A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 436695) On Report and Recommendation of the Board on Professional Responsibility (BDN 170-01)
Before OBERLY and MCLEESE, Associate Judges, and SCHWELB, Senior Judge.
In its January 26, 2012,
Report and Recommendation, the Board on Professional Responsibility
("BPR" or the "Board") unanimously*fn1 agreed with the
Hearing Committee that respondent, John H. Pye, Jr., should be
disbarred for misappropriation*fn2 of entrusted estate funds and
violation of numerous Rules of Professional Conduct*fn3
in connection with his appointment as the Successor Personal
Representative of the Green Estate. Bar Counsel supports BPR‟s Report
This court "must "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.‟" In re Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C. 2010) (per curiam) (quoting D.C. Bar R. XI, § 9 (h)(1)). Here, the Board‟s thorough report, which is appended to this opinion, sets forth in detail respondent‟s conduct and contains a comprehensive analysis to support its conclusions and recommended sanction. We see no need to duplicate the details of respondent‟s course of conduct and conclude, for substantially the reasons stated by the Board, that respondent intentionally misappropriated client funds and committed other acts violative of the Rules of Professional Conduct, including repeated acts of dishonesty over an extended period of time.
Accordingly, we accept the Board‟s recommendation of disbarrment because "it is not inconsistent with the range of discipline imposed in similar cases" involving misappropriation of funds. In re Evans, 902 A.2d 56, 58 (D.C. 2006) (per curiam); see also In re Omwenga, 49 A.3d 1235 (D.C. 2012) (per curiam) (ordering disbarrment of lawyer who misappropriated client funds); In re Rivlin, 856 A.2d 1086 (D.C. 2004) (per curiam)(same). Indeed, "in 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."
In re Rivlin, 856 A.2d at 1087 (quoting In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc)). This is a principle to which we "adhere firmly," id., because "such violations strike at the core of the attorney-client relationship by undermining the public‟s faith that attorneys will fulfill their duties as fiduciaries in handling funds entrusted to them by their clients." In re Omwenga, 49 A.3d at 1238 (internal quotation marks omitted).*fn4
It is therefore ORDERED that John H. Pye, Jr., be, and hereby is, disbarred from the practice of law in the District of Columbia. We direct respondent‟s attention to the affidavit requirement of D.C. Bar Rule XI, § 14 (g), as well as Rule XI, § 16, which sets out the conditions for possible reinstatement after "the expiration of at least five years from the effective date of the disbarrment." As required by that rule, respondent must show, inter alia, that the misappropriated funds have been repaid with interest.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of: JOHN H. PYE, JR., Respondent.
: Board Docket No. 09-D-077
: A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 436695)
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This case is before the Board on findings by an Ad Hoc Hearing Committee that Respondent, inter alia, intentionally misappropriated entrusted estate funds when he resorted to self-help to recover the portion of his fee disallowed by the Probate Court. The Hearing Committee also found that Respondent violated eight other Rules of Professional Conduct. The Hearing Committee recommended that Respondent be disbarred for the misappropriation. We agree.
On August 11, 2009, Bar Counsel filed a Specification of Charges alleging that, in connection with his service as the Successor Personal Representative of the Green Estate, Respondent violated Rules 1.1(b) (lack of skill and care), 1.3(c) (lack of promptness), 1.5(a) (unreasonable fee), 1.15(a) (commingling, intentional misappropriation, and failure to maintain complete financial records), 1.15(b) (failure to promptly deliver funds), 1.16(d) (failure to protect a client‟s interest on termination of representation), 4.3(a) (dealing with unrepresented persons), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (serious interference with the administration of justice). Hearings were held on July 13 and 14, 2010, before an Ad Hoc Hearing Committee. The Hearing Committee issued its report on May 13, 2011, finding that Respondent had violated all of the rules charged, with the exception of Rule 4.3(a), and had engaged in intentional and negligent misappropriation. Respondent excepted to the Hearing Committee Report, and oral argument was held before the Board on July 21, 2011.*fn1
We adopt the Hearing Committee‟s findings of fact, which are supported by substantial evidence in the record. We supplement those findings with additions as reflected in the following summary of the relevant findings.*fn2 See Board Rule 13.7 (authorizing the Board to "modify, or expand the findings . . . of the Hearing Committee" based on clear and convincing evidence).
