In re Bach

Citation966 A.2d 350
Decision Date26 February 2009
Docket NumberNo. 07-BG-1389.,07-BG-1389.
PartiesIn re William S. BACH, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 448392).
CourtCourt of Appeals of Columbia District

William S. Bach, Washington, pro se.

Joseph N. Bowman, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Julia L. Porter, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before REID, Associate Judge, and FERREN and FARRELL, Senior Judges.

FARRELL, Senior Judge:

Respondent, while serving as conservator for the estate of a 92-year-old woman, wrote himself a check from the estate for his services knowing that he was not authorized to do so without court approval, which he had not yet received. The Board on Professional Responsibility, in agreement with a Hearing Committee, concluded that this was intentional misappropriation of client funds and, accordingly, recommends that respondent be disbarred. See Rule of Professional Conduct 1.15(a); In re Addams, 579 A.2d 190 (D.C. 1990) (en banc).1

We accept the Board's conclusions and recommendation, which are supported by its thorough and well-reasoned opinion. We attach the relevant parts of the opinion hereto, with record citations deleted (and footnotes renumbered). We add the following brief discussion that assumes familiarity with the Board's report and chiefly addresses the Board's stated concern that Addams' strong presumption of disbarment as the proper sanction for intentional misappropriation may result in an unjust disposition here.

Respondent wrote himself a check for attorney's fees in the amount of $2,500 from the ward's modest estate, knowing that he was thereby violating D.C.Code § 21-2060(a) (2001) and Superior Court Probate Rule 308, both requiring advance court approval of payment for attorney conservator services. As the Board and the Hearing Committee found, his reason for doing so was simple: the ward's nursing home had made a claim against the estate, and respondent was afraid that if he waited for court approval of his fee petition, "there would be no funds left to pay my fees."2 Respondent thus conceded that the act was deliberate, and so he cannot rely on the extenuation we found in In re Fair, 780 A.2d 1106 (D.C.2001), where the lawyer had relied on "an ambiguous probate culture" to mitigate her taking of unapproved fees despite a similar statutory bar governing work on decedents' estates. Id. at 1113. Respondent, unlike Fair, was under no misapprehension of his duty to obtain advance court approval. Thus, the rule of Addams applies, which holds that [b]ecause the "breach of trust" entailed by intentional misappropriation "is so reprehensible, striking at the core of the attorney-client relationship," . . . "[o]nly the most stringent of extenuating circumstances [will] justify a lesser disciplinary sanction such as suspension." In re Pennington, 921 A.2d 135, 141 (D.C. 2007) (quoting Addams, 579 A.2d at 193, 198-99). As the Board correctly found, no such circumstances are present here.3

The Board nevertheless has expressed strong misgivings about the justice of applying Addams' presumption of disbarment to respondent's case:

[I]f we had the discretion to do so, we would not subject a lawyer whose only violation consists of prematurely taking a legitimately earned fee to the same draconian sanction that is appropriately imposed on a lawyer who deliberately steals client funds. The latter is undoubtedly far more serious than the former, constitutes an extraordinary violation of the client's trust and more seriously undermines public confidence in the integrity of the legal profession — the underlying considerations cited by the Addams Court. Addams, 579 A.2d at 193-94. We have no doubt that the public would recognize that these two forms of misconduct, though both serious, are fundamentally different and that the former warrants a less severe though substantial sanction. . . . [D]isbarring Respondent effectively equates his misconduct with the most egregious and dishonest misappropriations that victimize clients, and needlessly deprives the Court and an underserved public of a capable conservator who made a single mistake that ultimately caused no harm.

