In re Morris

• Decision Date: 19 July 1985
• Docket Number: No. 84-97.,84-97.
• Citation: 495 A.2d 1162
• Parties: In re Robert Carroll MORRIS IV, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

495 A.2d 1162

In re Robert Carroll MORRIS IV, A Member of the Bar of the District of Columbia Court of Appeals.

No. 84-97.

District of Columbia Court of Appeals.

Argued March 25, 1985.

Decided July 19, 1985.

Before FERREN, TERRY and ROGERS, Associate Judges.

ORDER

PER CURIAM:

This is a reciprocal disciplinary matter before the court for consideration of the Report and Recommendation of the Board on Professional Responsibility (the Board). The Board asserts that respondent, who was disbarred on January 11, 1984, by the Maryland Court of Appeals for violation of certain provisions of the Maryland Code of Professional Responsibility,¹ violated the corresponding provisions of the District of Columbia Code of Professional Responsibility² and, accordingly, recommends that reciprocal disbarment be imposed. The Report and Recommendation of the Board was based upon evidence adduced in the Maryland proceedings. Under D.C.Bar R. XI, Section (7)(3), we must defer to the Board's findings of fact unless such findings are unsupported by substantial evidence of record, and to "the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted."

The Board found that Respondent had violated the Disciplinary Rules by his conduct in handling two cases. The Board found that in one case he had misappropriated the funds of a client. Respondent had recovered a money judgment for his client, but he and his client could not agree on how to divide the money. Although the client did not endorse the check, her purported signature appeared on the check cleared by the bank on which it was drawn. Thereafter, Respondent wrote his client that he had deposited the check in an escrow account, although he had not done so. In a second case, Respondent's action in representing a client as personal representative of an estate resulted in a loss of funds. He urged the client to reject an offer to purchase the decedent's house because Respondent and his father would purchase the house, which they did not. Respondent also failed to file the required reports on the estate. Upon being discharged by his client, respondent presented a bill for services rendered which included a number of false statements, and subsequently misrepresented to the Maryland court the nature of a payment from his client. We are satisfied that the record supports the Board's findings of fact and that respondent violated Disciplinary Rules 1-102(A), 5-101(A), 6-101(A), 7-101(A), and 9-103(A) and (B).³

Substantively, respondent makes the same arguments here which he made to the Maryland Court of Appeals, but he has framed them differently. He contends that: (1) the proof in the Maryland proceedings was so infirm that this court cannot accept as final the Maryland court's conclusion; (2) the established misconduct warrants a substantially different kind of discipline; (3) disbarment by the District of Columbia would result in a grave injustice; and (4) the established misconduct in Maryland does not constitute misconduct in the District of Columbia. In its report, which is incorporated in part by reference (See Appendix), the Board evaluated these contentions and found them to be without merit. We agree with the Board's analysis and conclusions and accept them without further analysis or elaboration, except with respect to the Fifth Amendment issue, which we discuss briefly in view of Respondent's brief in this Court.⁴ Respondent argues that the Maryland court judge erroneously compelled him to testify, and that because he asserted the Fifth Amendment, he made an imprudent decision which resulted in certain favorable proof never coming to the Maryland court's attention.

We address this claim because respondent has asserted in his brief in this court that because of his exercise of the Fifth Amendment privilege in the Maryland disciplinary proceedings, his defense was never presented. That defense, briefly stated, is: that he had deposited his client's settlement check in his escrow account, that a Maryland Court had held that $3000.00 of the $4000.00 settlement money represented expert witness fees, that he had a retainer agreement entitling him to a one-third contingency fee and requiring the client to pay court costs, and the contingency fee and court costs exceeded the amount remaining after the expert fees. As respondent concedes, he asserted his Fifth Amendment privilege but the Maryland trial judge compelled him to testify. He thus had the opportunity to present any defense he chose or had available, and a review of the transcript of the Maryland proceedings reveals that respondent's defense was heard. That his testimony was conflicting and convoluted is no reason to conclude that no defense was presented. Because we concur with the Board's conclusion and recommendation, we do not elaborate on the evidence.

