DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY HEARING COMMITTEE NUMBER FIVE

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY HEARING COMMITTEE NUMBER FIVE In the Matter of: : : JAMES R. BOYKINS, : : Respondent. : Bar Docket No. 325-02 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 426147) : : REPORT AND RECOMMENDATION OF HEARING COMMITTEE NUMBER FIVE Before Hearing Committee Number Five are Bar Counsel s charges that Respondent committed the following violations of the Rules of Professional Conduct and the Rules of the Court of Appeals Governing the Bar: 1.15(a); 1. Misappropriating the property of a client, Ericka Obeng, in violation of Rule 2. Failing to establish and maintain complete records reflecting his handling of the settlement funds of Ericka Obeng, and failing to preserve these records for five years after the termination of the representation, in violation of Rule 1.15(a) and D.C. Bar Rule XI, 19(f); 3. Failing to promptly notify third persons (Dr. Philip Bovell and Washington Open MRI) upon receiving the settlement and Personal Injury Protection ( PIP ) funds of a client, Dennis Green, even though these entities had a financial interest in the funds, and failing to promptly deliver these funds to Dr. Bovell and Washington Open MRI, in violation of Rule 1.15(b);

4. Failing to establish and maintain complete records reflecting his handling of the settlement and PIP funds of Dennis Green, and failing to preserve these records for five years after the termination of the representation, in violation of Rule 1.15(a) and D.C. Bar Rule XI, 19(f); 5. Knowingly making a false statement of material fact in connection with Bar Counsel s investigation of Respondent s handling of Dennis Green s PIP funds, in violation of Rule 8.1(a); 6. Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in connection with Bar Counsel s investigation of Respondent s handling of Dennis Green s PIP funds, in violation of Rule 8.4(c); and 7. Engaging in conduct that seriously interfered with the administration of justice by attempting to mislead Bar Counsel regarding Respondent s handling of Dennis Green s PIP funds, in violation of Rule 8.4(d). The Hearing Committee concludes that Bar Counsel has presented clear and convincing evidence to prove the first, third and fourth charges. However, the Hearing Committee also concludes that Bar Counsel has not presented clear and convincing evidence to prove the second, fifth, sixth and seventh charges. Based on the nature and extent of the violations proved, and in light of both the aggravating and mitigating circumstances concerning sanction that were presented at the evidentiary hearing, we recommend that Respondent be suspended for 6 months, with the condition that he complete a CLE course concerning the handling of entrusted funds before he resumes his law practice. 2

PROCEDURAL HISTORY On May 5, 2006, Bar Counsel filed a Specification of Charges and Petition Instituting Formal Disciplinary Proceedings in the above-captioned case. On June 30, 2006, Respondent filed an Answer to the Specification of Charges and Petition. On July 10, 2006, a pre-hearing conference was held, during which the Chair of the Committee scheduled an evidentiary hearing to commence on September 26, 2006. However, the hearing was continued on that date, and on a number of occasions thereafter, due to the health of the Respondent. On March 5, 2007, the Committee commenced the evidentiary hearing in this matter, and then, before any testimony or evidence was received, continued the hearing an additional week at the joint request of Bar Counsel and Respondent s counsel, who each requested additional time to assess whether testimony was needed from a recently-discovered witness, Yvonne Commey. On March 13, 2007, the Committee conducted the evidentiary hearing in this matter, and heard testimony from Josh Newfield, the chief operating officer at Washington Open MRI, and from the Respondent. At the conclusion of the first phase of the hearing, the Hearing Committee admitted the following exhibits into evidence, without objection from Respondent: BX A through D; BX 1-29; BX 32; and BX 34-35. Tr. at 209. Upon the conclusion of the first phase of the hearing and the admission of exhibits, the Hearing Committee made a preliminary non-binding determination that Bar Counsel had presented clear and convincing evidence sufficient to prove at least one of the alleged charges. Tr. at 218. 3

After the Committee made its preliminary non-binding determination that at least one violation had been proved, Bar Counsel submitted BX 30, a copy of the Court of Appeals opinion in In re Boykins, 748 A.2d 413 (D.C. 2000), in aggravation of sanction. BX 30 was admitted into evidence without objection. Tr. at 219. In mitigation of sanction, Respondent noted that he had cooperated with Bar Counsel throughout the course of the disciplinary proceedings. Tr. at 220. On April 19, 2007, Bar Counsel filed its Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction ( PFF ), arguing that Respondent had violated the provisions listed above, and claiming that Respondent s misappropriation of Ericka Obeng s property was, at a minimum, reckless. Bar Counsel requested that Respondent be disbarred if the Committee determined that Respondent s misappropriation was reckless, and requested, in the alternative, that Respondent be suspended from the practice of law for at least one year, with his reinstatement to be conditioned upon a showing of fitness, if the Committee determined that Respondent s misappropriation was negligent. On May 18, 2007, Respondent filed his Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction ( PFF ), conceding that he had misappropriated the property of Ericka Obeng, but claiming that this misappropriation was merely negligent, not intentional or reckless, and disputing all the charges alleging that he knowingly made false statements to Bar Counsel, or attempted to mislead Bar Counsel, in connection with his handling of Dennis Green s PIP funds. Respondent requested a lenient sanction and asserted that the Committee should consider his significant health challenges in mitigation of the alleged violations. PFF at 13-14. 4

