IN RE APPLER
| Citation | 669 A.2d 731 |
| Decision Date | 29 December 1995 |
| Docket Number | No. 93-BG-1644,93-BG-1644 |
| Parties | In re William D. APPLER, Respondent, A Member of the Bar of the District of Columbia Court of Appeals. |
| Court | Court of Appeals of Columbia District |
Julia L. Porter, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel, and Wallace E. Shipp, Jr., Deputy Bar Counsel, were on the brief, for the Office of Bar Counsel.
Mary G. Clark, with whom Allen P. Waxman and Philip B. Busch, Washington, DC, were on the brief, for respondent.
Maureen Duignan, Thomas B. Leary, Thomas Earl Patton, and William D. Kingery, Jr., Washington, DC, were on the brief, for The Lawyer Counseling Committee, amicus curiae.
Ronald S. Honberg, Rockville, MD, and Paul L. Perito, Washington, DC, were on the brief, for the National Alliance for the Mentally Ill and the National Depressive and Manic-Depressive Association, amici curiae.
Before TERRY and STEADMAN, Associate Judges, and TAYLOR, Associate Judge of the Superior Court of the District of Columbia.
*.
Sitting by designation pursuant to D.C. Code § 11-707(a) (1989).
This case is before the court on a Report and Recommendation of the Board on Professional Responsibility (the Board Report). Respondent was charged in Docket No. 152-91 with violating Disciplinary Rules 1-102(A)(3) () and 1-102(A)(4) (), and D.C.Rules of Professional Conduct 8.4(b) () and 8.4(c) (). Respondent was also charged in Docket No. 145-92 with violating D.C.Rule of Professional Conduct 1.7(b)(1) ().
A Hearing Committee of the Board on Professional Responsibility held a consolidatedhearing on the two cases and issued its Findings of Fact, Conclusions of Law and Recommended Sanction (Hearing Committee Report), holding that although respondent's actions violated all of the cited rules, sanctions should be mitigated under our so-called Kersey doctrine. In re Kersey, 520 A.2d 321 (D.C. 1987). Thus, the Hearing Committee recommended disbarment in Docket No. 152-91 and a 90-day suspension in Docket No. 145-92. It further recommended suspending execution of both those sanctions and placing respondent on three years probation with certain conditions. The Board on Professional Responsibility (the Board) reviewed the Committee's findings. On December 7, 1993, the Board issued its Report, rejecting the Committee's recommendation and instead recommending disbarment.1 Respondent now contends that (1) the Board improperly discounted certain expert testimony relating to his bipolar illness and narcissistic personality disorder; and (2) the Board did not give adequate deference to the Hearing Committee's finding that respondent's bipolar illness caused his misconduct. Although we do not agree with certain of the Board's findings and conclusions, we now adopt the Board's ultimate recommendation and order that respondent be disbarred in Docket No. 152-91. We also order that respondent be suspended for 90 days, concurrently, in Docket No. 145-92.
Respondent was admitted to the District of Columbia Bar in 1975. Before the incidents that form the subject of this decision, he apparently had no legal or professional conduct problems.
In 1983, however, respondent noticed that he was engaging in numerous strange behaviors. For example, he was placing and withdrawing newspaper classified ads, and signing and canceling leases for office space for no known reason. Although he had by then been married to Kathy Appler for 17 years, in November of 1983, respondent began an affair with Deborah, a former college sweetheart who lived in California. He would often make expensive trips from D.C. to California for the weekend, sometimes stepping off the plane dressed in a tuxedo, ready to take Deborah dancing. According to all accounts, this was totally out of character for respondent. In December 1983, respondent left his wife. In that same month, respondent sought psychiatric help and was diagnosed with bipolar disorder. Bipolar disorder, also known as manic depression, is characterized by symptoms that range from acutely manic behavior on one extreme to severe depression on the other extreme. Hearing Committee Report at 21.2 For approximately 15 months, respondentengaged in therapy and was prescribed the drug lithium.3
Because of his expertise in Food and Drug Administration (FDA) matters, in December 1984 respondent was hired by the law firm of McDermott, Will & Emery (McDermott); he was made an "income partner," i.e., one who earns a set salary rather than sharing in the profits. Respondent expected that he would eventually be made a capital partner.
