In re Larsen, 89-1424.

• Decision Date: 12 April 1991
• Docket Number: No. 89-1424.,89-1424.
• Parties: In re Peter LARSEN, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

589 A.2d 400

In re Peter LARSEN, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 89-1424.

District of Columbia Court of Appeals.

Submitted February 21, 1991.

Decided April 12, 1991.

Before FERREN and WAGNER, Associate Judges, and PRYOR, Senior Judge.

PER CURIAM:

This matter comes to us from the Board on Professional Responsibility ("the Board") as a reciprocal discipline case that arose because the Court of Appeals of Maryland disciplined respondent for misappropriation of client funds.¹ We accept the Board's recommendation and impose the discipline recommended by the Board.

In reciprocal discipline cases, this court imposes an "identical discipline" unless we determine "the misconduct established warrants substantially different discipline in the District of Columbia." D.C.Bar R. XI, § 11(f). The Court of Appeals of Maryland suspended respondent indefinitely but without prejudice to apply immediately for reinstatement and subject to certain conditions. In this jurisdiction misappropriation of funds warrants disbarment in virtually all cases. In re Addams, 579 A.2d 190, 191 (D.C.1990) (en banc). Therefore, the misconduct established in this case warrants substantially different discipline from that imposed by Maryland. Accordingly, we turn to the Board's recommended discipline.²

The Board recommends this court disbar respondent, but stay the disbarment and impose a period of conditional probation for three years. The Board's recommendation is based on the findings of the Maryland court and our existing case law dealing with analogous circumstances. The Maryland court found that respondent's misconduct resulted from a mental illness, a bipolar or manic depressive disorder, and that with continued treatment and support respondent could practice law responsibly and professionally. As the Board points out, this court previously considered alcoholism, In re Reid, 540 A.2d 754, 759-60 (D.C.1988), In re Kersey, 520 A.2d 321, 326-28 (D.C.1987), and chronic depression, In re Peek, 565 A.2d 627, 634 (D.C.1989), to be mitigating factors justifying a sanction of supervised probation. The Board reasons that in this case respondent's mental illness should similarly be considered a mitigating factor justifying a sanction of supervised probation. We are persuaded by the Board's reasoning and, accordingly, we adopt the Board's recommended sanction as specified by the Board in its report, which we append as part of this opinion.

So ordered.

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY

Bar Docket No. 445-89

(DCCA No. 89-1424)

IN THE MATTER OF: PETER LARSEN, RESPONDENT.

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

On November 28, 1989, the Court of Appeals of Maryland filed an opinion and order suspending Respondent, Peter Larsen, from the practice of law in that state. The basis for the suspension was a determination that Respondent had engaged in numerous disciplinary code violations in 1986 in his handling of funds received in connection with a client's personal injury claim. Under the Maryland order, Respondent was allowed to apply for reinstatement any time after ninety days if he agreed to comply with specified conditions, including subjecting his practice to outside monitoring for a two year period.

Based on this action in Maryland, the District of Columbia Court of Appeals, on January 18, 1990, suspended Respondent from the practice of law in this jurisdiction until disposition of reciprocal disciplinary proceedings here. However, on April 13, 1990, after receiving notice that Respondent had been permitted to resume practice of law in Maryland on January 23, 1990, the District of Columbia Court of Appeals vacated the suspension. Thus, at the present time, Respondent can practice law in Maryland (under the conditions imposed by the Maryland Court of Appeals) but is presumably under no restraint concerning practice in the District of Columbia.

In the Court's order of January 18, 1990, the Board was directed to recommend whether reciprocal discipline should be imposed and, if not, whether other action should be taken. Despite the Court's later order vacating Respondent's suspension, the Board is still required to comply with this direction. Therefore, we have considered the question of reciprocal discipline. We conclude that the misconduct upon which the Maryland discipline was predicated "warrants substantially different discipline in this jurisdiction," and recommend, therefore, that reciprocal discipline not be imposed.

With respect to the discipline that should be imposed, we have concluded that a de novo hearing is not required here in light of the conclusive nature of the factual findings made in Maryland. We recommend that the Court disbar Respondent in the District of Columbia, but that it immediately stay the disbarment and place Respondent on probation for three years on terms and conditions we specify on pages 13 and 14 of this Report.