On June 1, 2007, Bar Counsel filed its Reply to Respondent s Proposed Findings of Fact, Conclusions of Law, and Recommendations as to Sanction. PROPOSED FINDINGS OF FACT 1. Respondent is a member of the Bar of the District of Columbia Court of Appeals, having been admitted by motion on December 17, 1990, and having been assigned Bar number 426147. BX A; Tr. at 56. Respondent was originally admitted in Pennsylvania on June 9, 1989, but is currently inactive in that jurisdiction. BX A; BX 11 at 20. Respondent also is admitted to practice in Maryland, and is an active practitioner there. Tr. at 63; BX 11 at 20. 2. Respondent first practiced with a more experienced attorney, primarily in the personal injury and probate fields, for approximately two years, and has been a sole practitioner since approximately 1992, with the majority of his practice in the field of personal injury law. Tr. at 58-60; 153-54. Count I: Ericka Obeng Matter 3. Respondent represented Ericka Obeng in a personal injury matter in the fall of 1998. BX 9 at 14; BX 11 at 21; Tr. at 61-62. Respondent testified that Ms. Obeng was referred to his practice by his paralegal assistant, Yvonne Commey, who was admitted to practice law in Ghana but not in the United States. Tr. at 62-64; 155. 4. In the fall of 1998, Ms. Obeng agreed to settle her personal injury claim for $3,300 and the insurer, Progressive Insurance Company ( Progressive ), sent a check for that amount. BX 11 at 21; BX 25 at 77; Tr. at 73-75. 5

5. On November 16, 1998, Ms. Commey prepared a settlement and disbursement sheet concerning Ms. Obeng s claims, providing for disbursements as follows: a. $1,100 to Respondent as a contingent fee; b. $50 to Respondent to reimburse expenses; c. $600 to Dr. Hampton Jackson; and d. $1,550 to Ms. Obeng. BX11; Tr. 67-72. Ms. Obeng reviewed and signed the disbursement sheet on November 20, 1998 and the check, endorsed by Ms. Obeng and Respondent, was deposited in Respondent s trust account at Industrial Bank of Washington that same day. BX 25 at 75, 77-78; Tr. at 74-75. 6. On December 4, 1998, Respondent issued Trust Account Check No. 662 to Ms. Obeng for the $1550 owed to her, which was recorded on the check stub as P.I. settlement against Progress Ins., and Check No. 663 to Dr. Jackson for $600, recorded on the stub as Full medical payment. BX 26 at 89; Tr. at 76-78. These checks correspond to the amounts shown on Ms. Obeng s settlement disbursement sheet. BX 11 at 21. 7. Also on December 4, 1998, Respondent issued Trust Account Check No. 664 to himself in the amount of $2,267, which was (rounded to the nearest dollar) the sum of the $1,100 fee earned in Ms. Obeng s matter and the $1,166.67 fee earned in an unrelated matter for client Donald Green. BX 26 at 89; Tr. at 79-80. Both the check and the stub for Check No. 664 stated that they covered fees for the Green and Obeng matters, but neither the check nor the stub separately itemized the fee for each case. 6

BX 26 at 89. However, the fee amounts were recorded on the settlement sheet for each client, BX 11 at 21-22, and the amount of Check No. 664 was correct to the nearest dollar. 8. At some point between December 4 and December 9, 1998, Ms. Commey informed Respondent that Ms. Obeng had lost Check No. 662. Tr. at 82-83. Respondent had a stop payment order placed on the check, and, on December 9, 1998, issued a replacement check, Check No. 669, to Ms. Obeng in the amount of $1525. BX 26 at 93; Tr. 83. Respondent noted both on the face of the check and on the check stub that Check No. 669 was a replacement for Check No. 662 in settlement of Ms. Obeng s personal injury claim against Progressive s insured. BX 25 at 93. Respondent reduced the amount of the replacement check by the $25 stop payment fee he incurred as a result of the check Ms. Obeng had lost Tr. at 84; BX 13 at 33; BX 25 at 79 (bank statement showing miscellaneous debit on December 9, 1998 of $25 for stop payment fee). 9. On December 21, 1998, Check No. 669 was presented for payment to Industrial Bank of Washington. BX 25 at 79. The bank did not honor the check because there were insufficient funds in Respondent s trust account. Id. That same day, the bank notified both Bar Counsel and Respondent of this overdraft. BX 1; Tr. at 86. 10. On January 20, 1999, Respondent issued Trust Account Check No. 678 to Ms. Obeng to replace dishonored Check No. 669. BX 26 at 99; Tr. at 90-92. Ms. Obeng presented Check No. 678 that same day, and the bank honored the check. BX 25 at 87. Check No. 678 was for $1,530, $5 more than the check it replaced. 7

Respondent could not explain the reason for the $5 increase but believed it was based on discussions between Ms. Obeng and Ms. Commey. Tr. at 90-92 11. The overdraft on the check issued to Ms. Obeng was the result of three checks that Respondent issued to himself. First, Trust Account Check No. 670 for $750, dated December 9, 1998, stated both on the stub and on the face of the check that it represented attorney fees in the Green case. BX 25 at 93; Tr. at 93-94. Second, Trust Account Check No. 671 for $300, dated December 14, 1998, stated on the check stub expenses in Green and on the face of the check reimbursement in Donald Green and Ericka Obeng. BX 25 at 95; Tr. at 95-96. Finally, Trust Account Check No. 672 for $500, also dated December 14, 1998, stated on the check stub expenses for Green. BX 25 at 95; Tr. at 96. Respondent testified that he did not realize that he had essentially paid himself twice for his work in the Obeng and Green matters when he issued Checks 670 through 672, but stated, in a credible manner, that he forgot he had already taken a fee in these matters when he wrote these checks. Tr. at 162. Respondent further testified that he did not reconcile his trust account at the time he wrote these checks to ensure that he withdrew only those funds that he was entitled to receive pursuant to the distribution sheets signed by his clients. Tr. at 98-99. 12. Whereas the Obeng and Green settlement sheets showed that Respondent was entitled to receive a total of $2,482.77 in fees and reimbursements in the two matters combined, BX 11 at 21-22, Respondent paid himself $3,817.00 in Checks No. 664, 670, 671 and 672. BX 26 at 89, 93, 95. This overpayment of $1,334.23 caused Check No. 669 to Ms. Obeng to be dishonored because of insufficient funds. 8

