Matter of Addams

*200 FERREN, Associate Judge,

concurring in the result:

I concur in the result of the court’s opinion disbarring respondent, but my analysis differs. I agree with the majority that a presumption of disbarment applies to intentional misappropriation cases and that, after all the mitigating and aggravating factors are evaluated in this case, respondent has failed to overcome that presumption. I write separately, however, for two reasons. First, I differ both with the majority and with Judge Schwelb about the implications of In re Hines, 482 A.2d 378 (D.C.1984). Unlike the majority, I believe Hines announced a prospective rule; unlike Judge Schwelb, I believe the new Hines rule does not apply to the facts of this case. Second, I believe that, despite disclaimers to the contrary, the majority has effectively adopted a per se disbarment rule that will inevitably lead to inequitable results. Both Judge Schwelb, in dissent, and the Board on Professional Responsibility, in its post-argument submission, make a number of valid points about the use of mitigating factors in determining the appropriate sanction in misappropriation cases. I would adopt their approaches to mitigation as applied to a presumption of disbarment.

I.

I agree with the majority that disbarment has been the normal sanction in this jurisdiction for intentional misappropriation of client funds — without regard to whether the intent was “corrupt” or “non-corrupt” —at least since In re Burka, 423 A.2d 181 (D.C.1980) (en banc). 1 See ante at 194. If, by the time of Burka , there was already a presumption of disbarment in all intentional misappropriation cases, the question arises: what was the significance of our later announcement in Hines that “from this moment on, in disciplinary cases involving attorneys who misappropriate their clients’ funds, disbarment will be the norm unless it appears that the conduct resulted from nothing more than simple negligence”? 482 A.2d at 386-87 . While the majority is correct when it states, as a general proposition, that sanctions in a disciplinary case are not circumscribed by ex post facto restriction, see ante at 198 n. 19, I cannot accept the majority’s implication that Hines did not announce a prospective rule. If that were true, there would be no plausible explanation for the fact that Hines himself was suspended for two years rather than disbarred. I believe the question is not whether Hines announced a new rule; rather, the question is: to what new category of misappropriation cases did Hines extend the presumption of disbarment?

The court in Hines quoted a recommendation from the Board on Professional Responsibility as follows:

[T]he District of Columbia Court of Appeals has not yet ruled that misappropriation of the sort engaged in in this case will ordinarily result in disbarment. We think that such conduct should result in disbarment, but only after the bar has been put on notice by the District of Columbia Court of Appeals that misappropriation of client funds in cases involving more than simple negligence will ordinarily result in disbarment even though the proof does not rise to the level of willful corruption.

482 A.2d at 386 (emphasis added). As the emphasized language indicates, the Board’s request, and the court’s response, addressed “misappropriation of the sort engaged in in” Hines . The Board in Hines characterized Hines’ misconduct as neither negligent nor intentional; rather it found that his behavior showed a “ ‘reckless disregard’ for the status of the accounts in which he deposited his clients’ money.” *201 482 A.2d at 380 . The concept of “reckless” as a level of intent between negligent and intentional is a familiar one in the law. The Board in Hines found the misappropriation reckless and sought a prospective pronouncement from this court that, from that moment on, “misappropriation of clients funds involving more than simple negligence” — i.e., reckless misappropriation as well as intentional misappropriation — would ordinarily result in disbarment. Thus, in my view, Hines indeed announced a new rule of presumptive disbarment, but the rule was new only for reckless misappropriation cases, not, as Judge Schwelb believes, see post at 206, for intentional misappropriation cases as we have here 2 and as we had in In re Buckley, 535 A.2d 863 (D.C.1987).

II.

I turn to mitigation. I subscribe to the majority’s basic thesis that misappropriation cases are different from other disciplinary cases and therefore call for “a more stringent rule.” See ante at 198. On the other hand, as the majority states, “this court, like others, has recognized that a per se rule would be inequitable since there may be circumstances in which disbarment will not be the appropriate discipline for intentional misappropriation of client funds.” Ante at 194. I believe that the majority, by excluding certain potential mitigating factors from the equation and by making the presumption of disbarment unusually difficult to rebut, has gone beyond the rule we announced in Hines and effectively created a per se rule.

