In Re Willingham

717 A.2d 342, 1998 WL 557104
CourtDistrict of Columbia Court of Appeals
DecidedSeptember 3, 1998
Docket96-BG-1504
StatusPublished
Cited by3 cases

This text of 717 A.2d 342 (In Re Willingham) 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 Willingham, 717 A.2d 342, 1998 WL 557104 (D.C. 1998).

Opinion

717 A.2d 342 (1998)

In re N. Jerome WILLINGHAM, Respondent.

No. 96-BG-1504.

District of Columbia Court of Appeals.

Argued May 21, 1998.
Decided September 3, 1998.

N. Jerome Willingham, respondent, pro se.

Donna M. DeSilva, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel, was on the brief, for the Office of Bar Counsel.

Elizabeth J. Branda, Executive Attorney, for the Board on Professional Responsibility.

*343 Before WAGNER, Chief Judge, and FARRELL and KING,[*] Associate Judges.

PER CURIAM:

Respondent, N. Jerome Willingham, a member of the bars of the State of North Carolina and the District of Columbia, was suspended from the bar of North Carolina for three years for commingling personal funds with entrusted funds in his escrow account, failing to maintain proper trust account records, and neglecting a criminal appeal. On December 13, 1996, upon notification by Bar Counsel of the proceedings in North Carolina, this Court suspended respondent on an interim basis pursuant to District of Columbia Bar R. XI, § 11(d) (1998) and requested the Board on Professional Responsibility (Board) to recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline or whether the Board, instead, elects to proceed de novo. Concluding that discipline imposed in North Carolina was outside the range of sanctions that would be imposed for the violations in the District, in its Report and Recommendation to the Court on July 30, 1997, the Board recommended a sixty-day suspension. See D.C. Bar R. XI, § 11(c)(4).[1] Before the Board, Bar Counsel recommended a sixty-day suspension, but also recommended a fitness requirement for reinstatement. Bar Counsel filed an exception to the Board's report and recommendation, challenging only the Board's failure to include a fitness requirement.[2] For the reasons hereinafter stated, we adopt the recommendation of the Board.

I.

Respondent was suspended from the practice of law in North Carolina for violating the following disciplinary rules: Rules 10.1(a) of the North Carolina Rules of Professional Conduct (commingling); 10.1(c)(2) (depositing legal fees into, and failing to withdraw undisputed legal fees from trust account); 10.2(c)(1) (failure to identify deposits to trust account); 10.2(c)(2) (drawing instruments on trust account payable to cash); 10.2(c)(3) (failure to keep ledgers of entrusted funds); 10.2(d) (failure to reconcile trust account on quarterly basis), and Rule 6(b)(3) (failure to act with reasonable diligence and promptness). The factual basis for the commingling violations was that respondent had deposited personal funds into his trust account, wrote checks from the account to cash and for personal and business expenses, failed to withdraw promptly his attorney's fees from the account, and made several deposits without indicating the source of the funds. Respondent did not keep ledgers for individual clients to track funds in the account. The Disciplinary Hearing Commission of North Carolina (North Carolina Commission) determined that the evidence was insufficient to sustain a charge of misappropriation because the record failed to show that at the time of shortfalls in the account, respondent was holding entrusted funds as opposed to legal fees or unreimbursed expenses that had not been withdrawn timely. The Commission also found that respondent did not exhibit the criminal intent or dishonesty necessary to show misappropriation.

Respondent's violation of Rule 6(b)(3) (failure to act with reasonable diligence) arose out of his representation of a defendant in a criminal case. The North Carolina Commission determined that respondent had failed to perfect his client's appeal timely, and the government filed a motion to dismiss. Respondent moved to withdraw as counsel, another attorney was appointed, and the appeal was reinstated.

*344 Respondent was suspended for three years in North Carolina, two of which were stayed conditioned upon his compliance with Article IX, § 25(B)(3) of the Rules and Regulations of the North Carolina State Bar (now Rule.0125(b)(3)). This rule requires every suspended attorney to file a verified petition for reinstatement and demonstrate compliance with notice requirements similar to our Rule XI, § 14,[3] refrain from ethical violations, and refrain from the practice of law. The order further provided that respondent verify his attendance at a practical skills course and that he prove satisfaction of continuing legal education requirements and that his bookkeeping system complied with ethical rules.

Respondent's initial request for reinstatement in North Carolina, filed after one year of the suspension, was denied. The North Carolina Commission determined that respondent: (1) had failed to send notice of suspension to the District of Columbia and to the U.S. District Court for the Eastern District of North Carolina; (2) had continued to represent clients after the effective date of his suspension of May 6, 1995; and (3) had misrepresented himself as a licensed attorney during a visit to a Federal prison. Respondent was reinstated in North Carolina on May 13, 1998, upon a finding by the Commission that respondent had satisfied the conditions for reinstatement.

II.

D.C. Bar R. XI, § 11(c) provides that reciprocal discipline shall be imposed unless one of five specified exceptions apply, which the attorney must establish by clear and convincing evidence. See In re Gardner, 650 A.2d 693, 695 (D.C.1994). Among the exceptions is that "[t]he misconduct established warrants substantially different discipline in the District of Columbia. . . ." Rule XI, § 11(c)(4). Both the Board and Bar Counsel agree that this exception is applicable to respondent's case in that the three-year suspension imposed in North Carolina is substantially different from the sanction which would be imposed in the District for the same misconduct. See In re Garner, 576 A.2d 1356, 1357 (D.C.1990) (For application of the "substantially different discipline" exception of D.C. Bar R. XI, § 11(f), there must be a substantial difference between the discipline imposed in the original jurisdiction than that imposed in the District).

A survey of our cases reveals that the discipline imposed by North Carolina in this case is, indeed, substantially outside of the range of sanctions which would be imposed in this jurisdiction. Commingling and trust violations, not amounting to misappropriation, have resulted in thirty-day suspensions under circumstances similar to those in this case. See, e.g., In re McGann, 666 A.2d 489, 491-92 (D.C.1995) (thirty-day suspension imposed as reciprocal discipline for commingling, use of trust account funds for personal and business expenses, failure to maintain trust account records); In re Ross, 658 A.2d 209, 210 (D.C.1995) (thirty-day suspension for commingling and failure to deliver funds promptly). Single instances of neglect in which there were other violations or aggravating circumstances have also resulted in a thirty-day suspension. See, e.g., In re Joyner, 670 A.2d 1367, 1368, 1370 (D.C.1996) (failure to file client's claim within statute of limitations); In re Sumner,

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Bluebook (online)
717 A.2d 342, 1998 WL 557104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-willingham-dc-1998.