In re Ray

• Decision Date: 09 May 1996
• Docket Number: No. 95-BG-480.,95-BG-480.
• Parties: In re Ronald G. RAY, Esq., Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

675 A.2d 1381

In re Ronald G. RAY, Esq., Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 95-BG-480.

District of Columbia Court of Appeals.

Submitted February 27, 1996.

Decided May 9, 1996.

Gregory L.A. Thomas, Washington, DC, filed a brief for respondent.

Leonard H. Becker, Bar Counsel, and Ross T. Dicker, Assistant Bar Counsel, filed a brief for the Office of Bar Counsel.

Before FERREN, SCHWELB, and RUIZ, Associate Judges.

SCHWELB, Associate Judge:

The Board on Professional Responsibility has recommended that Ronald G. Ray, a member of the Bar of the District of Columbia, be suspended from practice for six months and that he be required to make restitution of illegal fees. Three members of the Board dissented and urged disbarment. Ray has filed exceptions to the Report and Recommendation; Bar Counsel has filed a brief defending it. We impose the discipline recommended by the Board.

I. THE FACTS

Leola Williams, a resident of Prince George's County, Maryland, died on November 12, 1986. Her granddaughter, Treneta Marie Humphries, retained Ray to assist her with Ms. Williams' estate. Although he had previously been given permission to appear in two personal injury cases in Maryland, Ray was not a member of the Maryland Bar. Moreover, Ray, who was employed as an attorney at the United States Department of Labor, had never probated an estate.

Ray opened a law office in the District of Columbia because anticipated staffing cuts threatened his position at the Labor Department. Throughout their professional relationship, Ray and Ms. Humphries generally met at Ray's law office. The parties never produced any written retainer agreement, and their fee arrangement was unclear.

Acting on Ms. Humphries' behalf, Ray requested the Prince George's County Register of Wills to release Leola Williams' will and to open a file for her estate. Ray also prepared an inventory of the assets in the estate, and filed it with the court in March of 1987. Meanwhile, Ms. Humphries opened a checking account for the estate. As the appointed personal representative, Ms. Humphries was the only person authorized to sign checks on this account.

On or about April 7, 1987, Ray accepted from Ms. Humphries a $3,000 check drawn on the estate account. Ms. Humphries testified that this check represented payment to Ray "for his services for handling the estate."

Ray testified that Ms. Humphries had agreed to pay him $3,000 for his assistance in liquidating securities involved in the estate and for representing her as an heir of the estate, as well as for his assistance with other related "legal problems." He subsequently asserted in a letter to Bar Counsel that he had "assisted Ms. Humphries in probating the estate," but he defended his actions on the ground that she could have proceeded without the aid of a retained attorney. In the same letter, Ray also claimed that an official at the office of the Register of Wills told him that he could assist Ms. Humphries even if he was not a Maryland attorney.

On or about November 23, 1987, Ray accepted another check from Ms. Humphries drawn on the estate account, this one in the amount of $600. Ray claimed that the check represented reimbursement for a bill which he had paid on behalf of the estate. He was, however, unable to produce any documentation of the bill, nor could he recall the subject matter or party involved in the transaction.

Ms. Humphries testified that Ray prepared the First and Final Accounting of the Leola Williams Estate. Ray denied drafting the document, notwithstanding the presence of a draft copy in his files. Instead, he claimed that he had only reviewed the document. Because of the sophisticated language used in the accounting, the Hearing Committee found that Ray prepared it as a part of his representation of Ms. Humphries.

The First and Final Accounting did not disclose either of the two payments to Ray which had been drawn on the estate's checking account. The document did, however, reflect a payment of $5,379 to Ms. Humphries for her services as Personal Representative. The Accounting also showed distributions to each of the four heirs (one of whom was Ms. Humphries) in the approximate amount of $21,750. The court approved the First and Final Accounting on November 10, 1988.

After the Accounting was approved, Ray assisted Ms. Humphries with the liquidation of certain shares of stock. Following the sale of the stock, Ray received a check for $20,763.70, dated December 22, 1988, payable to the "Estate of Leola Williams, Treneta M. Humphries Pers. Rep." Ray deposited the check into his escrow account.

On January 19, 1989, Ray issued a check to Ms. Humphries in the amount of $18,263.00 He retained the difference of $2,500.70 as a counsel fee for the transaction. Out of the retained sum, he paid expenses and taxes for the estate totaling $223.85.

