Matter of Addams

579 A.2d 190, 1990 D.C. App. LEXIS 190, 1990 WL 116925

Opinions

ROGERS, Chief Judge:

This matter was originally before the court on the Report and Recommendation of the Board on Professional Responsibility (the Board). The Board unanimously found that respondent Addams violated DR 9-103(A) (misappropriation) and DR 1-102(A)(4) (dishonesty) as a result of intentionally misappropriating client funds and misrepresenting the fact to his client. Four members of the Board recommended that respondent be disbarred and four members recommended that he be suspended for one year and a day. Before the court Addams contended that the record did not support the Board’s findings, and, alternatively, that the appropriate sanction was suspension for no more than one year. A division of this court held that the record supported the Board’s findings of disciplinary violations and that, in view of our decision in In re Buckley, 535 A.2d 863 (D.C.1987), disbarment was the appropriate sanction. In re Addams, 563 A.2d 338 (D.C.1989). On January 24, 1990, the court granted respondent’s petition for rehearing en banc, and vacated the division opinion, in order to consider whether there should be a ;per se disbarment rule for intentional misappropriation and, if not, the extent to which mitigating factors are relevant in determining the appropriate sanction. Order of February 27, 1990.

We now reaffirm that in virtually all eases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence. While eschewing a per se rule, we> adhere to the presumption laid down in our prior decisions and shall regard a lesser sanction as appropriate only in extraordinary circumstances. We have found such circumstances in In re Kersey, 520 A.2d 321 (D.C.1987), and may find other circumstances calling for a lesser sanction in the future. But, as a matter of course, the mitigating factors of the usual sort, see, e.g., In re Reback, 513 A.2d 226, 233 (D.C.1986) (en banc), will suffice to overcome the presumption of disbarment only if they are especially strong and, where there are aggravating factors, they substantially outweigh any aggravating factors as well. In this case, the mitigating factors fail to meet this standard. Accordingly, we order that Respondent Addams shall be disbarred.

I

The decision of the division sets forth in detail the evidence on which the Board unanimously found that Respondent Addams had violated DR 9-103(A)¹ and DR 1-102(A)(4)² by the intentional, unauthorized use of funds given him by his client, Norlisha Jackson, for placement in a trust account to pay the holder of Ms. Jackson’s promissory note. In re Addams, supra, 563 A.2d at 339-341. We incorporate Parts I and II of the division opinion upholding the findings of the Board of disciplinary violations save only to clarify that we view Ms. Jackson to have been at all times the owner of the funds in the escrow account. See id. at 341.

II

Turning to the issue of sanction, the court is deciding de novo what is the appropriate sanction for Addams’ intentional misappropriation of client funds.³ As the opinion by the division makes clear, the members of the Board recommending disbarment acknowledged that this is an unusual case since Addams’ client, Ms. Jackson, was satisfied with Addams’ representation and Addams was brought to the attention of the Board by the losing party in the lawsuit which Addams won for his client. Id. at 342. These factors, as well as differing views on the effect of the usual mitigating factors,⁴ caused the Board to split on its recommendation to the court of an appropriation sanction.

The four members of the Board recommending that Addams be disbarred relied on Buckley, supra, 535 A.2d 863. Buckley was disbarred for violating DR 9-103(A) and DR 1-102(A)(4) by commingling and misappropriating client funds which he was supposed to hold in trust to pay his client’s medical bills, notwithstanding the existence of a number of mitigating factors.⁵ These Board members found that Addams’ “misappropriation, like Buckley’s, was knowing and intentional,” and they viewed Addams’ concealment of the withdrawals in the false accounting that he gave to his client to be an aggravating factor. They found no mitigating factors adequate to form a “basis to impose any sanction other than that which is called for by Buckley,” interpreting Buckley to stand for the proposition that “the absence of prior discipline is not a factor which serves to mitigate a sanction in a misappropriation case,” and they rejected as irrelevant the substantial legal fees Ms. Jackson owed Addams since they viewed such consideration “the functional equivalent of arguing that Addams had no ‘corrupt intent.’ ” They also declined to view client satisfaction as having anything to do with sanction, concluding that it did not alter the Board’s responsibility to protect “the entire consuming public.”

