In re Thomas11/12/1999
33 (D.C. 1992). Here, the evidence clearly showed that the balance of the client escrow account fell below the amount due to Holmes.
" n virtually all cases of misappropriation, disbarrment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence." In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). In his brief, Attorney Thomas quotes the recommendation of the Committee, which states, "This is misappropriation, plain and simple." By selecting this one quote completely out of context, Attorney Thomas would have this court agree that the Committee did not find intentional misappropriation. However, the Committee clearly found that Attorney Thomas' actions were intentional and fraudulent:
The misappropriation shown here was not the product of simple negligence, and no such claim is made by respondent. . . . Thomas used his client's funds without her knowledge or permission, lied to her and Bar Counsel about it and tried to cover it up with fraud, including fraudulently fabricated documents. . . . The cross-examination of Respondent reveals that, on occasions too numerous to specify, Respondent's testimony was largely fabricated.
The evidence is clear, then, that Attorney Thomas committed an intentional misappropriation of client funds.
Next, Attorney Thomas challenges the Board's Conclusion that he engaged in commingling of funds. Specifically, Attorney Thomas argues that because some unspecified parties other than Thomas had an interest in his own personal injury settlement, he was bound to deposit the settlement in his clients' escrow account.
The check from State Farm that Attorney Thomas deposited into the client escrow account, however, identified solely Thomas as the payee. It represented Attorney Thomas' personal funds. When Attorney Thomas deposited it into his client escrow account, his personal funds and those of his clients became intermingled so that their separate identity was lost. See In re Hessler, 549 A.2d 700, 707 (D.C. 1988). We, therefore, accept the Board's Conclusion that commingling occurred.
Attorney Thomas further contends that there was a complete lack of evidence to establish that he had failed to keep complete records of his clients' accounts. This finding of fact, however, was made by the Committee. Attorney Thomas failed to file an exception to this finding with the Board. Therefore, he has waived his right to pursue it before this court. See In re Ray, 675 A.2d 1381, 1386 n.5 (D.C. 1996); In re Williams, 464 A.2d 115, 118 (D.C. 1983).
Finally, Attorney Thomas challenges the issuance of subpoenas duces tecum upon Industrial Bank within an eighteen month period. Attorney Thomas contends: (1) Bar Counsel failed to follow Super Ct. Civ. R. 5 & 6; (2) Bar Counsel required Industrial Bank to produce documentation about his account which violated the Fifth Amendment; and (3) Bar Counsel was motivated out of vindictiveness.
First, we note that Bar Counsel's subpoena power is subject to the civil rules, see D.C. Bar R. XI, sec. 18, which provide that a party to civil litigation is to be given notice of "any commanded production of documents," see Super. Ct. Civ. R. 45(b)(1) . Thomas, however, did not raise before the Board the question of how the civil rules are to apply to Bar Counsel proceedings. We, therefore, consider the issue waived, and decline to address it. See In re Huber, 708 A.2d 259, 261 (D.C. 1998); In re Clarke, 684 A.2d 1276, 1280 (D.C. 1996); In re James, 452 A.2d 163, 168-69 (D.C. 1982).
Next, we address whether the issuance of the subpoenas duces tecum violated the Fifth Amendment. Th
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