In re R. J. Zakroff
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 05-BG-740
IN RE ROBERT JOEL ZAKROFF, RESPONDENT .
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 163337)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN 205-05)
(Argued January 5, 2007
Decided October 25, 2007)
Robert Joel Zakroff, pro se.
John Thomas Rooney, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel,
and Traci M. Tait, Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
Before KRAMER , FISHER, and THOMPSON , Associate Judges.
THOMPSON , Associate Judge: In this reciprocal disciplinary proceeding, the Board on
Professional Responsibility (the “Board”) has unanimously recommended that Robert Joel Zakroff,
a member of the District of Columbia Bar, be disbarred. The Board’s recommendation is based upon
Zakroff’s disbarment by the Court of Appeals of Maryland (sometimes referred to hereafter as “the
Maryland court”) for conduct, including intentional misappropriation of client funds and dishonesty,
that violated a number of Maryland’s Rules of Professional Conduct (“MRPC”). We agree with the
Board that reciprocal discipline is appropriate. However, for the reasons explained below, which
relate to the Maryland court’s finding that during the relevant time period Mr. Zakroff was impaired
2
by “significant depression,”1 we cannot conclude whether discipline identical to that imposed by
Maryland is warranted. We remand the matter to the Board for a determination as to whether
Respondent has been substantially rehabilitated and, if so, for a recommendation about what
alternative sanction is appropriate.
I.
Background: The Maryland Proceedings
The Maryland court entered its order of disbarment on June 23, 2005, revoking Respondent’s
license to practice law in that jurisdiction.2 In a 54-page opinion issued on the same date, the court
sustained findings of law by the Honorable Durke Thompson of the Circuit Court for Montgomery
County, Maryland, reached after six days of evidentiary hearings and arguments, that Respondent
violated the following Maryland Rules of Professional Conduct (2005): Rules 1.15 (a) (“[a] lawyer
shall hold property of clients or third persons that is in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property”); 1.15 (b) (“[u]pon receiving funds or other
property in which a client or third person has an interest, a lawyer shall promptly notify the client
or third person”); 3.3 (a) (“[a] lawyer shall not knowingly . . . make a false statement of material fact
or law to a tribunal”); 8.4 (a) (it is professional misconduct for a lawyer to “(a) violate or attempt to
violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so
1
2
Attorney Grievance Comm’n of Maryland v. Zakroff, 876 A.2d 664, 678 (Md. 2005).
On the basis of the Maryland disciplinary action, reciprocal discipline proceedings were
commenced in several other jurisdictions in which Zakroff was admitted to practice. The United
States Court of Federal Claims, the United States District Court for the District of Maryland, and
the Commonwealth of Virginia have all revoked Mr. Zakroff’s license to practice law.
3
through the acts of another”); 8.4 (b) (“[i]t is professional misconduct for a lawyer to . . . (b) commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects”); 8.4 (c) (“[i]t is professional misconduct for a lawyer to . . . (c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation”); and 8.4 (d) (“[i]t is professional
misconduct for a lawyer to . . . (d) engage in conduct that is prejudicial to the administration of
justice”). Judge Thompson also found that Respondent violated provisions of the Maryland
Business Occupations and Professional Code (Md. Code Ann., Bus. Occ. & Prof. Art §§ 10-306 and
10-606, relating to a lawyer’s use of trust money entrusted to the lawyer). With several corrections
and exceptions, the Maryland Court of Appeals accepted Judge Thompson’s findings of fact, which
we summarize below.3
A. Findings by the Circuit Court for Montgomery County
Respondent maintained an office for the practice of law in Bethesda, Maryland, practicing
under the name Zakroff & Associates, P.C. He was the sole stockholder of the firm, which practiced
primarily in the areas of personal injury, bankruptcy and collections. At the time of the hearing, the
volume of the firm’s cases was approximately 250 bankruptcy matters, 320-400 personal injury
cases, and 1500-2000 collection matters. Respondent was the only person in the firm who could sign
checks to make disbursements.
When a personal injury case was settled and the firm received settlement proceeds, clients
3
Our summary reflects exceptions that the Maryland Court of Appeals sustained.
4
were not promptly notified and “[n]o information was provided to the client as to the date of the
actual receipt of the settlement proceeds by the law firm.” 876 A.2d at 669. Some portions of the
settlement proceeds were payable by the firm to clients’ medical care providers, but Respondent
often would not sign checks that had been prepared for his signature for periods of several months.
On some occasions, respondent instructed his staff to respond to payment inquiries from medical
care providers by telling them that cases had not settled, even when the cases had in fact settled and
the law firm had received the settlement proceeds. Respondent also instructed his staff to provide
clients of the law firm with misleading information when they called about settlement of their cases.
Respondent maintained several bank accounts in two different banks, including an escrow
or trust account into which proceeds of client settlements were deposited and operating accounts for
payment of firm expenses. When staff received calls from one of the banks indicating that an
account balance was low, Respondent would direct staff to transfer funds between accounts. From
time to time Respondent would also deposit personal funds into the client trust account to cover
checks written from those accounts to clients and third parties. An auditor for the Maryland Attorney
Grievance Commission found that for the audit period January 2, 2000 through July 31, 2002, the
client trust account had a shortfall “ranging from a low of $174,000.00 to a high of approximately
$421,000.00.” Id. at 672. One specific finding by the auditor was that on May 11, 2000, the balance
in the client trust account was less than $700. The next day, a settlement in the Diaz case resulted
in a deposit into the trust account of $22,600. That amount was used to make disbursement to four
other clients totaling $9,500, “causing insufficient funds to be available to satisfy the needs for the
Diaz disbursement.” Id. Respondent also withdrew from the trust account lump sums payable to
5
Zakroff & Associates and “[o]nly rarely did the withdrawals represent sums properly earned as fees
and costs advanced.” Id.
For the January 2000 to July 2002 audit period, the auditor calculated the length of time
between deposits of settlement proceeds and disbursement to third parties and clients and found that
in twenty-four cases the time difference was more than six months, and in a few cases was as long
as sixteen months, eighteen months, and nearly twenty-three months. Id. Judge Thompson found
that “[w]hile some of the delay is accountable to a variety of possibilities, the pattern of delay
together with the established balances in the trust account, demonstrate that the Respondent, who
was the sole signatory for the accounts of the firm, knew there were insufficient balances to satisfy
clients, medical and third party service providers because the Respondent had withdrawn money
from the trust account and paid it into firm operating accounts in order to satisfy financial needs.
The reason for the financial needs was, in part, due to the appropriation of monies from the business
accounts to the Respondent personally.”4 Id. at 673.
During 1999-2000, Respondent, who “had experienced a dysfunctional family upbringing,”
encountered marital problems and sought therapy. Id. Licensed clinical social worker Paulette
Hurwitz testified to her belief that Respondent’s depression “interfered with [his] ability to think
clearly and the depression interfered with the analysis of whether taking money from the trust
4
Respondent excepted to Judge Thompson’s finding that money appropriated from the law
firm’s business accounts was used to benefit respondent personally. The Maryland court found that
“whether the Trust money was used to benefit respondent directly by being transferred into his
personal account or indirectly by being used to maintain his law practice is a distinction without a
difference.” 876 A.2d at 684.