13. Respondent could not specifically explain how he arrived at the amounts in Checks 670, 671 and 672. Tr. at 90, 96-98. He recalled that his practice was sometimes to take partial payment of his fees in intervals, and testified that he believed that Check Nos. 670-672 were examples of this practice. Tr. at 93-96. Respondent also testified, in a manner that the Committee found to be credible, that he did not intentionally take any money from Ms. Obeng to which he was not entitled, that he did not realize he had overpaid himself when he wrote Check Nos. 670-672, and that he mistakenly thought he had sufficient funds in his trust account when he wrote the dishonored check to Ms. Obeng. Tr. at 98, 161-63. Count II: Donald Green Matter 14. On June 10, 1998, Donald Green was injured in an automobile accident. Tr. at 102. He retained Respondent to represent him on a contingency basis concerning claims arising from the accident. Tr. at 101-02. 15. Mr. Green received medical services for the injuries he suffered as a result of this accident from Dr. Philip Bovell, and on June 29, 1998 signed an Assignment and Authorization (A&A) form directing Respondent to pay Dr. Bovell out of the proceeds of any recovery. BX 23 at 66. Respondent s paralegal assistant, Yvonne Commey, signed the A&A on behalf of Respondent, agreeing to pay Dr. Bovell directly from the proceeds of any recovery in this case, and further agreeing to advise [Bovell] in writing of the status of the claim for the patient within ten (10) days of the request [for information about the status of the claim]. BX 23 at 66; Tr. at 104-06. Dr. Bovell charged Mr. Green $635 for services covered by the A&A. BX 11 at 22; BX 22 at 64. 9

16. Mr. Green also received medical services for the injuries he suffered as a result of the accident from Washington Open MRI, and on July 16, 1998 signed an A&A directing Respondent to pay Washington Open MRI out of the proceeds from any recovery. BX 24 at 71. Respondent s paralegal assistant, Yvonne Commey, signed the A&A on behalf of Respondent on July 28, 1998, agreeing to pay Washington Open MRI directly from the proceeds of any recovery in the case and further agreeing to advise [Washington Open MRI] in writing of the status of the claim of the patient within (10) days of the request [for information about the status of the claim]. BX 24 at 71; Tr. at 106-07. Washington Open MRI charged Mr. Green $1,076 for services covered by the A&A. BX 22 at 63-64. 17. In November 1998, Mr. Green settled his claim for $3,500. BX 11 at 21. On December 2, 1998, Respondent s office prepared a Settlement and Disbursement Sheet, providing for the settlement funds to be disbursed as follows: a. $1,166.67 to Respondent as a contingent fee; b. $635.00 to Dr. Bovell; c. $1,076.00 to Washington Open MRI; d. $467.85 to Alexandria Hospital 1 ; e. $16.10 to Respondent as out of pocket expenses; f. $150.00 to respondent as a flat fee for preparing a PIP application; and g. $2,167.13 as balance due client. BX 11 at 22. 1 Bar Counsel did not charge Respondent with failure to notify or pay Alexandria Hospital. 10

18. On December 4, 1998, Respondent and Mr. Green both endorsed the settlement check, which was deposited in Respondent s Trust Account. BX 25 at 79, 83; Tr. at 113-14. 19. On December 4, 1998, Respondent s office submitted a PIP claim on behalf of Mr. Green seeking an additional $2,178.85. BX 22 at 59-60; Tr. at 108. 20. On December 4, 1998, Respondent issued Trust Account Check No. 664 to himself in the amount of $2,267, which was the sum of the $1,100 fee earned in Ms. Obeng s matter and the $1,166.67 fee (rounded to the nearest dollar) in the Donald Green matter. BX 26 at 89; Tr. at 79-80. 21. Also on December 4, 1998, Respondent issued Trust Account Check No. 665 to Mr. Green for $2,167.13. BX 26 at 91. Industrial Bank of Washington honored Check No. 665 on December 9, 1998. BX 25 at 79. 22. Respondent did not reimburse Dr. Bovell or Washington Open MRI for their services upon receiving the settlement funds for Mr. Green, nor did he notify Dr. Bovell or Washington Open MRI upon receipt of these funds. Tr. at 116-18, 133. 23. On January 26, 1999, Respondent received four separate PIP checks totaling $2,178.85, payable to Mr. Green, including a $1,076 check to cover Washington Open MRI s bill, a $635 check to cover Dr. Bovell s bill, a $365.85 check to cover Inova Hospital s bill, and a $102 check to cover Alexandria Radiologists bill. BX 22 at 54-57. 2 24. On January 28, 1999, after Mr. Green had endorsed these checks, Respondent deposited all four PIP checks into his non-trust, business checking account at Industrial Bank of Washington, in the name of Law Office of James R. Boykins. BX 2 The latter two bills constitute the $467.85 owed to Alexandria Hospital, as listed on the settlement and disbursement sheet. BX 11 at 22. 11