The other four members of the Board, who recommended a suspension, relied on six mitigating factors, comparable to those in Buckley, in concluding that suspension for a year and a day was the appropriate sanction.⁶ They, too, noted that the complainant was the losing defendant in the client’s lawsuit, and maintained that their reliance on these mitigating factors was not an attempt to probe the degree of corruptness of Addams’ intent but simply an effort to avoid a “mechanistic per se approach.”⁷

The Board did not find that Addams’ intent in misappropriating funds was “corrupt” or would satisfy the mens rea for theft or embezzlement under the criminal laws. No such finding is required, see note 9, infra, and the court, like the Board, has no occasion to stigmatize Addams’ conduct unnecessarily in this opinion as “theft” or “embezzlement.” Subject only to that qualification, it is appropriate to begin our discussion with an observation of the court a generation ago in In re Quimby, 123 U.S.App.D.C. 273, 274, 359 F.2d 257, 258 (1966):

The administration of justice under the adversary system rests on the premise that clients and the court must be able to rely without question on the integrity of attorneys. An act against a client evidencing moral turpitude, even though attributable to some aberration or stress that would warrant the prosecutor in abstaining from criminal prosecution, may nevertheless warrant severe disciplinary action concerning an officer of the court.

When a member of the bar is found to have betrayed his high trust by embezzling funds entrusted to him, disbarment should ordinarily follow as a matter of course. Such misconduct demonstrates absence of the basic qualities for membership in an honorable profession. Only the most stringent of extenuating circumstances would justify a lesser disciplinary action, such as suspension, which implies the likelihood that at some future time the court may again be willing to hold out the embezzler as an officer of the court worthy of clients’ trust. The appearance of a tolerant attitude toward known embezzlers would give the public grave cause for concern and undermine public confidence in the integrity of the profession and of the legal system whose functioning depends upon lawyers.

Other courts have reached a similar conclusion.⁸ Thus, in In the Matter of Wendell R. Wilson, 81 N.J. 451, 453-55, 409 A.2d 1153, 1154 (1979), Chief Justice Wil-entz, speaking for a unanimous court, pointed out that client trust is “built on centuries of honesty and faithfulness ... in the legal profession, the bar as an institution,” and that abuse of this trust has “always been recognized as particularly reprehensible.” Id., 409 A.2d at 1154-55. Noting that the sanctions have varied because of the presence of mitigating circumstances, Chief Judge Wilentz wrote:

It is therefore important that we reemphasize that the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general.

$ jJs ‡ # >¡e jfs

There is nothing clearer to the public ... than stealing a client’s money and nothing worse. Nor is there anything that affects public confidence more — much more than the offense itself — than this Court’s treatment of such offenses. Arguments for lenient discipline overlook this effect as well as the overriding importance of maintaining that confidence.

Id.⁹

The highest court in Maryland has long been in agreement, stating in Attorney Grievance Comm’n of Maryland v. Cockrell, 304 Md. 379, 393-94, 499 A.2d 928, 935 (1985), that “when an attorney is found to have betrayed the highest trust imposed in him by appropriating to his own use funds of others entrusted to him, then, absent the most compelling extenuating circumstances, disbarment should follow as a matter of course.” Citing Attorney Griev. Comm’n v. Velasquez, 301 Md. 450, 457-59, 483 A.2d 354, 358 (1984) (disbarment ordered for misappropriation of clients’ escrow account, as assets of clients are “a sacred trust”) (noting cases going back to 1941). The New Hampshire Supreme Court has adopted a rule like our own, see Carroll’s Case, 127 N.H. 390, 393, 503 A.2d 750, 751 (1985) (“[o]rdinarily, the misuse of a client’s funds justifies disbarment”), emphasizing that “the opportunities and duties of our profession flow from the willingness of clients to trust us with what they value,” and thus, “[a] lawyer’s obligation to refrain, at the least, from misuse of a client’s property must therefore stand among the most insistent of professional norms.” Connolly’s Case, 127 N.H. 786, 790, 508 A.2d 1054, 1057 (1986). See also People v. Radosevich, 783 P.2d 841, 842 (Colo.1989) (en banc) (“conversion of client funds destroys trust essential to the attorney-client relationship, severely damages the public’s perception of attorneys and erodes public confidence in our legal system”).