In February 1985, respondent divorced his wife. The following month, he discontinued his therapy against his doctor's advice. Shortly thereafter, in May 1985, respondent married Deborah. He soon stopped using the lithium, too, at least in part because of his new wife's concerns about certain of the medication's side effects.
In 1986, respondent had still not been made a capital partner; that same year, he started engaging in the misconduct that underlies this case.4
Starting in 1986, respondent asked several of his clients to pay him for legal services directly, rather than paying McDermott. His first direct billing arrangement was with Local 15, International Union of Operating Engineers. In 1988 he expanded his scheme to include BioClinical Systems, Inc., adding Chronodynamics in 1989, Farma Foods in 1990 and, finally, Modern Packaging, Inc. in 1991. In all cases except Farma Foods, respondent would bill the clients for his services directly, without giving any of the proceeds to McDermott. In the case of Farma Foods, where other McDermott attorneys were also working on matters for the client, respondent billed for his own services separately, and had Farma's managing director send two checks, one payable to respondent and one to McDermott.5
In all five cases, respondent carried out the direct billing with the full cooperation of the client in question, even though the clients knew that McDermott was being kept in the dark. In the case of Farma, which was headquartered in Denmark, the managing director not only agreed not to tell McDermott of the arrangement, but also agreed to hide the scheme from his own manager of U.S. operations. By the time respondent was caught in 1991, he had cheated his firm out of more than $1.1 million dollars. Board Report at 3.
Although most of respondent's billing misconduct involved direct billing, in the case of Farma he also engaged in double-billing and billing for personal expenses. In an apparent effort to prevent either fee or expense amounts from ever appearing excessively high, respondent manipulated them both — shifting fees to expenses and expenses to fees, as necessary. To prevent this fee and expense shifting from causing any change in the aggregate amount of the bill, respondent sometimes spent more than two hours preparing a "normal-looking bill." Hearing Committee Report at 12.
In the end, it was this fee and expense shifting, and not the direct billing, that lead to respondent's downfall. Respondent was finally caught in February 1991, when a secretary noticed, and reported to McDermott,that respondent had not credited Farma for an unused airline ticket. Respondent agreed to reimburse McDermott for the value of the ticket. Id.
A month later, McDermott discovered the direct billing of Farma. On March 25, 1991 the firm fired respondent and told him they would report his misconduct to the appropriate authorities. At that time, respondent admitted for the first time his direct billing of clients other than Farma, but refused to identify them without speaking to his attorney. His attorney subsequently informed McDermott that respondent wished to self-report his misconduct to the Board. McDermott acquiesced and, on April 2, 1991, respondent reported the misconduct that formed the basis for Docket No. 152-91.6 It was not, however, the end of respondent's misconduct.
In August 1990, respondent had once again consulted a psychiatrist. In February 1991, around the time that McDermott discovered the fee shifting, respondent returned to the psychiatrist who had treated him in 1983-85, Dr. Barton Kraff. As he had in 1983, Kraff diagnosed respondent with bipolar disorder. This time, however — and for the first time — Kraff also diagnosed narcissistic personality disorder7 and alcohol abuse, both of which he believed were caused by the bipolar disorder. Hearing Committee Report at 34. Kraff once again started respondent on a regimen of lithium. Dr. Kraff testified, and the Hearing Committee found, that he did not find an effective dosage of lithium for respondent until late 1991.
In June 1990, while he was still with McDermott, respondent had been retained by Biodyne, Inc. to assist with an FDA matter. Respondent's contact with Biodyne was Elizabeth Melaragno, its general manager who was also a minority shareholder in the company. Hearing Committee Report at 15. In November 1990, respondent and Melaragno began an affair that lasted until May 1991. As a result of their personal relationship, respondent started advising Melaragno about matters relating to her employment with Biodyne, his client. Some of these matters placed Melaragno in an adverse position to Biodyne and its president, Dr. Charles...
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