In re Thompson, 89-823.

• Decision Date: 14 December 1990
• Docket Number: No. 89-823.,89-823.
• Citation: 583 A.2d 1006
• Parties: In re Raymond B. THOMPSON, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

583 A.2d 1006

In re Raymond B. THOMPSON, Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 89-823.

District of Columbia Court of Appeals.

Argued September 18, 1990.

Decided December 14, 1990.

R. Kenneth Mundy, Washington, D.C., for respondent.

Samuel McClendon, Asst. Bar Counsel, and Thomas E. Flynn, Bar Counsel, Washington, D.C., for the Office of Bar Counsel.

Before STEADMAN, FARRELL and WAGNER, Associate Judges.

PER CURIAM:

This case is before the court on a Report and Recommendation of the Board on Professional Responsibility (the Board) that respondent be disbarred for violating Disciplinary Rules 9-103(A) (failure to preserve identity of client's funds) and 1-102(A)(4) (dishonesty involving the intentional misappropriation of client's funds). In making its report and recommendation, the Board agreed unanimously with the Report of Hearing Committee Number Seven (the Hearing Committee). Respondent contends that (1) the Hearing Committee improperly relied upon non-expert opinion and hearsay; and (2) the record does not support, and the Hearing Committee failed to find by clear and convincing evidence, intentional misappropriation or dishonesty which would warrant disbarment. Respondent argues that the record supports at most a finding of misappropriation resulting from simple negligence and that a lesser sanction should be imposed under the circumstances. We disagree and accept the Board's findings, conclusions, and recommendation as set forth in its report which is reproduced in an appendix hereto.

Respondent's claim that hearsay and non-expert opinion was improperly admitted is raised for the first time with this court. The objection should have been raised before the Hearing Committee to preserve the issue for consideration. See Hughes v. District of Columbia Department of Employment Services, 498 A.2d 567, 570 (D.C.1985). In any event, the strict rules of evidence do not control professional responsibility hearings. D.C.Bd. Prof.Resp.R. 11.2. This rule is similar to the rules for other administrative proceedings. See Martin v. Police & Firefighters Retirement and Relief Board, 532 A.2d 102, 109 (D.C.1987). While we have held that an agency's "undue confidence in evidence that is too unreliable to justify the weight given to it" may warrant reversal (id. citing Jadallah v. District of Columbia Department of Employment Services, 476 A.2d 671, 676 (D.C.1984)),¹ this is not such a case. In this case, the Hearing Committee heard, without objection, the testimony of respondent's former client's new attorney that he did not feel that the termination of the personal relationship between respondent and his client prompted the client to pursue a claim for the proceeds of her personal injury claim. The witness gave as reasons for this conclusion the client's initial inquiry without revealing respondent's name, the client's caution in proceeding and her express statement that she did not want to cause respondent to lose his license.² Unlike Jadallah, the client-declarant testified and was available for cross-examination, and the statements elicited were made directly to the witness. Under the relaxed rules of evidence in this administrative proceeding, the admission of such testimony and reliance upon it by the Hearing Committee and the Board as corroborative of the client's testimony was not error.

We also reject respondent's second contention, that the record does not support, and the Hearing Committee failed to find by clear and convincing evidence that he intentionally misappropriated client funds or that his conduct was dishonest. Bar Counsel is required to prove disciplinary violations by clear and convincing evidence. D.C.Bd.Prof.Resp.R. 11.4. The Hearing Committee found that the burden was met that respondent used the client's settlement proceeds without her explicit consent and that such conduct was dishonest. It is respondent's contention that these findings do not eliminate the possibility that respondent had implied consent to use the funds or a reasonable basis to conclude that he did, given the nature of his personal relationship with the client. This position ignores that factually the Hearing Committee found that respondent availed himself solely of the use of a major portion of the funds, failed to state that there was an implicit understanding to that effect and admitted there was never any understanding at all between respondent and his client. The Hearing Committee rejected for want of evidentiary support the claim that the funds were jointly held for perpetuation of the relationship and rejected the defense that no attorney-client relationship existed due to the overwhelming evidence to the contrary. The Hearing Committee concluded that respondent never obtained explicit, or even implicit, permission to use his client's funds. These factual findings and conclusions are supported by substantial evidence which is summarized in the Board's report.