This court, sitting en banc, made clear in In the Matter of Burka, 423 A.2d 181 (D.C.1980), that disbarment would be the sanction for intentional misappropriation. The court rejected the suggestion that alleged mitigating factors should cause the court to reject the Board’s recommendation of disbarment, as a result of unauthorized withdrawals from an estate account and commingling, of an attorney who had practiced law for twenty-one years without disciplinary infraction; corrupt intent was not a factor in the court’s conclusion about sanction. 423 A.2d at 182 n. 1. At the same time this court, like others, has recognized that a per se rule would be inequitable since there may be circumstances in which disbarment will not be the appropriate discipline for intentional misappropriation of client funds.¹⁰ Along with other jurisdictions, the court has viewed chronic alcoholism as such a circumstance. In re Kersey, supra, 520 A.2d at 321.¹¹ See also Attorney Griev. Comm’n v. Nisbett, 316 Md. 464, 560 A.2d 18 (1989); Waysman v. State Bar, 41 Cal.3d 452, 459, 714 P.2d 1239, 1244, 224 Cal.Rptr. 101, 105 (1986); In re Johnson, 322 N.W.2d 616, 618 (Minn.1982); In re Rumbera, 91 Wash.2d 401, 405-07, 588 P.2d 1167, 1170 (1979). Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Brodsky, 318 N.W.2d 180 (Iowa 1982) (indefinite suspension with right to reapply after three years for isolated incident of dishonest conduct where attorney, who had spotless record for over eighteen years, used client’s property as his own and presented untruthful defense to grievance commission). Compare In re Pekor, 257 Ga. 800, 364 S.E.2d 578 (1988) (in light of history of alcoholism two-year suspension and completion of treatment appropriate for attorney who obtained controlled substances by means of fraud and misappropriation), with Office of Disciplinary Counsel v. Silva, 63 Haw. 585, 595, 633 P.2d 538, 545 (1981) (attorney disbarred for misappropriation of client funds in light of lack of showing progress in alcoholism treatment). There may well be other circumstances involving a member of the Bar that will cause the court to reach a similar conclusion.¹² We have no occasion to define those circumstances here other than to reaffirm that it is appropriate for the court to consider the surrounding circumstances regarding the misconduct and to evaluate whether the mitigating factors are highly significant and, where there are aggravating factors, they substantially outweigh any aggravating factors such that the presumption of disbarment is rebutted. The circumstances are likely to be limited, however, and our statement in In re Hines, 482 A.2d 378, 386 (D.C.1984) (“There may be instances of misappropriation which, for any number of reasons, may call for a lesser sanction”) should not be read too broadly. In all events, it must be clear that giving effect to mitigating circumstances is consistent with protection of the public and preservation of public confidence in the legal profession.

The court noted in Hines, supra, 482 A.2d at 384 & n. 19, that of the twenty-eight cases coming to the court since the establishment of the present disciplinary system in 1972, although disbarment has been the usual sanction for commingling, eight had not resulted in disbarment, and in many such cases in which disbarment was recommended, there were additional factors, such as a prior disciplinary record, repeated instances of misconduct, or violations of other disciplinary rules.¹³ In 1984 the Board on Professional Responsibility expressly urged this court to adopt a rule that “misappropriation of client funds in cases involving more than simple negligence would ordinarily result in disbarment even though the proof does not rise to the level of willful corruption.” In re Hines, supra, 482 A.2d at 386 (quoting the report of the Board on Professional Responsibility). In Hines the court put the Bar on notice that henceforth disbarment would be the usual sanction for misappropriation not involving simple negligence. Id. at 386-87. Before and since then this court has repeatedly emphasized both the seriousness of the misuse of client funds as well as the need to maintain if not enhance public confidence in the Bar. See notes 15 & 16, infra. Most recently, the court has adopted new rules of professional conduct, to be effective January 1, 1991, which continue to impose upon an attorney fiduciary obligations in holding the property of others.¹⁴ The District of Columbia Bar contributes members’ dues to the Client Security Fund precisely so that clients whose attorneys break their faith with the client can receive some recompense. See D.C.Bar Rule XII, § 1.