27 at 106; BX 28 at 109-10; Tr. at 119. Respondent explained that he did this because, at some point before January 28, 1999, he had personally loaned Mr. and Mrs. Green $3,000 in cash to assist the Greens with purchasing a house, Tr. at 208, and Mrs. Green suggested he use the PIP funds as partial repayment for the loan. Tr. at 122-23. Respondent testified that no written record existed of his cash loan to the Greens, because it was a personal loan and not a business loan, and further testified that Robin Green was his friend and her grandmother-in-law, Dorothy Foster, worked as a typist in Respondent s office. Tr. at 101, 146, 163-64. 25. On November 11, 1999, almost a year after Respondent received Mr. Green s settlement and PIP funds, Dr. Bovell notified Respondent that Mr. Green s $635 bill remained unpaid and asked Respondent to advise... as to the current status on your open cases listed below [including Mr. Green s]. BX 23 at 68; Tr. at 129. Respondent did not respond to this inquiry. Tr. at 130-131. 26. On January 9, 2001, more than a year after Dr. Bovell s initial inquiry and almost two years after Respondent received Mr. Green s settlement and PIP funds, Dr. Bovell again called on Respondent to advise... as to the current status of Mr. Green s case, noting that Mr. Green s unpaid bill was still $635. BX 23 at 70. Respondent did not respond to this inquiry. Tr. at 131. 27. On January 8, 2003, almost four years after Respondent received Mr. Green s settlement and PIP funds, Washington Open MRI called Respondent to inquire about Donald Green s matter and left a voice message requesting information about the current status of the case. BX 24 at 73. Respondent did not return the call. Tr. at 45. 12

28. On May 29, 2003, Washington Open MRI faxed an inquiry to Respondent again seeking information regarding the status of Mr. Green s case. BX 24 at 72-73; Tr. at 44-45. Respondent did not reply. Tr. at 45. 29. On June 9, 2003, in the course of its investigation of Mr. Green s matter, Bar Counsel asked Respondent to explain whether he had paid Dr. Bovell or Washington Open MRI from Mr. Green s settlement funds. BX 12 at 23-24. 30. Respondent testified that sometime after receiving this inquiry, he asked Mrs. Green whether Mr. Green s medical bills had been paid, and she told him they had not been paid. Tr. 138-139. Upon learning that the medical providers had not been paid, Respondent paid the outstanding bills out of his personal funds. Tr. at 139, 188-89. 31. More specifically, on July 1, 2003, less than a month after Bar Counsel s inquiry but more than four years after Respondent had received Mr. Green s settlement and PIP funds, Respondent issued business account check No. 2096 in the amount of $1,000 to Philip Bovell, M.D., although he did not indicate the purpose of the payment on the check. BX 29; Tr. at 147. Respondent testified that he was not sure why he sent the check to Dr. Bovell, and did not know whether the check was meant to compensate Dr. Bovell for the services he rendered to Mr. Green. Tr. at 147-51. However, in responding to Bar Counsel s inquiry, on August 4, 2003, Respondent advised Bar Counsel that Dr. Bovell was paid. BX 15 at 36. Likewise, at the hearing, Respondent testified that he was sure that he paid Dr. Bovell for the services he rendered to Mr. Green, but admitted he had no records documenting this payment. Tr. at 151, 189. 13

32. On August 12 or 13, 2003, approximately two months after receiving Bar Counsel s inquiry and more than four years after receiving Mr. Green s settlement and PIP funds, Respondent used his own credit card to pay Washington Open MRI the $1,076 necessary to satisfy Mr. Green s outstanding bill. BX 32; Tr. at 47-48. Count III: Bar Counsel s Investigation 33. Bar Counsel opened a formal investigation into Respondent s handling of his trust account funds after receiving notice on December 29, 1998 that Respondent s Check No. 669 to Ms. Obeng had been dishonored, and first contacted Respondent about this dishonored check in July 2002. BX 1, 2. 3 Between July 2002 and December 2004, Bar Counsel sent Mr. Boykins seven separate written requests for information. BX 2, 4, 6, 8, 10, 12, 18. Between August 2002 and May 2005 Respondent provided written replies to these requests on 13 separate occasions. BX 3, 5, 7, 9, 11, 13, 14, 15, 16, 17, 19, 20, 21. 34. Bar Counsel has identified several significant discrepancies in Respondent s explanations of the dishonored check he issued to Ms. Obeng. Initially, Respondent provided a document from Industrial Bank of Washington, acknowledging that the bank had erroneously dishonored this check. BX 3 at 5; Tr. at 174. Subsequently, Respondent recalled that there had been a stop payment order involved, and suggested that this might explain the supposed bank error. BX 5 at 7; BX 7 at 10. 3 No criticism of Bar Counsel s diligence or professionalism in pursuing this investigation is intended by noting the delay between the receipt of the bank s notice and the first letter that Bar Counsel sent to Respondent. However, for purposes of evaluating Respondent s good faith in responding to Bar Counsel s inquiries, it is significant to note that, in his extended dialogue with Bar Counsel between July 2002 and May 2005, Respondent, a sole practitioner, was relying in part on his recollection of events that occurred between three and a half and six and a half years prior to Bar Counsel s inquiries. 14

Respondent later stated that he had contacted a bank representative who told him that she had forgotten to deposit a check he gave her on or about December 18, 1998, and that this had caused the shortage in his trust account. BX 17(a) at 41. By the time of the hearing, however, Respondent admitted he was unable to determine why the overdraft had occurred, Tr. at 99, and did not figure out the cause of his overdraft until his counsel pointed it out to him prior to the hearing. Tr. at 186. 35. All of Respondent s explanations (except possibly the last, that Respondent was unable to determine the cause of the overdraft) were incorrect. However, there is no direct evidence they were intentionally so. We find Respondent's testimony as to his own confusion credible. Indeed, there is evidence that the bank, too, was uncertain as to the reason for the overdraft, BX 3 at 5, and Bar Counsel has produced no evidence that the bank was complicit in an attempt to mislead Bar Counsel. 36. Bar Counsel also points to significant inconsistencies in Respondent s account of his handling of Mr. Green s PIP funds. Initially, Respondent stated that Mr. Green had received the PIP funds and had paid the medical bills from those funds. BX 13 at 32; Tr. at 135-36. Respondent subsequently provided an affidavit from Mr. Green averring that Mr. Green had picked up the PIP checks at Respondent s office. BX 17(b) at 43; Tr. at 142-43. Respondent admitted that Mr. Green did not, in fact, remember what happened with the PIP checks when Mr. Green executed the affidavit, but testified that Mr. Green executed the affidavit in reliance on Respondent s explanation of his customary practice when handling clients PIP checks. Tr. at 142-44. Respondent also testified that he drafted the affidavit for Mr. Green, but that he did so after discussing the 15