In his brief, Bar Counsel does not address these expressed concerns at all, but we must do so. The Board either is asking the division to craft an exception to the strict Addams rule for respondent's behavior, or is implicitly asking the court to reconsider Addams' holding that "in virtually all cases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence." Addams, 579 A.2d at 191. If the former, then we do not think the Board has furnished us with a principle on which to distinguish our prior decisions. Its comparison of respondent to a lawyer who "deliberately steals client funds" appears to stress the fact that respondent was later found to have "legitimately earned [the] fee" he took. But attorneys heretofore disbarred for misappropriation — including Addams himself, see 579 A.2d at 192-93 — have likewise claimed they had earned or were otherwise entitled to the funds, see also, e.g., In re Pels, 653 A.2d 388, 397 (D.C.1995), and the court has been unmoved by such expectations of (or wagers on) after-the-fact ratification. E.g., In re Utley, 698 A.2d 446, 450 (D.C.1997) (rejecting attorney's reliance on later "ratification").4

It is also true, as the Board notes, that respondent did not conceal his self-payment, in the sense that he later disclosed it in his annual accounting (filed over a year after the check was written), thus enabling the probate court through its "supervisory mechanisms" to discover it and take appropriate action.5 But an attorney who knows he has done what the law forbids may not leave it to chance or the diligence of auditors to bring (or not bring) the action to light; and so the fact that respondent revealed the improper payment confirms only, we think, that he acted without the "moral corruptness" of an intent to deceive — a factor that Addams makes irrelevant to deliberate misappropriation and the attendant sanction. See 579 A.2d at 196-97. Finally, although respondent committed only a "single mistake" involving a modest sum of client money, Addams rejected repetition — or multiple misdeeds — as the key to the required sanction in this area of taking client funds, see id. at 198, and we see no difference in principle between an attorney who takes a much larger unauthorized fee and respondent's action in taking money from an estate that (according to his later accounting) totalled less than $12,000.

Consequently, while disbarment may appear "draconian" as applied to respondent's conduct, the Board has not defined for us an exception of principle to Addams' rule that does not risk "simply paying lip service" to it. Pels, 653 A.2d at 398. Disbarment under Addams is not reserved for the "most egregious and dishonest" instances of intentional misappropriation, and the Board's own recommendation of disbarment effectively admits that respondent's conduct differed only in degree, not kind, from cases in which the Addams rule has been applied unyieldingly. See, e.g., In re Robinson, 583 A.2d 691 (D.C.1990) (attorney disbarred for misappropriation despite relatively small sum involved, quick restoration of funds, lack of financial harm to client, single instance of misappropriation, and attorney's relative inexperience, absence of a prior disciplinary record, and favorable character testimony).

It is probable, therefore, that the Board, without expressly saying so, sees this as a case that invites reconsideration of Addams. In that regard, we confine ourselves to restating what the division in Pels said in rejecting the recommendation by Board members of a "stay" of disbarment there:6

Individual members of this division . . . believe the result Addams dictates in this case is a harsh one. On the other hand, . . . in Addams the court weighed the concern of seemingly unjust application of a categorical sanction to particular cases against "our concern . . . that there not be an erosion of public confidence in the integrity of the bar. Simply put, where client funds are involved a more stringent rule is appropriate." Addams, 579 A.2d at 198. Whether the paramount goal of deterrence that drove the decision in Addams can be achieved by lesser, more case-individual sanctions for misappropriation is an issue the full court is always free to revisit — though with the attendant risk of loss of predictability in our exercise of this most critical feature of our regulatory supervision. The division's obligation in this case, in any event, is clear.

653 A.2d at 398.

Accordingly, respondent William S. Bach is hereby disbarred from the practice of law in the District of Columbia effective thirty days from the date of this opinion.7

So ordered.

FERREN, Senior Judge, concurring:

I join in the Board's recommendation and the court's opinion ordering disbarment, but only because, as Judge Farrell makes clear, our en banc opinion in Addams,1 decided almost two decades ago, forces that result. But for Addams' virtually per se rule requiring disbarment in all cases of intentional misappropriation of client funds, that remedy may be too severe on the facts here. Mitigating factors, when compared with factors in aggravation, may suggest that respondent deserves no more that a suspension of some sort.2 For the reasons that follow, therefore, I urge the full court to revisit Addams.

In urging such reconsideration, I continue to subscribe to the views expressed in my opinion in Addams concurring in the result.3 There, I agreed with "the majority's basic thesis that misappropriation cases are different from other disciplinary cases and therefore call for `a more stringent...

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