In re Hines

• Decision Date: 26 September 1984
• Docket Number: No. M-141-82.,M-141-82.
• Citation: 482 A.2d 378
• Parties: In re Eugene P. HINES, Respondent.
• Court: D.C. Court of Appeals

482 A.2d 378

In re Eugene P. HINES, Respondent.

No. M-141-82.

District of Columbia Court of Appeals.

Argued September 15, 1983.

Decided September 26, 1984.

Martha J. Tomich, Asst. Bar Counsel, Washington, D.C., with whom Fred Grabowsky, Bar Counsel, Washington, D.C., at the time the brief was filed, was on the brief, for petitioner.

William F. Hickey, Washington, D.C., for respondent.

Before NEWMAN, Chief Judge, and NEBEKER and TERRY, Associate Judges.

PER CURIAM:

This case comes before the court on the report of the Board on Professional Responsibility (BPR) recommending that respondent, a member of the bar, be suspended from the practice of law. A hearing committee of the BPR found that respondent had violated certain disciplinary rules in two separate cases. In one case, Bar Docket No. 447-79 (the Nusbaum case), the committee found that respondent had violated

Disciplinary Rules 9-103(A),¹ 1-102(A)(4),² 9-103(B)(4),³ and 7-101(A)(3).⁴ The BPR adopted the committee's findings. In the other case, Bar Docket No. 194-80 (the Shakkour case), the committee found that respondent had violated DR 9-103(A). The BPR again adopted the committee's findings but ruled that respondent had also violated DR 1-102(A)(4). The committee recommended that respondent be publicly censured for his various violations. The BPR, however, urges a two-year suspension.

Respondent contends that the BPR erred in finding a violation of DR 1-102(A)(4) in the Shakkour case, that the hearing committee should have severed the two petitions filed against him, that the BPR should have granted his request for a personal appearance after oral argument, at which he could not be present, and that the sanction recommended by the BPR is too severe. We reject all of these contentions. Having concluded that the BPR acted properly and that the recommended sanction is consistent with prior sanctions for similar conduct, we suspend respondent for two years.

I

In the fall of 1979 respondent was retained by Linda Shakkour and Kathleen Flynn in connection with their plans to open a restaurant. With the financial assistance of Miss Shakkour's father and uncle, Henry and Bahjat Shakkour, a site for the proposed restaurant was found, and respondent began negotiations for a lease.

In the course of the negotiations, respondent told his clients that an escrow deposit of $2,850 was required to reserve the property. On January 17, 1980, Bahjat Shakkour drew a check for this amount, post-dated to January 21, and noted on the memorandum line that it was an escrow deposit. Respondent deposited the check that same day, January 17, in his professional account at Riggs National Bank,⁵ writing "Escrow Shakkour" on the deposit slip. The check was not honored by Mr. Shakkour's bank. When it was returned to respondent, he redeposited it on January 23, but in his personal account rather than his professional account. This time the check cleared. On February 4 respondent drew a check for $2,500 on his personal account and deposited it in his professional account.⁶

In mid-February the Shakkours and Miss Flynn decided to abandon the restaurant venture. Respondent subsequently sent them a bill for services rendered in the amount of $3,584.60. When a dispute arose concerning his fee, respondent informed his clients that he had been advised by Bar Counsel that he could assert a lien on the $2,850, which he referred to as an "escrow deposit." He told them that he would refund this amount as soon as his bill was paid, and set up a retaining lien.⁷

The hearing committee concluded that respondent had violated only DR 9-103(A). This violation occurred when respondent deposited the $2,850 check, which was drawn by Bahjat Shakkour for the purpose of holding the negotiated lease, in his professional account and then in his personal account. The committee found that a concession by respondent, his characterization of the $2,850 as "escrow" money, and the assertion by him of a retaining lien all indicated that he "surely was aware that the funds were the property of the client" which "from the moment of receipt [he] was obligated to deposit . . . into a segregated account." The BPR agreed that respondent's conduct violated DR 9-103(A), but also concluded that it contravened DR 1-102(A)(4). It found that his indiscriminate deposit of admitted escrow money in accounts that contained personal funds, combined with his failure to keep running account balances and to examine his monthly banking statements, demonstrated a "reckless disregard" for the status of the accounts in which he deposited his clients' money. This recklessness, the BPR declared, gave rise to "an inference that there was an intent on respondent's part to deal with and use funds escrowed for clients as his own." On the basis of this inference, the BPR concluded that respondent had engaged in conduct involving dishonesty in violation of DR 1-102(A)(4).⁸

