April 19, 2012

Before FISHER and BECKWITH, Associate Judges, and REID, Senior Judge.

On July 18, 2011, the Maryland Court of Appeals found that respondent Michael R. Carithers, Jr., had misappropriated fees, commingled funds, and violated several rules of professional conduct. The court disbarred him, effective August 17, 2011, Attorney Grievance Comm'n v. Carithers, 25 A.3d 181, 199 (Md. 2011), and the District of Columbia‟s Bar Counsel now recommends that we impose identical reciprocal discipline. Respondent argues that the presumption in favor of identical reciprocal discipline should not apply because the District of Columbia would have imposed a substantially different sanction had the matter originated in this jurisdiction. We conclude that Mr. Carithers has not rebutted the presumption and, accordingly, that he must be disbarred.

I. Factual and Procedural Background

Respondent has been practicing law since 1991. Carithers, 25 A.3d at 184. In August 2005, he began work at Brown & Sheehan ("B & S"), a firm based in Baltimore, on an "of counsel" basis. Id. Respondent was hired as a full-time attorney with a full-time salary of approximately $90,000. Id. He did not have a written contract concerning his employment at B & S, nor did he have any document defining his "of counsel" status. Id. There was no agreement that respondent could maintain a "side practice" while he was at B & S. Id. at 185.

Nevertheless, respondent represented several former clients of B & S who owed outstanding legal fees to the firm. Id. The administrative managing partner of the firm, David Sheehan, had expressly prohibited respondent from representing these clients because of their outstanding fees. Id. at 184, 186. Respondent did not inform B & S of his decision to continue to represent these clients at any time. Id. at 186. However, he used B & S retainer agreements, letterhead, and stationery without the permission of B & S. Id. at 185-87. Respondent also opened cases "on his own without entering them into the B & S client database, while receiving payments" using B & S billing statements and resources. Id. at 185.

Respondent did not deposit fees earned through his side practice into a trust account. Id. at 185.Instead, he deposited checks from clients into his personal account. Id. In at least one of these cases, he deposited the fees into his account before doing any work on the client‟s case. Id. at 186, 199. In addition, respondent "did not maintain separate malpractice insurance and did not create a separate entity for his side practice." Id. at 185.He did not initially report any of the income from his side practice to the Internal Revenue Service (IRS), though he eventually filed amended returns. Id.

On June 23, 2008, after learning that respondent had maintained a side practice and had deposited checks from clients into his personal account, B & S terminated him. Id. at 186. On April 30, 2010, the Maryland Attorney Grievance Commission filed a petition initiating disciplinary proceedings against Mr. Carithers. Id. at 183. The Maryland Court of Appeals referred the matter to a judge of the Circuit Court for Baltimore County, who held an evidentiary hearing and issued findings of fact. Id. Pursuant to Maryland procedure, the hearing judge also made recommendations of law to the Court of Appeals. Id.

After considering those findings of fact and recommendations of law, the Court of Appeals disbarred respondent. Id. at 199. The court found that respondent had violated several Maryland Rules of Professional Conduct, including Rule 1.15 (a) (safekeeping of property and prohibition of commingling); 8.4 (b) (prohibiting criminal acts that "reflect[] adversely on the lawyer‟s honesty, trustworthiness or fitness as a lawyer in other respects"); 8.4 (c) (prohibiting "conduct involving dishonesty, fraud, deceit or misrepresentation"); and 8.4 (d) (prohibiting "conduct that is prejudicial to the administration of justice").*fn1 Id. at 183, 195-99. Further details are provided in the opinion of the Maryland Court of Appeals. The court specifically found that respondent had committed criminal theft "by intentionally and deceptively misappropriating fees from former B & S clients that represented B & S legal fees." Id. at 196, 199. The court concluded that intentional misappropriation of funds constituting "deceitful and dishonest" conduct justified disbarrment under Maryland law. Id. at 199.

Respondent Carithers notified Bar Counsel of his Maryland disbarrment on September 7, 2011. In an order dated November 17, 2011, this court suspended respondent from the practice of law in the District of Columbia pending final disposition. Respondent filed an ...


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