Buckley was the first, occasion after Hines in which the court addressed the appropriate sanction for intentional misappropriation. The court viewed the result of disbarment to be required under prior rulings, 535 A.2d at 866,¹⁵ and thus rejected the several mitigating factors cited there, see note 5, supra, as insufficient to outweigh the conscious and continuing nature of his misconduct. 535 A.2d at 866-67. Since Buckley, the court has taken into account various mitigating factors in determining an appropriate sanction where an attorney has improperly dealt with client funds, but to date none has sufficed to overcome the presumption of disbarment where intentional misappropriation involving more than simple negligence was involved.¹⁶

Thus, we have declined to join those jurisdictions which treat intentional misappropriation of client funds as it would any other disciplinary violation. Not only do we agree that public confidence would be irreparably shaken were we to relax our vigilance in such matters at this late date, but we find that the standards used by these jurisdictions endorse the notion of degrees of corruptness, something that seems alien to so basic a part of an attorney’s obligation to the client.¹⁷

For example, the Louisiana Supreme Court has attempted to devise categories of sanctions based on the moral corruptness of the misconduct. Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116, 122-23 (La.1986). In that case the attorney was unable to pay the client the amount due as a result of the settlement of a worker’s compensation case because of payment of a personal debt. After eight months of effort by the client to recover, having retained new counsel, the attorney paid the $11,200 owed plus an additional $3,500 in damages. Id. at 119. Although the court found that there was clear and convincing evidence that Hinrichs “knew or should have known of the reckless gamble he took with the client’s money,” the court concluded that Hinrichs’ misconduct warranted only a three-year suspension in view of Hinrichs’ state of mind and other, presumably, mitigating factors. Id. at 123.¹⁸ The court defined the issue as whether the attorney “is morally fit to continue in practice by evaluating his understanding of and dedication to the ethical precepts of his profession as well as his inner strength and resolve to adhere to them in the future.” It viewed reimbursement prior to the filing of a disciplinary complaint or legal proceedings “as a reliable indicator of conscience and moral character.” Id. at 120. It also viewed prompt compliance with the client’s request to turn over property as similarly indicative of good character, and deemed the attorney’s previous disciplinary record, cooperation in the disciplinary proceedings, reputation among his peers and in the community, his age, health, and experience as factors to be taken into account. Id. See also Louisiana State Bar Ass’n v. Perez, 550 So.2d 188, 191 (La.1989) (attorney acting as notary public disbarred after withdrawing funds from account, in bad faith and through the use of fraudulent actions, and making no effort to repay account). See Grievance Comm’n v. Walton, 251 N.W.2d 762 (N.D.1977) (in view of unblemished record, character testimony, full restitution, little if any danger of repetition, attorney suspended for six months). We find more persuasive the New Jersey court’s analysis of the insufficiency of mitigating factors, suggesting that restitution, whether before or after the disciplinary process begins, may be largely a matter of financial means and have little to do with an attorney’s continued fitness to practice; that the absence of prior discipline cannot excuse an “offense against common honesty [that] should be clear even to the youngest [practitioner]”; and that neither cooperation with the disciplinary body (which is already required by the ethical rules) nor contrition is sufficient to put at risk “the continued confidence of the public in the integrity of the bar and the judiciary.” See Wilson, supra, 409 A.2d at 1156-57. Contra Hinrichs, supra, 486 So.2d at 120.

