Appendix — Burton v. Board on Professional Responsibility of the District of Columbia Court of Appeals
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yoo = 1 8 3 6 ALEXANDER L- STEVAS
IN THE =
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1983
MELVIN M. BURTON, JR.
A Member of the Bar of the
District of Columbia of Appeals
PETITIONER,
VS
BOARD ON PROFESSIONAL RESPONSIBILITY OF
DISTRICT OF COLUMBIA COURT OF APPEALS
RESPONDENT,
APPENDIX
Charles A. Brady
‘Attorney for Petitioner
1343 Pennsylvania Avenue, S. E.
Washington, D. C. 20003
332-7600
THE?
EDITOR'S NOTE
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OBTAINED, A NEW FICHE WILL BE
ISSUED.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. M-143-82 ; 83-492
IN THE MATTER OF MELVIN M. BURTON, JR., RESPONDENT
A Member of the Bar of the
District of Columbia Court of Appeals
(Argued December 15,1983 Decided January 11, 1984)
Samuel McClendon, with whom Thomas H. Hender-
son, Jr., Bar Counsel, and Fred Grabowsky, Bar Coun-
sel at the time the brief was filed, were on the briefs,
for petitioner.
Charles A. Brady for respondent.
Before: NEBEKER, FERREN, and BELSON, Associate
Judges.
ORDER
PER CURIAM: In these two disciplinary cases, respond-
ent is charged with commingling and misappropriation
of funds held in a fiduciary capacity as a court-appointed
trustee, as well as with misrepresentation to the Auditor-
Master. The Board on Professional Responsibility has
recommended in each case that respondent be disbarred
from the practice of law. We conclude that the records
support the Board’s findings of fact and that respond-
ent violated Disciplinary Rules DR 9-102(A) (now DR
9-103(A)) (failure to deposit funds of client in a sepa-
[55]
9
“
rate account)' and DR 1-102(A) (4) (“dishonesty, fraud,
deceit, or misrepresentation”). We therefore agree with
the Board’s recommendation of disbarment, as set forth
more fully in the Board’s Reports and Recommendations
appended hereto and incorporated herein by reference.
Accordingly, it is ORDERED that respondent, MELVIN
M. BURTON, JR., is disbarred from the practice of law in
the District of Columbia. See In re McClellen, No. M-
51-80 (D.C. March 26, 1981) ; In re Burka, 423 A.2d 181
(D.C. 1980) (en banc); In re Newsome, No. D-34-79
(D.C. November 21, 1979) ; In re Quimby, 123 U.S. App.
D.C. 273, 359 F.2d 257 (1966) (per curiam). This or-
der shall be effective thirty (30) days from the date of
this opinion. D.C. Bar R. XI, § 19(8).
1DR 9-102 was renumbered DR 9-103 on April 30, 1982,
when this court amended the Code of Professional Responsi-
bility with the “revolving door” rules, now DR 9-101, -102.
(“Revolving Door’), 445 A.2d 615, 618 (D.C. 1982) (en banc).
[56]
——— a
BOARD ON PROFESSIONAL RESPONSIBILITY
DISTRICT OF COLUMBIA COURT OF APPEALS
Bar Docket No. 323-80
IN THE MATTER OF MELVIN M. BURTON, JR., RESPONDENT
REPORT AND RECOMMENDATION OF BOARD
ON PROFESSIONAL RESPONSIBILITY
This case arises out of improper commingling and
misappropriation of certain funds received by Respond-
ent in his capacity as a court appointed Trustee. The
offense was then highlighted by a false statement made
by Respondent to the Auditor-Master in an evidentiary
hearing held in connection with an audit of Respond-
ent’s Trustee accounts.
The matter has been considered by Hearing Committee
Five consisting of George W. Miller, Esq., Walter T.
Skallerup, Jr., Esq., and Mrs. Rosemarie Brooks. The
Committee has recommended that Respondent be disbarred.
The findings of fact contained in the Hearing Com-
mittee’s report are supported by clear and convincing
evidence and are adopted by this Board. The Board also
approves the Committee’s conclusion that these findings
require that the Respondent be disbarred.
The Board can do no better in its report to the Court
than to adopt as its own the substantive portions of
the Hearing Committee’s report which are set out below:
FACTS
Respondent has practiced law in the District of Co-
lumbia for 25 years with no prior discipline assessed
against him. On February 9, 1979, pursuant to an order
[57]
4
of the Superior Court of the District of Columbia in
Civil Action 7965-77 RP (Wilkens, et al. v. Anderson,
et al.), Respondent was appointed as Trustee to sell Lot
5, Square 397, located at 1535 - 9th Street, N.W., Wash-
ington, D.C. (Bar Ex. 2) On April 9, 1979, the real
estate was sold for $18,000 less encumbrances, liens, costs
and appropriate adjustments, as provided in the contract
of sale dated November 23, 1976. (Bar Ex. 3)
On April 19, 1979, Respondent received $12,777.83 as
the first payment from the sale of the real estate. (Re-
spondent’s Answer to Specification of Charges, 73) On
April 30, 1979, Respondent opened a trust account at the
National Bank of Washington, Number 6-177-34-4 (trust
account) in which he deposited the $12,777.83 initial pay-
ment. Respondent subsequently deposited in the trust
account additional proceeds from the sale of the real
estate in the amounts of $500, $75, $38.61 and $25.98.
(Bar Exs. 7-9)
During the period November 14, 1979 through Jan-
uary 14, 1981, Respondent made unauthorized with-
drawals of funds from the trust account for his per-
sonal and business uses and for purposes not related
to the trust, and made deposits from unidentified sources
into the account. By making such unauthorized with-
drawals and deposits, Respondent caused the trust ac-
count to have shortages and overages during the period
stated above. Data for the trust account as of the closing
dates of the monthly bank account statements are as
follows:
Actual cash on Amount that
deposit at National should have
Bank of Washington been on
Account Number: deposit in Shortage or
6-177-34-4 trust account Overage
*4/30/79 $12,777.88 $12,777.83 00.00
5/ 9/79 12,777.83 12,777.83 00.00
6/11/79 12,418.07 12,763.07 $ 350.00
7/11/79 10,768.44 11,118.44 850.00
8/ 9/79 10,026.80 10,376.80 350.00
10/10/79 10,101.80 10,451.80 350.00
' 11/ 9/79 10,041.80 10,451.80 410.00
12/11/79 6,541.80 10,451.80 3,910.00
1/10/80 6,233.25 10,451.80 4,218.55
2/11/80 5,841.25 10,451.80 4,610.55
8/11/80 8,941.25 10,451.80 6,510.55
4/ 9/80 191.80 10,495.99 10,304.69
5/ 9/80 3,824.82 10,560.58 6,735.76
6/10/80 1,560.41 10,560.58 9,000.17
7/10/80 5,757.81 10,560.58 4,802.77
8/11/80 5,332.81 10,560.58 5,227.77
9/10/80 3,221.94 10,560.58 7,338.64
10/ 9/80 9,791.60 10,560.58 768.98
11/12/80 10,191.60 10,560.58 368.98
2/10/81 10,611.60 10,560.58 51.02**
* indicates initial deposit
** indicates overage
(Bar Exs. 14A-R,
11 at 6)
On April 9, 1980, almost one year after it was es-
tablished, the trust account contained $191.30, less than
2% of the $10,495.99 for which respondent then was ac-
countable as fiduciary. (Bar Ex. 14K)
During the course of an audit of the Trustee’s account,
the Auditor-Master noted certain irregularities in the
handling of the assets in the trust account. For the pur-
pose of inquiring into the mishandling of estate funds,
the Auditor-Master of the Superior Court scheduled a
hearing on January 13, 1981. (Bar Ex. 11)
At the hearing before the Auditor-Master, respondent
maintained that his actions did not endanger the security
of trust assets because he had reserves of cash which
were made up in part of revenues derived from his law
practice. In order to establish his contentions, respond-
ent on January 13, 1981 testified under oath before the
Auditor-Master as follows:
[59]
6
I’m making—I don’t even know what I have
grossed this year, but just to show you, last
year I grossed in excess of $150,000. That was
1979. I don’t know what I grossed this year.
(Bar Ex. 10, p. 37)
Schedule C to respondent’s Form 1040 (Individual Fed-
eral Income Tax Return) for 1979 reported a gross in-
come from his trade or business of $58,073. (Bar Ex.
17)
Respondent acknowledged that his testimony under
oath to the Auditor-Master of the Superior Court that
his gross income for 1979 was in excess of $150,000 was
inaccurate. (Tr. p. 62)
In view of the irregularities in the handling of the
trust account, the Auditor-Master recommended that the
Court consider the advisability of referring the matter
to the Office of Bar Counsel for appropriate action. The
Auditor-Master further recommended that the usual
trustee fees and commissions not be allowed by the court.
(Bar Ex. 11)
The court subsequently reviewed the report of the
Auditor-Master and approved the report without a re-
ferral to the Office of Bar Counsel. (Bar Ex. 12)
DISCUSSION
Bar Counsel has charged that respondent’s unauthor-
ized withdrawal and commingling of trust funds violated
Disciplinary Rule 9-102(A).' In addition, Bar Counsel
1 Disciplinary Rule 9-102(A) provides in pertinent part:
DR 9-102 Preserving Identity of Funds and
Property of a Client.
(A) All funds of clients paid to a lawyer or law firm,
other than advances for costs and expenses, shall
[60]
7
has charged that res; osndent’s misstatement to the
Auditor-Master of re pondent’s gross earnings for the
tax year 1979 violated Disciplinary Rule 1-102(A) (4).?
I. Respondent’s Motion To Dismiss Based on Bar
Counsel’s Alleged Failure to Present A Prima
Facie Case
At the conclusion of Bar Counsel’s case, respondent
moved that the Hearing Committee dismiss the charges
“on the basis that Bar Counsel has not presented a prima
facie case. .. .” The Committee declined to dismiss the
charges. It directed the respondent to go forward with
his case, but reserved decision on the question of the
sufficiéncy of Bar Counsel’s proof. (Tr. 24-25)
Respondent has asserted that Bar Counsel did not
make out a prima facie case because Bar Counsel called
no witnesses and relied on exhibits which were irrelevant
to the charges against respondent. (Respondent’s Post
Hearing Brief, pp. 10-12)
The Committee believes that respondent’s contention
that Bar Counsel failed to establish a prima facie case
is without merit. Respondent did not contest the au-
be deposited in one or more identifiable bank
accounts maintained in the state in which the law
office is situated and no funds belonging to the
lawyer or law firm shall be deposited therein. . . .
* Disciplinary Rule 1-102(A) (4) provides:
DR 1-102 Misconduct.
(A) A lawyer shall not:
(4) Engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation.
[61]
§
thenticity of the exhibits offered by Bar Counsel.* The
exhibits demonstrated that: 1) the Superior Court ap-
pointed respondent as trustee to sell realty; 2) respond-
ent received payments for the sale of the realty; 3)
respondent deposited the payments in a trust account;
4) respondent made a series of withdrawals from the
trust account for personal and business purposes, and
5) respondent deposited money in the account that did
not derive from the proceeds of the sale of the realty.
Thus, the documentary exhibits offered by Bar Counsel
were clearly relevant and, indeed, established that re-
spondent commingled personal funds with the funds he
was holding as trustee in the trust account and that
respondent used funds from the trust account for pur-
poses unrelated to the purpose for which the trust ac-
count was established. Such evidence was sufficient to
establish a prime facie case of a violation of DR 9-
102(A).
Bar Counsel’s exhibits also demonstrated that respond-
ent, at a hearing before the Auditor-Master, misstated
his gross income for the year 1979. The transcript from
the hearing before the Auditor-Master (Bar Ex. 10)
showed that respondent stated under oath that in 1979
he grossed in excess of $150,000. Respondent’s income
3 Respondent did object to the admission into evidence of
Bar Exhibits 1-18 “as being irrelevant and in violation of the
Fifth and Fourteenth Amendments to the Constitution.” See
“Respondent’s Objection To Bar Exhibits,” which was received
by the Board on Professional Responsibility on January 19,
1982, three days before the January 22, 1982 hearing. At the
hearing, respondent reiterated his objections to the admissi-
bility of Bar Exhibits 1-18. The Committee sustained respond-
ent’s objection on grounds of relevance to Bar Exhibit 1. The
Committee overruled respondent’s objections to Bar Exhibits
2-18, and those exhibits were admitted into evidence. (Tr. 12-
15; 21-24).
[62]
9
tax return for 1979 showed, however, that he grossed
approximately $58,000. Thus, the exhibits presented in
Bar Counsel’s case in chief on this aspect were also
both relevant and sufficient to establish a prima facie case
under DR 1-102(A) (4).