6
account was more than a means to an end of solving some immediate problem.” Id. at 673.
Respondent “initially eschewed [taking] medication” for his depression because “his wife is a trained
‘healer’ using holistic treatment for ills.” Id. at 674. Hurwitz opined that Respondent “did not think
in terms of using the trust account monies as a wrongful act,” id. at 673, but had no opinion as to
whether Respondent “knew that taking monies was wrongful.” Id.
Judge Thompson noted that Respondent “paints a picture of [his] practice as a chaotic affair
with periodic crises” that was in this state because of “his own depression and his unwillingness to
disappoint potential clients causing him to take on improvident cases”; that Respondent “asserts he
never intended nor did he steal any monies from any client” and that “everyone who is due any
monies have [sic] been paid in full”; and that Respondent “d[id] not deny the status of his trust
account, but pleads ignorance to the precise balances and believed there were sufficient monies to
cover the checks” he directed his staff to prepare. Id. at 674. However, Judge Thompson found “not
credible” Respondent’s assertion that he did not know of the deficiencies in the trust account and his
professed ignorance of the multiple occasions of his depositing personal funds (including $80,000
in proceeds of a life insurance loan that Respondent took out) into the trust account. Id.
Judge Thompson also made findings about a bankruptcy matter handled by Respondent’s law
firm. The client, Patterson, had initially consulted Respondent about filing for bankruptcy.
Associates in Respondent’s firm presented for the client’s signature and presented to the bankruptcy
trustee bankruptcy schedules that did not list as an asset a claim that the client had against the Little
estate, a claim being handled personally by Respondent. The claim also was not disclosed during
7
a meeting of creditors when the bankruptcy trustee asked about the existence of any additional
claims. See 876 A.2d at 675. After one of the associates who was the attorney of record for the
bankruptcy matter learned of the claim, he advised the bankruptcy trustee of the claim. Id. at 676.
The bankruptcy court sanctioned “counsel for the debtor” for the improper claim of an exemption.
Id. at 685.
Judge Thompson also noted that several mental health professionals saw Respondent after
the Attorney Grievance Commission commenced its investigation. Dr. Christianne Tellefsen, “a
highly experienced psychiatrist,” id. at 676, saw Respondent at the request of his counsel. Dr.
Tellefsen “was not familiar with any allegations of wrongful conduct,” id., but opined that
Respondent had “depression with elements of mania and that the conditions were static for the entire
adult life of Respondent,” that he also evidenced “some attention deficit,” that he “tended not to pay
attention to problems until they became a crisis and then respondent provided a quick fix but did not
address the root of the problem,” and that he had “no deliberate intent to violate the rules, but only
to cope.” Id. at 676. Respondent “probably knew that taking the trust monies for his own use was
wrong and that he felt badly about it. This dynamic only created more stress and more depression.”
Id. at 676-77.
Dr. Michael Spodak, a forensic psychiatrist, opined that Respondent had “mental difficulties
[that] evidenced themselves in everyday life and not just in his practice” and “a debilitative mental
condition that was the cause of the conduct in the allegations facing” him. Id. at 677. Respondent’s
symptoms included “disorganization, sleeplessness, irritability, stress, detachment, lack of emotion,
8
procrastination, dishevelment, late payment of bills, expenditure of $40,000 for a pool to please his
wife and then burying it, selling property at a loss, too much work, bad employees, late taxes, and
the refusal to confront his daughter [who also suffered from depression] about remaining reclusive
in the house.” Id. Dr. Spodak “d[id] not believe that the Respondent intended to steal money” but
his “depression caused the Respondent to not care about consequences and to not consider ethical
responsibilities, although he did not let everything go to pieces.” Id. Dr. Spodak agreed that
Respondent “utilized quick fixes to meet his crises.” Id. Dr. Spodak “felt that the Respondent had
the ability to control his behavior, even though it was somewhat impaired.” Id.
Dr. Jeffrey Janofsky, also a forensic psychiatrist, “agreed that the Respondent suffers from
depression” but “believed it was much less than a major depression.” Id. Dr. Janofsky cited to
“Respondent’s ability to restore the trust account by repayment, develop a methodology to cover
shortages in the trust account, and [to] undert[ake] a determined assault on the medical insurers and
medical providers for his clients.” Id. Dr. Janofsky believed that Respondent is “much improved”
as a result of taking Zoloft.5 Id.
5
We have described the testimony of the mental health experts regarding Respondent’s
depression because it is pertinent background for our consideration of whether Respondent has
satisfied the test for so-called Kersey mitigation, discussed at pp. __ infra. See In re Kersey, 520
A.2d 321 (D.C. 1987); see also In re Peek, 565 A.2d 627, 631-33 (D.C. 1989) (depression is a
disability that may warrant Kersey mitigation). Drs. Tellefsen and Janofsky both opined that
Respondent also suffers from a mood disorder, and Dr. Tellefsen found a personality disorder as
well. See 876 A.2d at 676-77. We have not described their testimony on this subject in any detail
because, although finding that “Respondent has been suffering from a mood disorder all his life,”
id. at 677-78, Judge Thompson made no finding as to what effect if any either of the disorders had
on Respondent’s conduct. We note that this court has not reached “the issue as to whether a
personality disorder, standing alone, could serve as the basis for a mitigated sanction.” In re Drury,
683 A.2d 465, 468 n.5 (D.C. 1996).
9
Taking into account the testimony of all of the mental health professionals, Judge Thompson
found it “clear” that
Respondent suffered from significant depression and the depression
affected both his personal and professional relationships and lifestyle.
The depression interfered with Respondent’s ability to think through
the problems he perceived were plaguing him and to develop
acceptable solutions and to implement them. As a result, Respondent
was crisis driven which caused him to abuse his trust account and
utilize monies deposited therein for others for his personal use.
Id. at 678. Judge Thompson found that Respondent acted “without malice toward clients or with
intent to steal” and that “no client or medical assignee experienced any actual loss.” Id. at 678. He
also found, however, that “[t]he sheer magnitude of the imbalance of the trust account, the repeated
conduct of drawing upon it, the methodology used by the Respondent, and his apparent appreciation
of the wrongfulness, albeit rationalized away contradicts his claims of ignorance.” Id.
Judge Thompson found “clear and convincing evidence” that Respondent “knowingly used
client funds for unauthorized purposes,” id.; that he misrepresented to the Attorney Grievance
Commission investigator “the use of $50,000.00 deposited into the trust account purportedly to
cover payroll when, in fact, it was used to pay proceeds to a client on a personal injury matter which
could not be covered by existing balances,” id. at 679; that he “delay[ed] in paying third party
assignees [] monies due the assignees after a settlement was reached in a personal injury matter,” id.;
that the balance of Respondent’s client trust account “was insufficient for much, if not all, of the
period examined by the Petitioner’s investigator,” id. at 680; that “Respondent commingled funds
10
by depositing his personal funds on nineteen separate occasions from April 2000 until July 30,
2002,” id.; and that Respondent “directly or through those he directed, failed to promptly notify
clients or other interested parties of the receipt of funds to which they were lawfully entitled” and
“‘kited’ other settlements or supplied funds from his personal accounts to cover shortfalls,” id.
