In Re Stanback

681 A.2d 1109, 1996 D.C. App. LEXIS 173, 1996 WL 450860
CourtDistrict of Columbia Court of Appeals
DecidedJuly 30, 1996
Docket91-BG-1527
StatusPublished
Cited by17 cases

This text of 681 A.2d 1109 (In Re Stanback) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Stanback, 681 A.2d 1109, 1996 D.C. App. LEXIS 173, 1996 WL 450860 (D.C. 1996).

Opinions

KING, Associate Judge:

This matter is before the court on the Report and Recommendation of the Board on Professional Responsibility (“Board”) that respondent, Clarence F. Stanback, Jr., be disbarred from the practice of law in the District of Columbia, based on the Board’s findings that respondent committed the following violations of the disciplinary rules: failure to preserve the identity of estate funds in an identifiable account; intentional misappropriation; failure to maintain complete records of estate funds coming into his possession; and neglect of a legal matter.1 The Board also found that respondent violated the Rules of Professional Conduct by: commingling/misappropriating funds and failing to keep complete records; failing to promptly deliver funds and to tender full accounting; failing to protect an estate’s interest after termination of representation by promptly surrendering papers or property; failing to represent the client zealously and diligently; and interfering with the administration of justice.2 Respondent challenges the Board’s [1111]*1111findings and recommendation on the grounds that: (1) the hearing committee and Board erred in finding that he failed to establish mitigation pursuant to In re Kersey, 520 A.2d 321 (D.C.1987); and (2) two hearing committee members were improperly predisposed to decide against him. We hold that the claim of bias is not supported by the record. We also hold that there is a basis for the Board’s findings that respondent failed to prove that he was suffering from an alcohol-induced impairment at the time he misappropriated his clients’ funds. Therefore, we adopt the recommendation of the Board and order that respondent be disbarred.

I.

On December 9, 1992, Bar Counsel charged respondent with the violations set forth above for actions stemming from his representation of Kathleen and Andrew Doig in connection with their duties as personal representatives of the estate of Alice Kelly, who died on September 17, 1986. Most of the facts supporting the charges were stipulated and agreed to by Bar Counsel and respondent. In sum, respondent admitted that he violated the various disciplinary rules, however, he challenged, before the Board, the hearing committee’s findings relating to the timing of the misappropriation of his clients’ funds3 and the hearing committee’s rejection of the Kersey defense. Applying the applicable standard of review, the Board sustained the hearing committee’s factual findings with respect to both points. See In re Micheel, 610 A.2d 231, 234 (D.C.1992) (“The Board is obliged to accept the hearing committee’s factual findings if those findings are supported by substantial evidence in the record, viewed as a whole.”).

Respondent contends that the misappropriation occurred no earlier than March of 1991, a time when it is essentially undisputed that his alcoholism substantially affected his professional conduct. Alternatively he argues, if the misappropriation occurred in late 1990, as the hearing committee found, there was also evidence to establish that at that time his ability to conduct his professional activities was impaired due to alcoholism. Because the circumstances relating to the misappropriation of funds and respondent’s problems with alcohol are the only factual questions in dispute, we will set out the evidence presented on those points in some detail.

A. Committee’s Findings As to Misappropriation

The facts developed before the hearing committee showed that, acting on respondent’s advice, Kathleen Doig, in late August of 1990, closed an estate bank account in West Virginia in the amount of $10,979.75. A check for that sum, made payable to respondent, was sent to, and deposited by respondent in a trust account. On August 30, 1990, respondent, acting without either the knowledge or consent of his clients, withdrew $8,000 from the trust account, and deposited that sum in his office operating account. Using both his own and estate funds, he then paid a $15,000 office rent bill with a check drawn on that account. The evidence also established that, upon learning that the Internal Revenue Service had placed a levy on the trust account in late September or October, 1990, respondent withdrew additional funds from the trust account, without authorization from the Doigs, and placed those funds together with some personal funds in a strongbox.

By the end of November 1990, the balance in the trust account had fallen to $5,355.02, and it remained below $10,979.75, the amount belonging to the estate, from December 3, 1990 through the end of January 1991, when the balance again rose above that amount. However, at the end of February 1991, the balance in the trust account again fell below $10,979.75 and thereafter remained below that level. Respondent testified that during that period, he kept estate funds in a strongbox and did not misappropriate them for his own use until March of 1991.

[1112]*1112Although respondent maintained that the misappropriation did not occur until February or March of 1991, the hearing committee, pointing to respondent’s significant indebtedness beginning in the summer of 1990; his admitted commingling of funds in October of 1990; his use of the commingled funds for non-estate purposes immediately thereafter; and the absence of any record-keeping with respect to estate funds, rejected that claim and found that misappropriation occurred soon after the estate funds were transferred to respondent’s operating account in late 1990. In short, the committee ruled that there was clear and convincing evidence of intentional misappropriation of the clients’ funds in the fall of 1990, which, in the absence of legally recognized mitigation, mandated disbarment pursuant to In re Addams, 579 A.2d 190,193 (D.C.1990) (en banc).

B. Committee’s Findings On the Kersey Defense

Although respondent concedes that he intentionally misappropriated client funds (while disputing when the misappropriation actually occurred) and that mandatory disbarment would ordinarily flow from such conduct, he contends that pursuant to Ker-sey, he should not be disbarred because his misconduct was caused by clinical depression and excessive alcohol consumption. There was no serious dispute that respondent suffered from an alcoholism-induced impairment that substantially affected his professional conduct from approximately March 1991 onward. Had the misappropriation occurred then, a Kersey defense might be sustainable if the other conditions are met. The hearing committee, however, as noted above, found that misappropriation occurred five or six months earlier, in October 1990. Respondent maintained that he was similarly impaired at that time, and in their respective efforts to prove or disprove that claim, considerable evidence was presented by respondent and Bar Counsel. Respondent called four expert witnesses, Bar Counsel called one; respondent also called several lay witnesses. Those witnesses presented the following picture of respondent’s mental condition.

Respondent called Dr. Stanton E. Same-now, a clinical psychologist, who first met with respondent on May 5, 1992. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
681 A.2d 1109, 1996 D.C. App. LEXIS 173, 1996 WL 450860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-stanback-dc-1996.