Misappropriation of a client's funds is a serious violation of the Rules of Professional Responsibility for which disbarment is the appropriate sanction unless the conduct results from mere negligence. In re Addams, 579 A.2d 190, 191 (D.C.1990) (en banc). There is no basis for concluding on this record that respondent falls within the exception. On the contrary, the record supports the Board's recommendation which is consistent with cases involving comparable misconduct. See In re Wade, 526 A.2d 936, 939 (D.C.1987); In re Burton, 472 A.2d 831 (D.C.1984).³

The Board must accept the fact finder's findings if supported by substantial evidence on the record as a whole. In re Evans, supra, 578 A.2d at 1142. The same standard governs our review of the Board's findings. Id. Substantial evidence means enough evidence for a reasonable mind to find sufficient to support the conclusion reached. Liberty v. Police and Firemen's Retirement Relief Board, 410 A.2d 191, 192 (D.C.1979). Applying these standards, we conclude that the findings of the Hearing Committee, upon which the Board's findings are based, are supported by substantial evidence. We agree with the Board's recommendation of disbarment as the appropriate sanction for the conduct involved.

Accordingly, it is

ORDERED that respondent, Raymond B. Thompson, be and hereby is disbarred from the practice of law in the District of Columbia. This order shall be effective thirty days from the date of this opinion.

So Ordered.

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Bar Docket No. 333-87

IN THE MATTER OF RAYMOND B. THOMPSON, RESPONDENT.

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This matter is before the Board on the Report of Hearing Committee Number Seven ("Committee"), dated September 7, 1988. The Committee found that Respondent violated Disciplinary Rule 9-103(A), which requires that an attorney preserve the identity of funds and property of a client, and DR 1-102(A)(4), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Committee found that Respondent intentionally misappropriated funds due his client from the settlement of the client's claim for personal injuries. The Committee recommended that Respondent be disbarred.

Respondent represented Carrie O. Bell in a claim for personal injuries arising out of an automobile accident. The claim was settled for $13,000. Defendant's insurance carrier issued a check in that amount made payable to Ms. Bell and Respondent jointly. Respondent endorsed the check with his name and that of Ms. Bell. He deposited $12,500 in his trust account. The record contains no explanation as to what Respondent did with the remaining $500. Within the next two weeks, Respondent made three withdrawals from the account that reduced the balance to less than $200. See Bar Exhibits 7-12. Ms. Bell had $3,000 in medical bills outstanding at the time of the settlement. Those bills have never been paid. Ms. Bell retained other counsel and sued Respondent in the Superior Court of the District of Columbia to recover her share of the settlement proceeds. She obtained a default judgment in the amount of $13,000, plus interest. Ms. Bell's counsel took the deposition of Respondent in aid of enforcement of the judgment. The transcript of the deposition reflects Respondent's agreement to settle Ms. Bell's claim for $10,500, $500 of which was to be paid within four days and the remainder, $10,000, within thirty days out of the proceeds of certain fee petitions then pending. See Bar Ex. 19. Respondent paid $500, but he failed to pay any part of the remaining $10,000.

Before the Hearing Committee, Respondent moved to dismiss the petition, arguing that service of the petition breached the confidentiality requirements of Rule XI, § 23. The process server engaged by Bar Counsel left the petition in an unsealed manila envelope on the windshield of an automobile parked in the driveway of Respondent's home. The Committee found that the process server left the petition where he did as a result of what the Committee found were Respondent's "attempts to evade lawful attempts at service of process." Report at 9-10.¹ Further, as the Committee noted, Respondent made no contention that service was inadequate or ineffective. Id. at 10 n. 3. In light of the Committee's findings, which are supported by substantial evidence in the record as a whole, the Board adopts the Committee's recommendation and denies Respondent's motion to dismiss.

In his answer to the petition, Respondent denied that there was an attorney/client relationship between himself and Ms. Bell. Rather, Respondent asserted that the relationship was wholly personal. It is undisputed that Respondent, who was married, and Ms. Bell were having an affair. Ms. Bell testified that regardless of her personal relationship with Respondent, she understood that Respondent was...