In re Amako N.K. Ahaghotu,
Argued March 20, 2013
A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 352237), BDN-390-04.
Melvin G. Bergman for respondent.
Traci M. Tait, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
Before Beckwith and Easterly, Associate Judges, and Reid, Senior Judge.
Beckwith, Associate Judge
Respondent Amako N.K. Ahaghotu opposes the Board on Professional Responsibility's unanimous Report and Recommendation calling for his disbarment. Here this court confronts a set of undisputed facts branded differently by the Board and the Ad Hoc Hearing Committee, the latter of which previously received evidence in Mr. Ahaghotu's case and instead recommended a one-year suspension with a fitness requirement. Admitting that he violated the rule against misappropriation,  Rule of Professional Conduct 1.15 (a), Mr. Ahaghotu challenges only the Board's conclusion that he acted recklessly—not negligently, as the Hearing Committee determined—in handling his client trust account. He also argues he should not be disbarred, even for reckless misappropriation.
We agree with the Board that the record shows Mr. Ahaghotu, beginning more than a year before the misappropriation, practically ignored obvious signals that his trust account had problems. Whether the problems were due to bank errors or flaws in his own accounting, Mr. Ahaghotu failed to take action to protect the money his clients entrusted him with, resulting in misappropriation. Although no one was harmed by his actions, Mr. Ahaghotu, who has been disciplined twice before in his career for how he handled entrusted funds, exhibited an "unacceptable level of disregard for the safety and welfare of entrusted funds"—that is, "a conscious indifference to the consequences of his behavior for the security of the funds." In re Anderson, 778 A.2d 330, 336, 339 (D.C. 2001) (citing In re Micheel, 610 A.2d 231, 236 (D.C. 1992)). He thus committed reckless misappropriation, and we are bound by prior decisions of this court to disbar Mr. Ahaghotu absent "[o]nly . . . the most stringent of extenuating circumstances." In re Hewett, 11 A.3d 279, 286 (D.C. 2011) (quoting In re Addams, 579 A.2d 190, 193 (D.C. 1990)). No extraordinary factors exist in Mr. Ahaghotu's case, and we therefore adopt the Board's recommendation of disbarment.
Mr. Ahaghotu does not dispute the Hearing Committee's findings of fact, which the Board upheld almost entirely. He admits that Bar Counsel proved he misappropriated entrusted funds on July 28, 2005. That day, the balance in his Riggs Bank trust account was $92.99, far less than the $1437.95 in insurance payouts he owed at the time to a medical provider, Dr. Chukwuemeka Onyewu, who cared for Blanca Adams, one of Mr. Ahaghotu's personal injury clients. The record shows that Mr. Ahaghotu was aware he owed the money to Dr. Onyewu.
Although Bar Counsel alleged and proved just one instance of misappropriation—lasting only a day at that—Bar Counsel argued, and the Board agreed, that Mr. Ahaghotu had acted recklessly in handling the entrusted doctor's fee. The misappropriation happened, in the Board's view, mainly because Mr. Ahaghotu ignored problems with his trust account that started a year before that. In June 2004, Mr. Ahaghotu wrote five checks on the trust account, totaling $6080, that were returned for insufficient funds, and at one point the account had a negative balance of $585.73. To refill his trust account and, in his words, to "protect the public, " Mr. Ahaghotu deposited in the account nearly $20, 000 in personal and operating funds.
Mr. Ahaghotu was the sole signatory on the account and at the time did not closely reconcile his records and bank statements. According to the Board, he "could not explain why there were insufficient funds to cover checks payable to various clients' medical providers, but testified he believed Riggs had failed to credit deposits he had made." Mr. Ahaghotu had no records to show the bank did anything wrong, however, and while he said he "tried to find out" what happened, he was unable to. Mr. Ahaghotu testified that "many things could have happened [to explain] why this check was not paid. It could be that . . . [t]he deposit had not cleared at the time it was presented . . . [or] that the deposit itself was missing from my ledger . . . ." He testified he was "surprise[d]" when the checks bounced "because I . . . made my deposit and my own accounting said it should be paid, " but he could not identify the funds actually used, once he had supplemented his account with his own funds and the checks cleared, to pay the medical providers. That is because, he said, he thought of his escrow account as "one account in which you put in several checks from several people. . . . Money come[s] from all the clients, and everybody takes his own from there." This was not the first time that Mr. Ahaghotu's management of client funds came to the attention of Bar Counsel. He received informal admonitions in 1993 and 2009, each following a separate investigation of why he failed to pay a different medical provider after receiving entrusted funds to cover medical expenses for a client.
Acknowledging that Mr. Ahaghotu's actions were not as egregious as those of other lawyers this court has disbarred for reckless misappropriation, the Board nevertheless determined that his "casual indifference in maintaining the security of his fiduciary funds [was] beyond negligence." According to the Board,
Respondent was clearly on notice of problems with his accounting practices and his escrow account, which he failed to address: (1) he had been disciplined twice based on the failure to promptly pay his clients' health providers . . . (2) he knew that five checks to health care providers were returned for insufficient funds in June 2004, but failed to determine the cause of the shortfall . . . and (3) his deposit of $19, 707 of his personal money to stabilize the escrow ...