Thursday, January 13, 2011
The District of Columbia Court of Appeals for the first time since its en banc Addams decision in 1990 has found an "extraordinary circumstance" that overcomes the presumption of disbarment in a case involving intentional misappropriation. The division of the court imposed a six-month suspension and ordered the suspension stayed in favor of probation.
The attorney has practiced for 15 years without a bar complaint. The misconduct related to his appointment as successor conservator to a ward of the probate court. He took entrusted funds when the ward was undergoing a Medicaid eligibility review to "spend down the [ward's] bank account." He then petitioned the court for legal fees. The fee petition was denied because the services were non-legal in nature.
A show cause hearing was scheduled for his failure to file an annual accounting. The hearing committee in the bar discipline case found that the attorney discovered at that time that his fee petition was denied. The attorney later filed the accounting and repaid the fees he had taken.
The Board on Professional Responsibility majority concluded that the misappropriation was negligent but presented the first post-Addams exceptional circumstance. Three board members found intentional misappropriation. The board majority had recommended a stayed six-month suspension, which the court here adopted. Board Chair Martin Baach recommended disbarment.
The court "conclude[s] that the facts of the case-in particular that the motivation for the misappropriation was protection of the client's interest-present the type of 'extraordinary circumstances' in which disbarment is not the appropriate sanction."
The attorney who achieved this victory for his client is not one of the usual suspects who defend bar cases in the District. Rather, he is the Assistant Dean of Student Services at North Carolina Central School of Law.
This is a major decision. The court had a big bar discipline day. We will be posting some other decisions of interest. (Mike Frisch)