In re Harrison

• Decision Date: 12 June 1986
• Docket Number: No. 85-1323.,85-1323.
• Citation: 511 A.2d 16
• Parties: In re E. David HARRISON, Petitioner.
• Court: D.C. Court of Appeals

511 A.2d 16

In re E. David HARRISON, Petitioner.

No. 85-1323.

District of Columbia Court of Appeals.

Argued April 29, 1986.

Decided June 12, 1986.

Neal Goldfarb, Washington, D.C., for petitioner.

Samuel McClendon, Asst. Bar Counsel, with whom Thomas H. Henderson, Jr., Bar Counsel, Washington, D.C., was on brief, for respondent, the Bd. on Professional Responsibility.

Before PRYOR, Chief Judge, and TERRY and ROGERS, Associate Judges.

PRYOR, Chief Judge:

Petitioner, E. David Harrison, has applied for reinstatement as a member of the District of Columbia Bar after having been suspended for commingling and misappropriating client funds. The issue before this court is whether petitioner has established by clear and convincing evidence that he is fit to resume the practice of law. Because we conclude that he has satisfied his burden in that regard, we grant his petition for reinstatement.

I

In 1983, the Board on Professional Responsibility (Board) found that Harrison had commingled and misappropriated a client's funds in violation of DR 9-102, and recommended a year and a day suspension. This court upheld the Board's findings and adopted the Board's recommended sanction: In re Harrison, 461 A.2d 1034, 1035 (D.C. 1983). Harrison's suspension from the Bar for a year and a day was effective October 6, 1983.

On December 10, 1984, Harrison filed a petition for reinstatement to the Bar pursuant to D.C. Bar R. XI, § 21(1) & (5).¹ A hearing on his petition was held on February 19, 1985. Harrison and five character witnesses testified on Harrison's behalf.² In addition, petitioner submitted certain documentary evidence in support of his petition.

Bar Counsel opposed Harrison's petition for reinstatement to the Bar on the grounds that certain conduct by petitioner while he was suspended demonstrated that petitioner was unfit to resume the practice of law. The alleged improprieties included: (1) Harrison's handling of a real estate transaction on behalf of a friend; (2) his utilization of an overdraft agreement on his personal checking account during the period of his suspension; (3) the fact that his name was listed in the lawyers' section of the Yellow Pages and in the 1984 Legal Register; and (4) his alleged failure to notify an organization for which he had formerly served as general counsel of his suspension. Bar Counsel did not present any witnesses at the hearing.

Following the hearing's conclusion, the Hearing Committee issued a Report and Recommendation in which it made factual findings and concluded that, based on the testimony and exhibits presented at the hearing, Harrison had met his burden of demonstrating by clear and convincing evidence that he satisfied the criteria for reinstatement to the Bar.

Thereafter, Bar Counsel filed exceptions with the Board arguing that Harrison's petition for reinstatement should be denied. In a Report and Recommendation dated September 12, 1985, the Board found that the Hearing Committee's findings of fact were supported by substantial evidence, but in contrast to the Hearing Committee, concluded that because of the four incidents cited by Bar Counsel petitioner had not met the burden imposed on him under Rule XI, § 21(5). Accordingly, the Board recommended to this court that Harrison's petition for reinstatement should be denied.

II

This court's recent decision in In re Roundtree, 503 A.2d 1215 (D.C. 1985), established that although the Board's and Hearing Committee's recommendations in reinstatement cases are entitled to great weight, the ultimate determination concerning any petition for reinstatement to the District of Columbia Bar rests in this court alone. Id. 1217. Thus, before this court will grant a petition for reinstatement, we must be independently satisfied that the criteria for reinstatement have been met. As we emphasized in Roundtree, the burden is on the petitioner to demonstrate to this court by clear and convincing evidence that he or she has met the requirements contained in D.C. Bar R. XI, § 21(5), and is fit to resume the practice of law. Id. 1216.