In asserting that the Bar Counsel did not make out a
prima facie case, respondent relies primarily on Jn the
Matter of Thorup, 482 A.2d 1221 (D.C. App. 1981),
where the court stated that “the burden of proof in attor-
ney disciplinary proceedings is on the proponent.” 432
A.2d at 1225 citing Charlton v. Federal Trade Commis-
sion, 177 U.S. App. D.C. 418, 548 F.2d 903 (1976). In
the Matter of Thorup, supra, is clearly distinguishable
from the instant case. There an attorney was accused of
failing to adequately represent his client. The only evi-
dence produced to support that charge was a docket sheet
that showed only that the accused attorney had failed to
file a motion te suppress, and that such a motion had
subsequently been filed by successor counsel and granted
by the trial court. The accused attorney was asked to
explain his action, and was unable to do so to the satisfac-
tion of tne Hearing Committee. In finding the attorney
in violation of the Code of Professional Responsibility,
the Hearing Committee found the attorney’s records and
recollections insufficient, which the Court of Appeals held
is “misconduct neither charged nor founded in the Disci-
plinary Rules.” 432 A.2d 1225. The court refused to
accept the Board on Professional Responsibility’s argu-
ment that Bar Counsel had met its burden of proof by
the introduction of the docket sheet. The court stated
that it had repeatedly rejected ‘““Monday morning quarter-
backing” in ineffective assistance of counsel cases, and
that a judgmental or tactical error revealed by later
events or hindsight does not of itself establish a disci-
plinary violation. The court also rejected the Hearing
[63]
10
Committee’s use of the attorney’s testimony to modify
the charges against him.
As discussed above, the exhibits introduced into evi-
dence by Bar Counsel in the instant case demonstrated
much more clearly a prima facie case that respondent
violated the Code of Professional Responsibility. More-
over, Bar Counsel did not in the instant case rely on one
piece of evidence, but rather on a large number of de-
tailed and highly relevant exhibits that reflected respond-
ent’s conduct over a period of months.
II. Respondent’s Motion To Dismiss Based upon the
Supertor Court’s Approval of the Auditor-Master’s
Report
By order dated March 11, 1981, the Superior Court
ratified the Auditor-Master’s report dated February 12,
1981. (Bar Ex. 12) The Auditor-Master’s report con-
tained a recommendation that the court consider the ad-
visability of referring the matter to the Office of Bar
Counsel for appropriate action. (Bar Ex. 11, p. 6) In
ratifying the Auditor-Master’s report, the court did not
refer the matter to Bar Counsei and made no reference
to the Auditor-Master’s recommendation of referral. Re-
spondent contended in a written “Motion To Dismiss Peti-
tion Instituting Formal Disciplinary Proceedings” filed
prior to the hearing and orally at the hearing (Tr. 16-
18) that the Superior Court considered but did not accept
the Auditor-Master’s recommendation of referral. Re-
spondent further contended that as the Superior Court
has general equity powers in matters pertaining to.
trustees it appoints, the Superior Court’s non-referral of
the matter was final and conclusive, and, therefore, the
Committee was precluded from determining whether re-
spondent had violated any disciplinary rules. The Com-
[64]
11
mittee deferred decision on respondent’s motion and
requested that the part’ ; brief the issues raised thereby
in their post-hearing submissions. (Tr. 19-20)
Bar Counsel now contends that the court’s ratification
of the Auditor-Master’s report actualiy constitutes a de
termination that respondent breached his duties as trustee.
(Bar Counsel’s Post-Hearing Brief, p. 5)
In our view, neither we nor the Board on Professional
Responsibility is precluded from reviewing respondent’s
conduct because the court did not specifically refer the
matter to the Office of Bar Counsel. The court, in ratify-
ing the Auditor-Master’s report, did not purpori to make
a determination whether respondent breached his fiduciary
duty as trustee. The court’s order is silent with regard
to whether respondent’s conduct warranted a referral to
the Office of Bar Counsel, and no inference properly can
or should be drawn from that silence. Thus, the court’s
action in this regard does not preclude this Committee
from determining whether respondent’s conduct was in
violation of the Code of Professional Responsibility. Nor
does the court’s action constitute a determination that
respondent breached his duties as trustee.
III. Commingling and Misappropriation of Funds
Respondent does not dispute that he commingled funds
he was holding in a trust account with funds from un-
identified sources, and that he used funds from the trust
account for personal and business purposes. Respondent
maintains, however, that his actions were not in violation
of DR 9-102(A), as that rule proscribes a lawyer from
commingling funds of a client with funds belonging to
the lawyer.*
* Bar Counsel has proceeded on the theory that “Respond-
ent’s misappropriation, conversion, and commingling of trust
[65]
12
The question with which we are presented, therefore, is
whether the proscription of DR 9-102(A) applies only to
circumstances where a traditional lawyer-client relation-
ship exists. That appears to be a question of first im-
pression in the District of Columbia. In a recent decision,
however, the District of Columbia Court of Appeals im-
plied that the Rule 9-192(A) proscription against com-
mingling of funds applies whenever an attorney has 2
fiduciary obligation. In In the Matter of Burka, 423 A.2d
181 (D.C. App. 1980) [(en banc)], the court applied
DR 9-102(A) where the court-appointed successor con-
servator of the estate of an adult ward made a series of
unauthorized withdrawals totalling $41,000 from the
estate checking account. The respondent conservator also
made deposits in excess of $29,000 from unidentified
sources into the estate checking account. After the re-
spondent’s removal as conservator the Auditor-Master
found him accountable for $37,390.20, of which $11,661.00
was missing. Respondent subsequently made full restitu-
tion to the estate. The court affirmed the finding of the
Hearing Committee and the Board on Professional Re-
sponsibility that respondent had violated DR 9-102(A)
by his failure to keep all moneys from the ward’s account
deposited at all times in a separate identifiable bank
account.’ In holding that the respondent in Burka vio-
funds violated Disciplinary Rule 9-102(A).” See Bar Counsel’s
Post-Hearing Brief, p. 4; compare Specification of Charges,
{11 (“Respondent’s unauthorized withdrawals from the trust
account violated DR 9-102(A) because he failed to maintain
the trust funds in an account of the type required by that
disciplinary rule.”). In other cases misappropriation (as dis-
tinct from commingling) has apparently been charged under
DR 1-102(A) (4). See, e.g., In the Matter of Burka, 423 A.2d
181, 183, 186-87 (D.C. App. 1980) [(en banc) ].
5 The court also affirmed the finding of the Committee and
the Board that respondent’s unauthorized withdrawal of money
[66]
13
lated DR 9-102(A), the court implicitiy recognized that
funds of a fiduciary are encompassed in the definition of
client funds. See also In the Matter of Vogel, 382 A.2d
275, 279-80 (D.C. App. 1978) [(per curiam)] (court
adopted findings and recommendations of Disciplinary
Board, which, in interpreting DR 1-102(A) (4), rejected
notion “that a lawyer’s responsibilities where funds of
third parties are concerned should be treated differently
from a lawyer’s responsibilities in dealing with his client’s
funds”).
Other jurisdictions which have considered the question
have stated that DR 9-102(A) should be applied when
an attorney abuses his or her fiduciary duty, even where
a conventional lawyer-client relationship does not exist.
In Simmons vV. State Bar of California, 70 Cal.2d 361,
450 P.2d 291, 74 Cal. Rptr. 915 (1969) [(per curiam) ],
the Supreme Court of California upheld the finding of a
disciplinary board that an attorney had misappropriated
funds.® The court noted that it was difficult to determine
from the estate account constituted dishonesty and deceit in
violation of DR 1-102(A) (4).
® The case was decided under Rule 9 of the California Rules
of Professional Conduct, which provided:
A member of the State Bar shall not commingle the
money or other property of a client with his own; and he
shall promptly report to the client the receipt by him of
all money and other property belonging to such client.
Unless the client otherwise directs in writing, he shall
promptly deposit his client’s funds in a bank or trust
company, authorized to do business in the State of Cali-
fornia, in a bank account separate from his own account
and clearly designated as “‘Clients’ Funds Account” or
“Trust Funds Account” or words of similar import. * * *
[Quoted in Simmons v. State Bar of California, supra,
450 P.2d at 293.]
[67]
cee,
14
whether the petitioner received the funds he misappropri-
ated in his capacity as a real estate broker or in his
capacity as an attorney. The court stated that even if
petitioner was acting as a real estate broker at the time
he received the funds, “having accepted the money in
trust, [he] would still be held to the same high standard.”
450 P.2d at 293. The court, quoting Clark v. State Bar,
39 Cal.2d 161, 166, 246 P.2d 1, 3 (1952) [(per curiam) ]
(where an attorney, acting as guardian of an incompe-
tent’s estate, was disciplined for mishandling funds),
further stated that “[w]hen an attorney assumes a
fiduciary relationship and violates his duty in a manner
that would justify disciplinary action if the relationship
had been that of attorney and client, he may properly be
disciplined for his misconduct.” 450 P.2d at 294.
In Johnstone v. State Bar, 64 Cal.2d 1538, 410 P.2d
617, 49 Cal. Rptr. 97 (1966) [ (per curiam) ], an attorney
was disciplined under California Rule 9 for willful viola-
tion of a trust involving money of a third person not a
client of the attorney. The California Supreme Court
stated: ““When an attorney receives money on behalf of a
third party who is not his client, he nevertheless is a
fiduciary as to such third party. Thus the funds in his
possession are impressed with a trust, and his conversion
of such funds is a breach of the trust.” 410 P.2d at 618.
In State v. Freeman, 229 Kan. 6389, 629 P.2d 716
(1981) [(per curiam) ], the Kansas Supreme Court was
faced with a case in which an attorney, acting as a
trustee, had converted to his own use funds due the trust.
The court stated:
Although Sheila Hoffner [the beneficiary of the
trust] was not Freeman’s client, respondent’s
powers were to be used in a fiduciary capacity
by the terms of the trust and we find his actions
[68]
15
are as reprehensible as if he had been handling
the money of a client, to whom he would owe the
same fiduciary responsibility.
629 P.2d at 720. See also In re Draper, 317 A.2d 106
(Del. 1974 [(per curiam)] (court found violation of DR
9-102(A) where lawyer was holding funds as correspond-
ent for another lawyer).
The facts presented to this Committee demonstrate that
respondent breached his fiduciary obligation as trustee.
Although no eonventional attorney-client relationship
existed, respondent owed a fiduciary obligation to both
the Superior Court, which appointed him as trustee, and
the beneficiaries of the trust account. The decisions cited
above reflect the view, correctly in our opinion, that DR
9-102(A) should apply whenever an attorney assumes a
fiduciary relationship and violates his duty in a manner
that would justify disciplinary action if the relationship
had been that of attorney and client. Thus, we are per-
suaded that respondent’s conduct in the instant case is
within the scope of DR 9-102(A).’
In addition, in the instant case respondent’s appoint-
ment as trustee by the Superior Court was presumably
due in some measure to his reputation for integrity and
competence. Respondent’s conduct is clearly the type of
behavior DR 9-102(A) was designed to deter with respect
to client funds. Certainly respondent’s obligations with
respect to funds that came into his hands as a court-
appointed trustee should be no less than his obligation
with respect to funds of a client. To hold that DR 9-102
7 Our interpretation is further supported by the fact that
Canon 11 of the Canons of Professional Ethics of the American
Bar Association, an antecedent of DR 9-102, was applicable
eroiags to client funds “or other trust property.” See ABA
anon 11.
[69]
(A) does not apply in the instant case would make no
sense and would, indeed, be inconsistent with the purpose
of DR 9-102(A).
Respondent contends that his initial withdrawal of
$3,300 from the trust account was inadvertent. In sum-
mary, respondent alleges that he asked his secretary to
draw a check for $3,300 to pay the obligation of anotier
client while he was out of the office, and his secretary
drew the check on the wrong account. He further alleges
that once he discovered the breached trust account, he
initially considered replacing the funds he had withdrawn,
but because of his busy schedule the matter escaped his
attention. Subsequently, he decided to treat the account
as a general checking account and made numerous de-
posits to and withdrawals from the account. He contends
that his conduct in handling the trust account was ap-
propriate because he personally had cash on hand at home
to cover what was supposed to be in the account. (Re-
spondent’s Post Hearing Brief, pp. 3-4; Tr. pp. 52-54,
95-97) 3
Courts have held that it will not suffice to absolve an
attorney of a charge of commingling that his “course of
practice in this respect [was] the product of ignorance
rather than design.” In re Makowski, 73 N.J. 265, 374
A.2d 458, 461 (1977) [(per curiam)]. Thus, we. need
make no finding here as to whether respondent’s initial -
breach of the trust account was intentional. We note,
however, that on November 14, 1979, respondent’s gen-
era! client trust account (client account), on which
respondent claims he intended to draw the $3,300 check,
which was then certified, had a balance of only $1,564.14.
