referring to a hearing committee finding that “the facts ... did not establish a violation of Rule 1.8(a) ... [because] not every transaction with a *262 client requires separate counsel or the client’s written consent”
How later courts described this case
- referring to a hearing committee finding that “the facts ... did not establish a violation of Rule 1.8(a) ... [because] not every transaction with a *262 client requires separate counsel or the client’s written consent”
- holding that attorney should be disbarred for using client escrow account to pay her business expenses
- finding misappropriation when attorney took client funds for personal use absent specific agreement, even where client later retroactively approves
- absence of prior disciplinary record, history of pro bono work, and forthrightness with Hearing Committee and Board do not warrant departure from the Addams rule
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
with whom Associate Judge RUIZ joins,
concurring:
In light of In re Addams, 579 A.2d 190 (D.C.1990) (en banc), disbarment is the appropriate sanction in this case. I therefore join the opinion of the court. I dissented in Addams , however, because
Addams’ disbarment [was] very harsh medicine when compared with the far less draconian sanctions imposed in other recent cases in which the attorney’s conduct was at least as dishonorable.
Id. at 209 (citations omitted).
My reaction to the present case is very similar to my assessment of Addams . I continue to be uncomfortable with what I view as the far too inflexible rule there enunciated. In a nutshell, we are too harsh in this kind of case and too lenient with attorneys who lie under oath, see In re Hutchinson, 584 A.2d 919 (D.C.1987) (en bane), or engage in fraudulent concealment of clients’ assets, see In re Sandground, 542 A.2d 1242 (D.C.1988) (per curiam), or engage in a widespread and persistent pattern of ethical violations, including several misappropriations of client funds, but blame it on alcoholism. See In re Kersey, 520 A.2d 321, 828-24 (D.C.1987).
In the present case, Mr. Hallem H. Williams, a lay member of the Board on Professional Responsibility, has written an excellent concurring opinion, which has been joined by four other members of the Board. Mr. Williams’ views thus represent those of a majority of the Board, and they also reflect my own assessment. A copy of Mr. Williams’ opinion is attached hereto.
APPENDIX
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of Kathryn Pierson, Respondent
Bar Docket No. 214^93, et al.
CONCURRING OPINION OF HALLEM H. WILLIAMS
I reluctantly concur with the majority’s recommendation that Respondent be disbarred for misappropriation of client funds. The majority’s recommendation is compelled by decisions of the District of Columbia Court of Appeals, holding that disbarment must be the sanction for misappropriation except in rare instances of “simple negligence.” I write, as one of the Board’s public members, to express my discomfort with the application of the Court’s rule of presumptive disbarment, and its application, in a case such as this, where the misconduct, albeit serious, is accompanied by substantial mitigating factors and is not so heinous as to warrant the same sanction meted out to the venal attomey/thief.
The misconduct here occurred in the context of a relationship where Respondent was periodically given loans by her client to assist her with office operating expenses; where her client retroactively approved her use of the funds; and where the funds were ultimately repaid. While these factors may be unavailing as a defense, they should be considered in mitigation. In addition, Respondent’s lack of a prior record of discipline, her pro bono activities, and her “refreshing” and “commendable” candor before the Hearing Committee all compel consideration of a lesser sanction.
*952 Public confidence in the workings of the disciplinary system is not bolstered by the mechanical application of an automatic rule of disbarment in misappropriation cases. Rather, the public, and ultimately justice, are served by a process that treats transgressors fairly — by meting out a sanction appropriate to the facts of the case. In this instance, the facts would, in my view, compel a sanction short of disbarment. Because the option of recommending a lesser sanction is apparently not available to the Board, I am compelled to concur, albeit with trepidation, in the recommendation of the majority that Respondent be disbarred.
Date: August 3,1995
Mr. MeKAY, Mr. HOWARD, Ms. ZUMAS, and Mr. REZNECK join in this opinion.