In re Ahaghotu, 12–BG–1149.

• Decision Date: 12 September 2013
• Docket Number: No. 12–BG–1149.,12–BG–1149.
• Citation: 75 A.3d 251
• Parties: In re Amako N.K. AHAGHOTU. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 352237).
• Court: D.C. Court of Appeals

75 A.3d 251

In re Amako N.K. AHAGHOTU. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 352237).

No. 12–BG–1149.

District of Columbia Court of Appeals.

Argued March 20, 2013.

Decided Sept. 12, 2013.

Melvin G. Bergman, Greenbelt, MD, for respondent.

Traci M. Tait, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before BECKWITH and EASTERLY, Associate Judges, and REID, Senior Judge.

BECKWITH, Associate Judge:

Respondent Amako N.K. Ahaghotu opposes the Board on Professional Responsibility's unanimous Report and Recommendation calling for his disbarment. Here this court confronts a set of undisputed facts branded differently by the Board and the Ad Hoc Hearing Committee, the latter of which previously received evidence in Mr. Ahaghotu's case and instead recommended a one-year suspension with a fitness requirement. Admitting that he violated the rule against misappropriation,¹ Rule of Professional Conduct 1.15(a), Mr. Ahaghotu challenges only the Board's conclusion that he acted recklessly—not negligently, as the Hearing Committee determined—in handling his client trust account. He also argues he should not be disbarred, even for reckless misappropriation.

We agree with the Board that the record shows Mr. Ahaghotu, beginning more than a year before the misappropriation, practically ignored obvious signals that his trust account had problems. Whether the problems were due to bank errors or flaws in his own accounting, Mr. Ahaghotu failed to take action to protect the money his clients entrusted him with, resulting in misappropriation. Although no one was harmed by his actions, Mr. Ahaghotu, who has been disciplined twice before in his career for how he handled entrusted funds, exhibited an “unacceptable level of disregard for the safety and welfare of entrusted funds”—that is, “a conscious indifference to the consequences of his behavior for the security of the funds.” In re Anderson, 778 A.2d 330, 336, 339 (D.C.2001) (citing In re Micheel, 610 A.2d 231, 236 (D.C.1992)). He thus committed reckless misappropriation, and we are bound by prior decisions of this court to disbar Mr. Ahaghotu absent “[o]nly ... the most stringent of extenuating circumstances.” In re Hewett, 11 A.3d 279, 286 (D.C.2011) (quoting In re Addams, 579 A.2d 190, 193 (D.C.1990)). No extraordinary factors exist in Mr. Ahaghotu's case, and we therefore adopt the Board's recommendation of disbarment.

I. Background

Mr. Ahaghotu ² does not dispute the Hearing Committee's findings of fact, which the Board upheld almost entirely. He admits that Bar Counsel proved he misappropriated entrusted funds on July 28, 2005. That day, the balance in his Riggs Bank ³ trust account was $92.99, far less than the $1437.95 in insurance payouts he owed at the time to a medical provider, Dr. Chukwuemeka Onyewu, who cared for Blanca Adams, one of Mr. Ahaghotu's personalinjury clients. The record shows that Mr. Ahaghotu was aware he owed the money to Dr. Onyewu.⁴

Although Bar Counsel alleged and proved just one instance of misappropriation—lasting only a day at that ⁵—Bar Counsel argued, and the Board agreed, that Mr. Ahaghotu had acted recklessly in handling the entrusted doctor's fee. The misappropriation happened, in the Board's view, mainly because Mr. Ahaghotu ignored problems with his trust account that started a year before that. In June 2004, Mr. Ahaghotu wrote five checks on the trust account, totaling $6080, that were returned for insufficient funds, and at one point the account had a negative balance of $585.73. To refill his trust account and, in his words, to “protect the public,” Mr. Ahaghotu deposited in the account nearly $20,000 in personal and operating funds.

Mr. Ahaghotu was the sole signatory on the account and at the time did not closely reconcile his records and bank statements. According to the Board, he “could not explain why there were insufficient funds to cover checks payable to various clients' medical providers, but testified he believed Riggs had failed to credit deposits he had made.” Mr. Ahaghotu had no records to show the bank did anything wrong, however, and while he said he “tried to find out” what happened, he was unable to.⁶ Mr. Ahaghotu testified that “many things could have happened [to explain] why this check was not paid. It could be that ... [t]he deposit had not cleared at the time it was presented ... [or] that the deposit itself was missing from my ledger....” He testified he was “surprise[d]” when the checks bounced “because I ... made my deposit and my own accounting said it should be paid,” but he could not identify the funds actually used, once he had supplemented his account with his own funds and the checks cleared, to pay the medical providers. That is because, he said, he thought of his escrow account as “one account in which you put in several checks from several people.... Money come[s] from all the clients, and everybody takes his own from there.” ⁷ This was not the first time that Mr. Ahaghotu's management of client funds came to the attention of Bar Counsel. He received informal admonitions in 1993 and 2009, each following a separate investigation of why he failed to pay a different medical provider after receivingentrusted funds to cover medical expenses for a client.

