Respondent disbarred for commingling and misappropriating funds, failing to maintain complete records and render appropriate accounts, failing to pay over promptly client funds, dishonest conduct in making unauthorized withdrawals of client funds for his own use, and engaging in conduct prejudicial to the administration of justice in failing to turn over client's assets to court and in failing to submit records to auditor upon request
How later courts described this case
- Respondent disbarred for commingling and misappropriating funds, failing to maintain complete records and render appropriate accounts, failing to pay over promptly client funds, dishonest conduct in making unauthorized withdrawals of client funds for his own use, and engaging in conduct prejudicial to the administration of justice in failing to turn over client's assets to court and in failing to submit records to auditor upon request
- failing, as removed conservator, to turn over estate assets promptly and to submit bank statements to auditor
- disbarment based on commingling and misappropriation, as well as various other disciplinary violations
- disbarment for commingling and misappropriation, as well as various other disciplinary violations
Written by the judges who cited it.
The opinion
GALLAGHER, Associate Judge,
concurring:
I concur in the court’s disposition, but wish to add some comments.
In this case, what apparently gave rise to this appeal are these passages in the Board’s order denying a remand and the opinion and recommendation of the Board, * respectively:
The motion of respondent to stay proceedings before The Board on Professional Responsibility and for an order remanding this matter to the Hearing Committee for purposes of reopening the record for the taking of additional testimony is denied. A letter to the Chairman of the Board from respondent’s attorney indicates that he has misunderstood the basis for the Board’s decision, making a brief explanation desirable. The Board concluded that respondent had not established to its satisfaction that the motions should be granted because the grounds advanced and the reasons offered in support of the motion were insufficient. We believed, accordingly, that the case should be set for argument on the merits as soon as was reasonably convenient.
The Board then determined, however, that, if respondent were willing voluntarily to agree that he would not engage in the practice of law until these proceedings were terminated, there could be no possible injury to the public, whether because he was currently suffering from or might suffer a recurrence of any alleged mental incapacity or for any other reason. In those circumstances we believed that to permit respondent the opportunity to enlarge the record, even in the face of our conclusion that he had not established an adequate basis for being given that privilege, would be acceptable, and even in the light of the seriousness of the charge against him and the recommendation of the Hearing Committee. Upon examination of the entire record before us, which includes participation by the respondent on his own behalf that reflects an understanding of the issues before the Committee, we concluded that respondent had been given the same opportunity for a full and fair hearing as that provided to any other member of the Bar against whom a serious complaint is made. We were not persuaded, on the basis of our review of the entire record, that he was, at the time of the hearing, incapable of adequately responding to the charges. [Order of the Board on Professional Responsibility, Bar Docket Number 77-78, September 28,1979 (emphasis supplied).]
In its subsequent opinion and recommendation, however, the Board stated:
Despite the seriousness of the charge against Respondent and the Board’s conclusion that Respondent had not established to its satisfaction that the matter should be remanded for further testimony, the Board, nevertheless, offered to allow Respondent to enlarge the record if he voluntarily would agree not to engage *188 in the practice of law until these proceedings were terminated. The Board felt that such a precaution was necessary in order to prevent any possible injury to the public whether because Respondent was currently suffering from or might suffer a recurrence of any alleged incapacity. Respondent declined the offer and his motion for remand was denied. [Opinion and Recommendation of the Board on Professional Responsibility, Bar Docket Number 77-78 (footnotes omitted).]
I question the wisdom of concluding a respondent before the Board had no entitlement to the relief sought and then ruling that the relief nevertheless will be granted if a condition is met. I say this because this court in its rules (Rule XI, § 7(3) of the Rules Governing the Bar of this Court) quite naturally requires the Board to avoid inconsistent dispositions. If the Board' should persist in granting relief by. grace though stating there is no entitlement, subsequent respondents will contend that in fairness the Board should also grant them relief by grace notwithstanding that the Board finds no entitlement, because the Board must essentially afford uniform treatment of all respondents.
It requires little imagination to visualize that, unless the Board’s approach in this case is nipped in the bud, the Board will find it is in a self-imposed precedential thicket from which it will be difficult to extricate itself.
See Brief for Respondent, Leonard W. Burka, at 4-16.