matter with Mr. Green, and after they agreed that this recitation of facts was the most likely explanation of what had happened in Mr. Green s case. Tr. at 143-44. Respondent further testified, in a fully credible manner, that he did not intentionally provide false information in the affidavit he drafted for Mr. Green and that he did not intentionally try to mislead Bar Counsel in its investigation of the handling of Mr. Green s funds. Tr. at 166-71, 184. After Bar Counsel s investigation revealed that the PIP checks that had been endorsed by Mr. Green were deposited in Respondent s business account, Respondent recalled the loan transaction with the Greens, and that Mr. Green had used the PIP checks to repay part of the loan. BX 20 at 49; BX 21 at 50; Tr. at 146-47. Respondent s Medical Condition 37. Respondent did not present any evidence that he suffered from any medical condition or disability at the time of the alleged violations in this case, and likewise presented no evidence that any such medical condition or disability caused the alleged violations. To the contrary, although Respondent testified that he suffered from lung and breathing problems, and that he had pneumonia in 1995 and 1998, he could not definitively state that he had any health problems at the time the specific violations occurred in this matter. Tr. 180, 196-97. PROPOSED CONCLUSIONS OF LAW Misappropriation Rule 1.15(a) requires every attorney to hold property of clients or third persons that is in the lawyer s possession in connection with a representation, separate from the lawyer s own property. Funds shall be held in a separate account maintained in a 16

financial institution.... Misappropriation includes any unauthorized use of clients funds entrusted to [a lawyer], including not only stealing but also unauthorized temporary use for the lawyer s own purpose, whether or not he derives any personal gain or benefit therefrom. In re Edwards, 808 A.2d 476, 482 (D.C. 2002) (Edwards I) (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983)). Indeed, a misappropriation occurs whenever the balance in the attorney s trust or operating account falls below the amount due to the client. Edwards I, 808 A.2d at 482; In re Anderson, 778 A.2d 330, 335 (D.C. 2001). Thus, misappropriation is essentially a per se offense; proof of improper intent is not required. Id. (quoting In re Micheel, 610 A.2d 231, 233 (D.C. 1992)). The Court of Appeals has identified three different categories of possible misappropriations intentional, reckless and negligent. In re Carlson, 802 A.2d 341, 348 (D.C. 2002). Because the presumptive sanction for intentional or reckless misappropriation is disbarment, see In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc), and because the usual sanction for negligent misappropriation is the significantly lower sanction of a six month suspension, see In re Fair, 780 A.2d 1106, 1115 (D.C. 2001), Bar Counsel bears the burden of proving by clear and convincing evidence that a misappropriation was either reckless or intentional. Anderson, 778 A.2d at 335-338 ; In re Ray, 675 A.2d 1381, 1388 (D.C. 1996) ( If conduct was not deliberate or reckless, then Bar Counsel proved no more than simple negligence. ). Furthermore, the central issue in determining whether a misappropriation is reckless is how the attorney handles entrusted funds, whether in a way that suggests the unauthorized use was inadvertent or the result of simple negligence, or in a way that reveals either an intent to treat the 17

funds as the attorney s own or a conscious indifference to the consequences of his behavior for the security of the funds. Anderson, 778 A.2d at 339 (emphasis in original). In this case, Bar Counsel has established by clear and convincing evidence that Respondent misappropriated approximately $1,500 of his client Ericka Obeng s entrusted funds in December 1998, and Respondent does not contend otherwise. See Respondent s PFF at 3, 9-10, 13. The main question, then, is whether the misappropriation was negligent, reckless or intentional. Bar Counsel argues that Respondent s changing explanation of why Check No. 669 was dishonored reflects either an intentional misappropriation or, at a minimum, conscious indifference to the security of his client s funds. The Committee rejects these arguments for the following reasons. First, the Committee had an extensive opportunity to observe the Respondent s demeanor and credibility, given that he was the primary witness at the evidentiary hearing, and fully credits his testimony that he did not intend to misappropriate any of Ms. Obeng s funds. Indeed, Respondent credibly testified that he did not realize the funds in his trust account were insufficient to cover the check he wrote to Ms. Obeng when she tried to redeem Check No. 669 on December 21, 1998. Furthermore, Respondent s testimony was corroborated by the fact that Respondent issued a replacement check (with a higher dollar amount) for Ms. Obeng shortly after learning that Check No. 669 had been dishonored, and this replacement check was honored when Ms. Obeng presented it for payment. Respondent s testimony also was corroborated by the fact that the funds in Respondent s trust account were sufficient to 18

