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In re Thomas11/12/1999
ify a third party of the receipt of funds promptly. The Board concluded that INA did have a statutory lien, but that the exact amount of the lien was not clear.
The Board recommended disbarrment. The Board further deferred the issue of whether Attorney Thomas should make restitution to INA until Thomas filed a petition for reinstatement because the exact amount of INA's lien was unclear.
B. The Davis Matter, Bar Docket No. 343-95
Attorney Thomas represented Sheila Davis in a dispute with New York Life Insurance Company over a policy insuring the life of Davis' fiancé. Attorney Thomas negotiated a settlement with New York Life in the amount of $10,000. The settlement draft was deposited in the Thomas client escrow account on March 24, 1995. By agreement between Thomas and Davis, the settlement proceeds were shared equally.
New York Life then agreed to refund to Davis the insurance premium of $614.64. Davis agreed that Attorney Thomas would receive $294.88 from this settlement as his fee.
Attorney Thomas received a draft from New York Life for $614.64, made payable to himself and Davis. Attorney Thomas cashed the draft, kept $200 in cash, and deposited $409.76 in his clients' escrow account. Attorney Thomas gave Davis $100 in cash as an advance on the amount due to her. However, Attorney Thomas did not formalize this arrangement.
On September 7, 1995, Attorney Thomas gave Davis a check for $409.76. While visiting her family in California, Davis asked her son- in-law to cash her check at his bank. Attorney Thomas, however, had previously drawn four checks on his escrow account made payable to himself. As a result, the escrow account balance fell to $348.45. When the check to Davis was presented to Industrial Bank, it was honored. Attorney Thomas' clients' escrow account, however, dropped to a negative balance of $61.31. Attorney Thomas deposited $100 in his clients' escrow account on September 18, 1995.
Hearing Committee Number Seven found a violation of D.C. Bar R. XI, § 19 (f), and Rule 1.15 (a). The Committee concluded, however, that there was insufficient evidence to find an intentional or reckless misappropriation. The Board concurred with the Committee's findings. The Davis matter was then consolidated with the Holmes matter.
C. The Consolidated Matters
The Board concluded that if the Davis matter "were the sole violation committed by Respondent" it would "likely carry a sanction of less than suspension." "But because it occurred after the conduct in the first [Holmes] matter had been brought to Bar Counsel's and Respondent's attention, a more severe sanction may have been warranted." (Citations omitted.) The Board recommended disbarrment on the basis of both matters. Neither Bar Counsel nor Attorney Thomas filed an exception with respect to the Davis matter. Both Attorney Thomas and Bar Counsel filed exceptions to the Board's Report and Recommendation concerning the Holmes matter.
II. Standard of Review
When no exception has been filed with this court concerning the Board's recommendation, we will accept that recommendation. D.C. Bar R. XI, § 9 (g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997). In this instance, no exception has been filed with respect to the Davis matter. We therefore accept the recommendation of the Board that because the conduct occurred after the Holmes matter had been brought to Bar Counsel's attention, a more severe sanction is warranted.
Both Attorney Thomas and Bar Counsel have filed exceptions to the Board's Report and Recommendation with respect to the Holmes matter. When an exception has been filed to the Report and R
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