In Roundtree, the court also set out, for the first time, a five-factor inquiry for determining whether the criteria for reinstatement have been met. The five factors which this court must examine are as follows:

(1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law. Id. at 1217. Applying these factors to the instant case, we conclude that petitioner has satisfied the criteria for reinstatement.

First, though Harrison's single violation of DR 9-102—commingling and misappropriating his client's funds—was a serious one, there existed certain mitigating factors. As the Board recognized in making its recommendation for sanctions to this court at the time of petitioner's discipline, the circumstances surrounding the violation were less egregious than those in other cases involving commingling and misappropriation. See In re Harrison, supra, 461 A.2d at 1036. Specifically, the Board accepted the Hearing Committee's finding that through sloppy bookkeeping petitioner had inadvertently commingled his client's funds, as opposed to deliberately withdrawing or appropriating client funds as his own. See id. Moreover, his misconduct was limited to one isolated incident.

At the hearing on reinstatement, Harrison testified that he was very much aware that the conduct for which he was suspended was wrong,³ and enumerated the specific steps he would take in the future to ensure that such misconduct would not recur. He stated that if reinstated, he would improve his system of bookkeeping by maintaining careful records of his clients' funds under the supervision of an accountant, and by opening an escrow account into which he would deposit any client funds⁴ He would also hire a secretary whose express responsibility would be to maintain accurate records relating to the escrow account. The Hearing Committee found petitioner's testimony in this regard to be "most sincere," and were persuaded that if reinstated, petitioner would be "most careful and scrupulous" in any future handling of his clients' money.

With regard to his current competence to practice law, Harrison testified that he has kept up with developments in the law by reading leading journals, bar publications, and other legal publications. In addition, he stayed in regular contact with staff members of various government agencies before which he had practiced prior to his suspension, in order to stay abreast of relevant changes and developments in the law. Indeed, Harrison's current professional skills were never questioned by Bar Counsel or any one else involved in these proceedings.

Further, a number of distinguished and credible witnesses testified concerning both petitioner's competence to practice law and his moral character. The witnesses, former clients, business associates, and longtime friends, testified about numerous favorable associations with petitioner. Without exception the witnesses stated that they held petitioner's character in high esteem and would trust petitioner to handle money on their behalf and/or represent them as their attorney. Harrison's longtime involvement in public service work prior to his suspension, and his stated intention to resume such work if reinstated, further illustrated his strong character and commitment to the community.

Notwithstanding this evidence highlighting petitioner's qualifications to be reinstated to the Bar, Bar Counsel urges us to reject Harrison's petition on the basis of four incidents which it contends manifest Harrison's unfitness to resume the practice of law. The Board in recommending that petitioner be denied reinstatement based its decision on these alleged improprieties. We are not persuaded, however, that the examples cited by Bar Counsel warrant denying petitioner's application for reinstatement. We proceed to examine each of the four incidents:

(1) Real Estate Transaction

Bar Counsel argues that petitioner's handling of a real estate closing, during the period of his suspension, on behalf of a friend was improper. According to the record, Harrison, pursuant to a power of attorney, attended a real estate closing for a longtime friend who was out of the country at the time. The undisputed evidence showed, and Bar Counsel does not contest, that Harrison acted only in an agency capacity and not as an attorney-at-law. Pursuant to his principal's explicit instructions, Harrison deposited a check representing the proceeds from the transaction into his own personal bank account. Harrison testified before the Hearing Committee that while he had no available escrow account into which he could deposit the check from the real estate closing because he was suspended from practicing law at the time, he offered to open such an account specifically for this transaction. His friend, however, told him not to open an escrow account but rather to deposit the money into Harrison's own personal account. The money remained in the account for only five days at which time Harrison mailed a check for the full amount of the sales proceeds to his friend, less Harrison's agreed upon fee. At all relevant times, Harrison had sufficient funds in his account to cover the amount received at the real estate closing.

The Hearing Committee concluded that Harrison acted in good faith and committed no impropriety with respect to this transaction, and we agree. Petitioner did not act as an attorney-at-law in this situation, and in his agency capacity he handled the funds in strict accordance with the explicit instructions of his friend. Accordingly, we do not believe this...