The majority today rejects, as did the majority in Buckley , the notion that the degree of corruptness is a factor to be considered in assessing the appropriate sanction in a misappropriation case. My colleagues state that “the notion of degrees of corruptness ... seems alien to so basic a part of an attorney’s obligation to the client.” Ante at 197. While it is clear that the lack of a “corrupt” intent is no defense to a charge of misappropriation 3 and that there is no exception to the presumption of disbarment for cases of “non-corrupt” intent, these premises do not necessarily lead to the conclusion that lack of corruptness should not even be considered as a mitigating factor in determining the appropriate sanction. I agree with Judge Schwelb’s criticism of the majority on this point. See post at 204-205. Nothing in the majority opinion convinces me that we should be unable even to consider whether a sanction less than disbarment might be appropriate, for instance, in the case of a lawyer who has no intent to deprive a client of funds and who, accordingly, replaces misappropriated funds one day or one hour after the misappropriation occurs.

Moreover, I agree with Judge Schwelb that, given the importance we generally place on the lack of a prior disciplinary record in determining appropriate disciplinary sanctions, see, e.g., In re Reback, 513 A.2d 226, 233 (D.C.1986) (en banc), it makes no sense to say that such a consideration is irrelevant in misappropriation cases. Although the majority does not explicitly state that a lawyer’s prior disciplinary record is irrelevant in these cases, my colleagues effectively make prior disciplinary record and virtually every other usual mitigating factor irrelevant when they establish the following standard: “[T]he mitigating factors of the usual sort, see, e.g., In re Reback, 513 A.2d 226, 233 (D.C.1986) (en banc), will suffice to overcome the presumption of disbarment only if they are especially strong and, where there are aggravating factors, they substantially outweigh any aggravating factors as well.” Ante at 191 (emphasis added). The majori *202 ty has thus gone beyond a mere presumption of disbarment and well beyond our statement in Hines; 4 the court today creates a presumption that is, realistically, virtually non-rebuttable. 5

The majority’s approach is particularly anomalous in light of the post-argument submission we have received from the Board. 6 That submission makes a strong case in favor of allowing full consideration of the usual mitigating factors in order to retain some flexibility in the system and to avoid the rigidity of a -per se rule:

The Board does not believe that disbarment should automatically be imposed in all intentional misappropriation cases. In determining the appropriate sanction in intentional misappropriation cases, the Court should not preclude consideration of mitigating factors. See In re Reback, 513 A.2d 226, 231 (D.C.1986) (en banc); In re Haupt, 422 A.2d 768, 771 (D.C.1980); In re Smith, 403 A.2d 296, 303 (D.C.1979).

The use of mandatory sanction or so-called “per se rules” should be avoided in the disciplinary system. Using per se rules leads to the perception that discipline is imposed in a mechanistic or even arbitrary manner. Although predictability may be fostered by per se rules, this benefit is offset by a real risk of injustice when the individual circumstances of a case cannot be taken into account in imposing sanctions. This is especially so when the per se rule leaves no choice but to impose the ultimate sanction of disbarment.

It is often said that “hard cases make bad law.” The Board has seen evidence that, because of a perception that a determination of intentional misappropriation mandates disbarment, hearing committees may have tried to fashion their fact-findings in order to avoid this result.[ 7 ] Evasive action of this type is, of course, the response to be expected from tribunals bound by rules that are felt to be Draconian when applied to a “hard” case. Per se rules and the resulting evasive actions are likely to lead to the issuance of sui generis precedents that cannot logically be reconciled. If this happens, the credibility of the disciplinary system would be undermined.[ 8 ]

*203 In the Board’s concluding paragraph it states that “in all dishonesty cases, because of the infinite array of fact-patterns that can present themselves, some flexibility as to mitigation of sanction must be allowed — even if a degree of subjectivity is thereby injected into the process.” I agree.

Apparently, every judge on this court, as well as every member of the Board, believes a per se disbarment rule would be inequitable and unworkable. I am therefore puzzled as to why the majority, while ostensibly eschewing a per se rule, has chosen to make the presumption of disbarment in misappropriation cases so strong that it will effectively eliminate the discretion, on the part of the Board and the court, necessary to deal fairly with the facts of each case. The majority’s standard will inevitably lead to the very inequities we all seek to avoid. I believe that in determining the sanction in a non-negligent misappropriation case, we should begin with a presumption of disbarment and then evaluate and apply all mitigating and aggravating factors as we would in any other disciplinary case.

III.