Other jurisdictions, while adopting a less subjective test than Louisiana, nevertheless place insufficient emphasis, in our view, on maintenance of public confidence in the bar. See In re Deragon, 398 Mass. 127, 132-34, 495 N.E.2d 831, 834 (1986) (public censure for misappropriation by endorsement of client’s signature on checks without express authority and commingling since acts arose from weakness, not malevolence); id. at 133-34, 495 N.E.2d 831 (Wilkins, J. and Hennessey, C.J., dissenting) (modest discipline of public censure threatens public respect for the legal profession and will impair public confidence in the court’s regulation of the bar, noting attorney’s conduct was intentional and continued for more than a year until client complained, full restitution not made); In re Holz, 125 Ill.2d 546, 127 Ill.Dec. 736, 742, 533 N.E.2d 818, 824 (1988) (for commingling and conversion of client funds, three-year suspension conditioned on restitution in amount of excessive fee, in view of attorney’s candor, character testimony, commencement of restitution, and fact that violations occurred 12 to 15 years earlier).

The Bar of the District of Columbia has had sufficient notice of the gravity with which the court views intentional misappropriation, and we decline to restrict application of the presumption in favor of the sanction of disbarment in intentional misappropriation cases to circumstances involv: ing multiple clients over an extended period of time.¹⁹ See note 15, supra; Silva-Vidor v. State Bar of California, supra, 264 Cal.Rptr. at 443, 782 P.2d at 684 (disbarment where large number of clients adversely affected over an extended period of time). Accordingly, in general, neither the usual mitigating factors, see note 4, supra, nor subsequent proper bookkeeping practices or client satisfaction can overcome the presumption that for “[t]his offense against common honesty,” Wilson, supra, 81 N.J. at 460, 409 A.2d at 1157, disbarment will be the appropriate sanction. See, e.g., Attorney Grievance Commission v. Cockrell, 304 Md. 379, 389-93, 499 A.2d 928, 933-34 (1985) (rejecting economic instability of attorney’s personal and professional life as a defense to change of use of escrow accounts for personal purposes); Fitzpatrick’s Case, 132 N.H. 211, 216-18, 566 A.2d 157, 161 (1989) (citing Eshleman’s Case, 126 N.H. 1, 6, 489 A.2d 571, 574 (1985) (mitigating factors do not necessarily preclude disbarment)); Connolly’s Case, supra, 508 A.2d at 1057-58 (factors such as attorney’s cooperation in audit of trust accounts, ill health and pressures of work and illness and death among friends and relations more appropriate for consideration upon attorney’s application for readmission to the bar). 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, supra, 513 A.2d at 226 (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.

Having sought his advice and relying on his expertise, the client entrusts the lawyer with the transaction — including the handling of the client’s funds. Whether it be a real estate closing, the establishment of a trust, the purchase of a business, the investment of funds, the receipt of proceeds of litigation, or any one of a multitude of other situations, it is commonplace that the work of lawyers involves possession of client’s funds. That possession is sometimes expedient, occasionally simply customary, but usually essential. Whatever the need may be for the lawyer’s handling of clients’ money, the client permits it because he trusts the lawyer.

Wilson, supra, 409 A.2d at 1154. The breach of trust is so reprehensible, striking at the core of the attorney-client relationship, that the respondent must carry a very heavy burden in rebuttal.

Addams was entrusted by Ms. Jackson 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 cheek to the noteholder which was returned for insufficient funds. He took funds from the escrow account on more than one occasion. His actions were not the result of simple negligence but were, as he admits, intentional. In addition, he presented his client with an accounting that did not reveal the moneys that he had withdrawn from the escrow account in 1982. To make matters worse, he presented conflicting explanations of his actions to Bar Counsel, the Hearing Committee and the Board. That he promptly made good on the bounced check offers little reliable evidence of moral qualities since he knew he had no right to take the escrow money in the first place. His many years of practice makes suspect his claims of client authorization.

On the other hand we recognize, as did the Board, that this is not the usual case of intentional misappropriation. The client is not the complainant, but rather is fully satisfied with Addams’ representation of her. Addams undertook to represent Ms. Jackson vigorously even though she was continually behind in paying his legal fees and reimbursing him for costs associated with the litigation. As a result of his efforts, Ms. Jackson did not lose her house and she was relieved of liability to the noteholder when the note was declared null and void. All of this is commendable. In addition, Addams had practiced law for twenty-two years without disciplinary action. Furthermore, unlike the misconduct involved in many instances of misappropriation, Addams’ misconduct was not aggravated by commingling.