(Bar Ex. 18) Thus, as Bar Counsel notes, respondent
could not have obtained certification for a $3,300 check
drawn on that account. (Bar Counsel’s Post-Hearing
Brief, pp. 12-13)
[70]
17
After discovering the ‘nitial breach, respondent failed
to replace the money ‘:e had withdrawn. Although re-
spondent’s self-described hectic schedule conceivably could
account for the initial breach and some delay in respond-
ent’s discovery of the breach, it does not explain respond-
ent’s failure to replace the withdrawn funds once he
discovered the breach; nor does it explain or excuse
respondent’s subsequent conduct with respect to the trust
account. srt
By respondent’s own admission, after his discovery of
the breach, he began a series of withdrawals from and
deposits to the account. Respondent testified before the
Auditor-Master that he wrote checks for his office rent
and the office rent of his associates, for witness fees, for
the automobile repair bills of his associates, for refunds
-of client fees, for his secretary’s salary, for his debt to
the Internal Revenue Service, for his law clerk’s salary,
and for other personal and business purposes unrelated
to the trust. (Bar Ex. 10 at 16-32) Although respondent
consistently deposited money from unidentified sources
into the account, there were consistently shortages in the
account for an almost 18-month period. (Bar Ex. 14)
We have therefore concluded that respondent’s conduct
in depositing personal funds and funds from unidentified
sources into the trust account constituted a commingling
of funds in violation of DR 9-102(A). Respondent’s use
of trust funds for purposes unre!ated to the purpose of
the trust constituted misappropriation of funds.* Bar
8 Misappropriation has been defined as
any unauthorized use by the lawyer of clients’ funds en-
trusted to him, including not only stealing, but also un-
authorized temporary use for the lawyer’s own purpose,
whether or not he derives any personal gain or benefit
therefrom.
In the Matter of Wilson, 81 N.J. 451, 409 A.2d 1153, 1155 n.1
(1979).
(71]
Counsel has charged that such misappropriation violated
DR 9-102(A). See Specification of Charges, J 11 (quoted
in footnote 4, supra). Respondent appears to contend that
DR 9-102(A) extends only to commingling. See Respond-
ent’s Post Hearing Brief, pp. 18-19. DR 9-102(A) re-
quires that client funds paid to a lawyer “be deposited
in one or more identifiable bank accounts maintained in
the state in which the law office is situated... .” Un-
authorized withdrawals are inconsistent with the require-
ment to deposit client funds in an identifiable bank
account in the jurisdiction, unless the requirement to
“deposit” is to be given only a formal meaning. DR 9-
102(A) (2), which is cast in terms of an exception to
DR 9-102(A), deals with the circumstances under which
funds to which both lawyer and client have a claim may
or may not be withdrawn from an account or accounts
required by DR 9-102(A). This evidences the intention
of the draftsmen to require that a deposit, once made in
compliance with DR 9-102(A), be maintained—not only
free from commingling but also in the bank—until such
time as withdrawal is authorized. Such a construction
seems consistent with the purpose of DR 9-102(A), which
is to provide against the possible loss of clients’ funds.
See Greenbaum v. State Bar, 15 Cal. 3d 893, 544 P.2d
921, 126 Cal. Rptr. 785 (1976) [(per curiam)].® Ac-
cordingly, we have concluded that DR 9-102(A) was
intended to prohibit unauthorized withdrawals of the sort
charged here as well as commingling, and we have con-
cluded that respondent violated DR 9-102(A) by making
such unauthorized withdrawals as well as by commingling.
The Committee expressly rejects respondent’s conten-
tion that in making unauthorized withdrawals he violated
9 See also In re Broverman, 40 Ill. 2d 302, 239 N.E.2d 816
(1968) ; Ohio State Bar Association v. Gray, 1 Ohio St. 2d 97,
204 N.E.2d 683 (1965) [ (per curiam) }.
[72]
19
no ethicai proscription because he always “maintained
sufficient funds to satisfy the requirement of the trust.”
(Respondent’s Post Hearing Brief, p. 19) First, even if
respondent did have sufficient cash on hand to cover the
shortages, it would not excuse his breach of the trust or
his unauthorized use of trust funds. Mcreover, respondent
has never demonstrated that he did in fact have access
to replacement funds.
Finally, the Committee rejects respondent’s claim that
his breach of the trust was cured when he reimbursed the
trust account. Restitution is not a defense to the charge
of having misappropriated trust funds. See In the Matter
of Burka, 423 A.2d 181 (D.C. App. 1980) {(en banc) ];
In the Matter of Quimby, 123 U.S. App. D.0. 278, 359
F.2d 252 (1966) [(per curiam) ]; Jn the Matter of Wil-
son, 81 N.J. 451, 409 A.2d 1153 (1979).
IV. Misrepresentation to the Auditor-Master
Bar Counsel contends that respondent’s testimony under
oath to the Auditor-Master that he grossed in excess of
$150,000 constituted a misrepresentation in violation of
DR 1-102(A) (4). Respondent’s tax returns and his testi-
mony before the Committee indicate respondent grossed
$58,073 in 1979. Respondent argues that his testimony
was inadvertent. He contends that he did not intend to
indicate that his gross income exceeded $150,000, and
that a review of the transcript will demonstrate that his
statement concerning his gross income was taken out of
context. (Respondent’s Post Hearing Brief, p. 17)
The Committee has carefully reviewed the transcript of
respondent’s testimony before the Auditor-Master. We
conclude that respondent knowingly misrepresented his
gross income for 1979. In response to direct questioning
as to what respondent did with the $150,000 he claimed
[73]
20
to have grossed in 1979, respondent testified that he put
some of it into an account, bought stock with some of it,
and deposited a portion of it in a personal checking
account which he used to pay bills. (Bar Ex. 10 at 37-38)
During the course of his testimony before the Auditor-
Master, respondent had numerous opportunities to clarify
any misunderstanding as to what the $150,000 figure
referred to, and he consistently indicated it referred to
his gross income.
There is no indication from respondent’s testimony
before the Auditor-Master that in describing his $150,000
gross income, respondent intended to include “all of the
funds that come through my office,” including “deferred
income that’s owed to me that I have not collected... .”
(Tr. at 62) Respondent, as an experienced attorney, legiti-
mately can be imputed with knowledge of the meaning of
the term “gross income.” We can only conclude that re-
spondent intentionally misrepresented his gross income
for the year 1979 to bolster his claim before the Auditor-
Master that he was financially sound. In so doing,
respondent violated DR 1-102(A) (4).
V. Respondent’s Character Witnesses
The Committee has noted the testimony of the seven
character witnesses called by respondent. The character
witnesses, who included the Chief of Surgery at [D.C.
General Hospital] (Dr. Lee), officials of the District
of Columbia Superior Court (Messrs. Rucker and Ducken-
field), a former client of respondent (Ms. Goodwine),
a member of the District of Columbia Council (Mr.
Moore), and members of the District of Columbia Bar
(Messrs. Mitchell and O’Donnell), attested to respona
ent’s high moral character, trustworthiness and integrity.
They testified that respondent selflessly helped other
(74)
ee —
ih i aieaiitalenieinieidaaimaaiaiicaaiaaimaeailll
21
lawyers establish themselv2s in the profession by sharing
his knowledge and experience and by helping young
lawyers financially. Some of the character witnesses also
testified that respondent had handled money for them
with no resulting improprieties or difficulties.
We have given careful consideration to the testimony
of the character witnesses. While we do not dispute the
accuracy or veracity of the character witnesses’ testi-
mony, the testimony does not serve to contest or refute
the essential facts at issue in respect of the charges in-
volving commingling and unauthorized use of trust funds.
With regard to the misrepresentation charge, the char-
acter witnesses’ testimony relates to respondent’s reputa-
tion for truthfulness, and respondent has testified that
his misstatement was inadvertent and not intended to
mislead. We have regretfully concluded, however, that
the totality of the objective evidence is clear and con-
vincing that respondent knowingly misrepresented his
gross income at the hearing before the Auditor-Master in
violation of DR 1-102(A) (4).
VI. Summary
For the reasons set forth above, the Committee finds
that respondent’s misappropriation and commingling of
funds he was holding in a trust account as a court-
appointed trustee constituted a viclation of DR 9-102(A).
We expressly reject respondent’s contention that DR 9-
102(A) should not apply in the instant case because of
the absence of a conventional attorney-client relationship.
We also conclude that respondent’s testimofiy under oath
before the Auditor-Master that his gross income was in
excess of $150,000 in 1979 constituted “conduct involv-
ing . . . misrepresentation” in violation of DR 1-102(A)
(4).
[75]
22
RECOMMENDED SANCTION
Bar Counsel states, “A simple commingling of funds
or an isolated instance of misrepresentation probably
warrants only a censure or a short suspension. [citation
omitted:] Misappropriation of client’s funds, though, is
an egregious offense generally requiring disbarment.”
(Bar Counsel’s Post-Hearing Brief, p. 15) Respondent
contends that “this case does not present the elements of
a case Where disbarment is warranted,” and that in light
of the totality of the circumstances and the testimony of
the charactéy witnesses, “at most a reprimand would be
in order.” (Respondent’s Post Hearing Brief, pp. 20-
21)
Based upon the facts of this case, we have concluded
that disbarment is the appropriate sanction. The Com-
mittee has reached this conclusion notwithstanding re-
spondent’s prior, 25-year record at the Bar. Courts in
misappropriation cases have not regarded an attorney’s
prior record of ethical practice as a circumstance suffi-
cient to permit a lesser sanction than disbarment. See In
the Matter of Burka, 423 A.2d 181 (D.C. App. 1980)
[(en bane) ]; In the Matter of Moore, 110 Ariz. 312, 518
P.2d 562 (1974) [(en banc)]; Bar Association of Balti-
more City v. Marshall, 269 Md. 510, 307 A.2d 677 (1973).
In the Matter of Quimby, 123 U.S. App. D.C. 278, 359
F.2d 257 (1966) [(per curiam) ], a cage decided by the
United States Court of Appeals for the District of Co-
lumbia Circuit, is factually similar to the instant case.
In Quimby, the court approved the disbarment of an
attorney for misappropriating funds from the estates of
two incompetent war veterans for whom he was the
court-appointed conservator. After the Court Auditor
noted the defalcation, the attorney returned all the with-
drawn money with interest. In his defense, he stated that
[76]
23
he was under terrific n.ental pressure during the time he
misappropriated the funds.
The court rejected the attorney’s argument that his
long record before the bar demonstrated his action was
an “isolated aberration not likely to be repeated.” 123
U.S. App. D.C. at 274. The court stated:
The administration of justice under the ad-
versary system rests on the premise that clients
and the courts must be able to rely without ques-
tion on the integrity of attorneys. An act
against a client evidencing moral turpitude, even
though attributable to some aberration or stress
that would warrant the prosecutor in abstain-
ing from criminal prosecution, may neverthe-
less warrant severe disciplinary action concern-
ing an officer of the court.
When a member of the bar is found to have
betrayed his high trust by embezzling funds en-
trusted to him, disbarment should ordinarily
follow as a matter of course. Such misconduct
demonstrates absence of the basic qualities for
membership in an honorable profession. Only
the most stringent of extenuating circumstances
would justify a lesser disciplinary action, such
as suspension, which implies the likelihood that
at some future time the court may again be
willing to hold out the embezzler as an officer
of the court worthy of clients’ trust. The ap-
pearance of a tolerant attitude toward known
embezzlers would give the public grave cause for
concern and undermine public confidence in the
integrity of the profession and of the legal sys-
tem whose functioning depends upon lawyers.
(Id. at 274]
(77)
24
In a more recent decision, In the Matter of Burka, 423
A.2d 181 (D.C. App. 1980) [(en banc)], the District of
Columbia Court of Appeals ordered disbarment where
an attorney was found to have violated DR 9-102(A)
and (B) and DR 1-102(A) (4) and (5) for commingling
funds from personal and unidentified sources with funds
he was holding as the conservator of an estate and for
making unauthorized withdrawals from the estate check-
ing account.
In In the Matter of Wilson, 81 N.J. 451, 409 A.2d
1153 (1979), the Supreme Court of New Jersey explained
the rationale behind the admittedly strict sanction of
disbarment in misappropriation cases.
[T]he principal reason for discipline is to pre-
serve the confidence of the public in the integrity
and trustworthiness of lawyers in general. This
reason for discipline is mentioned in some mis-
appropriation cases and not in others.
* * * *
We have no doubt that the bar is as anxious as
we are to preserve that trust. Its preservation
is essential to public acceptance of reforms that
may be proposed by the bench and bar together.
Mistrust may provoke destructive change. Pub-
lie confidence is the only foundation that will
support constructive reform in the public inter-
est while preserving the finest traditions of the
profession.