Acknowledging that Mr. Ahaghotu's actions were not as egregious as those of other lawyers this court has disbarred for reckless misappropriation, the Board nevertheless determined that his “casual indifference in maintaining the security of his fiduciary funds [was] beyond negligence.” According to the Board,

Respondent was clearly on notice of problems with his accounting practices and his escrow account, which he failed to address: (1) he had been disciplined twice based on the failure to promptly pay his clients' health providers ... (2) he knew that five checks to health care providers were returned for insufficient funds in June 2004, but failed to determine the cause of the shortfall ... and (3) his deposit of $19,707 of his personal money to stabilize the escrow account in early June 2004, which dwindled to $4,447.18 by July 2004, indicated a continued escrow accounting problem.

The Board split from the Hearing Committee in characterizing Mr. Ahaghotu's reaction to the overdrafts in June 2004 and his overall handling of his trust account. The Hearing Committee compared Mr. Ahaghotu's actions to those of the respondents in Anderson, supra and In re Smith, 817 A.2d 196 (D.C.2003), two cases where lawyers misappropriated client funds due in part to inadequate accounting and recordkeeping but only one of which ( Smith ) resulted in disbarment for recklessness. The Committee concluded that Mr. Ahaghotu's actions were closer to Mr. Anderson's negligent misappropriation; Mr. Anderson, as the Committee summarized it, “maintained no separate trust or escrow account, kept records by making notations on case files and storing records of payments ‘in his head,’ and failed to pay one service provider for over a year during which the account balance fell below the amount due the provider.” The Committee thought Mr. Ahaghotu was in some respects less culpable even than Anderson, pointing out that “in this case Dr. Onyewu acceded to a delay in payment and never asked Respondent for it,” that Mr. Ahaghotu “had an inadequate documentation/accounting system, but better than Anderson's ‘makeshift’ system,” and that “at least Respondent had a trust account, which Anderson did not.” Ultimately, the Hearing Committee thought:

The question whether the misappropriation was negligent or reckless is a close one, particularly given Respondent's decision to remedy the 2004 overdrafts by placing personal funds in the trust account, rather than determining the cause of the overdrafts. In considering all of the facts of this case, however, including that Respondent is 80 years old and appears to have somewhat diminished faculties ⁸ ... we conclude that Respondent's failure to determine the cause of the 2004 overdrafts does not reveal a “conscious indifference to the consequences of his behavior for the security of the funds.” Anderson, 778 A.2d at 339.

Although, as the Hearing Committee noted, “the usual sanction for negligent misappropriation is a six-month suspension, In re Kline, 11 A.3d 261, 265 (D.C.2011),” Mr. Ahaghotu had additional rule violations and prior discipline. The Committee thus recommended that he be suspended for one year. Because his age, competency at the hearing, and inattention to the trust account “ ‘cast[ ] a serious doubt upon [the Respondent's] continuing fitness to practice law[,]’ see In re White, 11 A.3d 1226, 1233 (D.C.2011),” the Committee recommended that “as a condition of reinstatement, he establish his fitness to practice law pursuant to D.C. Bar R. XI, § 16.”

II. Analysis

We accept the Board's findings of fact, which are supported by substantial evidence in the record. See Smith, 817 A.2d at 201 (citation omitted). The primary dispute here is over “ ‘whether any misappropriation resulted from more than simple negligence,’ ” which is a question of law “ ‘concerning ultimate facts,’ and [is] reviewed by this court de novo.” Hewett, 11 A.3d at 284–85 (quoting In re Berryman, 764 A.2d 760, 766 (D.C.2000)) (internal quotation marks omitted). We also examine respondent's claim that even if we were to find he acted recklessly, it would be “unjust and harsh to disbar him.” We ultimately reject all of Mr. Ahaghotu's arguments and adopt the Board's recommendation.

A. Reckless or Negligent Misappropriation

Misappropriation happens “when the balance in [the attorney's] trust account falls below the amount due the client,” In re Moore, 704 A.2d 1187, 1191 (D.C.1997), whether or not the attorney “derives any personal gain or benefit” by misusing the money, In re...