It also is understandable that Addams wanted to be paid for his work and reimbursed for his expenses. He was entitled to this and he had the right to look to Ms. Jackson and to insist on prompt payment. He also had the right to pursue legal remedies against her, such as filing a lien. But he did not have, and he knew he did not have, the right to take money from the escrow account without her permission.

In one sense this is an unusual case, but in another sense it is all too usual.²⁰ The court cannot countenance a rule that would permit attorneys to misappropriate their legal fees from their clients while winning their cases and then cover-up the fact from their clients. That, and no less, would be the result were we to hold that the mitigating factors here were sufficient to rebut the presumption that Addams should be disbarred. While the complainant was the disgruntled third-party noteholder and not Addams’ client, that circumstance offers no solace when the purpose of the severe sanction is to maintain public confidence in the bar. Indeed, the aggravating factors— Addams’ dishonesty in presenting a false accounting and conflicting explanations for his conduct — compel the conclusion that Addams did not meet his burden to demonstrate that the presumption should not apply. He knowingly used his client’s money as if it were his own, and it would be extraordinary, particularly in view of the long-announced presumptive rule in this jurisdiction. In re Quimby, supra, 123 U.S.App.D.C. at 274, 359 F.2d at 258, for the court to apply to a lesser standard to Addams’ knowing and intentional misuse of his client funds, on more than one occasion, and his attempt to hide his actions from his client, and thus, abruptly abandon or relax that rule in favor of a less rigorous standard.

Accordingly, it is

ORDERED that Addams shall be disbarred from the practice of law effective thirty days from the date of this opinion.²¹

So ordered.

1 . DR 9-103 Preserving Identity of Funds and Property of a Client.

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(1) Funds reasonably sufficient to pay bank charges may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

2 . DR 1-102 Misconduct.

(A)°A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

3 . Under D.C.Bar Rule XI, § 7(3) the court will "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted." Where the Board is evenly split, the court, "[wjithin the limits of the mandate to achieve consistency,” must decide each case on its own particular facts. In re Haupt, 422 A.2d 768, 771 (D.C.1980).

4 . The usual mitigating factors include the absence of prior discipline, admission of wrongdoing, cooperation with Bar Counsel, and restitution to the client. See In re Reback, supra, 513 A.2d at 233. These factors are distinct from the broader considerations relevant to the determination of appropriate discipline such as "the nature of the particular violation, the need to protect the public, the courts and the legal profession.” Id. (quoting In re Smith, 403 A.2d 296, 303 (D.C.1979)).

5 . The Board on Professional Responsibility had found five mitigating factors. Those factors were: (1) the confusion or uncertainty for a period of time about who was responsible for paying the medical bills; (2) the slight harm suffered by the client since Buckley eventually made the necessary payments; (3) misconduct limited to a single matter involving one client; (4) Buckley’s candor in the disciplinary proceedings; and (5) his thirty years of practice without prior discipline. 535 A.2d at 866.

6 . The factors were (1) the absence of commingling, since all of the client's funds were properly deposited in a trust account; (2) withdrawals to pay a small portion of legal fees undisputedly owed Addams by his client; (3) client authorization for Addams to use some of the funds in 1983 to pay overdue legal fees, and, based on her "supportiveness” of Addams at the hearing, the likelihood that she would have authorized the 1982 withdrawals had she been so requested; (4) the absence of harm to the client and complete client satisfaction with Addams’ services; (5) misconduct limited to a single set of facts concerning a single client; and (6) Addams’ practice of law for twenty-two years without disciplinary violations.

7 . To the extent that these four members of the Board relied on In re Cefaratti, M-140-82 (D.C. June 28, 1983), their reliance was misplaced. See Buckley, supra, 535 A.2d at 867.