From that point of view, anything less than
strict discipline in cases like this would be a
disservice to the bar, the judiciary and the
public.
409 A.2d at 1155. See also In re Smock, 86 N.J. 426,
432 A.2d 34 (1981) [ (per curiam) }.
[78]
25
In Bar Association [of Baltimore City] v. Marshail,
269 Md. 510, 307 A.2d 677 (1973), the court approved
disbarment where an attorney misappropriated a client’s
funds. The court noted that the attorney-client relation-
ship is based on trust and that it is important to both
lawyers and society that there be no lessening of the
publie’s confidence in the integrity, honesty and fidelity
of the lega! profession. The court further noted that
“misappropriation by an attorney of funds of others en-
trusted to his care . . . represents the greatest form of
professional misconduct.” 307 A.2d at 682. The court
concluded by stating:
[W]hen a member of the bar of this Court is
found to have betrayed the high trust in him by
appropriating to his own use funds of others
entrusted to him, as Marshall did, then, absent
the most extenuating circumstances, which we
do not find to be present here, disbarment should
follow as a matter of course. [Jd.]
See also In the Matter of Moore, 110 Ariz., 312 518 P.2d
562 (1974) [(en banc)] (disbarment ordered where at-
torney withdrew client funds for personal use without
approval or authorization) ; State v. Barrett, 207 Kan.
178, 483 P.2d 1106 (1971) [(per curiam) ] (commingling,
failure to fulfill trust obligations and false statement held
to warrant disbarment).
Respondent’s conduct—particularly misappropriating
funds entrusted to him at the order of the Superior Court
and misrepresenting gross income in testimony under
oath before. the Auditor-Master—constituted egregious
breaches of his professional responsibilities. In light of
the authorities cited above and Respondent’s conduct as
[79]
26
found herein, the Committee recommends that Respondent
be disbarred.
(End of quoted portion of Hearing Committee’s Report)
CONCLUSION
Sanctions imposed in commingling cases have varied
from censure by the Court (Jn re Artis, DCCA No. M-
103-81, decided February 25, 1982) to disbarment (Jn re
Burka, supra). This Board has had occasion to pass upon
five separate cases involving commingling cf funds within
the last few months (including this one) and all of them
are now pending, or will forthwith be pending for review
by the Court of Appeals.
As we pointed out in one of these cases (In re Hines,
Nos. 194-80 and 447-79, decided November 10, 1982)
commingling cases fal] into a number of patterns. There
is the case of an attorney commingling a client’s funds
in a bank account with his own money when the account
is always adequate to cover the escrow. This is a viola-
tion of DR 9-102(A), but the client’s money is never in
jeopardy. There are also-many variations of situations
in which the client’s and personal funds are commingled
and the bank account is allowed to dip below the amount
required to satisfy the escrow. At times the evidence
seems to indicate only simple negligence on the part of
the attorney. In other cases, the evidence indicates de-
liberate misappropriation of the client’s money by the
attorney, in violation of [DR 1-102(A) (4)]. At times the
commingling is also accompanied by false and misleading
statements from the attorney to the client. In the case at
bar false and misleading statements were made to the
Auditor-Master.
[80]
27
In the Matter of Harrison, decided July 20, 1982, the
Board found, as in Hines, commingling and misappropri-
ation due to sloppiness and recklessness in the handling
of the client’s funds, together with a lack of candor in
dealing with the client. There we have recommended
suspension for a year and a day."!
In the Matter of Cefaratti, decided November 5, 1982,
the attorney had limited authority to invest his client’s
escrowed funds. He “invested” some of them by lending
the funds to himself at a rate of interest below that
normally charged, without any documentary evidence to
support the loan and without the consent of the client.
In that case we have also recommended sanction of a
year and a day.!?!
In Hines, supra, we found that Respondent’s conduct
involved more than simple negligence but did not rise to
the level of corruption. There Respondent showed a reck-
less disregard of the state of the bank account into which
he deposited his client’s funds and kept no running bal-
ance of this account, which at times was insufficient to
cover the client’s escrow. We concluded there that this
reckless conduct gave rise to a presumption that there
was an intent on Respondent’s part to deal with and use
the escrow funds as his own, and recommended in that
case a sanction of two years.
In the Matter of McLean, also decided today, the
attorney had been engaged in a long-time pattern of
commingling clients’ funds, which were chiefly those re-
ceived in settlement of negligence or workmen’s compen-
[! This court adopted the Board’s recommendation. In re
Harrison, 461 A.2d 1034 (D.C. 1983).]
[? The recommendation was adopted. Jn re Cefaratti, No.
M-140-82, June 28, 1983.]
[81]
28
sation cases. The commingled funds were used for
business and personal purposes, and the balance in the
account was often insufficient to protect the clients. The
commingling was accompanied by dishonesty and deceit
in dealing with clients. The attorney falsely stated to
the clients from time to time that settlement monies had
not been received when in fact they had. The attorney
was also found to have falsified records submitted to Bar
Counsel. Here we have recommended disbarment.'*!
In the instant case, as in McLean, we recommend that
Respondent be disbarred. Not only was there gross com-
mingling of trust funds over a substantial period of time
with periodic extreme shortages in the account, but Re
spondent was guilty of inexcusable falsehood in testifying
before the Auditor-Master who was auditing Respondent’s
account. The cases of Quimby and Burka, supra, cited by
the Hearing Committee support our conclusion.
BOARD ON PROFESSIONAL RESPONSIBILITY
By /s/ Edmund D. Campbell
EDMUND D. CAMPBELL
All members of the Board concur.
Dated: November 29, 1982
[? The recommendation was adopted. In re McLean, No.
M-142-82, Apri] 11, 1983.]
[82]
29
BOARD ON PROFESSIONAL RESPONSIBILITY
DISTRICT OF COLUMBIA COURT OF APPEALS
Bar Docket Nos.: 224-79
245-81
IN THE MATTER OF MELVIN M. BURTON, JR.
REPORT AND RECOMMENDATION
This matter is before the Board based upon the Report
and Recommendation of Hearing Committee Number Two,
dated January 24, 1983, which concluded that Respondent
had violated Disciplinary Rules 9-103 (commingling client
and attorney funds) and 1-102(Aj (4) (conduct involving
dishonesty, fraud, deceit or misrepresentation) by de-
liberately misappropriating certain funds which Respond-
ent was holding for others in his “trust account.” * The
hearing committee recommended that Respondent should
be suspended from the practice of law for four years
based upon these violations. As discussed in sections I
and II, below, we agree that Respondent is guilty of know-
ing misappropriation of funds, in violation of the disci-
plinary rules charged. For the reasons set forth in sec-
tion III, below, we reject the various procedural argu-
ments raised by Respondent. Finally, as discussed in
section IV, we conclude that the facts of this case and the
applicable law require that Respondent should be dis-
barred.
* The hearing committee concluded that the separate charges
in Count II of Bar Counsel’s petition, arising out of an un-
related set of facts, were not supported by clear and con-
vincing evidence and should be dismissed. The hearing com-
mittee’s findings of fact on those separate charges are sup-
ported by substantial evidence on the record as a whole, and
we dismiss the charges in Count II for the reasons set forth in
the hearing committee’s opinion.
(83]
0
80
I. Facts
Respondent was retaimed by the Veterans’ Administra-
tion (“VA”) to institutte foreclosure proceedings based
upon the default by a Mr. and Mrs. Pailin on a VA loan
secured by a real estate deed of trust. The property was
sold at a foreclosure sale in June 1978 for $28,000. Bar
Counsel’s evidence established that Respondent was re-
tained to handle the foreclosure sale, to remand to the
VA the amount owing to it on the outstanding loan
{approximately $17,000)), and to pay the excess to the
Pailins after deducting Respondent’s fees and any other
legitimate expenses associated with the foreclosure sale.
See Tr. 26-39.
In order to support hhis charge that Respondent had
misappropriated funds, Bar Counsel relied primarily on
certain bank records whiich were introduced into evidence
before the hearing committee. The committee reviewed
those records in detail and made the following findings:
Those records disclose that Respondent received
a check from the settlement company, District
Realty Title Inswrance Corporation, in the
amount of $26,378.16 as the net proceeds of the
foreclosure sale [BX 7]. Thereafter, on July 16,
1978, Respondent deposited the check (less a
deduction of $1,505.90 not here in question) into
a “trust account” bearing the number 3-045-80-3
at the National Bamk of Washington [BX 9b].
After allowing for other expenses not here in
question, Respondent expressly acknowledged
that he was accoumtable to the Veterans’ Ad-
ministration for $16,639.68 and to the Pailins
for $7,256.10 [BX 13], or an aggregate amount
of $23,895.78.
On July 18, 1978, Respondent wrote a check,
number 3856, on the trust account for $1,000
[84]
31
[BX 9]. This check was made payable to a
third party, neither the VA nor the Pailins, and
the check caused the remaining balance in the
trust account to be reduced to $23,744.11, which
was a sum less than the total amount payable
to the VA and the Pailins [BX 9 and 9w].
Thereafter, Respondent made other withdrawals
from the trust account, by means of checks pay-
able neither to the VA nor the Pailins, s@ that
on July 26, 1978, the remaining balance in the
crust account was $19,969.66 [BX 9 through
9¢g].
Thereafter, on July 27, 1978, Respondent paid
the Veterans’ Administration $16,639.68 [BX
12], which represented the full amount due to
the VA on the mortgage. This payment was
made by a check bearing the number 3863,
written on the above trust account, whereupon
the remaining balance in the trust account at
the National Bank of Washington was $2,929.28
[BX 10]. Yet, according to Respondent’s own
accounting, Respondent was then accountable to
the Paiiins for $7,256.10 [BX 13].
Moreover, by iate November 1978, numerous
other withdrawals reduced the balance in the
trust account to $10.10 [BX llc]. At that time,
Respondent was still accountable to both Mr. and
Mrs. Pailin for $7,256.10 [BX 138].
In November 1979, Ms. Pailin was paid her
share of the proceeds, in the amount of $3,626.05
{BX 13]. This payment was made by Respond-
ent by means of a check drawn on a different
bank account, not the trust account number 3-
045-80-3 at the Nationa! Bank of Washington.
[85]
32
There is no evidence in the record that Mr. Pailin
has ever been paid his share of the proceeds.
The Committee finds that the financial records
subpoenaed from the bank are clear and con-
vincing evidence of the following: (1) that the
full amount of the proceeds from the foreclosure
sale was deposited into a particular trust ac-
count in the National Bank of Washington; (2)
that a check of July 18, 1978 for $1,000 reduced
the balance in the trust account to an amount
less than the total amount then payable to the
VA and the Pailins; (3) that the VA was paid
in full on July 27, 1978, leaving the trust ac-
count with a balance inadequate to cover the
amount payable to the Pailins; and (4) that Re-
spondent, by means of numerous other with-
drawals from that account, reduced the net bal-
ance in the trust account to an amount far below
the amount that was due and payable to the
Pailins.
The Committee concludes, on the basis of these
bank records, that Respondent misused or mis-
appropriated funds which Respondent was hold-
ing in trust. Moreover, in light of the numerous
checks written on the trust account, which at
one point reduced the account to a balance of
$10.10 [BX 9, 11, lla, 11b, 1lc, and 11d] when
the amount payable from the account was over
$23,000, there is no basis for concluding that
Respondent’s conduct was inadvertent or due
merely to “sloppy” administration.
II. Discussion
During the hearing committee proceedings, Respondent
presented no evidence tending to contradict the factual
[86]
33
findings set forth above. Respondent did not call any
witnesses or introduce any exhibits on these issues. Re-
spondent did call a number of “character witnesses” who
testified regarding Respondent’s reputation, accomplish-
ments, and standing at the Bar. When Bar Counsel at-
tempted to call Respondent as a witness in Bar Counsel’s
case, Respondent invoked his Fifth Amendment privilege
against self-incrimination. See Tr. 40-43. Respondent’s
principal objection argued before this Board * is that Bar
Counsel failed to prove his case by clear and convincing
evidence, leaving many questions unanswered, and effec-
tively shifted the burden to Respondent to prove his
innocence. There is no basis for Respondent’s arguments.
As indicated above, the Hearing Committee concluded
that Bar Counsel did prove by clear and convincing evi-
dence that Respondent placed a sum of money in his
client’s trust account and failed to maintain that money
in the account for payment to the intended beneficiaries.
Bar Counsel introduced into evidence bank records demon-
strating that approximately thirty separate checks were
written by Respondent against this account during the
period in question, and that this resulted in the account
balance dipping as low as $10.10, at a time when Re-
spondent was obligated to be maintaining thousands of
dollars in that account for the benefit of others. See Bar
Exhibits 9-lld, 18. There certainly was “substantial
evidence on the record as a whole” te support the hear-
ing committee’s factual findings, and we accordingly affirm
them. See In ve Smith, 403 A.2d 296, 302 (D.C. 1979).