1. Respondent was appointed the successor personal representative of
the Estate of Mr. Leroy Green in July 1994. FF 2, 3.*fn3
Respondent had never before served in that capacity, and this
was his first probate case involving estate administration. FF 3; Tr.
178, 357-58 (Respondent).
2. Mr. Green died intestate with at least five surviving siblings and several living nieces and nephews. FF 2. The value of the Estate was approximately $140,000, including real estate valued at $92,500. FF 6. Respondent filed his First Annual Accounting in June 1995. FF 7. The Court approved the accounting in February 1996. FF 9. Respondent filed his Second and Final Accounting in December 1996, which he subsequently amended in April 1997. FF 11, 13. The Court approved the Final Accounting in July 1999 after it was amended and corrected pursuant to its Order of August 5, 1998. FF 50.
3. In December 1996, Respondent filed a "Request for Compensation for Services" in which he sought fees of $44,000*fn4 and expenses of $1,000. FF 15. Respondent asserted that the fees were reasonable and represented approximately 33% of the Estate‟s assets and income. Id. Several heirs objected to Respondent‟s fee request, and, in an order released on August 5, 1998, the Probate Court (referred to as "Probate Court" or "Court") disallowed a portion of Respondent‟s fee request. FF 18-19. The Court found that, while the hourly rate was reasonable, the amount of time was not; that Respondent had improperly rounded up the fees; and that Respondent overcharged for travel within the District of Columbia. FF 19-20. The Court disallowed approximately $9,000 in fees, disallowed some of his $1,000 in expenses, and imposed an additional 20% penalty, thereby reducing Respondent‟s request by approximately $17,000. FF 20-21, 36. The Court ordered the probate staff to recompute the amount due each heir and ordered Respondent to file by November 2, 1998, receipts from all the heirs acknowledging their receipt of the final proper distribution. Id. In September 1998, Respondent withdrew all but $41.84 of authorized fees from the Estate account. FF 22.
4. Unhappy with the Court‟s action, Respondent consulted with Nicholas D. Ward, Esquire, a D.C. attorney who specializes in trusts, estates and fiduciary litigation, for advice as to how he might recover the disallowed amounts. FF 23. Mr. Ward advised that it was unlikely that Respondent could recover the fees by seeking reconsideration of the Probate Court‟s Order and recommended that Respondent note an appeal and use the time while the appeal was pending to obtain the heirs‟ consent to the disallowed amounts. FF 24-25. While recommending that Respondent appeal, Mr. Ward did not believe Respondent‟s chances of success on appeal were good. At the hearing, he testified that "I don‟t think I would have" advised Respondent that his chances of success on appeal were good or reasonably good. Tr. 312-13.
5. As recommended by Mr. Ward and using a motion Mr. Ward drafted, Respondent petitioned the court to make the order final, to stay the requirement that he file distribution receipts from the heirs and to increase his bond to reflect the Estate funds to be withheld while the appeal was pending. FF 25-26, 28; BX F15. In his motion, Respondent advised the Court that, while his appeal was pending, "[t]he balance of the estate, as shown on the pending account, beyond the amount of the fee denied [to Respondent], could be distributed at this time and does not need to be bonded." FF 29 (quoting BX F15 at 181) (emphasis in Hearing Committee report).
6. On January 26, 1999, the Probate Court entered the final order requested by Respondent. FF 34. In an undated letter sent "not later than mid-February 1999," Respondent‟s Brief ("R. Brief") at 9, Respondent wrote to each of the heirs and offered to drop his planned appeal if they would collectively pay the disallowed ...