Ms. Humphries testified that she believed the fee for the stock redemption to be reasonable. She also stated that both checks drawn on the estate account, as well as the funds retained from the stock transaction, were due to Ray "for handling the estate."

In Maryland, as well as in the District of Columbia, an attorney who expects to receive estate assets as his fee for providing services to the estate must petition the court, specifying the services performed and the fee requested. Md.Code Ann., Est. & Trusts §§ 7-601, 7-602 (1974 & 1990 Cum.Supp.); cf. D.C.Code § 20-751 (1989). Ray did not file the required petition. He testified that he did not know that he was not permitted to accept estate assets as his fee without leave of court.

II. THE DISCIPLINARY PROCEEDINGS

On the basis of the foregoing events, Bar Counsel charged Ray with several violations of the Code of Professional Responsibility,¹ including unauthorized practice of law (DR 3-101(B)); handling a matter he knew or should have known he was not competent to handle (DR 6-101(A)(1)); engaging in conduct involving fraud, deceit, misrepresentation or dishonesty (DR 1-102(A)(4)); collecting an illegal or clearly excessive fee (DR 2-106(A)); and misappropriating client funds (DR 9-103(A)). Following an evidentiary hearing, the Hearing Committee found by clear and convincing evidence that Ray had engaged in the unauthorized practice of law and that he had handled a matter which he was not competent to handle. The Committee found the evidence insufficient to show that Ray's actions constituted fraud, deceit, misrepresentation or dishonesty. The Committee also concluded that Bar Counsel had failed to prove that Ray had engaged in misappropriation or that he had collected an illegal fee. The Hearing Committee recommended a 30-day suspension.

Bar Counsel agreed with the Committee's conclusion regarding the dishonesty charge, but excepted to its rejection of the charges of misappropriation and the collection of illegal fees. Bar Counsel briefed both issues to the Board. Ray failed to file a brief before the Board, and he did not appear at oral argument.

The Board sustained the Hearing Committee's findings that Ray had engaged in unauthorized practice and that he had handled a matter beyond his competence. Disagreeing with the Committee, the Board concluded that Ray had accepted an illegal fee. The Board also held that Ray's deposit into his escrow account of the proceeds of the sale of securities belonging to the estate, and his retention of a portion of these proceeds as a counsel fee, constituted misappropriation.² The Board held, however, that Ray's conduct constituting misappropriation "involved no more than simple negligence or its equivalent," and recommended that Ray be suspended for six months and that he be ordered to pay restitution in the amount of $5,876.85. The three dissenting members of the Board recommended that Ray be disbarred.

Counsel for Ray has filed a brief in this court in which he contends that Ray "acted in conformity with the rules of professional conduct under all of the circumstances," that he neither accepted an illegal fee nor engaged in misappropriation, and that the Board's Report and Recommendation should not be followed. Bar Counsel has filed a brief urging the court to issue the discipline recommended by the Board.

III. LEGAL DISCUSSION

A. Standard of Review.

Although the Board on Professional Responsibility is an instrumentality of this court, it has substantial expertise in the area of attorney discipline. Accordingly, the scope of our review of the Board's Report and Recommendation is limited. We must accept "the findings of fact made by the Board unless they are unsupported by substantial evidence in the record." D.C. Bar R. XI, § 9(g) (1994). Moreover, we are required to "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." Id. "The deferential standard mandated by this provision becomes even more deferential where, as here, the party purportedly aggrieved by the discipline has failed to contest the proposed sanction." In re Goldsborough, 654 A.2d 1285, 1288 (D.C.1995); In re Dietz, 675 A.2d 33, 34 (D.C.1996) (per curiam).

B. Illegal Fee.³

DR 2-106(A) provides that a lawyer "shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee." Ray contends that the Board's finding that he collected an illegal fee is unwarranted. We disagree.

In Maryland, the right of an attorney to obtain a legal fee for handling a probate matter is governed by statute. Lusby v. Nethken, 262 Md. 584, 278 A.2d 552, 553 (1971). Under Maryland law, an attorney seeking compensation must file a petition "in reasonable detail" with the Orphans' Court, which "may allow a counsel fee to an attorney employed by the personal representative for legal services." MD.CODE ANN., Est. & Trusts § 7-602 (1974 & 1985 Cum.Supp.) (emphasis added). Section 7-602(b) provides...