The evidence presented to the hearing committee clearly
made out a prima facie case of commingling and mis-
appropriation. While it is true, as Respondent argues,
* Respondent and Bar Counsel each submitted briefs to this
Board but waived any right to present oral argument.
[87]
24
that Bar Counsel failed to offer proof concerning precisely
how Respondent spent the money he was obligated to hold
in the trust account,* such information, though poten-
tially relevant, is hardly a necessary predicate to a mis-
appropriation charge. See Attorney Grievance Commis-
sion v. Boehm, 293 Md. 476, 479-81 [446 A.2d 52, 54]
(1982) (Where attorney places auction sale proceeds into
escrow account, and bank records reflect withdrawals for
unspecified purposes in greater amount than total of
proper estate disbursements, court “cannot conceive of
any clearer or more convincing evidence of [attorneys]
misappropriation of . . . funds than that supplied by the
escrow account, bank records, and [the attorney’s] failure
to explain exactly how these funds were used.’’)
Respondent’s brief to this Board argues heatedly that
the hearing committee erred in concluding that there was
a knowing misappropriation of funds, because there was
no evidence that Respondent knew in 1978 how much
money he was required to hold for distribution to the VA
and to the Pailins. Respondent emphasizes that the state-
ment of account which he prepare¢, and which was relied
upon by the hearing committee, was written in 1979, and
Respondent emphasizes that in 1978 it was not possible
to know with precision the amount of fees and expenses
that would be incurred in the matter. This argument is
far wide of the mark.
Respondent’s 1979 statement of account, Bar Exhibit
13, makes clear that the fees and expenses in connection
with this matter equally approximately $2,500, and that
* Many of Respondent’s checks, which were offered into
evidence, were either illegible or were written to payees un-
known to Bar Counsel and to the representative of the Veterans
Administration who testified. Respondent did not present to
the hearing committee any evidence or arguments concerning
the nature of these checks he wrote against his trust account.
[88]
35
the balance due to the Pailins, after subtracting such
expenses and the share paid to the VA, was over $7,000.
While it is true that in 1978 Respondent might not have
been able to predict precisely the total expenses and fees
to be incurred, that is irrelevant to this case as a matter
of law. Respondent was obligated to maintain in the
trust account any funds that had not yet been properly
disbursed; any uncertainty as to future expenses would
be legally irrelevant to Respondent’s duty to maintain
the funds in the account until and unless such expenses
in fact were incurred. Bar Exhibit 13 represents Re-
spondent’s own admission that only $2,500 in expenses
were ever incurred, and thus Respondent cannot now
argue that a greater amount of expenses was properly
disbursed from the account in 1978. Moreover, Respond-
ent’s argument (unsupported by any evidence in the
record) that the lack of certainty regarding future fees
and expenses might explain Respondent’s allowing the
balance of his account to fall to $10.10 (when more than
$7,000 was due and owing) is totally lacking in credi-
bility.
The hearing committee in this case appropriately al-
lowed Respondent to exercise his Fifth Amendment right
not to testify,” and the committee made it clear that it
was drawing no “adverse inference based on Respond-
ent’s failure to testify ... [or his] invoking his Fifth
* The Fifth Amendment privilege is not available as a shield
solely against Bar disciplinary proceedings, but can be in-
voked where testimony in such proceedings might lead to
criminal prosecution. See In re Thorup, No. M-48-80 slip op.
at 2 (D.C. February 25, 1983) ; Jn re Anonymous, Bar Docket
No. 48-81, slip op. at 6-10 (Bd. Prof. Resp., Nov. 3, 1981),
and cases cited therein. The hearing committee appropriately
credited Respondent’s counsel’s representation that such con-
sequences could flow from testimony concerning the matters
at issue here. See Try 40-43.
[89]
36
Amendment privilege against self-incrimination when Re-
spondent was called as a witness by Bar Counsel.” See
Hearing Committee Report at p. 13. There is simply no
basis for Respondent’s arguments that the hearing com-
mittee effectively placed the burden of proof on him in
this matter. Once Bar Counsel had presented a prima
facie case, Respondent was free to present any evidence
or arguments he wished. While Respondent was not ob-
ligated to present any defense, neither was Bar Counsel
obligated—as Respondent now suggests—to rebut all con-
ceivable defenses and arguments that Respondent theo-
reticaily might have made, but in fact did not present,
to the hearing committee.
Thus, Respondent essentially argues that Bar Counsel
should have proven that Respondent did not have avail-
able to him certain defenses and arguments in mitigation
that have proven significant to the Board in prior com-
mingling cases. See, e.g. In re Harrison, Bar Docket
No. 262-79, slip op. at 20 (Bd. on Prof. Resp., July 20,
1982), (aff'd, 461 A.2d 1034 (D.C. 1983)]; Jn re Hines,
Bar Docket Nos. 194-80 and 447-79, slip op. at 3 (Bd.
on Prof. Resp. October 28, 1982). The fact is, however,
that Bar Counsel did prove commingling and misap-
propriation and that Respondent failed to present any
evidence whatever of any defense or matter in mitigation
regarding this offense. We hold that invocation of the
Fifth Amendment does not allow a respondent to place
the burden of proof on Bar Counsel to [disprove] affirma-
tive defenses which respondent does not raise.
III. Respondent’s Motions and Legal Objections.
Respondent presented to the hearing committee a large
number of motions and objections to hearing committee
procedures and rulings. The Board affirms the hearing
committee’s rulings on these matters, which were set
[90]
3°
forth in its Pre-Hearing Order Number One, dated Oc-
tober 20, 1982, and in the Heari..g Committee’s January
24, 1983, Report and Recommencation. We adopt and
incorporate herein the hearing co-nmittee’s rulings on
these points, and will merely add a few words on some
of the issues that Respondent presses before us.
First, Respondent argues at length that Bar Counsel’s
subpoena for Respondent’s bank recoids failed to comply
with the procedural requirements of the Right to Financial
Privacy Act, 12 U.S.C. $§ 3401-3422, as interpreted in a
July 8, 1982, District Court decision in Join Doe v. Board
on Professional Responsibility, D.D.C., C.A. No. 81-2683
[July 8, 1982]. We agree with the hearing committee’s
holding that there is no basis for an “exclusionary rule”
prohibiting the introduction into evidence of these bank
records, even assuming arguendo that Bar Counsel had
failed to comply with applicable procedural requirements
of the Act. We must emphasize, however, that the Dis-
trict Court decision in question was vacated upon re-
consideration on February 3, 1983, and the District Court’s
most recent decision on this point holds that the District
of Columbia Court of Appeals and its Board on Pro-
fessional Responsibility are not agencies of the federal
government subject to the terms of the Right to Financial
Privacy Act."!
Second, Respondent argues that he was deprived of due
process by the hearing committee’s refusal to allow a
“voir dire” of the hearing committee members before
Respondent decided whether to seek recusal of any hear-
{[‘ The district court’s February 8 decision vacating the
order of July 8, 1982, was affirmed on the issue of the Right
to Financial Privacy Act. Doe v. Board on Professional Re-
sponsibility of the D. C. Court of Appeals, U.S. App. D.C.
——, 717 F.2d 1424, 1427 (1983) (per curiam) }.
[91]
38
ing committee members pursuant to Chapter VIII, Sec
tion 3(1) (ce) of the Internal Rules of this Board. Ther
is no general right to a “voir dire” of hearing committe
members—who serve this Board, and the Court of Ap
peals, in a quasi-judicial capacity—any more than ther
is any such right before a party files a motion to recus
a trial judge about to hear his or her case. Moreover
when the hearing committee chairman asked Responden
what issues or questions he would raise in a voir dire, i:
allowed to conduct one, the matters set forth by Respond
ent made it clear that he had no particular factual basi:
for a challenge to any hearing committee member or fo:
a voir dire on any specific area of inquiry. See Tr. 3-4
Third, Respondent argues to this Board that he wa:
deprived of due process because Bar Counsel submittec
certain proposed documentary exhibits to the hearins
committee in advance of the hearing. Respondent neglect:
to note that the procedural rule in question allows botl
Bar Counsel and Respondent to submit their documentar’
evidence to the hearing committee in advance of the hear
ing date. See Chapter VIII, Secticn 1(4), Internal Rule
of the Board on Professional Responsibility. The purpos
of this rule, of course, is to allowv the parties to exchang:
exhibits in advance of the hearing so as to determin
whether there are any objections as to admissibility o
particular exhibits, and also to allow the hearing commit
tee members to begin reviewing the frequently voluminou
record in advance of the hearing date. This procedure i
quite similar to the practice in many courts which re
quire the submission of pre-trial briefs and propose
exhibits in advance of the trial so as to expedite pro
ceedings. Respondent’s constitutional challenge to th
Board rule allowing advance submission of propose
exhibits is frivolous.
[92]
39
Finally, Respondent argues that the charges at issue
here should be dismissed because the petition in this
matter was the result of Bar Counsel’s improperly “re-
opening” a matier which had previously been the subject
of inquiry. The record in this matter reveals that Docket
No. 224-79 was initially based upon a rather vague, hand-
written complaint filed by Ms. Loreta Pailin. Respond-
ent answered this complaint on December 15, 1979, and
the complainant failed to respond to the explanation fur-
nished by Mr. Burton. Nothing in the complaint or in
Mr. Burton’s response suggested any commingling of
funds, and Bar Counsel on February 1, 1980, dismissed
Ms. Pailin’s complaint. However, on March 1, 1982, Bar
Counsel wrote to Mr. Burton and indicated that he was
“reopening” this investigation, because “recent informa-
tion concerning this case indicates that you misappropri-
ated and converted the funds you were holding in your
client trust account on behalf of Mr. Nathaniel Pailin
and Ms. Loreta Pailin.” Respondent was offered an op-
portunity to answer this additional charge, and subse-
quently Bar Counsel filed the formal petition leading to
these proceedings. Under Court rules Bar Counsel is
obligated to investigate allegations of unethical conduct
which come to his attention, via complaint or otherwise.
Rule XI, § 6(1) (b), D.C. App. Rules. Consequently, Bar
Counsel was free unilaterally to open a new investigation
of Respondent based upon new information suggesting
commingling. Simply because Bar Counsel chose to term
this a “reopening” of a previously docketed and closed
case does not result in any prejudice to Respondent. Bar
Counsel’s “closing” of an investigation without filing a
formal petition or initiating hearings of any kind hardly
constitutes an action to which the doctrine of res judicata
may be applied, nor does it provide a basis for Respond-
[93]
40
ent’s argument that he can never be charged with disci-
plinary violations which could have been, but were not, |
spelled out in a citizen’s complaint. :
IV. Sanction
An attorney’s misappropriation of funds entrusted to §
him is widely recognized as one of the most serious forms ~
of professional misconduct. Attorney Grievance Commis- ©
sion v. Pattison, [292 Md. 599,] 441 A.2d 328 (Md.
1982) ; Office of Disciplinary Counsel v. Lewis, [493 Pa. -
519,] 426 A.2d 1138 (Pa. 1981) ; In re Davis, [129 Ariz. |
1,] 628 P.2d 88 (Ariz. 1981) [(en bane)]; Florida Bar ¢
v. Merritt, 394 So.2d 1018 (Fla. 1981) [(per curiam) ]. |
It strikes at the heart of the relationship of trust and }
confidence that is so necessary between attorney and ©
client, and it reveals a lack of the integrity which is a —
fundamental requirement in order to be qualified to prac- ©
tice law. See generally In re Quimby, [128 U.S. App. —
D.C. 273, 274,] 359 F.2d 257, 258 (D.C. Cir. 1966) [(per |
curiam) |: 1
The administration of justice under the ad-
versary system rests on the premise that clients
and the courts must be able to rely without
question on the integrity of attorneys. An act
against a client evidencing moral turpitude, even
though attributable to some aberration or stress
that would warrant the prosecutor in abstain-
ing from criminal prosecution, may nevertheless
warrant severe disciplinary action concerning
an officer of the court.
When a member of the bar is found to have
betrayed his high trust by embezzling funds
(94]
=
>
entrusted to him, ¢'sbarment should ordinarily
follow as a matte of course. Such misconduct
demonstrates abs.nce of the “asic qualities for
membership in an honorable profession. Only
the most stringent of extenuating circumstances
would justify a lesser disciplinary action, such
as suspension, which implies the likelihood that
at some future time the court may again be
willing to hold out the embezzler as an officer of
the court worthy of clients’ trust. The appear-
ance of a tolerant attitude toward ixnown em-
bezzlers would give the public grave cause for
concern and undermine public confidence in the
integrity of the profession and of the legal sys-
tem whose functioning depends upon lawyers.
