Matter of Burton, M-143-82.
| Decision Date | 11 January 1984 |
| Docket Number | No. 83-492.,No. M-143-82.,M-143-82.,83-492. |
| Parties | In the Matter of Melvin M. BURTON, Jr., Respondent, a Member of the Bar of the District of Columbia Court of Appeals. |
| Court | D.C. Court of Appeals |
Samuel McClendon, with whom Thomas H. Henderson, Jr., Bar Counsel, and Fred Grabowsky, Bar Counsel, Washington, D.C., at the time the brief was filed, were on the briefs, for petitioner.
Charles A. Brady, Washington, D.C., for respondent.
Before NEBEKER, FERREN and BELSON, Associate Judges.
In these two disciplinary cases, respondent is charged with commingling and misappropriation appropriation of funds held in a fiduciary capacity as a court-appointed trustee, as well as with misrepresentation to the Auditor-Master. The Board on Professional Responsibility has recommended in each case that respondent be disbarred from the practice of law. We conclude that the records support the Board's findings of fact and that respondent violated Disciplinary Rules DR 9-102(A) (now DR 9-103(A)) (failure to deposit funds of client in a separate account)1 and DR 1-102(A)(4) (). We therefore agree with the Board's recommendation of disbarment, as set forth more fully in the Board's Reports and Recommendations appended hereto and incorporated herein by reference.
Accordingly, it is ORDERED that respondent, MELVIN M. BURTON, JR., is disbarred from the practice of law in the District of Columbia. See In re MeClellen, No. M-51-80 (D.C. March 26, 1981); In re Burka, 423 A.2d 181 (D.C.1980) (en banc); In re Newsome, No. D-34-79 (D.C. November 21, 1979); In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (1966) (per curiam). This order shall be effective thirty (30) days from the date of this opinion. D.C.Bar R. XI, § 19(3).
APPENDIX
BOARD ON PROFESSIONAL RESPONSIBILITY DISTRICT OF COLUMBIA COURT OF APPEALS
IN THE MATTER OF MELVIN M. BURTON, JR., RESPONDENT
REPORT AND RECOMMENDATION OF BOARD ON PROFESSIONAL RESPONSIBILITY
This case arises out of improper commingling and misappropriation of certain funds received by Respondent in his capacity as a court appointed Trustee. The offense was then highlighted by a false statement made by Respondent to the Auditor-Master in an evidentiary hearing held in connection with an audit of Respondent's Trustee accounts.
The matter has been considered by Hearing Committee Five consisting of George W. Miller, Esq., Walter T. Skallerup, Jr., Esq., and Mrs. Rosemarie Brooks. The Committee has recommended that Respondent be disbarred.
The findings of fact contained in the Hearing Committee's report are supported by clear and convincing evidence and are adopted by this Board. The Board also approves the Committee's conclusion that these findings require that the Respondent be disbarred.
The Board can do no better in its report to the Court than to adopt as its own the substantive portions of the Hearing Committee's report which are set out below:
FACTS
Respondent has practiced law in the District of Columbia for 25 years with no prior discipline assessed against him. On February 9, 1979, pursuant to an order of the Superior Court of the District of Columbia in Civil Action 7965-77 RP (Wilkens, et al. v. Anderson, et al.), Respondent was appointed as Trustee to sell Lot 5, Square 397, located at 1535-9th Street, N.W., Washington, D.C. (Bar Ex. 2) On April 9, 1979, the real estate was sold for $18,000 less encumbrances, liens, costs and appropriate adjustments, as provided in the contract of sale dated November 23, 1976. (Bar Ex. 3)
On April 19, 1979, Respondent received $12,777.83 as the first payment from the sale of the real estate. (Respondent's Answer to Specification of Charges, ¶ 3) On April 30, 1979, Respondent opened a trust account at the National Bank of Washington, Number 6-17744-4 (trust account) in which he deposited the $12,777.83 initial payment. Respondent subsequently deposited in the trust account additional proceeds from the sale of the real estate in the amounts of $500, $75, $38.61 and $25.98. (Bar Exs. 7-9)
During the period November 14, 1979 through January 14, 1981, Respondent made unauthorized withdrawals of funds from the trust account for his personal and business uses and for purposes not related to the trust, and made deposits from unidentified sources into the account. By making such unauthorized withdrawals and deposits, Respondent caused the trust account to have shortages and overages during the period stated above. Data for the trust account as of the closing dates of the monthly bank account statements are as follows:
