Thursday, March 8, 2018
Intentional misappropriation and a host of other Rule 1.15 violations have led to an attorney's disbarment by the District of Columbia Court of Appeals.
Respondent‘s conduct giving rise to the violations stemmed from her personal injury law practice and transactions that followed a common pattern, namely: respondent‘s clients received medical treatment from a chiropractor and signed (along with respondent) the medical provider‘s authorization and assignment form creating liens on the proceeds of any settlement amounts received by the client-patients from insurers. Respondent then negotiated a settlement with the involved insurance carrier, normally including also a reduction of the medical bills by the treatment providers. During the time period at issue, respondent referred her personal injury clients to two different chiropractors or chiropractor clinics, Dr. Mohammed Yousefi and Medical Support Services (MSS). Respondent‘s failure to hold in trust and timely disburse funds received pursuant to these settlements and owed these providers formed the basis of the violations found by the Hearing Committee and the Board.
The court rejected attacks on the proofs
Disciplinary Counsel offered convincing evidence that, although respondent owed the providers an aggregate of at least $40,893 for some nineteen selected cases as of August 1, 2012, by the alleged misappropriation dates of October 5–8 and 16, she had in the trust account less than $37,000, when no disbursements for those cases had yet been made to the providers.
Her pattern of disputing the medical bills post hac also did not negate the findings
As the Hearing Committee explained, respondent‘s duty to pay the providers once the insurers had settled ―far outweighed her own interests in evaluating the accuracy and integrity of medical bills for which she had already received a settlement check.‖ And, if respondent had any remaining dispute with a provider as to the correct amount to be disbursed for treatments, the proper course of action was for her to escrow the funds until the dispute was resolved, District of Columbia Rule of Professional Conduct 1.15 (d), which she failed to do...
In sum, the Board unanimously determined by clear and convincing evidence that respondent‘s misappropriation, ―part of a pattern of misconduct — including 34 discrete financially-based Rules violations — that transpired over the course of more than a year,‖ when combined with her "fail[ure] to explain why [the] misappropriation took place"
and "utterly meritless excuses for her failures promptly to pay her clients‘ medical providers," rose to the level of intentional misappropriation requiring disbarment. See In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). The Board‘s report meticulously substantiates that conclusion, and we agree with it. Even if we were to conclude that respondent‘s indifference toward her obligations to the providers was reckless rather than intentional, the result would be the same. In re Anderson, 778 A.2d at 338.
Associate Judge Thompson
concurring in part and concurring in the order of discipline: I readily agree with my colleagues and with the conclusion of the Hearing Committee and the Board on Professional Responsibility (the Board) that there is clear and convincing evidence that respondent committed numerous violations of Rule 1.15 (c) (failure promptly to deliver funds) and 1.15 (d) (failure to distribute funds). I have had a great deal more trouble agreeing that Disciplinary Counsel proved by clear and convincing evidence that respondent misappropriated client funds (and, under our case law, must be disbarred). Ultimately, I am persuaded that the record evidence supports the conclusion that respondent‘s trust account was out of trust on the dates Disciplinary Counsel alleged, but I write separately to explain why I have reached this conclusion. Along the way, I explain why I am not entirely satisfied with the reasoning on which the Board relied.
But in the end
In the end, I conclude that the record evidence as a whole is clear and convincing that respondent‘s escrow account was out of trust on the dates in question, and thus that a finding of misappropriation is warranted.18 Because I do not take issue with the Board‘s finding that the misappropriation was intentional or at least reckless, I concur in the judgment disbarring respondent.
Associate Judge Beckwith and Senior Judge Farrell were on the per curiam opinion. (Mike Frisch)