Thus, a review of the cases demonstrates that disbar-
ment is the rormal sanction for commingling that in-
volves knowing misappropriation of funds. Jn re McClel-
len, No. M-51-80 (D.C. March 26, 1981); Jn re Burka,
423 A.2d 181 (D.C. 1980) [(en bane) ]; Jn re Newsome,
No. D-34-79 (D.C. November 21, 1979).
While this Board has held that a lesser sanction might
be appropriate if Respondent demonstrates that the mis-
appropriation was inadvertent (e.g., due to sloppy book-
keeping practices rather than an intention to convert
client funds. See In re Hines, supra; In re Harrison,
supra) there is no basis in this record to conclude that
any such factors in mitigation exist. See pp. 5-8, supra.
Thus, we conclude that the findings in this case of com-
mingling and knowing misappropriation, absent any miti-
gating factors,* require Respondent’s disbarment.
* Respondent presented substantial “character testimony”
demonstrating his professional accomplishments, reputation
[95]
42
Our conclusion on this point would be the same even
if Respondent had no prior disciplinary record. See
generally In re Burka, 423 A.2d 181 (D.C. 1980) [(en
banc) ]. However, our view is buttressed by the fact (not
available to the hearing committee at the time of its
decision) that Respondent recently has been found by this
Board to have been guilty of misappropriation of client
funds in another matter. In Jn re Burion, Bar Docket
No. 323-80 (Bd. Prof. Resp. November 29, 1982), this
Board found that Respondent misappropriated for his
own personal and business use more than $10,000 in
funds that he was holding as a court-appointed trus-
tee,* and that Respondent made a false statement under
oath to the Auditor-Master in connection with an in-
vestigation of that matter. We recommended to the Court
of Appeals that Mr. Burton should be disbarred for those
offenses, and that recommendation is currently pending
before the Court.
Since we now find that Respondent has committed yet
another misappropriation of funds entrusted to him, we
believe that the public interest in preserving the integrity
of the Bar requires that we recommend once again that
Respondent be disbarred.
and standing at the Bar. While such testimony is of course
entitled to weight in considering disciplinary sanctions gen-
erally, we believe that where the facts demonstrate knowing
misappropriation of funds, no amount of character testimony
or proof of a prior unblemished record at the Bar will normally
call for a departure from the sanction of disbarment for such
an egregious offense. See generally In re Burka, 423 A.2d 181
(D.C. 1980) [(en banc)] (disbarment ordered for misappro-
priation where Respondent had no prior. disciplinary record
and where extensive evidence was submitted to the Board
regarding Respondent’s achievements and good character).
* The trust account at issue in that case was not the same
account as that involved here.
. [96]
43
BOARD ON PROFESSIONAL RESPONSIBILITY
By /s/ Allen R. Snyder
ALLEN R. SNYDER
Chairman
April 26, 1983
Date
All members of the Board except Mr. Wilson partici-
pated in the consideration and decision of the matter.
[97]
4a
DISTRICT OF COLUMBIA COURT OF APPEALS
IN THE MATTER OF
MELVIN M. BURTON, JR. Nos. M-143-82, 83-192
RESPONDENT
A MEMBER OF THE BAR OF
THE DISTRICT OF COLUMBIA
COURT OF APPEALS
PETITION FOR HEARING EN BANC
Comes now the Respondent, Melvin M. Burton, Jr., by
and through his Attorney, Charies A. Brady, pursuant to
Rule 40 of this Court and in support of his Petition for
Hearing En Banc asserts as follows:
1. Thai the Respondent's Brief, Reply Brief and oral
argument by his counsel before this Court on December 15,
1983, raised substantial substantive due process issues
which were not addressed by this Court in its disposition of
his case on January 11, 1984.
Manifold due process issues were raised which were left
unresolved by the Court in reaching its decision to disbar
the Respondent and unless these substantive due process
issues are examined, and given pertinent and manifest
application, the Responaent will have been bereft and di-
vested of his status as a lawyer and his livelihood in two
proceedings under the color of law but devoid of the legal!
safeguards of due process. A Rule of law which undergirds
our Constitution which has been held and affirmed time and
time again in an unbroken succession of cases is that one
has a property right in the right to earn a livelihood and
divestment of such right without due process contravenes
both the law and the spirit of the law.
45
2. The due process issues raised by the Respondent were
numerous, the most of salient being:
(A). IT WAS A VIOLATION OF THE RESPONDENT'S
DUE PROCESS RIGHTS FOR BAR COUNSEL TO
CHARGE THE RESPONDENT WITH COM-
MINGLING UPON WHICH CHARGE THE RE-
SPONDENT DEFENDED, AND THEN RELY UPON
MISAPPROPRIATION IN HIS POST HEARING
BRIEF TO
Bar Counsel charged the Respondent with a violation of
Disciplinary Rule 9-102(A) which provides as follows:
DR 9-102 — Preserving Identify of Funds and Property of
a Client.
A. Ail funds of clients, paid to a lawyer or law firm, other
than advances for costs and expenses shall be depos-
ited in one or more identifiable bank accounts, main-
tained in the State in which the law office is situated
and no funds belonging to the lawyer or law firm shall
be deposited therein...
In proof of his case, Bar Counsel neither called nor pre-
sented witnesses with respect to the charge but relied upon
the Exhibits which were Bank Statements and Cancelled
Checks of the Respondent, admitted in evidence over the
objection of the Respondent.
In his opening statement, Bar Counsel stated that “Re-
spondent’s unauthorized withdrawal from the trust account
for purposes and uses totally unrelated to the trust violated
Disciplinary Rule 9-102 A, because he failed to maintain the
trust proceeds in a trust account as required by that disci-
plinary rule.” (Transcript in Bar Docket No. 323-80, dated
January 22, 1982),
At the conclusion of the Hearing, the Chairman in
46
addressing himself to Bar Counsel, stated, “As | understand
it, one of the disciplinary rules which Bar Counsel contends
has been violated here is Disciplinary Rule 9-102, which is
styled, preserving identify of funds and property of a client,
is that correct?”
Bar Counsel Answered, “That's correct” (Transcript in
Bar Docket No. 323-80, dated January 26, 1982).
Despite reliance upon and defense of the charge of
Commingling by the Respondent, after close of the hearing,
Bar Counsel in his Post Hearing Brief informed the Hearing
Committee and the Board for the first time that it has pro-
ceeded on the theory that “Respondent's Misappropriation,
conversion and commingling of trust funds violated Disci-
plinary Rule 9-102(A).” (See Bar Counsel's Post Hearing
Brief, pg. 4).
In other cases, misappropriation as distinct from com-
mingling has been charged under DR-1-102(A)(4). See,
e.g.,/n the Matter of Burka, 423 A 2d 181, 183, 186-187 (D.C.
App. 1980) (en banc).
The Court herein by its adoption of the findings of the
Board on Professional Responsibility has fostered a new
concept which allows Bar Counsel’ to raise Post Hearing,
the level of a charge against a Respondent which has not
been charged and against which charge the Respondent
had no opportunity to defend. Further, the Court's findings
allow the Board to apply a standard or add an element of no
proof in acase which is not applicable to the stated charge,
so that in this instance, the standard of misappropriation
was applied to commingling.
The application by the Board of a standard which is not
appiicable to the charge inures to the prejudice and detri-
ment of Respondent and is violative of his due process
rights and equal protection of the law, in that, aRespondent
has the right to know what he is charged with and to rely
upon his defense to that charge.
47
This Court therefore should consider this question en
banc to determine whether the aforesaid practice to Bar
Counsel is consistent with the rudiments of due process
required by the Bar Rules.
(B) THERE IS A DISPROPORTIONALITY IN THE IM-
POSITION OF SANCTIONS METED OUT BY THE
BOARD ON PROFESSIONAL RESPONSIBILITY
TO BLACK RESPONDENTS VIS A VIS WHITE
RESPONDENTS IN THIS JURISDICTION.
In the case at bar, the Court has by its adoption of the
findings of the Board on Professional Responsibility
allowed a disproportionate sanction upon a Black Attorney
who has been charged with the similar misconduct as White
Attorneys who have received a lesser sanction.
Except for the cases of /n the Matter of Quimby, 123 U.S.
App. D.C. 273,359 F.2d 257 (1966), in which this Board did
not participate; the case of /n the Matter of Burka, 423 A2d
181 (D.C. App. 1980) (enbanc) where the Respondent was
charged with and found to have violated DR 9-102(A) and
(B) and DR 1-102¢A)(4) and (5), where funds were with-
drawn from an Conservatorship Estate Account and /n Re
McLean, No. M 142-82, April 11, 1983, where the Respona-
ent misappropriated funds from negligence and workmen's
compensation cases, all other White Attorney charged with
similar conduct as the Respondent have received lesser
sanctions. See /n Re Cefarratti, No. M 140-82, June 28,
1983; In Re Hines, Nos. 194-80 and 447-79, decided No-
vember 10, 1982; and /n Re Harrison, 461 A 2d 1034 (D.C.
1983).
It is particularly noticeable that the Respondents in the
aforesaid matters, where all the Respondents were white
received lesser sanctions and should be contrasted with the
Respondent herein, who is a Black Attornev. (In The Case
48
of in Re Newsome, No. D 34-79 (D.C. November 21, 1979)
who is black, disbarment arose because of a conviction in
the United States District Court involving funds from a
negligence case).
Moreover, in light of this Court's opinion in /n Re Harri-
son, supra, where it announced a definition for misappro-
priation for the first time in this jurisdiction it would appear
that along with the disproportionate sanction imposed
upon a Black Attorney that the Court has applied its defini-
tion of misappropriation retroactively to apply to pre-
Harrison conduct which was not so clearly defined at the
time of the occurrence.
The Court should therefore aiso consider whether the
application of the Harrison pronouncement standard was
disparagingly imposed upon the Respondent because he is
Black.
Given the well established climate of discrimination that
exist today, due process is often the on'y protection a Black
Attorney has from arbitrary procedures. The effect of this
Court's ratification of the Board's violation of the Respond-
ent’s due process right would be a clear signal to the Black
Bar that it should not expert its institutional right to be
considered in proceedings of this nature.
(C). BAR COUNSEL, MAY NOT, WHERE HE HAS
KNOWLEDGE OF TWO (2) ALLEGED VIOLA-
TIONS, WHERE EACH AROSE THROUGH A SIN-
GLE TRANSACTION AND ARE INTERTWINED
WITH EACH OTHER, BIFURCATE THE VIOLA-
TIONS AND MAKE THEM THE SUBJECT OF TWO
(2) SEPARATE CASES.
As a result investigation in the matter of Burton/Ander-
son, D.C. Court of Appeal No. 143-82, Bar Counsel learned
of a possibie alleged violation in the Burton/Pailin matter,
49
Court of Appeal No. 83-492. Bar Counsel learned that Mrs.
Pailin had been paid that Mr. Pailin had not received pay-
ment, which nonreceipt of payment by Mr. Pailin arose i om
the inability of the Respondent, to locate him after diligent
effort had been made.
Notwithstanding these facts, the Burton/Anderson mat-
ter was petitioned, the Burton/Pailin matter was held in
abeyance.
The Board on Professional Responsibility in the Burton/
Anderson matter recommended the sanction of disbarment.
While this matter was pending before the Court, in Apeal
No. M 143-82, the Burton/Pailin matter was petitioned as a
second and separate case, which case resuited in a sanc-
tion of a four years suspension but was increased by the
Board to that of disbarment.
This Court in affirming the conduct of Bar Counsel and
the Board when it increased the sanction in the Burton/Pai-
lin matter to that of disbarment, has stamped the approval
of Bar Counsel to pick and choose among the charges on
which to proceed when the effect of doin™ so would require
as did here, the Respondent to offer testimony as to the
alleged occurrence not petitioned.
The Respondent was prejudice in his defense and thrust
in that posture because Bar Counsel was aware that the
Respondent could not defend either charge in separate
petitions without offering testimony as to the other. Further,
Bar Counsel knew that because of the testimony offered by
the Respondent to the petition not changed, the testimony
would have a compelling effect upon any recommendation
made. The effect of such a recommendation would be to
take advantage in an unfair manner of the Respondent's
inability to fully defend the alleged charge not petitioned.
Further, by its findings, the Court has given sanction to
the ability of Bar Counsel to selectively c..2ose which mat-
ter to petition and to elicit through cross-examination addi-
tional facts pertaining to the petition not charged for later
50
use when filing the second petition.
This Court should examine whether the requirement to
afford the Respondent the rudiments of due process is
outweighted by the Board's interest to protect the public
interest.
(D). THE DENIAL OF THE RIGHT TO A “VOIR DIRE”
OF THE HEARING COMMITTEE WAS IN VIOLA-
TION OF THE BAR RULE PROVIDING FOR VOIR
DIRE AND A DENIAL OF DUE PROCESS OF THE
RESPONDENT
By the Court's adoption of the report and findings of the
Board with respect to the question of the allowance of a
“voir dire” of the hearing committee, the Court has unwit-
tingly adopted and accepted the finding of the Board that
“there is no general right to a “voir dire” of hearing
committee-members- who serve this Board and the Court
of Appeals ---". Decision herein, dated January 11, 1984,
page 38.
