In re Bettis, 02-BG-1285.
| Decision Date | 05 August 2004 |
| Docket Number | No. 02-BG-1285.,02-BG-1285. |
| Citation | 855 A.2d 282 |
| Parties | In re Bernard BETTIS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals. |
| Court | D.C. Court of Appeals |
Elizabeth A. Herman, Senior Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel, was on the brief, for the Office of Bar Counsel.
Elizabeth J. Branda, Executive Attorney, for the Board on Professional Responsibility.
Melvin G. Bergman, Belstsville, MD, for respondent.
Before TERRY, REID, and GLICKMAN, Associate Judges.
The Board on Professional Responsibility ("the Board") has recommended that respondent, Bernard Bettis, be publicly censured for violating Rules 1.5(c) (), 1.15(b) () and 1.17(a) () of the District of Columbia Rules of Professional Conduct. Bar Counsel noted an exception to the sanction recommended by the Board, arguing that respondent's disciplinary history required a thirty-day suspension with a fitness review. Respondent has not challenged either the Board's conclusion that he violated the three rules or the sanction that it recommended. We adopt the Board's recommendation that respondent be publicly censured. We conclude, however, that in light of respondent's prior disciplinary history, a mere censure is inadequate to protect the public. We therefore direct that, in addition to the censure, respondent be placed on probation for a period of two years under certain conditions, including the appointment of a practice monitor, as set forth in part III of this opinion.
In 1984 respondent was disbarred by consent for commingling funds. See In re Bettis, 644 A.2d 1023 (D.C.1994)
("Bettis I"). The charges that brought about his disbarment stemmed from two separate matters. In the first case, respondent was charged with illegal conduct involving moral turpitude (Disciplinary Rule (DR) 1-102(A)(3)), dishonesty (DR 1-102(A)(4)), commingling funds (DR 9-103(A)), failing to maintain records (DR 9-103(B)(3)), and neglect (DR 6-101(A)(3)). These charges arose out of his unauthorized use of funds which he held as successor guardian of the estates of five minor children. In his Affidavit of Consent to Disbarment, respondent acknowledged only a violation of DR 9-103(A) (commingling funds).1
Bettis I, 644 A.2d at 1028. In the second case, he was charged with neglecting a legal matter (DR 6-101(A)(3)) and failing to carry out a contract of employment with a client (DR 7-101(A)(2)). These charges related to his representation of a client in an appeal from an adjudication of paternity and the entry of a support order. Id.
Several years later respondent filed a petition for reinstatement. He informed the court that if he were readmitted, he would not handle fiduciary cases and that he intended to associate with other attorneys who had established bookkeeping systems. He also indicated that he was aware of the need to maintain separate accounts for client funds. Id. at 1029. We granted his petition for reinstatement on July 25, 1994. Id. at 1030.
On April 10, 2001, Bar Counsel filed a new petition instituting formal disciplinary proceedings against respondent. The petition contained two separate counts. In Count I (the Whitehead matter, BDN 83-00), Bar Counsel alleged that respondent had violated Rule 1.5(c) by failing to put a contingency fee agreement in writing.2 In Count II (the Wells matter, BDN 299-00), respondent was charged with violating Rule 1.15(b) by failing to pay a health care provider from settlement funds in which the health care provider had an interest.3 Count II also alleged that respondent had violated Rule 1.17(a) by failing to deposit settlement funds in an escrow account.4
In March of 1998, respondent was retained to represent David Whitehead in a malpractice action against Mr. Whitehead's former attorney. The two agreed that respondent's fee would be one-third of the recovery, but that agreement was not put in writing. After the case was settled in August of 1998, Mr. Whitehead fired respondent in an apparent attempt to avoid paying the one-third contingency fee. Respondent, however, received his fee after executing an attorney's lien on one-third of the settlement funds.
On March 13, 2000, Rudolph Wells received medical treatment at the Washington Family Wellness Center ("WFWC") for injuries he received in an automobile accident. When he was treated, Mr. Wells informed the WFWC that he was represented by T. Clarence Harper. At that time, however, Mr. Harper was suspended from the practice of law in the District of Columbia as a result of his disbarment in Maryland. On March 14 Mr. Wells retained respondent, who had taken over Mr. Harper's law practice, to handle his claim from the automobile accident.5 Mr. Wells told respondent that he had received medical treatment at District of Columbia General Hospital.
Shortly thereafter, Mr. Wells signed an "Assignment of Benefits" form provided by the WFWC.6 Respondent also signed the form, which he returned to the WFWC on March 29, 2000. By signing the form, respondent agreed that he would ensure that the WFWC's bill for medical treatment would be paid from any funds received in Mr. Wells' case. Respondent testified before the hearing committee, however, that although he had signed the form provided by the WFWC, it did not put him on notice that Mr. Wells had been treated by the WFWC.7 After he explained that he "routinely" received and signed assignment forms because health care providers do not provide treatment until they receive a signed form, the following exchange took place between respondent and a member of the hearing committee:
Mr. Wells accepted a settlement offer of $2,600.00 on May 31, 2000.8 Two days later, on June 2, respondent deposited the settlement check9 in a Bank of America account entitled " ," which respondent believed to be an escrow account. In fact, however, it was not an escrow account; neither the checks used for the account nor the bank's corporate signature cards, which were signed by Mr. Harper, identified it as such. Moreover, respondent did not have signatory authority over the account, nor did he have the power to withdraw the settlement funds once they were placed in the account.10
When the settlement funds were distributed from the account, the bill from the WFWC was not paid. After these disciplinary proceedings were instituted against respondent, the Harper firm discovered that the account used in Mr. Wells' case was not an escrow account. New signature cards were prepared and signed and new checks were printed, and by July 2000 the account was again11 identified as an escrow account. Respondent signed a signature card as an authorized signatory on the new escrow account on September 22, 2000.
After considering all the charges, the hearing committee found that, with respect to Count I, respondent had violated Rule 1.5(c); as for Count II, however, it found that he had not violated Rules 1.15(b) and 1.17(a). The committee recommended an informal admonition. Bar Counsel noted two exceptions to the hearing committee's report and recommendation. First, Bar Counsel challenged the committee's finding that respondent had not violated Rules 1.15(b) and 1.17(a). Second, Bar Counsel voiced disagreement with the recommended sanction, arguing that respondent's disciplinary history required that he be suspended for thirty days, to be followed by a fitness review. Bar Counsel also asked the Board to recommend that respondent be required to pay restitution in the amount of $385 to the WFWC. Respondent did not note an exception to the hearing committee's decision.
In its report and recommendation, the Board found that respondent had indeed violated Rules 1.5(c), 1.15(b) and 1.17(a). The Board noted, however, that the Rule 1.15(b) violation "was certainly understandable against the backdrop of a client who never mentioned that he had received services from WFWC and WFWC's failure to reflect Respondent's name in its audit record as the responsible attorney ...." As for the Rule 1.17(a) violation, the Board remarked that it "reflected, in part, the failures of the internal mechanisms of the Harper firm," and that the account was converted to an escrow account as soon as the problem became known.
The Board also recommended that respondent be publicly censured. In concluding that his disciplinary history did not require either a thirty-day suspension or a fitness review, the Board explained:
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