In re Harrison

• Decision Date: 26 May 1983
• Docket Number: No. M-128-82.,M-128-82.
• Citation: 461 A.2d 1034
• Parties: In re E. David HARRISON.
• Court: D.C. Court of Appeals

461 A.2d 1034

In re E. David HARRISON.

No. M-128-82.

District of Columbia Court of Appeals.

Argued January 27, 1983.

Decided May 26, 1983.

Edwin Yourman, Deputy Bar Counsel, Washington, D.C., with whom Fred Grabowsky, Bar Counsel, was on brief, for petitioner, the Board on Professional Responsibility.

Lawrence Speiser, Washington, D.C., with whom John P. Racin, Washington, D.C., was on brief, for respondent.

Before NEWMAN, Chief Judge, BELSON, Associate Judge, and KELLY^*, Associate Judge, Retired.

NEWMAN, Chief Judge:

The Board on Professional Responsibility recommended a year and a day suspension of respondent Harrison for the commingling and misappropriation of client funds. We hold that the Board's finding that Harrison had misused his client's funds in violation of the Code of Professional Responsibility is supported by the record and adopt the recommended sanction of a year and a day.

I

On October 12, 1979, E. David Harrison, an attorney who specializes in real estate transactions, and his client, Mr. Hart, endorsed a check received in settlement of a personal injury matter Harrison had been handling for Hart. The funds were deposited into Harrison's general office account. Shortly thereafter Mr. Hart began a series of requests for his portion of the settlement and for payment of medical bills out of the settlement as per the agreement Hart and Harrison had made. Harrison claimed he was extremely busy with a complex real estate matter at the time and that he was not intentionally evading his client. The Board found to the contrary. On December 3, Harrison wrote Hart a check which was returned for insufficient funds. The balance in the general office account had fallen below the amount owed Mr. Hart.¹ The dishonoring of the check was in violation of an oral agreement with the bank to extend instant credit to cover all checks. Harrison claims that he was unaware that the account had become so depleted. His "sloppy" bookkeeping techniques, including a failure to keep a running balance of his checking accounts, contributed to this lack of knowledge.²

On December 20, Harrison paid Hart his share of the settlement. However, he did not pay the medical bills as per the agreement until about January 3, 1980. Meanwhile Hart filed a complaint with the Board on Professional Responsibility on January 8, 1980. This complaint was subsequently dismissed when Harrison wrote Bar Counsel on February 27, 1980, implying that payment to Mr. Hart had been delayed because an unexpected writ of attachment had been issued to the District of Columbia National Bank on this account in an unrelated incident. It was later revealed that the Superior Court attachment was not served until December 13.

Harrison fired his secretary in May 1980. She subsequently submitted materials to Bar Counsel which led to a reopening of this complaint. After reinvestigation, the Hearing Committee recommended that Harrison be publicly censured. Bar Counsel, who had originally sought disbarment, urged a 2-year suspension before the Board. The Board recommended that this court suspend Harrison from practice for a year and a day, based upon a finding that he misappropriated client funds that he had commingled with his own. We adopt the Board's recommendation.

II

Harrison is charged with the commingling and misappropriation of his client's funds. Both parties agree that commingling occurred although Harrison attempts to justify his actions by claiming he was unaware of the prohibition against commingling.³ Harrison contends that he was so preoccupied with a complex real estate matter that he did not realize that the balance in his office account had fallen below the amount he was to hold for Mr. Hart. Thus he argues, as the drawing on client funds for his own use was unintentional, it cannot constitute misappropriation and no greater sanction than a censure should be levied.

There are no cases in the District of Columbia defining misappropriation. Accordingly, we take this opportunity to adopt the definition used in New Jersey, e.g., misappropriation is "any unauthorized use of client's funds entrusted to him, 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 Wilson, 81 N.J. 451, 455 n. 1, 409 A.2d 1153, 1155 n. 1 (1979). This definition makes clear that improper intent is not an element to be considered in determining whether there has been a misappropriation. This is consistent with the language of DR 9-102 which, unlike other disciplinary rules,⁴ does not require scienter; rather, it is essentially a per se offense. Consequently, once the running balance of Harrison's office account fell below the amount held in trust for Hart,⁵ misappropriation...