This ruling runs contrary to the Rules adopted by the
Court to foster an element of due process with respect to
procedures before a hearing committee.
The Board rules on Disciplinary Proceedings, Chapter 8,
Section 3 (1) C, provides as following:
“The Chairman shall them identify himself and the other
member of the Committee and inquire if there are chal-
lenges to any member of the Committee”. Chapter 18, Sec-
tion 3 (1)d, provides as following:
“Should challenges result in the departure of the
Chairman---”
Implicit within these Rules is the requirements that
information may be gained from the panel members which
would serve as a basis for the exercise of challenges.
The right of challenge has its source in the common law,
and has always been an essential ingredient of a jury trial
51
and has been codified in the D.C. Code at 13-701 and
23-107. The District of Columbia Court of Appeals, no
doubt had in mind, when it promuigated the rule which
allows for a challenge, to insure that an accused respond-
ent would have a fair and impartial hearing that is mandated
by case law in matters of this type. See/n Re Thorup, 432A
2d 1221 (D.C. 1981, citing Chariton v. Federal Trade Com-
mission, 177 U.S. App. D.C. 418, 543 F2d 903, (1976). It has
been held the ultimate function of voir dire is to explore the
nuiances of conscious to determine whether a prospective
person is able to participate fairly in the deliberations on the
issues, confining his judgment, to the facts presented,
Crawford v. Bounds, (CA 4 NC 395 F 2d 297).
The Court obviously does not want to curtail this right
and therefore the full Court should make a determination
concerning the meaning and implication of the Disciplinary
Rule, Chapter 8, Section 3 (1)c, so as to afford an optimum
of due process.
(E). THE FINDINGS OF THE COURT SANCTION THE
RULE THAT THE BOARD HAS UNLIMITED
AUTHORITY IN MATTERS OF VIOLATION OF
THE DISCIPLINARY RULES EVEN WHERE THE
COURT (SUPERIOR COURT) HAS BEEN RE-
QUESTED TO CONSIDER THE MATTER.
By Order dated, March 11, 1981, the Superior Court rati-
fied the Auditor-Master’s Report dated February 12, 1981.
The Auditor-Master's Report contained a recommendation
that the Court consider the advisability of referring the
matter to the Office of Bar Counsel for appropriate action.
in ratifying the Auditor-Master's Report, the Court did not
refer the matter to Bar Counsel and made no reference to
the Auditor-Masters’ recommendation of deferral.
52
The Board found that:
“In our view, neither we nor the Board on Profes-
sional Responsibility is precluged from reviewing
respondent's conduct because the court did not spe-
cifically refer the matter to the Office of Bar Counsel.
The court, in ratifying the Auditor-Master’s Report, did
not purport to make a determination whether respond-
ent breached his fiduciary duty as trustee. The court’s
order is silent with regard to whether respondent's
conduct warranted a referral to the Office of Bar Coun-
sel, and no inference properly can or should be drawn
from that silence. Thus, the court's action in this regard
does not preclude this Committee from determining
whether respondent’s conduct was in violation of the
Code of Professional Responsibility. Nor does the
court's action constitute a determination that respond-
ent breached his duties as trustee.”
The Superior Court of the District of Columbia has gen-
eral equity powers in matters pertaining to Trustees. D.C.
Code Section 11-921, 1973 Edition, as Amended. These
powers apply to the appointment of Trustees, control of
Trustees, their removal, discharge of Trustees and the
settlement of their accounts. Therefore, the Court: has
supervisory control over any matter which concerns the
trust, its Administration, its preservations and its disposi-
tion and any other matter wherein Trustees are affected in
the discharge of their duties toward the trust. When the
Court has exercised its supervisory powers and ordered a
Trustee discharged as in the instant case, without referring
the matter to the Board as recommended, the Court has
passed upon the performance of the Trustee toward the
trust and the Board may not second guess the Court with-
out subverting the Court's authority.
That the Court did not purport to make a determination of
whether the Respondent breached his duty is untenable.
53
Also is the contention that no inference may be drawn from
the silence of the Court on the matter of the referral in its
Order of Ratification of the Auditor-Master’s Report. To
adopt the aforesaid contentions is paramount to charging
the Court either with negligence or misfeasance. In fact, the
court having before it the request to consider referral, giv-
ing due interpretation to the appointing Order and its
requirement that the Respondent pay the funds into the
Registry of the Court, saw that the duties and responsibili-
ties of the Respondent had been fulfilled. Submission of the
report to Auditor-Master for auditing purpose was sur-
plusage.
The presumption prevails that the Court did its duty. In
fact, the Board impugned the integrity and sagacity of the
Court. For this Court to affirm the findings of the Board
concerning the non referral, undercuts the authority of the
Superior Court and the Court should review en banc to
correct this finding which has far reaching consequences.
(F). THE FINDINGS OF THE BOARD ARE UNSUP-
PORTED BY SUBSTANTIAL EVIDENCE OF
RECORD AND SHOULD NOT BE ADOPTED.
In Bar Docket No. 224-79, Appeal No. 83-492, Bar Coun-
sel did not show by clear and convincing evidence that
misappropriation hac occurred. Despite the introduction of
some checks from the trust account with payees names
who appeared to be indecipherable.
In substantiation of this conclusion the Veteran’s Repre-
sentative testified that he saw or could find no evidence of
wrong doing.
Mr. Fallon stated that the duties of the Trustee were to pay
off the liens, take out the expenses of the foreclosure, and
distribute the surplus to the mortgage holder and that was
all that was required. Further that Veterans Administration
was paid and Mrs. Pailin was paid; the Respondent was
54
having difficulty finding Mr. Pailin and that he did not han-
dle the portion of the case relating to advising the Respond- |
ent of the address for Mr. Pailin. (Mr. Pailin was in fact paid
by the Respondent on December 15, 1982, upon learning of
the address of Mr. Pailin).
The Court in its publishing of the lenghty findings of the
Board with respect to the two (2) cases adopted without
comment those findings. Although clearly the Court as the
Reviewing Authority may exercise this role, in a matter of
disbarment the rudiment of due process and equal protec-
tion of the law under the Constitution, where a livelihood is
being deprived, requires more than a mere adoption of
findings and this is particularly true where the rule of char-
acter witnesses’s testimony has been restated and dimin-
ished and attributed no weight in proceedings of this type.
This Court should therefore in affording due process and
equal protection before imposing the deprivation of dis-
barment, should review en banc the totality of this matter.
WHEREFORE the Respondent respectfully request that
he be granted a hearing en banc and the mandate stayed
pending such hearing.
Respectfully submitted,
/s/Charles A. Brady
Charles A. Brady #141176
Attorney for Respondent
1343 Pennsylvania Avenue, S.E.
Washington, D. C. 20003
332-7600
55
CERTIFICATE OF SERVICE
| hereby certify that a copy of the foregoing Petition For
Hearing En Banc was mailed, postage prepaid, this 24th day
of January, 1984, to Samuel McClendon, Assistant Bar
Counsel, 515 5th Street, N.W., Washington, D. C. 20001
/s/Charles A. Brady
Charles A. Brady
56
DISTRICT OF COLUMBIA COURT OF APPEALS
IN THE MATTER OF
MELVIN M. BURTON, JR. NOS: M 143-82
M 83-192
A wCMBER OF THE BAR OF THE
DISTRICT CF COLUMBIA COURT OF APPEALS
RESPONDENT'S REPLY TO PETITIONER'S
OPPOSITION TO PETITION FOR RE-HEARING
EN BANC
Charles A. Brady
Counsel for Respondent
Bar Number #141176
1343 Pennsylvania Avenue, S.E.
Washington, D. C. 20003
332-7600
57
ISSUE |
THE APPLICABILITY OF DISCIPLINARY RULE
102(A) PRESENTLY RE-NUMBERED AS 9-103(A)
HAS A RETROACTIVE EFFECT UPON THE
INSTANT CASE AND IS THEREFORE VIOLA-
TIVE OF DUE PROCESS.
Prior to April 30, 1983 Disciplinary Rule 102(A) was appli-
cable to acts of commingling as manifested in the lesser
sanction meted out in/n Re Dwyer, M 61-80, /n Re Artis, M
103-81, /n Re White, M 52-80, and/n Re Burka, 423 A2d 181,
183, 186-197 (D.C. App. 1980) En Banc, notwithstanding,
which also included 1-102(A)(4) which details and embra-
ces features of dishonesty, fraud, deceit and misrepre-
sentation.
The Court of Appeals announced in June 1983, in /n Re
Harrison, 461 A 2d 1034 (D.C. 1983) the definition of Misap-
propriation to be applied in this Jurisdiction. Moreover, up
until this time, there was no clear cut definition of misap-
propriation for the District of Columbia as corroborated by
an articie by Bar Counsel which appeared in the “Lega/
Times” dated February 6, 1984, acopy of which is attached,
as Exhibit “A”, wherein Bar Counsel stated that it asked the
Court of Appeals to announce that in the future, misuse of
client’s funds will result in disbarment.
The opinion of the Court of Appeals in Harrison estab-
lished the law but the announcement of the rule by Bar
Counsel in his article in the “Lega/ Times” was the first
notice to the public (lawyers) that the rule was in effect and
the nctice requirement was necessary before Bar Counsel
could safely proceed under the new rule or Court's opinion.
Respondent’s conduct was Pre-Harrison con-
duct, and therefore, it was a violation of the due process
58
right of the Respondent to retroactively apply the Harrison
Rule to Pre-Harrison conduct and to have done so, presents
the present dilemma with the applicability of sanctions.
with the applicability of sanctions.
The imposition of the Harrison standard to Pre-Harrison
conduct where Bar Counsel after the Hearing for the first
time in his Post-Hearing Brief stated his reliance upon the
Charge of Misappropriation, after leading the Respondent
arid the Hearing Committee to rely upon the Charge of
Con:mingling was a violation of the Respondent's Due Pro-
cess Rights.
The Respondent was not prior to the Hearing giving
notice of the reliance upon the Charge of Misappropriation,
never charged with that violation and had no opportunity to
defend against such a charge. Clearly the Rudiments of
Due Process requires reversal.
ISSUE II
THE DISCIPLINE IMPOSED UPON THE RE-
SPONDENT BECLOUDS THE iIMPLEMENTA-
TION OF SANCTIONS AND WIDENS THEIR
DISPARITY IS AND THEREFORE VIOLATIVE OF
DUE PROCESS.
An equitable judicial maxim in meting out sanctions
seems to be that Disciplinary Rule are never to be applied in
the “abstract” since they have an impact upon the individual
Respondent's reputation, character and livelihood, and
impinges upon him and his fellow lawyers as practitioners
in the profession.
Bar Counsel relied upon, /n Re Dwyer, M 61-80, /n Re
Brown, M 57-80, In Re White, M 52-80 and /n Re Arits, M
103-81, as precedent cases, and for added leverage used
59
Burka and Quimby and assert that the Respondent's case is
a “mirror image” of the latter two. While image is a rather
graphic and ingenious phrase to describe the relationship
between the Quimby and Burka cases, it fails to delineate
the features of the Respondent and therefore, the “mirror
image” analogy is thus faulty.
In reviewing the cases below there appears to be no
precedential thread of commonality and the decisions of
the Court in the instant cases further serves to demonstrate
that DR 9-102(A) has been considered a commingling
violation.
The Respondent The Violation The Sanction
In Re Artis, M 103-81 Rule 9-102(A) )Public Censure
Rule 9-102(b) )
Commingling )
In Re White, M 52-80 7 Violations: Public Censure
DR 7-101(f)(2) +)
and 3 and DR )
1-102(A) (4) )
and (5)
In Re Dwyer, M 61-80 DR 6-101(A)(3) )Nine Months
In Two Counts: DR 6-101(A)(2) )Suspension and
DR 7-101(A)(1) )with
(2) and (3) )Restitution
DR 1-102(A)(2) )
dishonesty, fraud,
etc. )
DR 101-(A) and )
(3) )
DR 1-102(A)(5)_)
DR 9-102(B)(1)_)
60
and (3) )
DR 9-102(A) )
DR 9-102(A) )
DR 1-102(A)4 _ s+)
In Re Brown, M 57-80 1-102(A)(3) Consent to
1-102(A)(4) Disbarment
1-162(A)(5)
In/n Re White, In Re Brown and /n Re Dwyer, violations of
Disciplinary Rules 9-102(A) and 9-103(A), and 1-102(A)(4)
were found by the Board and affirmed by the Court but this
notwithstanding, only the Respondent Brown was dis-
barred and his was a “consent disbarment”.