Regarding the Patterson matter, Judge Thompson found that “Respondent was also fully
aware of the Patterson bankruptcy proceedings even though he did not personally handle the matter”
but, after filing a lawsuit in an effort to recover monies for Patterson, “made no effort to notify the
bankruptcy trustee” and “deliberately withheld information from the bankruptcy schedules.” Id.
B. The Maryland Court of Appeals Decision
The Court of Appeals of Maryland found that the “facts of this case support a finding of both
intentional dishonesty and misappropriation on the part of the respondent.” Id. at 690. Having
accepted Judge Thompson’s findings summarized above, the court stated that the “only remaining
question” was the appropriate sanction.6 Id. at 689. The court noted that the “standard for
determining the appropriate sanction when an attorney’s conduct involved intentional dishonesty and
misappropriation,” id., was stated in the case of Attorney Grievance Comm’n. v. Vanderlinde, 773
A.2d 463 (Md. 2001). The court quoted Vanderlinde:
6
The court noted that Maryland law permitted it “to confine its review [of Judge
Thompson’s findings] to the findings of fact challenged by the [parties’] exceptions,” 876 A.2d at
682 (quoting Md. Rule 16-759 (b)(2)(B)), which is the approach that the court took.
11
In cases of intentional dishonesty, misappropriation cases, fraud,
stealing, serious criminal conduct and the like, we will not accept, as
“compelling extenuating circumstances,” anything less than the most
serious and utterly debilitating mental or physical health conditions,
arising from any source that is the “root cause” of the misconduct and
that also result in an attorney’s utter inability to conform his or her
conduct in accordance with the law and with the MRPC. Only if the
circumstances are that compelling, will we even consider imposing
less than the most severe sanction of disbarment in cases of stealing,
dishonesty, fraudulent conduct, the intentional misappropriation of
funds or other serious criminal conduct, whether occurring in the
practice of law, or otherwise.
773 A.2d at 485. The court then considered whether there existed “compelling extenuating
circumstances” that warranted the imposition of a lesser sanction than disbarment and concluded that
there were not. The court acknowledged that it was “undisputed that respondent suffers from
‘significant’ depression.” 876 A.2d at 690. It noted that the mental health professionals disagreed
about whether Respondent’s disorders were the “root cause” of his behavior, id. at 691, but
concluded that “[a]ssuming for the sake of argument that we accept the opinion that respondent’s
disorders were the root cause of his misbehavior, respondent would still fail to satisfy the
Vanderlinde mitigation standard,” since that standard “requires that the disability be nothing ‘less
than the most serious and utterly debilitating’ mental condition and that the condition be not only
the ‘root cause’ of the misconduct but also result in the attorney’s utter inability to conform his or
her conduct in accordance with the law and with the MRPC.” Id. The court concluded that nothing
in the record indicated that Respondent suffered from a disorder that rendered him utterly unable in
that way. To the contrary, the court observed, during the relevant time period Respondent
maintained a successful and high-volume law practice where he worked 70-80 hours a week. Noting
that Respondent had presented to the court “a list of remedial actions that he alleges to have
12
undertaken,” the court stated that even “[a]ssuming . . . that respondent testified to these facts and
that they are part of the record,7 they would not change our disposition of this matter.” Id. at 686
n.17. The court concluded that the appropriate sanction was disbarment.
C. Proceedings in This Jurisdiction
On July 19, 2005, the District of Columbia Bar Counsel moved this Court to disbar
Respondent by reciprocal discipline under D.C. Bar Rule XI, § 11. We entered an order suspending
Respondent from the practice of law in this jurisdiction and directed the Board either to recommend
the appropriate discipline based upon reciprocity or to proceed with this matter de novo. Declining
to proceed de novo, the Board filed its December 28, 2005 Report and Recommendation with this
court, urging us to disbar Respondent on the basis of Maryland’s full adjudication and subsequent
order of disbarment. See Board Report at 14 (“We conclude that identical reciprocal discipline of
disbarment is entirely appropriate”).
Citing In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003), the Board noted that there is a
rebuttable presumption in favor of the imposition of identical reciprocal discipline unless the court
finds that one or more of the exceptions set forth in D.C. Bar R. XI, § 11 (c) applies.8 See Board
7
The clerk of the Montgomery County Circuit Court transmitted the record to the Court of
Appeals of Maryland pursuant to Maryland Rule 16-757 (e) (2002), but inadvertently omitted the
September 13, 2004 hearing transcript that, Respondent advised the Maryland court, contains inter
alia his testimony as to his remedial actions.
8
Section 11 (c) provides that reciprocal discipline will be imposed unless the attorney
(continued...)
13
Report at 4-5. The Board rejected Respondent’s argument that he was denied due process in the
Maryland disciplinary proceedings, concluding that Respondent failed to show that he was denied
“notice or a meaningful opportunity to explain or defend against the allegations of misconduct.” Id.
at 6. The Board also rejected Respondent’s claims as to infirmity of proof, concluding that there was
“more than sufficient evidence of misconduct,” id. at 7, including misappropriation, dishonesty, and
knowing omission of an asset from his client’s schedule of assets filed in the bankruptcy court. The
Board rejected Respondent’s assertion that “the problems in the bankruptcy proceeding arose from
his failure to properly supervise an associate.”9 Id. at 9. The Board determined further that the
8
(...continued)
demonstrates, by clear and convincing evidence, that one of the following five conditions existed:
(1) The procedure elsewhere was so lacking in notice or opportunity
to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as
to give rise to the clear conviction that the Court could not,
consistently with its duty, accept as final the conclusion on that
subject; or
(3) The imposition of the same discipline by the Court would result
in grave injustice; or
(4) The misconduct established warrants substantially different
discipline in the District of Columbia; or
(5) The misconduct elsewhere does not constitute misconduct in the District
of Columbia.
Unless there is a finding by the Board under (1), (2), or (5) above that is accepted by this court, a
final determination by another disciplining court that an attorney has been guilty of professional
misconduct “shall conclusively establish the misconduct for the purpose of a reciprocal disciplinary
proceeding” in this court. Zdravkovich, 831 A.2d at 967.
9
Regarding the bankruptcy matter, the Board’s Report states that when Respondent’s
(continued...)
14
Maryland Rules that Respondent was found to have violated “are substantively similar to District
of Columbia Rules,” id., and that “Respondent’s misconduct in Maryland constitutes misconduct in
the District of Columbia.” Id. at 9, 10.
The Board then turned to Respondent’s argument that, in the District of Columbia, the
misconduct found by the Maryland court would warrant discipline substantially different from
disbarment. The Board concluded that “[t]he sanction imposed in Maryland [disbarment] is
precisely the sanction that would be imposed in the District of Columbia.” Id. at 10 (citing In re
Addams, 579 A.2d 190, 191 (D.C. 1990)) (en banc) (“in virtually all cases of misappropriation,
disbarment will be the only appropriate action unless it appears that the misconduct resulted from
nothing more than simple negligence”). The Board rejected Respondent’s argument that “his
disability warrants mitigation of the sanction in this jurisdiction even though such mitigation was
denied by the Maryland court.” Board Report at 11. The Board quoted the Maryland standard for
mitigation articulated in Vanderlinde and then described the mitigation standard in this jurisdiction:
[I]n the District of Columbia mitigation is warranted when the
9
(...continued)
associate discovered that the claim against the Little estate that Respondent was pursuing on behalf
of Patterson had been omitted from bankruptcy schedules, “Respondent assured the associate that
it was not a problem.” Board Report at 4. However, the Maryland court had sustained Respondent’s
exception to that finding by Judge Thompson, concluding that it was not supported by the record.