Applying the standard I propose, I believe respondent should be disbarred. Respondent’s twenty-two years of legal practice without disciplinary action, his client’s satisfaction with his representation, and the fact that his client owed him fees substantially in excess of the amount he misappropriated are all factors to be weighed in mitigation. The third factor should not, in my view, be given much weight, however, for two reasons. First, respondent should have known that the proper course of action was to assert a retaining lien on the escrowed funds. See Hines, 482 A.2d at 380 n. 7. Second, despite respondent’s claim of right, there is no evidence on this record that respondent actually credited his client’s legal fee account at the time he converted the escrowed funds to his own use. Turning to the aggravating factors, I believe the fact that respondent gave a false accounting to his client and made several false explanations to Bar Counsel, to the Hearing Committee, and to the Board weigh heavily against him and overwhelm the mitigating factors present here. This is essentially a case of intentional misappropriation with a few mitigating factors, aggravated by an attempted coverup; it is not simply a first offense, “noncor-rupt” intentional misappropriation case. Accordingly, despite my difference of opinion as to the general significance of mitigating factors in misappropriation cases, I concur with the result reached by the majority in this case. Respondent should be disbarred.

. The respondent in Burka made an unspecified number of deposits (totalling $29,446) from unidentified sources into the estate checking account at issue, in addition to 15 unauthorized withdrawals (totalling $41,000) from the same account. 423 A.2d at 182 . On those facts, Bur-ka would have had at least a colorable argument that he intended to replace the funds he misappropriated and, therefore, that his intent was "non-corrupt.” The absence in Burka of any discussion of the corruptness of Burka’s intent indicates that, by that time, disbarment had become the presumptive sanction in this jurisdiction for all intentional misappropriation, without regard to whether the intent was "corrupt” or “non-corrupt.”

. As mentioned in the division opinion in this case, the Board explicitly rejected the Hearing Committee’s finding that respondent's action showed only "reckless disregard" and found that respondent’s misappropriation was intentional. 563 A.2d 338 , 341 n. 9 (D.C.1989).

. See In re Harrison, 461 A.2d 1034, 1036 (D.C.1983) (“misappropriation is ‘any unauthorized use of client's funds entrusted to [the lawyer], including not only stealing but also unauthorized temporary use for the lawyer’s own purpose, whether or not he [or she] derives any personal gain or benefit therefrom’”) (quoting In re Wilson, 81 N.J. 451 , 455 n. 1, 409 A.2d 1153 , 1155 n. 1 (1979)).

. In Hines we stated:

[W]e take this occasion to notify the bar that in future misappropriation cases disbarment will ordinarily be the sanction imposed by this court. We stress the word "ordinarily,” for every case must turn on its own particular facts. There may be instances of misappropriation which, for any number of reasons, may call for a lesser sanction.

482 A.2d at 386 . The majority essentially acknowledges that the presumption of disbarment imposed today is tougher to rebut than the presumption described in Hines when the majority announces, among other things, that the above statement in Hines "should not be read too broadly.” Ante at 195.

. The majority’s approach, however, does allow for an exception to the rule when an attorney's misconduct is found to be causally related to some sort of disability. See ante at 191, 194-195 & n. 12; In re Kersey, 520 A.2d 321 (D.C.1987).

. This submission apparently represents the views of all members of the Board except one who recused himself.

. Indeed, it is possible that Buckley was an example of factfinding that was skewed in an attempt to avoid a perceived unjust result. In Buckley , the attorney misappropriated all but $12 of a $5,288 fund that was to go either to the client or to pay the client’s medical bills. 535 A.2d at 865 . During a period of uncertainty as to whether Medicare would pay the client's medical bills, the attorney used the funds for his own personal and professional expenses. Id. It was not until a month after the client’s wife filed a complaint with Bar Counsel that the attorney replaced the funds and properly distributed them. Id. Although there appears to be nothing in these facts to suggest that the attorney had any intention to return the funds before the complaint was filed against him, the Hearing Committee found that there was "no corrupt intention to convert the client’s funds.” Id. I cannot help wondering whether the same finding would have been made under a system with less rigidity in determining sanctions.

.In its submission, the Board goes on to suggest that "[t]o the extent some recent disciplinary decisions of the Court and the Board may be read as implying that stricter sanctions are to be imposed in all ‘money’ cases, this erroneous perception should be eliminated.” I believe that to adopt the Board's suggestion on this point would send out the wrong signal to the legal community and to the general public, in light of our previous statements in Hines and other cases. Nonetheless, I think the Board’s submission should give the court considerable pause in *203 going beyond our announcement in Hines , as the majority has chosen to do.