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In re Robinson

Court of Appeals of Columbia District

August 22, 2013

In re Kenneth M. Robinson, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 51706)

Argued March 5, 2013

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 51706)

On Report and Recommendation of the Board on Professional Responsibility (BDN-320-06)

W. Gary Kohlman, with whom Jacob A. Stein was on the brief, for respondent.

Jennifer P. Lyman, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jelani Lowery, Senior Law Clerk, were on the brief, for the Office of Bar Counsel.

Before Oberly and Beckwith, Associate Judges, and Steadman, Senior Judge.

Steadman, Senior Judge

The Board on Professional Responsibility ("Board") has unanimously recommended that respondent Kenneth M. Robinson be suspended from the practice of law in the District of Columbia for a period of seven months. The Board based this recommended sanction on its conclusion that respondent had violated Rules of Professional Conduct 1.15 (a) (negligently misappropriating client funds), 1.15 (b) (failing to promptly deliver funds to a client), [1] and 5.1 (a) (failure to assure firm compliance with disciplinary rules). The Board's recommended sanction differs from that of the Hearing Committee, which recommended a thirty-day suspension for what it viewed as a "per se" violation of Rule 1.15 (a), dealing with misappropriation, and a minimal violation of Rule 1.15 (b), dealing with delivery of client funds.[2] Respondent challenges the Board's recommended sanction, urging this court to adopt at most the Hearing Committee's sanction recommendation. Respondent maintains that he reasonably relied on his associate attorney to manage the trust account and therefore he did not engage in negligent misappropriation. In addition, respondent argues that the sanction is "unjust and out of proportion" with other sanctions imposed in comparable cases.[3]Disagreeing with respondent, we accept the recommended sanction of the Board and impose a seven-month suspension.

I.

A.

The basic facts relevant to the matter before us are largely undisputed and may be recounted as follows. Respondent has long been a well-respected member of the District of Columbia Bar, practicing primarily criminal defense. For five years prior to 1999, one of his partners, Nick Hantzes, focused on personal injury work and was responsible for managing the firm's accounts. In mid-1999, respondent hired his son-in-law, Nikolaos Kourtesis. About the same time respondent hired Kourtesis, Hantzes left the firm and respondent delegated responsibility for the daily administration of the firm's trust account to Kourtesis.[4] Kourtesis was at the time a member of the Maryland and New Jersey Bars, and had practiced personal injury law with a law firm in Virginia for two and one-half years prior to joining respondent's firm.[5]

Respondent's firm had both an operating account and a trust account at Riggs Bank. On May 14, 2005, prior to the operative events of this case, Riggs Bank was taken over by PNC Bank, which assigned both accounts new numbers. Kourtesis established protocols for handling settlements and disbursements, and maintained the files for each of the personal injury cases. His responsibilities also included reconciling the trust account and keeping a running balance. However, respondent remained the sole signatory on both accounts and he reviewed the monthly trust account statements as well as canceled checks, confirming his signature, the amounts, payees, and the checks' relation to the firm's business. It was their practice to discuss the case file together whenever Kourtesis presented a check drawn from the trust account to respondent for his signature.

For five years, Kourtesis managed the trust account without incident. But on October 21, 2005, the trust account was overdrawn. On November 22, the trust account was overdrawn again. These overdrafts resulted in the depletion of funds in the trust account belonging to two clients, Ms. Maureane O'Shaugnessy and Ms. Jeri Waddell. To fully elucidate the events leading up to the two overdrafts, we must first describe the representation by respondent of a client in a criminal matter.

In July of 2005, respondent began representing Gerard W. Kiley in connection with criminal charges stemming from an incident where Kiley, a Vietnam War veteran, threw a glass of red wine in the face of the visiting Prime Minister of Vietnam. Respondent negotiated a fee rate with Kiley that provided for a flat fee of $7, 500 if the case was resolved at the initial hearing, $15, 000 if the case was resolved after the hearing but before trial, and $20, 000 if the case proceeded to trial. The initial fee of $7, 500 was paid in installments, with each payment deposited in the firm's operating account. By September 29, 2005, it became clear that the case would proceed to trial in October, so respondent requested the second payment of $7, 500 per the ...


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