Thursday, February 26, 2009

Disbarment Too Harsh For Misappropriation?

The District of Columbia Court of Appeals adopted a strict rule virtually mandating disbarment in all case of intentional or reckless misappropriation in its 1990 en banc decision in In re Addams, 579 A.2d 190. The volunteer disciplinary system and the Bar in general has never like the Addams rule. A case decided today by a division of the court imposes disbarment in a matter where the attorney had deliberately taken his fee from a modest estate without required court authority. The Board (report attached to the court's decision) expressed concern that disbarment might be an unjust disposition under the circumstances but acknowleged that Addams was controlling for sanction purposes.

The court felt that the Board on Professional Responsibility "without expressly saying so, sees this as a case that invites reconsideration of Addams" and noted that a division (three judges) of the court is not free to do so. Judge Ferren, who had concurred in the Addams result) urges reconsideration of the Addams decision. He views the holding as a "vitually non-rebuttable" disbarment presumption that fails to provide a meaningful case-by-case sanction analysis:

I have no sympathy for lawyers who intentionally misappropriate funds. I agree that the public deserves protection against them--a protection supplied, initially, by the presumption of disbarment announce prospectively in [a pre-Addams case] and reinforced in Addams. Once that presumption is in place, however, I believe that this court should return on a case-by-case factual analysis.

As somewho who was at Bar Counsel when Addams was decided and saw the need for a strict rule in misappropriation cases, I will watch with interest to see if the court (the composition of which has almost entirely changed since 1990) is prepared to take this issue en banc. (Mike Frisch)

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