876 A.2d at 685. The Board also stated that “[t]he Maryland Court based its finding of a violation
of MRPC 1.3 on Respondent’s failure to file a bankruptcy petition for Mr. Patterson for more than
six months after being retained to do so.” Board Report at 9 n. 4. However, Judge Thompson found
that the facts “do not rise to a level constituting a violation of Rule 1.3” and stated that “[n]or is there
sufficient evidence that the Respondent was not diligent when he failed to amend the bankruptcy
schedules.” 876 A.2d at 680-81.
15
respondent establishes that (1) he suffered from an impairment at the
time he misappropriated funds; (2) a preponderance of the evidence
supports a finding that his impairment “substantially caused him to
engage in [the] misconduct;” and (3) he is now substantially
rehabilitated.
Board Report at 12 (quoting from In re Stanback, 681 A.2d 1109, 1115 (D.C. 1996)). The Board
reasoned that “[a]lthough the standard for disability in mitigation in the District of Columbia is
different than the standard in Maryland, both jurisdictions require a showing that the disability
caused the misconduct.” Id. at 11. The Board concluded that
[t]he Maryland Court’s findings demonstrate that the record evidence
failed to establish the requisite causal nexus between the disability
and the violations under Kersey -- that Respondent’s psychological
impairments ‘substantially caused him to engage in the misconduct.’
Accordingly, Respondent is not entitled to Kersey mitigation for his
intentional misappropriation and dishonesty.
Id. at 12-13.10
II.
Discussion
In his petition to this court, Respondent continues to urge that reciprocal discipline pursuant
to D.C. Bar Rule XI, §11 (c), should not be imposed because he was denied due process in the
10
The Board also rejected Respondent’s argument – which Respondent has not raised in the
instant appeal – that the Maryland court’s rejection of his mitigation defense was a failure to
accommodate his disability, in violation of the Americans with Disabilities Act. See Board Report
at 13 (citing In re Marshall, 762 A.2d 530, 539 (D.C. 2000)), and other cases for the proposition that
a lawyer who engages in intentional dishonesty and misappropriation is not qualified to be a member
of the Bar and thus cannot show that a disciplinary sanction excludes him from a benefit for which
he is otherwise qualified).
16
Maryland disciplinary proceedings as a result of the Maryland court’s failure to review the transcript
of his September 13, 2004 hearing testimony before issuing its ruling; that there was an infirmity of
proof as to intentional misappropriation of funds; and that any misconduct established warrants
substantially different discipline in this jurisdiction because, in light of Respondent’s depression and
its effect on his conduct, the Kersey mitigation standard is met.
A. Standard of Review
As already noted, see note 8 supra, in reciprocal discipline proceedings, this court must
“impose the identical discipline unless the attorney demonstrates, or the Court finds on the face of
the record on which the discipline is predicated, by clear and convincing evidence, that one or more
of the grounds set forth in [D.C. Bar Rule XI, § 11 (c)] of this section exists.” D.C. Bar R. XI, § 11
(f)(2). The Respondent has the burden of establishing by clear and convincing evidence that a lesser
sanction is warranted. Zdravkovich, 831 A.2d at 967. Clear and convincing evidence “is such
evidence as would produce in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established.” In re Estate of Walker, 890 A.2d 216, 222 (D.C. 2006) (citation and
internal quotation marks omitted).
B. Respondent’s Due Process and Infirmity of Proof Claims
We consider first Respondent’s due process and infirmity of proof arguments, and reject
both. The record amply shows that Respondent was afforded notice and a full hearing before a trial
17
judge in Maryland and obtained review of that trial judge’s findings of fact and conclusions of law
from the Court of Appeals of Maryland. See In re Edelstein, 892 A.2d 1153, 1157 (D.C. 2006) (“due
process is afforded when the disciplinary proceeding provides adequate notice and a meaningful
opportunity to be heard” (quoting In re Day, 717 A.2d 883, 886 (D.C. 1998)). As noted, Respondent
complains specifically about the fact that the transcript of the September 13, 2004 hearing before
Judge Thompson and exhibits to which Respondent referred during his testimony on that date11 were
not transmitted to the Maryland court before it issued its June 23, 2005 ruling.12 However, although
the Maryland court did not review the September 13 transcript before issuing its opinion, the court
was apprised of its contents through Respondent’s Exceptions to Judge Thompson’s findings, and
the court concluded that the testimony given would not have changed its disposition of the matter.
See Zakroff, 876 A.2d at 686 n.17. Also, as the Board found, “[t]he four challenges Respondent
made to the trial court’s findings based upon the missing [September 13, 2004] transcript related to
findings of fact that the Maryland Court did not rely upon for its conclusions of law.” Board Report
at 6 (quoting Zakroff, 876 A.2d at 686).
Finally, Respondent filed with the Maryland court a Motion for Reconsideration in which
he raised the missing transcript issue and to which – he confirmed at oral argument before us – he
11
Respondent asserts that the Montgomery County Clerk’s office “lost the exhibits[,] which
had been entered into evidence on prior days,” and that “[t]hese exhibits have never been accounted
for and it appears that the Md. Ct of Appeals never reviewed them.”
12
We note that the Virginia State Bar Disciplinary Board, in its order disbarring Respondent,
addressed this exact due process argument. After conducting a hearing on Respondent’s exceptions
to the Virginia State Bar Counsel’s request for reciprocal discipline, the Virginia Board found that
Respondent did not establish by clear and convincing evidence that the Maryland proceeding was
so lacking in notice or opportunity to be heard as to constitute a denial of due process.
18
appended the theretofore missing transcript.13 Thus, the Maryland court had an opportunity to review
the transcript before it denied Respondent’s motion (on August 9, 2005). We owe “due deference”
to the Maryland court’s ruling in which, notwithstanding the court’s opportunity to review
Respondent’s September 13, 2004 testimony, the court rejected Respondent’s due process challenge.
In re Roberston, 618 A.2d 720, 723 (D.C. 1993). In light of all these factors, we conclude that
Respondent has not established by clear and convincing evidence that he was denied due process in
the Maryland disciplinary proceedings.
In essence, Respondent’s infirmity of proof argument is that the Maryland court’s factual
findings do not establish by clear and convincing evidence that Respondent engaged in any
intentional wrongdoing. However, “the infirmity of proof exception is not an invitation to the
attorney to relitigate in the District of Columbia the adverse findings of another court in a
procedurally fair hearing.” In re Gansler, 889 A.2d 285, 288 (D.C. 2005) (quoting In re Bridges,
805 A.2d 233, 235 (D.C. 2002)). We conclude here, as we did in Gansler, that Respondent’s
13
The September 13, 2004 transcript contains the entirety of Respondent’s testimony before
Judge Thompson. That testimony and the missing exhibits, see note 11 supra, relate in part to
Respondent’s explanation of what transpired with respect to the Patterson bankruptcy. Among other
things, Respondent testified that when the bankruptcy schedules were prepared, the claim against
the Little estate had not yet arisen, i.e., the claim was a post-petition claim. Respondent also testified
that the meeting with creditors was transcribed and that the transcript, which was an exhibit
submitted to Judge Thompson, shows that the bankruptcy trustee cut off Patterson when he
attempted to inform the trustee of his claim against the Little estate. Respondent also referred to
exhibits that were facsimile cover sheets showing that he advised the bankruptcy trustee of the Little
claim. Although Respondent argues that his testimony on the matter was not fully considered by the
Maryland court, we note that Respondent acknowledged during his testimony that until May 2001
(several months after the bankruptcy filing), “there was nothing filed with the bankruptcy court
indicating that there were negotiations going on with regard to the Patterson claim.” This admission
was one basis for the Maryland court’s finding that Respondent intentionally omitted the Little claim
from the bankruptcy schedules. See Zakroff, 876 A.2d at 688.
