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In re Thomas11/12/1999
ecommendation by the Board, we accept the Board's findings of fact in the report "unless they are unsupported by substantial evidence of record." D.C. Bar R. XI, § 9 (g)(1); In re Clarke, 684 A.2d 1276, 1280 (D.C. 1996). Further, we will adopt the recommendation of the Board, "unless to do so would foster a tendency toward inconsistent Dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9 (g)(1). We turn now to the exceptions to the Board's Report on the Holmes matter.
III. Attorney Thomas' Exceptions
We initially turn to the exceptions noted by Attorney Thomas. Thomas first contends that INA failed to perfect its lien against Holmes' settlement with Hilton and that Thomas had no duty to notify INA of his receipt of the settlement draft from Hilton.
The Board concluded, however, that the evidence was "clear and convincing that INA had a statutory lien of some amount." Further, an attorney may not withdraw funds deposited in a client escrow account where the attorney's right to receive the funds is in dispute. See In re Haar, 667 A.2d 1350, 1353 (D.C. 1995) (holding attorney may not withdraw legal fees from client account when client disputes attorney's right to receive the fees). Indeed, an attorney has a duty to protect the property of third parties in the attorney's custody. See D.C. Rules of Professional Conduct 1.15, cmt. . In this instance, INA asserted its right to a statutory lien against Holmes' settlement with Hilton. Attorney Thomas, however, contended that INA had waived its lien. Accordingly, Attorney Thomas' right to receive the funds was in dispute. Thomas should not have withdrawn funds from the account while INA's right to those funds was in dispute.
Attorney Thomas next contends that there was no evidence of scienter to sustain a finding that he acted dishonestly in representing to Holmes that he had satisfied INA's lien. Knowledge, however, may be inferred from the attorney's conduct. See In re James, 452 A.2d 163, 166 (D.C. 1982). Here, Attorney Thomas sent Holmes a letter dated December 9, 1993 that included a "revised settlement sheet," and a photocopy of a check from the escrow account made payable to INA. Attorney Thomas never sent this check to INA, the payee. While he contends that his delivery of the copy of the check to Holmes was unintentional, the Board "is not required to accept his version of events." Id. Because both the Committee and the Board discredited Attorney Thomas' testimony, we accept the Board's Conclusion that Thomas committed an act of dishonesty.
We now turn to Attorney Thomas' contention that Holmes "was well informed as to the status of her case." Attorney Thomas claims that between February 14, 1991 and July 31, 1992, he had four meetings with Holmes in person, and at least two telephone conversations. He claims that he kept Holmes informed through these contacts.
The quantity of contacts between the attorney and the client, however, is of little importance when the attorney provides sparse or misleading information to the client. Specifically, the Board found "Respondent misled Holmes into thinking that her money was in his escrow account and then stopped providing her with information altogether." In giving such misleading information, then, he failed to keep Holmes correctly informed.
Attorney Thomas next contends that the Board independently determined that he had "intentionally misappropriated settlement proceeds as opposed to simple misappropriation as so found by Committee Five." A violation of Rule 1.15 (b) occurs whenever the balance in the client escrow account falls below the amount due to the client. In re Micheel, 610 A.2d 231, 2
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