The Maryland Proceedings

The Maryland proceedings began when a physician, Indira V. Gokulanathan, M.D., filed a complaint with the Maryland Bar authorities that Respondent had failed to pay charges for medical treatment afforded to the family of Deborah Glass, a personal injury client of Respondent. The Maryland Attorney Grievance Commission investigated the complaint and concluded that there was basis to believe that Respondent had, in fact, mishandled funds he had received in settlement of his client's claims. The Commission filed a petition for disciplinary action against Respondent alleging numerous code violations.

The matter was assigned to a Circuit Court Judge, who conducted an evidentiary hearing on the charges and filed extensive findings of fact and conclusions of law. The findings relied heavily on admissions of fact by Respondent and on other uncontested evidence, including Respondent's own testimony.

At the conclusion of the evidentiary proceedings, the Circuit Court Judge concluded that Respondent had violated numerous disciplinary rules, including DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 2-110(B)(3) (failing to withdraw from employment when mental or physical condition renders it unreasonably difficult to carry out employment efficiently); DR 6-101 (handling a legal matter without adequate preparation); and DR 9-102¹ (preserving identity of funds or property). In addition, because the Rules of Professional Conduct became effective in Maryland after January 1, 1987, the Court also found violations of several of those provisions, including Rule 8.4 (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 1.15(B) (failing promptly to deliver funds to client or the third person).

The findings and conclusions by the Maryland trial judge were adopted by the Maryland Court of Appeals. Although the Maryland high court did not precisely identify the specific factual basis for each particular code violation that was found, the undisputed fact findings clearly supported the conclusion that Respondent had intentionally misappropriated funds and engaged in other violations. The uncontroverted evidence showed that Respondent had executed an authorization agreeing to withhold sums received in settlement of his client's claims to pay the complaining physician's bills; in November, 1986, he collected a check from an insurance company in the amount of $2,050 to reimburse the physician's medical charges; he deposited those funds into his escrow account; and, instead of paying the money to the physician, Respondent used the funds for his own purposes. See Maryland Findings, Nos. 2, 14-19, 27, 28.

These actions constitute a disbarment offense in the District of Columbia. In re Buckley, 535 A.2d 863 (D.C.1989). Indeed, under District of Columbia law, the fact that the balance of Respondent's escrow account went below the amount that was owed may itself be enough to warrant disbarment. In re Addams, 579 A.2d 190 (D.C.1990) (en banc).

In the Maryland proceedings, Respondent contended that, at the time of the events in question, he suffered from "bipolar illness" that affected his professional conduct. To support this claim, there was psychiatric testimony, such as that from Ellen G. McDaniel, M.D., Maryland Bar Counsel's expert, to the effect that:

... with a reasonable degree of medical certainty ... Respondent was suffering from a mental disorder at the time of the incident which precipitated the complaint to the Attorney Grievance Commission and that particular mental disorder is a bipolar disorder which used to be referred to as manic depressive disorder. Maryland Opinion, p. 17.

Aside from evidence as to the causal connection between the illness and the misconduct, there was also evidence that Respondent was being treated for his bipolar illness and was responding adequately. Respondent's treating psychiatrist, Edger J. Weiss, M.D., testified that, with medication, Respondent "could in the future carry on the duties of an attorney requiring sic the responsibility to clients and to the bar and the bench, with regard to honesty, integrity and mental ability to perform, so long as he maintained contact with a treating psychiatrist." Maryland Opinion, p. 19. This was consistent with the views of Maryland Bar Counsel's expert, who agreed that, if Respondent remained on medication and was closely monitored, his bipolar illness could be controlled to the degree that it would not interfere with his law practice. But Dr. McDaniel saw the need for "a carefully chosen support system" because of concern about "cognitive difficulties" that were revealed by tests administered to Respondent. Id. at 17.

The Maryland Court of Appeals adopted the approach recommended by the psychiatrists. Concluding that a causal connection between the illness and the misconduct had been proven—and noting that Res...