19
assertion “falls well short of meeting [the] ‘heavy’ burden” that must be met by a Respondent
seeking to avoid the factual findings of another disciplining court. 889 A.2d at 288. The Maryland
court’s findings rested in part on Judge Thompson’s credibility determinations, and “we are not in
as good a position as the trier of fact was to judge who is and who was not telling the whole truth.”
In re Shillaire, 549 A.2d 336, 343 (D.C. 1988) (quoting In re Gamblin, 458 S.W.2d 321, 323 (Mo.
1970)). We conclude – borrowing the terminology used in Gansler – that the Maryland court
“devoted substantial attention to the issue” of whether Respondent intentionally misappropriated
client funds and misled the bankruptcy trustee, and we discern no infirmity in its ruling. Gansler,
889 A.2d at 288.
C. Substantially Different Discipline
We now consider whether respondent has overcome the “rebuttable presumption that the
discipline will be the same in the District of Columbia as it was in the original disciplining
jurisdiction,” In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992), on the ground that his misconduct
warrants “substantially different discipline” in this jurisdiction. D.C. Bar Rule XI, § 11 (c)(4). We
must consider “(1) whether the misconduct would have resulted in the same punishment in the
District; and (2) if the sanction would have been different, whether it is substantially so.” In re
Meaden, 902 A.2d 802, 815 (D.C. 2006) (citation omitted).
There is no question that in this jurisdiction, a finding that a lawyer knowingly
misappropriated client funds supports the sanction of disbarment. We have said that “[i]n this
20
jurisdiction misappropriation of funds warrants disbarment in virtually all cases.” In re Larsen, 589
A.2d 400 (D.C. 1991);14 see also In re Reid, 540 A.2d 754, 759 (D.C. 1988) (citing the “well
established rule in this jurisdiction that, with limited exceptions, the sanction for misappropriation
of client funds is disbarment”). While Respondent emphasizes that there has been no finding that
he had the intent to steal, that is beside the point, because a showing of an intent to steal is not
required to disbar an attorney for misusing client funds. See In re Harrison, 461 A.2d 1034, 1036
(D.C. 1983) (defining misappropriation as “any unauthorized use of client’s funds entrusted to [a
lawyer], including not only stealing but also unauthorized temporary use for the lawyer’s own
purpose, whether or not [he] derives any personal gain or benefit therefrom”); see also In re Carlson,
802 A.2d 341, 348 (D.C. 2002) (misappropriation occurs whenever the balance in an attorney’s
escrow account falls below the amount due to the client); In re Edwards, 808 A.2d 476, 484 (D.C.
14
As we explained in our en banc opinion in Addams:
While we recognize that the sanction for intentional misappropriation
of client funds will be harsh in comparison to sanctions for other
disciplinary violations involving conduct some may view as roughly
equivalent misconduct, see, e.g., Reback [513 A.2d 226 (D.C. 1986)]
(imposing six months suspension for filing falsely signed court
documents and lying to client); In re Hutchinson, 534 A.2d 919
(D.C.1987) (en banc) (one-year suspension for lying to a federal law
enforcement agency), our concern is that there not be an erosion of
public confidence in the integrity of the bar. Simply put, where client
funds are involved, a more stringent rule is appropriate.
579 A.2d at 198. Addams had been “entrusted by [his client] with the funds required to stave off
the foreclosure of her home. He jeopardized her ability to do so when he took funds from the escrow
account and tendered a check to the noteholder which was returned for insufficient funds. He took
funds from the escrow account on more than one occasion . . . . He knowingly used his client’s
money as if it were his own . . . .” Id. at 199.
21
2002) (“misappropriation revealing an unacceptable disregard for the safety and welfare of entrusted
funds will warrant disbarment” (quoting In re Anderson, 778 A.2d 330, 338 (D.C. 2001)).
The foregoing does not end our analysis, however. We must determine (if we can on the
Maryland record) whether Respondent’s misconduct actually would have resulted in substantially
different discipline had he engaged in misappropriation of client funds within the District of
Columbia. Respondent argues that the findings of dishonesty and misappropriation of client funds
would warrant substantially different discipline here because the depression from which he suffered
during the relevant time period “substantially affected his misconduct.” Stanback, 681 A.2d at
1114-15. This means, Respondent argues, that even in the absence of “utter inability” to conform
his conduct to the rules of professional conduct, the mitigation standard established in Kersey is met.
Bar Counsel, on the other hand, urged at oral argument that our decision last year in Meaden requires
us to accept the Maryland court’s ruling that a mitigation of sanction is not warranted.
In Meaden, the respondent had been suspended from the practice of law by the Supreme
Court of New Jersey for, inter alia, lying on seven applications to purchase handguns (by failing to
disclose his psychiatric history) and for using another individual’s credit card information without
authorization to purchase golf clubs and bags. See 902 A.2d at 805, 806. Police also found in
Meaden’s possession mail and credit card statements of two other individuals. Id. at 805 n.5. In
mitigation, Meaden presented to New Jersey disciplinary authorities evidence that he suffered from
bipolar disorder. Id. at 806-07. The New Jersey Supreme Court upheld a finding by the state’s
disciplinary review board that Meaden’s evidence regarding purported mitigation fell short of the
22
standard established by In re Jacobs, 469 A.2d 498, 501 (N.J. 1984) (finding that mitigation was
“unavailing” where the disciplinary review board “correctly determined that respondent’s medical
presentation failed to establish any ‘causal connection’ between [Jacobs’] condition and his financial
depredations,” the hearing panel and ethics committee were not persuaded that Jacobs’ medical
condition was “an exclusive or major cause of his ethical derelictions,” and there was “no
demonstration by competent medical proofs that [Jacobs] suffered a loss of competency,
comprehension or will of a magnitude that could excuse egregious misconduct that was clearly
knowing, volitional and purposeful”). The New Jersey court suspended Meaden for three years with
a fitness requirement.