cover the first settlement check that Respondent wrote to Ms. Obeng on December 4, 1998, a check which Ms. Obeng subsequently misplaced, and that the funds in his trust account also were sufficient to cover Check No. 669 on the day that Respondent issued the check to Ms. Obeng. 4 Thus, Bar Counsel has not established, by clear and convincing evidence, that Respondent s misappropriation of Ms. Obeng s funds was intentional. Second, Bar Counsel also has not established, by clear and convincing evidence, that Respondent s misappropriation was reckless. Significantly, Respondent ensured that his client received her money shortly after the original check bounced, using fees Respondent had earned in other cases. While Respondent, a sole practitioner, had some difficulty explaining the reason that this one check bounced more than eight years ago, his own contemporaneous records do not suggest any effort at concealment or evasion, nor is there any evidence that Respondent routinely wrote checks with insufficient funds on his trust account. To the contrary, Respondent testified, without contradiction from Bar Counsel, that he did not remember his trust account balance being overdrawn either before or after Ms. Obeng attempted to cash Check No. 669 in December 1998. Tr. at 187. 5 4 The balance in Respondent s trust account did not drop below the amount of Check No. 669 until December 21, 1998, twelve days after Respondent issued the check, and the very day that Ms. Obeng attempted to cash the check. The balance was restored to an amount sufficient to cover the check to Ms. Obeng three days later, when Respondent deposited $6,600 in his trust account. BX 25 at 79. 5 Respondent s memory at the hearing may not have been entirely correct. Indeed, Respondent stated in a December 2002 letter to Bar Counsel that there was one other occasion, in October 1999, where his account was overdrawn. BX 7. However, Bar Counsel did not produce Respondent s bank statement for October 1999 to demonstrate this overdraft, and similarly did not present any testimony at the evidentiary hearing to establish this overdraft. Thus, Bar Counsel has not proven, by clear and convincing evidence, that Respondent s trust account was overdrawn in October 1999, or at any time other than December 19

The fact that Respondent s trust account was overdrawn just once (or perhaps twice) over a period of many years, the short duration of the overdrawn condition in the present case, and the fact that Respondent promptly reimbursed Ms. Obeng upon learning of the overdraft, all directly undercut Bar Counsel s argument that Respondent s actions were reckless. Indeed, these salient facts fatally undermine any argument that Respondent possessed the necessary intent to treat the funds as the attorney s own or a conscious indifference to the consequences of his behavior for the security of the funds, Anderson, 778 A.2d at 339, a state of mind which, the Court has held, must be established by clear and convincing evidence in order to prove reckless misappropriation. Thus, Bar Counsel has failed to establish that Respondent recklessly misappropriated Ms. Obeng s funds in this matter. Furthermore, a review of the relevant case law confirms that Respondent s actions cannot properly be characterized as reckless. For example, in Anderson, the Court of Appeals held that the respondent had committed negligent, rather than reckless, misappropriation based on facts that were similar, if not more inculpatory, than the facts in this case. In Anderson, the respondent mistakenly forgot to pay a medical provider for more than one year, and the balance in his account fell below the amount owed to the medical provider on three different occasions, once for more than a month and for appreciable periods of time on the other two occasions. 778 A.2d at 333. The respondent in Anderson also failed to keep separate trust or escrow accounts, and likewise did not keep ledgers or books reflecting his office s receipts and disbursements. 1998. Furthermore, for the reasons set forth below, the Committee s analysis of the misappropriation issue would not be altered even if Bar Counsel had established one additional overdraft in the more than eight years since Ms. Obeng s check bounced in December 1998. 20

Id. Despite these facts, the Court of Appeals rejected the Hearing Committee s conclusion that the misappropriation was reckless, noting that the Court s decisions, by clear implication, have rejected the proposition that recklessness can be shown by inadequate record-keeping alone combined with commingling and misappropriation. Id. at 340. Likewise, in In re Reed, 679 A.2d 506 (D.C. 1996), the Court of Appeals held that the respondent s misappropriation was negligent, rather than reckless, even though the funds in the respondent s account fell below the amount owed to a medical provider for approximately a month, even though the respondent s accounting practices were practically non-existent and careless at best, even though she did not keep a running balance, her check ledger had no memos... [and] she did not keep track of the funds, and even though she did not always open the monthly statements on the account that were sent to her bank. Id. at 509. In this case, the evidence of recklessness is even scantier than the evidence that was found to be insufficient in Anderson and Reed. Indeed, in this matter, Respondent did maintain separate trust and business accounts, paid Ms. Obeng only from his trust account, and the check stubs on his trust account checks to Ms. Obeng did indicate the purpose of the check and/or the source of the funds. See BX 26 at 89, 93, and 99. Moreover, Respondent s trust account balance fell below the amount owed to Ms. Obeng for only three days, and the amount in his trust account was restored to a sufficient level when Respondent issued a replacement check to Ms. Obeng in January 1999. Thus, Respondent s practices in several respects were not as sloppy or inadequate as the practices found to be simple negligence in Anderson and Reed. 21

Rather, Respondent s practices were similar to the practices of the respondent in In re Hessler, 549 A.2d 700 (D.C. 1995). In that case, the attorney sent a check to his client, the client did not receive it, the attorney issued a new check, but the balance in the attorney s trust account dropped below the amount owed the client in the time period between the issuance of the first and second checks. Id. at 701. Both the Board and the Court found such misappropriation to constitute simple negligence, but no more. Id. Likewise, in this case, the Respondent issued a check to Ms. Obeng, the trust account had sufficient funds to cover the check, Ms. Obeng misplaced the check, the Respondent issued a second check to Ms. Obeng, the account again had sufficient funds to cover the check at the time it was issued, but the balance dropped below the amount owed to Ms. Obeng when she attempted to cash the replacement check almost two weeks later. Given the similarities between this case and Hessler, the Committee believes that the misappropriation here is the result of simple negligence, but no more. 6 Furthermore, the facts of this case are markedly different from cases in which the Court of Appeals has found reckless misappropriation. Unlike the attorneys in In re Pels, 653 A.2d 388, 395-397 (D.C. 1995), cert. denied, 519 U.S. 812 (1996), and Micheel, 610 A.2d at 233-34, Respondent here did not knowingly or indiscriminately commingle Ms. Obeng s funds with his personal or business accounts, did not use Ms. 6 This case is different from Hessler in that the check to the client was not dishonored in Hessler, whereas the check to Ms. Obeng was dishonored. However, this difference is not relevant to the issue of whether the misappropriation was reckless or negligent, and is not even relevant to the issue of whether a misappropriation occurred, because a misappropriation occurs whenever the balance in the attorney s escrow account dips below the amount owed to the client, regardless of whether the client is deprived of the money as a result of the misappropriation. See, e.g., Hessler, 549 A.2d at 708. 22