Review of the cases cited above makes it mani-
festly obvious that the sanction are disportionately meted
out and that DR 9-102(A) has prior to its re-numbering been
considered to be a Commingling Charge.
As for Quimby and Burka, which cases are relied upon by
Bar Counsel as “mirror images”. Burka is taken directly
from the 423 Atlantic Reporter at page 182 and the profac-
tory paragraph succinctly shows the following:
“On January 30, 1979, the District of Columbia
Bar (petitioner) instituted formal disciplinary pro-
ceedings against respondent based upon a refer-
ral by Superior Court Judge Margaret A. Hay-
wood. Respondent was changed with vigiating six
disciplinary rules in the Code of Professional
Responsibility; (1) DR 9-102(A) failure to deposit
funds of client in separate account; (2) DR 9-
102(B)(2) Failure to place securities in asaferiace
“as soon as practicable”, (3) DR 9-102(B)(3) Fail-
ure to maintain complete records of all funds” ofa
client coming into his possession; (4) DR 9-
’ 102(B)(4) Failure to deliver promptly to his client
61
(the estate) property owned by the ward; (5) DR
1-102(A)(4) dishonesty, fraud, deceit, or mis-
representation; and (6) DR 1-102;4)(5) conduct
prejudical to the administration justice.”
In Re Burton, the instant case lacks ingredients (2) DR
9-102(B)(2)(3), OR 9-102(B)(4) DR 9-102(B)(4) and (6) DR
1102(A)(5) of the Burka case and therefore is to be factually
distinguished.
The instant case has other salient features that is, all
parties represented by him were timely paid incuding Mr.
Pailin whose whereabouts was unknown and he was paid
immediately after Respondent received a good address;
that no party litigant was harmed as was attested to by the
Board's witness in chief, the attorney from the Veteran's
Administration and that no demand to deposit tunds into
the appropriate accounts were ever made.
Burka’s conduct was willful, deliberate and calculating.
The facts in the Respondent's case lacks these features.
In Re Quimby, the second supportive case relied upon by
Bar Counsel is also remarkably different from the instant
case.
The summary of this case is lifted verbatim from the head
notes frora Volume 359, p. 273 (1966) of the U.S. Court of
Aopeal.
“Disciprisary proceedings, United States District
of Columbia Court for the District of Columbia,
Holtzoff, McGarraghy, and Robinson, J.J. dis-
barred the attorney. The Court of Appeals “eld
that when a member of the Bar is found to have
betrayed his high trust by embezzling funds en-
trusted to him disbarment should ordinarily follow
as matter of course, and only the most strigent of
extenuating circumstances would justify lesser
disciplinary action, such as suspension.
Affirmed.”
62
The salient distinguishing fact in Quimby, is that the
Respondent was charged with and found to have embezzled
his client's funds...in Burton, this obviously is not this
case...so the “mirror image” analogy falls.
Disproportionality of sanction is again thrust upon the
Respondent in violation of his due process rights, espe-
cially is this true when viewed in the light of the sanctions
imposed on Harrison, Supra, /n Re Cefarratti, No. M 140-82,
June 28, 1983 and/n Re Hines, Docket Nos. 194-80 - 447-79,
(BPR October 28, 1982).
ISSUE Ill
THIS CASE WAS LITIGATED AND ADJUDI-
CATED IN A PRIOR PROCEEDING AND
ESTOPPED IS APPLICABLE
The Respondent, in the Anderson case was cross-
examined extensively on the Pailin Matter, which case was
yet to be presented by Bar Counsel, although Bar Counsel
had complete and total knowledge of the circumstances of
that matter.
The following portions of the Transcript of the cross-
examination by Bar Counsel amply demonstrates this fact.
Q. And you wrote the check to a former client, Mrs.
Pailin?
Well, Mrs. Pailin was not a client of mine.
Oh, | understand, | withdraw that question?
But, | wrote it as a result of a transaction that evolved.
You owed her the money?
>O> o>
Yes sir.
>
>
63
You owed her $3,300.00 and maybe some more
money at the time that you wrote her this check inad-
vertently, is that correct?
Yes.
And you wrote that check on the 14th day of
November, is that correct?
Yes.
You testified that when you wrote the check to her
inadvertently, that you really didn't know that you
didn’t have enough funds in the other account?
No, sir, | didn’t say | didn’t know. | said at the time |
didn't know whether | did or did not, | just didn't know.
All | could fathom on at that time was writing the
check. Mentally, you know, you've gone through
things in a Court recess, you're thinking, and alll can
remember is trying to. ..1 know | put in 5,000 in that
account in a 15-day period or so, | knew it was 4,000
or 5,000 and | just thought that it might have been
there.
Did you owe Mr. Nathaniel Pailin as a result of your
transaction?
Yes.
Had you paid him at the time you had wrote this check
to Mrs. Pailin?
| have not paid Mr. Nathaniel Pailin because | don't
know where Mr. Nathaniel Pailin is.
Did you...
Yes, | wrote Mr. Nathaniel Pailin a letter.
CHAIRMAN MILLER: Just a second, let Mr.
McClendon ask the question before you answer.
A.
64
This is your Exhibit #2, would you read the last
paragraph?
First of all, would you give the Committee the date of
this letter?
The date of the letter is September 17th, 1979, and it
says, “Finally, | understand that the delay in the dis-
tribution of the balance of the foreclosure proceeds
are occasioned by the inability to locate Mrs. Pailin’s
husband. I've taken the liberty of contacting the
Department of the Army, Retired Personnel Locator,
about Mr. Pailin. That office carries his address as
follows: S.F.C. Nathaniel Pailin, Retired, 809 West
232nd Street, Apartment 2B, Torrance, California
90502. Please do not hesitate to call me if any further
questions arise in this matter.”
Did you make any efforts to contact Mr. Pailin?
Yes, sir. On two occasions | wrote letters; only one of
which came back. In the meantime, | also picked up
the telephone one day in an effort to try to get a
number for him at that address; was unable to do so.
You received this dccument, apparently from the
Department of Army; did you ever contact the De-
partment of Army to see whether or not they had a
more recent address for Mr. Pailin?
No, this from the Office of the United States Attorney.
Therefore the matter cited above shows ample precedent
for aplication of the doctrine of Estopped.
65
ISSUE IV
THE RESPONDENT HAD A RIGHT TO CON-
DUCT A VIOR DIRE OF THE HEARING PANEL
This Court does not wish as Bar Counsel contends to
foster a rule that “there is no general light to a “voir dire” of
hearing committee members--.”
The adoption of such a rule would make Disciplinary
Rule, Chapter 8, Section 3(1)c Surplusage and unmeaning-
ful. Clearly, this was not the intent of the Court when it
adopted the Rule.
lf Disciplinary proceedings are quasi-criminal in nature
surely none of the Constitutiona! safeguards should be
relaxed or abridged.
The process of a disciplinary hearing is one where a
Respondent is judged by his peers and therefore, in order to
insure that the panel shall impartially and objectively assess
the evidence presented against a Respondent consonant
with the guidelines of the Sixth Amendment to the Constitu-
tion, vorr dire of the panel members must be allowed.
At the very outset, the Respondent's counsel inquired of
the panel whether any of them received VA benefits or VA
checks. This question was never answered and the pro-
ceedings involved a Veterans Administration Matter. An
affirmative answer to this question may well have been
sufficient to substantiate a challenge for cause.
Obviously, the Court does not wish to curtail this right
and therefore the full Court should make a determination
concernig the reason, meaning and the implication of Dis-
ciplinary Rule, Chapter 8, Section 3(1)c, so as to afford an
optimum of due process to Respondents at the Bar.
66
ISSUE V
THE BOARD OF PROFESSIONAL RESPONSI-
BILITY HAD NO JURISDICTION OVER THE
MATTER SET FORTH HEREIN
Pursuant to Section 4(3)(a), of Rule XI of the District of
Columbia Court of Appeals for the Bar grants virtually
untrammelled jurisdiction over its members once a
member’s conduct falls within its purview.
Exceptions to this untrammelled power, however, are
that the Board may not act when to do so would violate
public policy or when it has been ordered not to do so by a
Court Order.
While the action of the Superior Court herein by its re-
fusal to refer the matter to the Board, was not an order for
the Board not to take jurisdiction, the effect of non-referral
by the Court when asked to consider referral, by the Auditor
Mastor was tantamont to the Court saying that no conduct
of the Respondent warranted consideration by the Board
on Professional Responsibility and accordingly, the Board
should not have exercised jurisdiction, once the unsworn
initiating complaint proved groundless.
The only interpretation that may be given to the action of
the Court when it made no referral is that it performed its
duty and the Board could not, without requesting the Court
to reconsider, proceed against the Respondent, without
subverting the authority of the Superior Court.
This Court should not establish a precedeni which allows
the Board to act without limitations.
67
ISSUE VI
THE BOARD’S FINDING WITH REGARD TO THE
PAILIN MATTER WAS NOT SUBSTANTIATED
BY ORAL NOR DOCUMENTARY EVIDENCE
Bar Counsel would have the Court makes a finding dia-
metricaily opposite the testimony of its witness, the Vete-
ran’s Administration Attorney, whose Agency made the
initial complaint, who concluded his testimony thusly.
“Again, | don't see where that would be of a par-
ticular concern. to the Veterans Administration,
other than ultimately to know about it, because we
feel that we have an obligation to know the terms
of the Deed-of Trust in which we are the holder
and have appointed a substitute trustee have been
carried out, but we would not expect Mr. Burton to
tell us his daily activities in connection with the
property that did not belong to us anymore”
itis apparent that the Hearing Committee was persuaded
by this testimony because it concluded:
“1. That the case relied upon by Bar Counsel, In
the Matter of Quimby, |||, 359 F 2d (D.C. Cir. 1966)
went far beyond the bare bones financial records
of the accused and that this matter the evidence
against the Respondent is limited to the bank
records of a particular trust account with no testi-
mony.
2. That there was no other evidence showing the
ultimate use or purpose of the withdrawals from
the trust account causing it to be less than the
amount due to the Veterans Administration and
the Pailins.
68
3. The individuals who received checks drawn on
the bank account were not cailed as witnesses.
4. No testimony is in the record to show to what
extent the funds were used for the Respondent's
personal use.
5. There was no testimony or other evidence in
the form of an analysis of the Respondent's
client’s accounts on which to evaluate the extent
of Respondent’s misuse of clients’ funds and
6. The evidence herein consist primarily of the
bare bone bank account records, which standing
alone, do not permit an informed judgment.
It is clear that to conclude from these statements that the
Respondent violated the Disciplinary Rules is to foster
upon the public the notion that the board and the Court are
not bound by its own witnesses who disclaim that a viola-
tion took place. Such a finding would undermine the pub-
lic’s faith in the Bar process.
CONCLUSION
For all the foregoing reasons it appears that there are
matters of law which the Court should re-examine so as to
provide due process to the Respondent and therefore, it is
respectfully requested that the Court grant the Respondent
a ReHearing En B2nc
Respectfuily submitted,
/s/Charles A. Brady
Charles A. Brady
Attorney for Respondent
1343 Pennsylvania Avenue, S.E.
Washington, D. C. 20003
332-7600
69
CERTIFICATE OF SERVICE
| hereby certify that a copy of the foregoing Opposition
was mailed postage prepaid to Samuel McClendon, Assist-
ant Bar Counsel, 515 5th Street, N.W., Washington, D: C.
20001, this 4th day of March, 1984.
/s/Charles A. Brady
Charles A. Brady
70:
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Stealing Client Funds Is Deadliest of Sins
seperate, identifisbic bunk account, appropriation es develuped in ihe
ond with certain caccpuons, le re Oracrict of Columina is mn order
fran from withdrseing the client's in 1966, prior to the coun reorgs-
funds from the count valess au- Rization ia the Daina of Columbd:«
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bar
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(hat emount owed \v ihe cliemt, mise Of WO Incompatent war veterans for
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risen.’ 6 case in which ut found thet «=. 0 at the tienes.
an attorney Rad i upprupristed cli- . .
ent funda, but iaiead of Aanghestoes | GP memes 8 oe:
the sttorney, the court la mitigation of his macondua
hum for s year und 4 day. Since this Quimby emphasized bis previon
case marks the first ume in the histe == unblemished record and contenda
ry of the cour thu un atiornsy was (hal (he misappropriation w'as an et
not disbarred jor missppropnaing erretion thet was walikely iv be re
cheat funds, u cuimmentary on thai
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Boas Perdue Gasically, Disciplinary Rule DK
owt Chiesa Kirk- %10Xe) of the Code requires un ui
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APPENDIX
AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES
FIFTH AMENDMENT
No person shall be held to answer for a capitol, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be
taken for public use, without just compensation.
SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been pre-
viously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defense.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.