In reciprocal proceedings in our jurisdiction, Meaden argued that “he would have prevailed
on his claim of mitigation of sanction under the standard set forth in Kersey,” 902 A.2d at 813, and
that, assuming reciprocal discipline was warranted, this jurisdiction should impose nothing more
than probation with conditions. Id. at 808. In rejecting Meaden’s argument that reciprocal discipline
was not warranted, we relied on In re Benjamin, 698 A.2d 434 (D.C. 1997), quoting it for the
proposition that “[u]nder principles of collateral estoppel, in reciprocal discipline cases we generally
accept the ruling of the original jurisdiction, even though the underlying sanction may have been
based on a different rule of procedure or standard of proof.” 902 A.2d at 814 (quoting Benjamin,
698 A.2d at 440 (rejecting respondent’s argument that reciprocal discipline should not be imposed
based on a New York disciplinary action because New York uses a lower standard of proof in
attorney discipline cases than the District of Columbia uses, reasoning that “the difference in
evidentiary standards between New York and the District of Columbia in disciplinary cases does not,
23
on its face, establish an infirmity of proof,” id. at 439)).15 We concluded that Meaden had “provided
no persuasive reasons why we should depart from general principles of collateral estoppel and reject
reciprocal discipline in this case,” 902 A.2d at 814, and that Meaden “cannot avoid reciprocal
discipline by attacking collaterally the New Jersey tribunal’s . . . application of that jurisdiction’s law
to the facts of the case.” Id. at 815. We reasoned that “[a]lthough the Jacob standard differs
somewhat from the Kersey standard, that distinction alone is not sufficient in itself to avoid a
reciprocal discipline proceeding.” Id. at 814.
Thus, under Meaden, Maryland’s different standard for mitigation provides no basis for us
to decline to impose (some form of) reciprocal discipline on the basis of the Maryland court’s
findings. And, if the standard for mitigation in Maryland were merely “somewhat different” from
our Kersey standard, Meaden would also require us to impose a sanction identical to the discipline
that the Maryland court imposed, so long as that discipline falls within the range of sanctions that
we would impose, in an original proceeding, for the violations in issue. See id. at 815 (“the question
is whether the upper range of any sanction here would be ‘substantially different’ from the sanction
imposed in New Jersey” (emphasis added in the original) (quoting In re Garner, 576 A.2d 1356,
1357 (D.C. 1990)). But we do not read Meaden or any of our other precedents as requiring us to
impose such an identical sanction if – as we conclude infra – Maryland’s mitigation standard is
more than “somewhat different” from our own standard.
15
As we noted in Benjamin, “New York applies a ‘fair preponderance of the evidence’
standard,” while the District of Columbia “requires proof of attorney misconduct by ‘clear and
convincing evidence.’” 698 A.2d at 437 n.6.
24
Maryland’s Vanderlinde standard requires proof of a lawyer’s “utter inability to conform his
or her conduct” to the rules of professional conduct. 773 A.2d at 485. Vanderlinde also requires a
showing of nothing less than “the most serious and utterly debilitating mental or physical health
conditions, arising from any source that is the ‘root cause’ of the misconduct.” Id. By contrast,
Kersey mitigation requires Respondent to show “(1) by clear and convincing evidence that [he] had
a disability; (2) by a preponderance of the evidence that the disability substantially affected [his]
misconduct; and (3) by clear and convincing evidence that [he] has been substantially rehabilitated.”
In re Verra, ___ A.2d ___, 2007 D.C. App. LEXIS 484, *5 (D.C. 2007) (emphasis added), quoting
In re Lopes, 770 A.2d 561, 567 (D.C. 2001). We explained in Kersey that the “substantially
affected” test is met if an attorney shows that “but for [his disabling condition], his misconduct
would not have occurred.” 520 A.2d at 327. We found that a mitigated sanction was warranted even
while acknowledging that “it is an impossible burden to prove that Kersey’s alcoholism caused each
and every disciplinary violation,” id. at 326, meaning that we did not require a showing that each
offending act was caused by his impairment; it was enough that “Kersey’s professional conduct was
substantially affected by his alcoholism” and that his “alcohol abuse affected his thoughts and
judgment.” Id. In In re Temple, 596 A.2d 585 (D.C. 1991), we explained further that the “but for”
test does not require proof that the attorney’s disability was the “sole cause” of the attorney’s
misconduct. Id. at 586. We instructed that in applying the Kersey test, the issue is whether “‘a
sufficient nexus between [the respondent’s disability] and his misconduct’ had been established,”
id. at 589 (quoting Kersey, 520 A.2d at 327), and whether “removal of the substantial contributing
factor . . . would eliminate the offensive conduct,” even if there are other reasons for some of the
misconduct. Id. (citing Kersey, 520 A.2d at 327 n.16); see also Temple, 596 A.2d at 590 (explaining
25
that “there must be a close nexus between the misconduct and the mitigating factor proffered,
whether alcoholism, drug addiction or mental illness,” and holding that this test was met even though
Temple “was able to manage an appearance of normalcy in his law practice”).16
We conclude that Maryland’s Vanderlinde standard is substantially different (not merely
“somewhat different”) from our Kersey standard.17 The Maryland standard sets a substantially higher
bar and will require an unmitigated sanction in some cases in which, in our jurisdiction, a mitigated
sanction would be warranted. To read Meaden as requiring us to impose identical reciprocal
discipline in this case even in light of this difference would enervate Rule XI, §§ 11 (c)(4), which
establishes an exception to reciprocal discipline where the “misconduct established warrants
substantially different discipline in the District of Columbia,” and 11 (f)(2), which provides that “the
Court shall impose the identical discipline unless the attorney demonstrates . . . that one or more of
16
In In re Lopes, 770 A.2d 561 (D.C. 2001), we reiterated the “substantially affected” test,
id. at 567, but also said that Bar Counsel had “correctly state[d]” that “it was incumbent upon
[Lopes] to show that his illnesses, however labeled, deprived him of the meaningful ability to
comport himself in his professional conduct in accordance with the basic norms of professional
responsibility.” Id. (emphasis added). We concluded that Kersey mitigation was not warranted,
deferring to the Board’s finding, after original-discipline proceedings, that there was too “tenuous
a link” between Lopes’ psychological and physical impairments and his forgery of clients’ signatures
on documents. Id. at 567-69. We agreed that there was insufficient proof that Lopes was rendered
“unable to understand that he was being dishonest or unable to behave otherwise.” Id. at 569
(emphasis added). While the language from Lopes that we have italicized is linguistically similar
to the Maryland Vanderlinde standard, nothing in Lopes suggests an intent by the panel to construe
Kersey as requiring the same showing of “utter inability” that Vanderlinde requires.
17
Cf. In re Pennington, 921 A.2d 135, 140-41 (D.C. 2007) (noting the “important
difference” between Maryland’s standard regarding “how mitigating or extenuating circumstances
will be considered” in cases of intentional dishonesty of any type, and this jurisdiction’s standard).
26
the grounds set forth in subsection [c]18 of this section exists.” We hold instead that if the factual
findings of record establish that Respondent met the Kersey mitigation standard (albeit not the
Vanderlinde standard), the presumption in favor of identical reciprocal discipline must fall away.
Accordingly, before determining what sanction is appropriate, we must consider whether the
Maryland court’s factual findings establish that the Kersey standard was met. As noted, the
Maryland court found that Respondent suffers from “significant depression.” 876 A.2d at 678.
Because we have previously recognized that depression is a disability that may warrant Kersey
mitigation, see, e.g., Peek, 565 A.2d at 631-32, the first prong of the Kersey test is met (“an attorney
must demonstrate (1) by clear and convincing evidence that he had a disability,” Lopes, 770 A.2d
at 567). The Maryland court also found that Respondent’s depression did not render him utterly
unable to conform his conduct in accordance with his ethical obligations, see 876 A.2d at 691, and
that he abused his trust account in a “determined and knowing” manner. id. at 678. From this the
Board concluded that “[t]he Maryland Court’s findings demonstrate that the record evidence failed
to establish the requisite causal nexus between the disability and the violations under Kersey – that
Respondent’s psychological impairments ‘substantially caused him to engage in the misconduct.’”