II

Early in 1980 respondent undertook to represent Jane Nusbaum, another attorney, with regard to a legal claim she was pursuing against an estate. It was agreed that respondent would receive as his fee half of whatever was recovered. However, when the claim was settled, and respondent received a check for $8,136 payable jointly to him and Nusbaum, they further agreed that $682 of the $4,068 Nusbaum was to receive would be applied to the balance she owed respondent for prior legal services. Of the remainder of Nusbaum's portion of the settlement ($3,386), respondent agreed to send $1,886⁹ directly to Nusbaum and to transfer the balance ($1,500) to Nusbaum's checking account at Riggs National Bank.

Respondent deposited the $8,136 settlement check in his professional account and drew a check on that account for $1,886, payable to Nusbaum. On the memorandum line of the check he wrote "In Partial Payment," followed by an illegible word. However, he failed to transfer the $1,500 from his professional account to Nusbaum's account. On several occasions in early April, Nusbaum asked respondent to do so, and he told her that he would. In at least two instances, respondent said that the delay was due to problems with his account at Riggs.¹⁰

The hearing committee found, and the BPR agreed, that respondent had intended at least initially to transfer the $1,500. The committee also found, however, that as respondent began to realize that Nusbaum might not have the money to pay the prior legal fees she had incurred,¹¹ he "reevaluated his decision to remit the $1,500." It acknowledged that the note respondent sent to Nusbaum on April 13 offering excuses for his failure to transfer the money "may have been prompted more by a desire to avoid an unpleasant confrontation than by an intent to deceive." However, it concluded that the promises he made on April 18 and 22 revealed "a conscious deception, for by that time his intention to release the money had changed." The committee found that respondent's April 18 and 22 promises to transfer were "deliberate misrepresentations violative of DR 1-102(A)(4)."

The committee also concluded that respondent's failure to retain the $1,500 in an identifiable bank account was a violation of what is now DR 9-103(A). It rejected respondent's contention that the $1,500 constituted a payment of the additional fees which Nusbaum owed him. In so concluding, the committee pointed to the notation on the $1,886 check, to the April 13 note in which respondent also suggested he might credit Nusbaum's account with him in the amount of $1,500, and to an April 21 letter requesting an opinion from the Legal Ethics Committee as to whether he could impose a lien on the $1,500, as evidence of respondent's awareness that the $1,500 belonged to Nusbaum.¹² The BPR adopted these findings and conclusions.

The BPR also agreed with the committee's determination that respondent had violated two other disciplinary rules. DR 9-103(B)(4) was violated when respondent, before asserting a retaining lien against Nusbaum, failed to comply with her requests to transfer her money either to Riggs or to her. Finally, the committee found that respondent's failure to transfer the $1,500 to Nusbaum's account, as he had said he would, contributed to the financial difficulties she was experiencing at the bank.¹³ Even if, as respondent suggested, Nusbaum treated him in an exploitative manner, the committee declared that "he was required to act with an integrity which exceeded that expected of the layman." It concluded that respondent's "willing[ness] to prejudice [his client's] standing with the bank and expose her to legal action [came] within the broad proscription of DR 7-101(A)(3)."

III

We may quickly dispose of respondent's first contention. He argues that since the hearing committee found no violation of DR 1-102(A)(4) in the Shakkour case, the BPR erred in finding one. There is no legal support for such an argument. Under Rule XI, § 4(3)(g), of our Rules Governing the Bar, the BPR has not only the power but the duty "[t]o review the findings and recommendations of hearing committees with respect to formal charges and to prepare and forward its own findings and recommendations, together with the record of the proceeding before the hearing committee and the Board, to this Court."

Despite the hearing committee's power to make findings of fact and conclusions of law, its recommendations are by no means binding upon the BPR. See, e.g., In re Goldstein, 471 A.2d 267 (D.C. 1984); In re Stanton, 470 A.2d 281 (D.C. 1983); In re Smith, 403 A.2d 296 (D.C. 1979). In this case the BPR made no findings of fact to augment or contradict those made by the hearing committee. Rather, it accepted the facts as found by the committee, but reached a different conclusion of law on the question of whether those facts established more than one disciplinary rule violation.¹⁴ We agree with the BPR's conclusion that respondent violated DR 1-102(A)(4) in the Shakkour case. See In re James, 452 A.2d 163 (D.C...