Actual cash on Amount that
deposit at National should have
Bank of Washington been on
Account Number: deposit in Shortage or
6-177-34-4 trust account Overage
4/30/79* $12,777.83 $12,777.83 00.00
5/ 9/79 12,777.83 12,777.83 00.00
6/11/79 12,413.07 12,763.07 $350.00
7/11/79 10,768.44 11,118.44 350.00
8/ 9/79 10,026.80 10,376.80 350.00
10/10/79 10,101.80 10,451.80 350.00
11/ 9/79 10,041.80 10,451.80 410.00
12/11/79 6,541.80 10,451.80 3,910.00
1/10/80 6,233.25 10,451.80 4,218.55
2/11/80 5,841.25 10,451.80 4,610.55
3/11/80 3,941.25 10,451.80 6,510.55
4/ 9/80 191.30 10,495.99 10,304.69
5/ 9/80 3,824.82 10,560.58 6,735.76
6/10/80 1,560.41 10,560.58 9,000.17
7/10/80 5,757.81 10,560.58 4,802.77
8/11/80 5,332.81 10,560.58 5,227.77
9/10/80 3,221.94 10,560.58 7,338.64
10/ 9/80 9,791.60 10,560.58 768.98
11/12/80 10,191.60 10,560.58 368.98
2/10/81 10,611.60 10,560.58 51.02**
(Bar Exs. 14A-R
11 at 6)
On April 9, 1980, almost one year after it was established, the trust account contained $191.30, less than 2% of the $10,495.99 for which respondent then was accountable as fiduciary. (Bar Ex. 14K)
During the course of an audit of the Trustee's account, the Auditor-Master noted certain irregularities in the handling of the assets in the trust account. For the purpose of inquiring into the mishandling of estate funds, the Auditor-Master of the Superior Court scheduled a hearing on January 13, 1981. (Bar Ex. 11)
At the hearing before the Auditor-Master, respondent maintained that his actions did not endanger the security of trust assets because he had reserves of cash which were made up in part of revenues derived from his law practice. In order to establish his contentions, respondent on January 13, 1981 testified under oath before the Auditor-Master as follows:
I'm making — I don't even know what I have grossed this year, but just to show you, last year I grossed in excess of $150,000. That was 1979. I don't know what I grossed this year. (Bar Ex. 10, p. 37)
Schedule C to respondent's Form 1040 (Individual Federal Income Tax Return) for 1979 reported a gross income from his trade or business of $58,073. (Bar Ex. 17)
Respondent acknowledged that his testimony under oath to the Auditor-Master of the Superior Court that his gross income for 1979 was in excess of $150,000 was inaccurate. (Tr. p. 62)
In view of the irregularities in the handling of the trust account, the Auditor-Master recommended that the Court consider the advisability of referring the matter to the Office of Bar Counsel for appropriate action. The Auditor-Master further recommended that the usual trustee fees and commissions not be allowed by the court. (Bar Ex. 11)
The court subsequently reviewed the report of the Auditor-Master and approved the report without a referral to the Office of Bar Counsel. (Bar Ex. 12)
DISCUSSION
Bar Counsel has charged that respondent's unauthorized withdrawal and commingling of trust funds violated Disciplinary Rule 9-102(A).1 In addition, Bar Counsel has charged that respondent's misstatement to the Auditor-Master of respondent's gross earnings for the tax year 1979 violated Disciplinary Rule 1-102(A)(4).2
At the conclusion of Bar Counsel's case, respondent moved that the Hearing Committee dismiss the charges "on the basis that Bar Counsel has not presented a prima facie case . . ." The Committee declined to dismiss the charges. It directed the respondent to go forward with his case, but reserved decision on the question of the sufficiency of Bar Counsel's proof. (Tr. 24-25)
Respondent has asserted that Bar Counsel did not make out a prima facie case because Bar Counsel called no witnesses and relied on exhibits which were irrelevant to the charges against respondent. (Respondent's Post Hearing Brief, pp. 10-12)
The Committee believes that respondent's contention that Bar Counsel failed to establish a prima facie case is without merit. Respondent did not contest the authenticity of the exhibits offered by Bar Counsel.3 The exhibits demonstrated that: 1) the Superior Court appointed respondent as trustee to sell realty; 2) respondent received payments for the sale of the realty; 3) respondent deposited the payments in a trust account; 4) respondent made a series of withdrawals from the trust account for personal and business purposes, and 5) respondent deposited money in the account that did not derive from the proceeds of the sale of the realty. Thus, the documentary exhibits offered by Bar Counsel were clearly relevant and, indeed, established that respondent commingled...
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