We cannot agree.
Except for a handful of findings that are not pertinent to our discussion, the Maryland court
adopted Judge Thompson’s findings. Judge Thompson found by clear and convincing evidence that
18
As codified, section 11 (f)(2) refers to “subsection (b)” rather than “subsection (c),” but
“we have recognized that this section of the revised rule is intended to refer to subsection (c).” In re
Drury, 638 A.2d 60, 62 n.7 (D.C. 1994).
27
Respondent’s “depression affected both his personal and professional relationships and lifestyle”;
that his “depression interfered with Respondent’s ability to think through the problems he perceived
were plaguing him and to develop acceptable solutions and to implement them”; and that “[a]s a
result, Respondent was crisis driven which caused him to abuse his trust account and utilize monies
deposited therein for others for his personal use.” 876 A.2d at 678. We think these conclusions
amount to findings – factual findings by which we are bound19 – that Respondent’s depression
“substantially affected his misconduct,” Lopes, 770 A.2d at 567, and “substantially caused” him to
misappropriate the funds in his client trust accounts, Stanback, 681 A.2d at 1115; and that “but for”
Respondent’s depression, the conduct in issue would not have occurred. Kersey, 520 A.2d at 327.
We must conclude, therefore, that with respect to his misappropriation of client funds, Respondent
has satisfied the second prong of the Kersey test, and we must reject the Board’s conclusion to the
contrary. Cf. In re Appler, 669 A.2d 731, 739 (D.C. 1995) (“we conclude that there was no
significant evidence of record that could have led the Board majority to find that respondent had not
met his burden to prove that the bipolar condition substantially affected his conduct. . . . Therefore,
19
See In re Hermina, 907 A.2d 790, 796 (D.C. 2006) (“We are bound by this finding”); see
also In re Sheridan, 798 A.2d 516, 518 (D.C. 2002) (“We defer to findings of fact made by other
courts in reciprocal proceedings.”).
We deem it unimportant that the Maryland court did not articulate precisely what in our
jurisdiction is “the critical factual finding,” Peek, 565 A.2d at 632, i.e., that Respondent’s depression
“substantially affected his professional conduct.” Id. In an analogous situation in Peek, where the
Hearing Committee did not make the critical factual finding, we accepted the Board’s determination
that there were factors in the record that “serve[d] as a legal surrogate of a specific finding under the
Kersey ‘but for’ test of causation,” id. at 631, including that during the period in question Peek had
chronic uncontrolled depression and that his doctor concluded that his misconduct “stemmed directly
from his acute depressed state.” Id. at 631 n.5.
28
we conclude that the Board’s finding on this question is ‘unsupported by substantial evidence of
record’”).20
What we cannot conclude on the record before us is whether Respondent satisfied the third
prong of the Kersey test, i.e., that he “prove by clear and convincing evidence that he now is
substantially rehabilitated.” Stanback, 681 A.2d at 1115. Judge Thompson made no findings
regarding rehabilitation,21 and the Maryland court, having found that Respondent was not utterly
unable to control his conduct, deemed any facts pertinent to rehabilitation unavailing. See 876 A.2d
at 686 n.17. Yet, as the Maryland court’s opinion notes, Respondent offered testimony that he is
now taking medication for depression, has taken courses in accounting and office management,
20
The Board stated in its Report that “the Maryland Court considered evidence regarding
Respondent’s depression and concluded that it did not support a finding that Respondent’s
depression was the ‘root cause’ of his misconduct that left him ‘utter[ly]’ unable to confirm to the
MRPC.” Board Report at 11. This statement is misleading because it may be read to imply that the
Maryland court made a finding that Respondent’s depression was not the root cause of his
misconduct. The court did not make such a finding, however. Rather, the court acknowledged that
mental health experts disagreed on the point. See 876 A.2d at 690-91. The court noted that Dr.
Janofsky opined that personality disorders, one of Respondent’s afflictions, “‘generally [are] not the
root cause of any behaviors.’” Id. at 691. However, the court also noted that “[t]here was also
testimony by a number of medical health professionals that [Respondent’s] disorders [depression as
well as mood and personality disorders] were the root cause of his misbehavior.” Id. at 690-91; see
also 876 A.2d at 677 (summarizing Dr. Spodak’s testimony that Respondent had a “debilitative
mental condition that was the cause of the conduct in the allegations. . .”). The court went on to
assume without deciding that Respondent’s disorders were the root cause of his misbehavior,
reasoning that Respondent still failed to meet the Vanderlinde standard because his disability did not
meet the “utterly unable to conform” standard. See id. at 691.
21
Judge Thompson made no findings as to rehabilitation, but it is misleading to assert, as
Bar Counsel does, that “the trial court found no evidence that Respondent is rehabilitated.”
29
attended a Maryland Bar Association workshop for solo practitioners and small firms, hired an
accountant to review his financial transactions on a weekly basis, was counseled by the Maryland
State Bar Association Lawyer Assistance Program, was seeing his clinical social worker on a weekly
basis, and was being monitored by a psychiatrist. See id. at 678, 686 n.17. Respondent also testified
that he was willing to submit to monitoring by a practice monitor and to mentoring on ethical issues.
Id. at 678. Because the imposition of discipline is intended not to punish the attorney but to protect
the public, these facts, though not necessarily pertinent to rehabilitation, are relevant to a
determination of whether a sanction less than disbarment may be appropriate in this case. See
Temple, 596 A.2d at 591 (“[d]isciplinary sanctions are not imposed as punishment, but as a means
of assuring the attorney’s fitness to practice and for protecting the public from misconduct by
attorneys which may cause harm”) (citation omitted).
On the other hand, the Board’s Report states that “although suspended[,] Respondent appears
to have signed papers in a Superior Court case and federal bankruptcy proceedings . . . .” Board
Report at 16. For this reason and possibly others, whether Respondent can demonstrate that he is
rehabilitated remains a serious question that is appropriately considered by the Board in the first
instance.
In determining whether a mitigated sanction is warranted, the Board will also need to take
into account the absence of any finding by the Maryland court that Respondent’s depression or other
disorders caused or affected his misconduct in regard to the Patterson bankruptcy matter. While a
30
mitigated sanction may be warranted for Respondent’s misappropriation of client funds and related
violations (e.g., his dishonesty toward medical care providers who were awaiting payment from
settlement proceeds), the Board will need to determine whether there is any basis for mitigation as
to his dishonesty in withholding information from the bankruptcy trustee and (whether or not
mitigation is warranted) what sanction is appropriate in light of that misconduct. Cf. Verra, 2007
D.C. App. LEXIS 484, *5 (holding that a stay of disbarment was warranted as to misappropriation
of client funds because of Verra’s depression, but that because Verra had not shown that her
impairments affected her misrepresentations and other misconduct vis a vis Bar Counsel’s
investigation, a thirty-day suspension was warranted).22
Before concluding our analysis, we must address the Board’s suggestion that, under our case
law, Kersey mitigation is not available in cases involving intentional dishonesty. See Board Report
at 13 n.7. We have never adopted such a per se rule. To the contrary, as we said in Appler, 669
A.2d at 738, “we have recognized certain situations where the most egregious misconduct may
qualify for mitigation”; see also Reid, 540 A.2d at 759 (“[t]he sanction imposed in Kersey did not
22
Respondent’s dishonesty, standing alone, presumably would warrant a less severe sanction
than the sanction (disbarment) that generally is warranted for misappropriation of client funds. See,
e.g., Reback, 513 A.2d at 231, 233 (imposing a suspension of six months for “false signing,
notarization, and filing of a pleading,” “serious conduct” that was dishonest, prejudicial to the
administration of justice, and “plainly intolerable”). But here, it may be appropriate to treat
Respondent’s dishonesty as an “aggravating factor.” In re Pierson, 690 A.2d 941, 950 (D.C. 1997).
