Thursday, January 9, 2014

Probation In California, Disbarred In D.C.

An attorney who had been suspended for two years with the suspension stayed in favor of three years of probation did not fare quite so well in the reciprocal discipline proceeding in the District of Columbia.

The attorney had stipulated in the California bar proceeding that he had intentionally misappropriated entrusted client funds.

The original proceeding was described as follows in the California Bar Journal

[The attorney] stipulated that he failed to maintain the proper balance in his client trust account. His client, a financial services company, gave [him] $40,000 for costs associated with his employment. When he was terminated, his trust account held only $13,155.56, all belonging to the client. Despite demands from the company that he return $13,000, [he]withdrew all the money while involved in a business dispute.

In mitigation, [he] had no discipline record in almost 30 years of practice, and the misconduct was an isolated and aberrational incident. The dispute with his client caused him significant financial and emotional distress.

The attorney then failed to notify D.C. of the California action as required and did not participate despite "numerous efforts to communicate with him during these proceedings." Certainly, his non-participation did not advance whatever legal arguments that might have been made on his behalf with respect to the appropriate reciprocal discipline.

The District of Columbia Court of Appeals applied discipline "[c]onsistent with our settled decisions" in the area of intentional misappropriation and disbarred the attorney.

The court concluded that

...respondent's misconduct could only have resulted in disbarment, which is a substantially different sanction from the stayed suspension imposed by the California court...Although the California court did not describe respondent's conduct as "misappropriation," respondent's actions clearly constitute misappropriation in this jurisdiction.

In the District of Columbia, disbarment is imposed in original cases involving intentional misappropriation unless there are "extraordinary circumstances."

Because he has never filed the affidavit required by the court's order of interim suspension, the effective date of the disbarment does not begin for reinstatement purposes until such an affidavit is filed. (Mike Frisch)

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