Obeng s entrusted funds to pay for family and personal expenses, did not indiscriminately write checks on an overdrawn account, and did not completely fail to maintain contemporaneous records concerning the disposition of client funds. To the contrary, Respondent maintained a separate trust account for Ms. Obeng s funds, did not use Ms. Obeng s trust account funds to pay for personal expenses, wrote only one check that was overdrawn, and his bank account records were sufficient to enable Bar Counsel to reconstruct with some precision what happened to Ms. Obeng s settlement funds. Similarly, this case is unlike Carlson, 802 A.2d at 349, where the attorney engaged in numerous misappropriations over a period of several years; rather, this case involves one instance of misappropriation in which Respondent s trust account balance fell below the amount owed to Ms. Obeng for a period of three days. In short, while Respondent s accounting controls were insufficient to prevent the misappropriation of Ms. Obeng s funds, Bar Counsel has not established any of the hallmarks of recklessness listed by the Court of Appeals in Anderson, 778 A.2d at 338. More specifically, Bar Counsel has not established that Respondent engaged in an indiscriminate commingling of entrusted and personal funds; a complete failure to track settlement proceeds; a total disregard of the status of accounts... resulting in a repeated overdraft condition; an indiscriminate movement of monies between accounts or a disregard of inquiries concerning the status of [Ms. Obeng s] funds. Id. Ultimately, Bar Counsel has proved that Respondent unintentionally bounced one check to one client and promptly reimbursed this client upon learning of the deficiency. Absent aggravating factors not shown in this case, this conduct was negligent, but not reckless. Therefore, Bar Counsel has failed to prove, by clear and 23

convincing evidence, that Respondent either intentionally or recklessly misappropriated Ms. Obeng s funds. Rather, the Committee finds, by clear and convincing evidence, that Respondent negligently misappropriated Ms. Obeng s funds. Failure to Maintain Complete Records Rule 1.15(a) also requires a lawyer to keep complete records of [trust] account funds... for a period of five years after termination of the representation. D.C. Bar Rule XI, 19(f), is more specific, requiring a lawyer to maintain complete records of the handling, maintenance, and disposition of all funds... belonging to another person at any time in the attorney s possession, from the time of receipt to the time of final distribution, and [to] preserve such records for a period of five years after final distribution of such funds... or any portion thereof. In In re Clower, 831 A.2d 1030, 1034 (D.C. 2003), the Court reiterated with approval the Board s explanation of the complete records requirement: The purpose of maintaining complete records is so that the documentary record itself tells the full story of how the attorney handled client or thirdparty funds and whether the attorney complied with his fiduciary obligation that client or third-party funds not be misappropriated or commingled. Financial records are complete only when documents sufficient to demonstrate an attorney s compliance with his ethical duties are maintained. The reason for requiring complete records is so that any audit of the attorney s handling of client funds by Bar Counsel can be completed even if the attorney or the client, or both, are unavailable. Bar Counsel has not established by clear and convincing evidence that Respondent s record-keeping in connection with the Ericka Obeng matter fell short of this standard. Indeed, Bar Counsel relied heavily on Respondent s bank records and settlement and disbursement sheet to reconstruct the details of Respondent s negligent misappropriation of Ms. Obeng s money. Since Respondent in the end professed that 24

he could not explain the overdraft, Bar Counsel s ability to complete its audit and reconstruct exactly what happened tends to show that Respondent s records, as to Ms. Obeng, met the minimum requirements of Rule 1.15(a) and Bar Rule XI, Section 19(f). Thus, Bar Counsel has failed to establish, by clear and convincing evidence, a violation of either Rule 1.15(a) or Bar Rule XI, Section 19(f), based on Respondent s alleged failure to maintain complete records of his handling of Ms. Obeng s settlement funds. The same cannot be said of Respondent s record-keeping in the Green matter. Respondent had no records showing whether or how the assignments of settlement proceeds to Dr. Bovell and Washington Open MRI were fulfilled. Respondent also had no records of the disposition of Mr. Green s PIP checks, which at one point Respondent asserted were used to satisfy the medical bills. Finally, Respondent had no records of the loan he provided to Mrs. Green, even though he later used the PIP funds to satisfy that loan. In short, Respondent failed to keep records sufficient to account for his handling of Mr. Green s PIP checks or the assigned claims of Mr. Green s medical service providers. Accordingly, the Committee finds, by clear and convincing evidence, that Respondent violated Rule 1.15(a) and D.C. Bar Rule XI, 19(f), based on his failure to maintain complete records of Mr. Green s settlement and PIP funds. Failure to Promptly Notify and Pay a Third Party Rule 1.15(b) requires a lawyer: [u]pon receiving funds... in which a client or third person has an interest,... promptly [to] notify the client or third person... [and] promptly [to] deliver to the client or third person any funds... that the client or third person is entitled to receive and, upon request by the client or third person... promptly [to] render a full accounting regarding such property. 25