If the Board determines that a mitigated sanction is warranted for Respondent’s misappropriation
of client funds, it will need to determine whether some offset to mitigation is warranted for
Respondent’s dishonest conduct.
31
necessarily turn on the egregiousness of the conduct at issue there”). Notably, the mitigated sanction
that we imposed in Kersey (disbarment, with a stay of execution and a five-year period of conditional
probation) was for “a widespread and persistent pattern of violations” that included “commingl[ing]
client funds and [] us[ing] them for [Kersey’s] own purposes.” 520 A.2d at 324.
Bar Counsel correctly notes that, in several cases involving intentional misappropriation of
funds, we concluded that Kersey mitigation was not warranted.23 However, just as often, we have
applied Kersey mitigation to reduce the sanction for impaired lawyers’ misappropriation of client
23
See, e.g., In re Ayeni, 822 A.2d 420 (D.C. 2003) (Ayeni transferred client funds to his own
account that he used for both personal and operating expenses and used one client’s funds to cover
a delinquency in another client fund; we disbarred him, agreeing that he had “failed to provide clear
and convincing evidence that his impairment [alcoholism] substantially caused his misconduct and
that he has been rehabilitated”); Marshall, 762 A.2d 530 ( Marshall settled a client’s case and then
used the proceeds to purchase crack cocaine as well as to pay personal expenses, paying the client
only after the client filed a complaint with Bar Counsel, lying to the client and to third-party health
care providers about why they had not been paid, and fabricating checks purporting to show
payments to third party medical providers; we reasoned that Marshall’s addiction “stem[med] from
his unlawful possession, use, and abuse of cocaine over a period of several years,”id. at 537, and that
“[t]o apply a mitigation principle previously used only in connection with lawful conduct to a
situation involving criminal behavior distorts that principle beyond recognition,” and we held that
“where an attorney’s misconduct warrants disbarment, addiction to cocaine attributable to the
intentional use of that drug does not warrant the imposition of a lesser sanction”); Stanback, 681
A.2d 1109 (Stanback withdrew $8,000 from a client trust account and used it towards payment of
his office rent; we disbarred him, agreeing that he had failed to prove that he was suffering from
alcoholism or depression at the time he misappropriated his clients’ funds); In re Woodard, 636 A.2d
969, 976 (D.C. 1994) (Woodard “intermingled improper withdrawals of clients’ funds with
numerous appropriate deposits and withdrawals of funds” and “used other funds to restore amounts
in escrow accounts, . . . ‘borrowing from Peter to pay Paul’”; we accepted the Board’s finding that
Woodard had failed to prove that his addiction substantially affected his professional conduct, noting
specifically that the physician who testified that the primary cause of Respondent’s misconduct was
“drug ingestion and the toxicity” had “not read the complaints or the specifications of charges against
Respondent”).
32
funds. See, e.g., Verra, 2007 D.C. App. LEXIS 484, *1-2, 5 (D.C. 2007) (during her representation
of a client in connection with an automobile accident, Verra held funds belonging to the client in
her personal bank account, overdrew the account before the client received her funds and eventually
wrote a check to the client on insufficient funds, and failed to pay the client’s medical bills arising
from the accident; we stayed disbarment and placed Verra on conditional probation for
misappropriation of client funds, accepting the Board’s finding that Verra had demonstrated a causal
relationship between her depression and her misconduct); In re Mooers, 910 A.2d 1046 (D.C. 2006)
(Mooers allowed the amount in his trust account to fall below the amount owed to a client’s medical
providers and acknowledged having used funds in the account for personal and business expenses;
we accepted the Board’s determination that Mooers suffered from major depression (caused by an
acrimonious divorce and custody proceeding) and that his misconduct would not have occurred but
for his depression, and followed the Board’s recommendation that we disbar respondent but stay the
disbarment and impose a three-year period of conditional probation); In re Cappell, 866 A.2d 784
(D.C. 2004) (Cappell collected monies for his clients but failed to pay outstanding medical
providers’ bills for some months thereafter, using the funds instead for personal and business
expenses; a hearing committee found that the misconduct would not have occurred but for Cappell’s
major depression, which was caused by the breakup of his marriage and significant health problems,
and we accepted the Board’s recommendation that we disbar respondent but stay the disbarment and
impose a three-year period of conditional probation); Larsen, 589 A.2d at 402 (a reciprocal discipline
matter in which we relied on findings by the Maryland Court of Appeals that Larsen “collected a
check from an insurance company in the amount of $2,050 to reimburse the physician’s medical
33
charges” and “instead of paying the money to the physician, . . . used the funds for his own
purposes,” and that Larsen’s misconduct resulted from his bipolar or manic depressive disorder and
that respondent could practice law responsibly and professionally with treatment and support; we
disbarred Larsen but stayed the disbarment and imposed a period of conditional probation); Reid,
540 A.2d 754 (Reid settled a client’s claim but deposited the proceeds in his personal checking
account and then misrepresented to his client the amount of settlement and failed to pay the client’s
medical bills; noting that Reid’s alcoholism was the proximate cause of his misconduct, we disbarred
him but stayed the execution of disbarment, and we placed him on probation for a period of five
years subject to conditions recommended by the Board). As these cases demonstrate, a sanction less
an absolute disbarment, such as an order of disbarment stayed during a period of conditional
probation, may be an appropriate sanction for Respondent’s intentional misappropriation if there is
clear and convincing evidence of rehabilitation. We cite these cases not to suggest a sanction, but
merely to illustrate the range of discipline that has been imposed when mitigation was found to be
appropriate.
Accordingly, for the foregoing reasons, we accept the recommendation of the Board that we
impose reciprocal discipline on Respondent Robert Joel Zakroff. We defer judgment on the
recommendation that Respondent be disbarred and instead remand the matter to the Board for a
determination of (1) whether Respondent can demonstrate by clear and convincing evidence that he
has been substantially rehabilitated and that, for his misappropriation of client funds, a sanction
lesser than immediate disbarment is appropriate (and, if so, what lesser sanction is appropriate); and
34
(2) how Respondent’s misconduct in connection with the Patterson bankruptcy matter should impact
the sanction to be imposed. See Rule XI, § 11 (f)(2) (“If the Court determines that the identical
discipline should not be imposed, it shall enter such order as it deems appropriate, including referral
of the matter to the Board for its further consideration and recommendation”).
So ordered.
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