In recommending disbarment, the Board agreed, as do we, with the Maryland Court of Appeals "that `under the sum total of the circumstances' of Respondent's conduct in [the two cases], `disbarment is the proper sanction to be imposed.'"

Accordingly, it is ORDERED by the Court that respondent, Robert Carroll Morris IV, is disbarred from the practice of law in the District of Columbia. This order shall take effect 30 days from the date of this opinion.

Appendix: Parts I, II, III and V of the Report and Recommendation of the D.C. Board on Professional Responsibility, dated June 29, 1984.

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Bar Docket Number: 115-84

IN THE MATTER OF ROBERT CARROLL MORRIS IV

REPORT AND RECOMMENDATION

Respondent is an attorney admitted to the bar both in Maryland and the District of Columbia. Respondent has now been disbarred in Maryland, and the District of Columbia Court of Appeals has directed the Board on Professional Responsibility to recommend whether reciprocal discipline should be imposed or whether the matter should be heard de novo in this jurisdiction. The Board recommends reciprocal discipline.

I. PRELIMINARY STATEMENT

At the evidentiary hearing in a disciplinary proceeding before a Circuit Court judge in Maryland, Respondent elected to proceed pro se, although he had the right to be represented by counsel. After hearing the evidence, the trial judge issued a report finding that Respondent had violated numerous disciplinary rules.

In an appeal before the Court of Appeals of Maryland, Respondent was represented by counsel but made no exceptions to the trial judge's report. Instead, Respondent pleaded for leniency on the ground that his wrongdoing was not intentional.

The Maryland Court of Appeals "meticulously examined the record," found "clear and convincing evidence to support the findings of fact of the trial judge," and concluded that those "findings warrant his conclusions of law." The Court of Appeals of Maryland then determined that there were "no extenuating circumstances" and that "disbarment is the proper sanction."

Respondent then filed a Motion for Reconsideration, which the Court of Appeals of Maryland summarily denied without hearing.

In the proceedings before this Board, Respondent has filed an "objection" to reciprocal discipline and has attached thereto both the "Motion for Reconsideration" and "Memorandum in Support of Motion for Reconsideration" previously filed with the Court of Appeals of Maryland. Thus, Respondent is here making the same arguments as were presented to the Maryland Court of Appeals in a Motion for Reconsideration. Stripped of all surplusage and repetitiveness, these arguments boil down to two main contentions, i.e.,

— that misappropriation of a client's funds does not warrant disbarment when no intent to steal or defraud is found; and

— that the trial judge improperly overruled Respondent's objections based on his Fifth Amendment privilege against self-incrimination.

This Board has carefully considered both of Respondent's objections under the criteria for reciprocal discipline as set forth in Rule XI, Sec. 18(5) of the D.C. Court of Appeals, which provides in pertinent part that reciprocal discipline will be imposed unless:

(a) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(b) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion of that subject; or

(c) The imposition of the same discipline by the Court would result in grave injustice; or

(d) The misconduct established warrants substantially different discipline in this jurisdiction; or

(e) The misconduct elsewhere does not constitute misconduct in the District of Columbia.

Respondent's objections to reciprocal discipline are not persuasive under any of the above criteria.

II. RESPONDENT'S MISCONDUCT AS ESTABLISHED BY THE EVIDENCE IN THE MARYLAND PROCEEDINGS

The charges against Respondent were based on his conduct in handling two cases. One of these was Martin v. Lockwood, in which Respondent was found to have misappropriated the funds of a client, and the second matter involved the estate of William M. Poynton.

A. The Record in the Maryland Proceedings Relating to Misappropriation in Martin v. Lockwood

The charges against Respondent relating to misappropriation occurred in the course of his conduct in Martin v. Lockwood.

Respondent, as the attorney for Ms. Martin, had recovered a $4,000 judgment on her behalf and thereafter received a check for that amount payable to himself and Ms. Martin. The check was dated August 14, 1981.

In preparing for trial of Ms. Martin's case, Respondent hired a Mr. Hellman as an expert to assist in the preparation and to testify at the trial. Mr. Hellman later presented a bill of over $3,000 for his services, and Respondent claimed he (Respondent)...