8 .This view of the relationship between an attorney and the client is hardly new. More than a century ago it was stated:

The greatest trust between man and man is the trust of giving counsel. For in other confidences, men commit their parts of life; their lands, their goods, their children, their credit, some particular affair; but to such as they make their counsellors, they commit the whole; by how much the whole they are obligation to all faith and integrity.

Note, Attorneys’ Trust Accounts: The Bar’s Role in the Preservation of Client Property, 49 Ohio St.L.J. 275 (1988), quoting F. Bacon, Of Counsel in The Works of Lord Bacon 277 (1846). (Hereinafter Note: Attorney's Trust Accounts).

9 . In In re Harrison, 461 A.2d 1034, 1036 (D.C.1983), the court adopted the definition of misappropriation used in New Jersey, noting that it was consistent with the language of our DR 9-102, which does not require scienter. Thus, misappropriation is "any unauthorized use of client’s funds entrusted to him [or her], including not only stealing but also unauthorized temporary use for the lawyer’s own purpose, whether or not he [or she] derives any personal gain or benefit therefrom.” 461 A.2d at 1036 (quoting Wilson, supra, 81 N.J. at 455 n. 1, 409 A.2d at 1155 n. 1). “This definition makes clear that improper intent is not an element to be considered in determining whether there had been a misappropriation.” Id.

10 . See ABA Standards for Lawyer Discipline and Disability Proceedings Standard 7.1 (courts should avoid adoption of rules that mandate dispositions for certain forms of misconduct since fixed penalties limit ability to address complexity and variety of circumstances in each case). See Disciplinary Counsel v. Kanuck, 517 Pa. 160, 535 A.2d 69, 76 (1987); Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186, 190 (1983); In re Bardford, 550 N.Y.S.2d 61 (A.D. 3 Dept. 1989); Delk v. Virginia State Bar, 233 Va. 187, 355 S.E.2d 558 (1987).

11 . Kersey was charged with 24 violations of the Code of Responsibility, including two for misappropriation of client funds and one for commingling, occurring over a two-year period. The court found that Kersey’s professional conduct was "substantially affected” by his alcoholism and held that rehabilitation efforts were a "significant factor" in determining the appropriate sanction for the widespread and persistent pattern of violations. Id. at 327. The court stayed execution of disbarment and placed Ker-sey on probation for five years subject to several conditions. Id. at 328.

12 . For example, the Supreme Court of California has had occasion to consider the effect of attorney incapacity arising from extensive professional and personal problems. Acknowledging that "personal problems may legitimately explain a period of inattention to an attorney’s law practice,” the court, in a case of multiple and devastating personal and professional tragedies, resulting in severe depression for a time, placed an attorney on probation for five years when the usual sanction would have been disbarment. Silva-Vidor v. State Bar of California, 49 Cal.3d 1071, 264 Cal.Rptr. 439, 443, 782 P.2d 680, 684 (1989) (en banc). Such empathy has its limits, however. The Supreme Court of California declined to forego disbarment where an attorney suffered from personal and professional problems but failed to acknowledge the impropriety of his conduct or to cooperate with the state bar investigation or to demonstrate sufficient commitment to rehabilitation for alcohol and drug abuse problems. Walker v. State Bar of California, 49 Cal.3d 1107, 264 Cal.Rptr. 825, 832-33, 783 P.2d 184, 191-92 (1989) (en banc). See also In re Sullivan, 530 A.2d 1115, 1119 n. 5 (Del.1987) (mental incompetency as a mitigating factor where attorney misappropriated client funds). Addams does not claim any mental or other disability, and none was found by the Board.

13 . Compare In re Burton, 472 A.2d 831, 848 (D.C.), cert. denied, 469 U.S. 1071, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984) (disbarment for commingling and misappropriation in two separate cases and lying to Auditor-Master in defense of misconduct), with In re Cefaratti, supra, No. M-140-82 at 6-7 (citing as a mitigating factor, before imposing suspension of a year and a day for misappropriation, absence of previous disciplinary violation in a career spanning thirty-four years). In Hines, the court’s reference to disbarment as the normal sanction for "commingling,” appears, in view of the court’s later discussion, to refer to commingling in the sense that unintentional misappropriation (e.g., letting the balance fall below the trust fund component) may also have been involved in the disbarment cases, although it is not clear. 482 A.2d at 385-86. See also In re Hessler, 549 A.2d 700, 700-02 (D.C.1988).