The Court of Appeals of Maryland has observed with respect to the identical Maryland rule that it: Recognizes the principle of law that attorneys, with notice of an assignment of settlement proceeds by their client to a third party, are obligated to protect the interests of that third party and may be held liable for failure to do so. Attorney Grievance Comm n v. Sheridan, 741 A.2d 1143, 1154 (Md. 1999). Although neither the Board nor the Court of Appeals has adopted a bright-line test as to what constitutes prompt payment, In re Ross, 658 A.2d 209, 212 (D.C. 1995), the Court has held that an eleven month delay is not prompt as a matter of law, at least where it is not mitigated by an acceptable excuse. Id. Respondent admittedly authorized the execution of the A&A agreements to Dr. Bovell and Washington Open MRI. Both A&A agreements unambiguously constitute an assignment by Mr. Green of a portion of his settlement proceeds to those two creditors. There is no dispute that Respondent failed to notify either Dr. Bovell or Washington Open MRI when he received the assigned settlement and PIP funds. There also is no dispute that Respondent failed to respond to inquiries from both Dr. Bovell and Washington Open MRI and did not actually pay them until 2003, more than four years after receiving the settlement and PIP funds, and only after Bar Counsel called the matter to his attention. These undisputed facts establish a violation of Rule 1.15(b). See Ross, 658 A.2d at 211 (violation of Rule 1.15(b) where attorney did not pay medical provider for eleven months after receipt of settlement funds); Reed, 679 A.2d at 507-08 (same); In re Mitchell, 822 A.2d 1106, 1109 (D.C. 2003) (violation of Rule 1.15(b) where attorney did not notify medical provider for almost four years after settlement funds were received). 26

Respondent s protestations that he believed Mr. Green was going to pay the medical bills are beside the point for several reasons. First, even if Mr. Green had agreed to pay the medical providers, this fact would not have discharged Respondent s duty to notify the assignees when the settlement funds were received. Second, Respondent could not properly delegate the duty of paying the medical providers to Mr. Green, at least not without their knowledge and consent. Cf. In re Gregory, 790 A.2d 573, 578 (D.C. 2002) (attorney could not delegate responsibility for paying medical providers to office assistant, noting that [c]ourts view holding money in trust for clients [and third parties] as a nondelegable, fiduciary responsibility that cannot be transferred and is not excused by ignorance [or] inattention.... ). Third, even if Respondent could have properly delegated the payment responsibility to Mr. Green, and even if Respondent reasonably believed that Mr. Green would pay the medical providers shortly after the settlement funds were received, Respondent had a duty to ensure that Dr. Bovell was paid once he was notified by Dr. Bovell, in November 1999 and January 2001, that he still had not been paid, even though the settlement funds had been received in December 1998. Likewise, Respondent had a duty to ensure that Washington Open MRI was paid once he was notified by that provider, in January and May 2003, that it still had not been paid, even though the settlement funds had been received more than four years earlier. Therefore, the Committee finds, by clear and convincing evidence, that Respondent violated Rule 1.15(b) when he failed to notify or pay these providers for more than four years after the settlement and PIP funds were received. 27

Bar Counsel s Investigation Rule 8.1(a) states that a lawyer... in connection with a disciplinary matter, shall not... (a) knowingly make a false statement of material fact.... Comment [1] states that it is a separate professional offense for a lawyer knowingly to make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer s own conduct. Rule 8.4(c) states that it is misconduct for a lawyer to engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation. The Court of Appeals has stated that dishonesty, fraud, deceit and misrepresentation are four different violations, that may require different quantums of proof. In re Romansky, 825 A.2d 311, 315 (D.C. 2003). Most relevant to this case, the Court has held that the term dishonesty is a general term, that not only includes fraud, deceit and misrepresentation, but also includes conduct evincing a lack of honesty, probity or integrity in principle; a lack of fairness or straightforwardness, and that conduct that may not legally be characterized as an act of fraud, deceit or misrepresentation may still evince dishonesty. In re Scanio, 919 A.2d 1137, 1143 (D.C. 2007). In addition, and also relevant to this case, the Court has noted that an attorney can engage in dishonest behavior, in violation of Rule 8.4(c), when he intentionally, or recklessly, engages in such conduct. Romansky, 825 A.2d at 316-17. Finally, Rule 8.4(d) prohibits attorney misconduct seriously interfering with the administration of justice. In order for misconduct to rise to this level, the Court of Appeals has held that the conduct must meet the following criteria: 1) the conduct must be improper; 2) the conduct must bear directly upon the judicial process ; and 3) the 28

conduct must taint the judicial process in more than a de minimis way. In re Hopkins, 677 A.2d 55, 61 (D.C. 1996) (analyzing DR 1-102(A)(5), the predecessor to Rule 8.4(d)). Bar Counsel has identified and proven numerous incorrect and incomplete statements Respondent made when responding to Bar Counsel s inquiries, all of which Respondent concedes were mistaken. 7 The only serious question, then, involves Respondent s state of mind when providing these erroneous responses. Bar Counsel asserts, with the conviction born of an investigation that was frustrated for years by inaccurate information from Respondent, that these inaccuracies, or at least some of them, must have been knowing or intentional. Respondent avers that he tried to respond to Bar Counsel s inquiries with candor, but provided inaccurate information due to his own imperfect memory and faulty records. The only witness to testify on these issues was Respondent himself, and we find his testimony, admitting many mistakes but denying any intention to deceive, to be credible. The Respondent s testimony demonstrates that he mistakenly, but sincerely, believed that Dr. Bovell and Washington Open MRI had been paid when he first responded to Bar Counsel s inquiries, and this mistaken belief, which was made possible by Respondent s deficient record-keeping in the Green matter, caused Respondent to provide inaccurate answers to Bar Counsel s initial inquiries. Similarly, Respondent s testimony demonstrates that he mistakenly, but sincerely, believed that Mr. Green had received the PIP funds when he drafted the affidavit for Mr. Green in response to Bar Counsel s inquiries. Ultimately, Bar Counsel has proved that 7 It should be noted, however, that Bar Counsel only charged Respondent with violating Rule 8 in connection with his responses to Bar Counsel concerning Dennis Green s PIP funds. 29