14 . Rule 1.15 (Safekeeping Property) and Comment [1], Rules of Professional Conduct, Order of the District of Columbia Court of Appeals, March 1, 1990, printed in Special Supplement of the Bar Report, February/March 1990.

15 . The court cited In re Burton, supra, note 13, 472 A.2d 831; In re Burka, 423 A.2d 181 (D.C. 1980) (disbarment for commingling and misappropriation, as well as various other disciplinary violations); and In re Quimby, supra, 123 U.S.App.D.C. 273, 359 F.2d 257 (disbarment for intentionally misappropriating funds from estates of two clients because of failed investment). See also In re Moore, M-83-141 (D.C. App. June 10, 1983) (disbarment for intentional misappropriation of $25,000 and concealment involving a single client the Board finding no mitigating factors); In re McClellan, M-51-80 (D.C.App. Mar. 26, 1981) (disbarment for failure to disburse monies to client in three separate cases and failing to appear in scheduled proceedings in other cases); In re McClean, M-142-82 (D.C.App. Apr. 11, 1983) (disbarment for commingling, misappropriation, making false statement and presenting false evidence to Bar Counsel).

16 .See In re Schneider, 553 A.2d 206, 211-12 (D.C.1989) (alteration of credit card receipts submitted by young associate to law firm for reimbursement in violation of DR 1-102(A)(4) (dishonesty), 30-day suspension); In re Hessler, 549 A.2d 700, 716 (D.C.1988) (commingling and misappropriation through simple negligence, by allowing attorney’s operating account balance to fall below amount of client's funds in account, in violation of DR 9-103(A), six-month suspension).

17 . In In re Iulo, 115 N.J. 498, 559 A.2d 1349 (1989), the court noted that "The essence of Wilson is that the relative moral quality of the act, measured by these many circumstances that may surround both it and the attorney's state of mind, is irrelevant: it is the mere act of taking your client’s money knowing that you have no authority to do so that requires disbarment.” 115 N.J. at 502, 559 A.2d at 1351 (quoting In re Noonan, 102 N.J. 157, 159-60, 506 A.2d 722, 723 (1986)). See also Matter of Spagnoli, 115 N.J. 504, 559 A.2d 1352 (1989) (rejecting allegation of marital problems and substance abuse for lack of evidence and relying on attorney's pattern of accepting retainers and not representing the client, and his failure to cooperate with ethics committee, as grounds for disbarment).

18 . The court relied on the following factors as indicating that the attorney was not morally unfit to practice law: (1) the attorney, although grossly negligent in his treatment of his client’s funds, had not committed any other fraudulent acts in connection with the conversion; (2) while "the client was seriously injured in his day-to-day living and in his dealing with creditors,” the attorney fully repaid the client, with damages, albeit it eight months later; (3) the attorney had practiced law for thirty-two years and while the subject of sixteen prior complaints, none had been for commingling or conversion of client funds. Id. at 123.

19 . We reject as meritless Addams’ contention that he should not be disbarred because his actions occurred prior to our decision in In re Hines, supra, 482 A.2d at 378. See Burka, supra, & note 15. See Buckley, supra, 535 A.2d at 867 (sanction imposed for a rule violation is a judgment of attorney’s fitness to continue practicing law rather than a form of punishment and, hence, the sanctions imposed are not circumscribed by ex post facto restrictions).

20 . See Note, Attorneys’ Trust Accounts, supra note 8, at 275 (ethical violations involving the mishandling of client funds are common). See also In re Hines, supra, 482 A.2d at 384 n. 19.

21 . On September 26, 1989, the court granted petitioner’s motion for a stay pending the filing and disposition of his petition for rehearing en banc.