Jurisdiction Challenge Rejected

A District of Columbia Hearing Committee recommends disbarment of an attorney and rejection of the jurisdictional challenge to the allegations

Respondent contends that the District of Columbia Court of Appeals, the District of Columbia Board of Professional Responsibility and this Hearing Committee have no jurisdiction over his conduct before the Courts of the State of Maryland and that the Maryland Grievance Committee s decision not to pursue a complaint against him for his handling of the Goode Estate is dispositive of charges against him regarding that Estate (Count III); he therefore seeks dismissal of all counts relating to his conduct before the Courts of Maryland. Respondent further argues that he has the right to spend client funds once they are earned and that the clients who testified did not prove that he misappropriated or commingled their funds. He also contends that their testimony does not prove any of the charges against him by clear and convincing evidence. As to the charges that he took payment for Estate work without court approval, Respondent argues that Disciplinary Counsel failed to prove that court approval was required for the estates in question because, he asserts, under Maryland law court approval is not required for payment from estates classified as unsupervised. Finally, he argues that in the event there is to be any discipline he is entitled to disability mitigation under In re Kersey, 520 A.2d 321 (D.C. 1987) due to medical issues described in his expert s report.

As set forth below, the Hearing Committee finds that Respondent as a member of the Bar of the Court of Appeals of the District of Columbia is subject to jurisdiction of the Court of Appeals of the District of Columbia for his conduct before courts in the State of Maryland and that Disciplinary Counsel has proven by clear and convincing evidence that Respondent engaged in a lengthy pattern of intentionally misappropriating and commingling client funds, of intentionally failing to keep and maintain required records, of intentionally taking disbursements from estate accounts without court approval, of collecting unreasonable fees, and of failing to keep clients properly informed of their matters and that he engaged in dishonesty in certain of his filings with courts, in filings under oath with FINRA and by his failure to update such filings. We therefore recommend that Respondent be disbarred.

As to disability mitigation, the hearing committee considered evidence offered by Disciplinary Counsel and Respondent

We accept much of [Respondent’s expert] Dr. Tellefsen s testimony regarding the devastating emotional effects of the early suggestion that Respondent was suffering cancer, the long-period of time waiting for confirmation of a diagnosis, the diagnosis itself and the cancer treatments. She ably described the whole compendium of effects that accompany these conditions, including worry, sickness, fatigue, distraction, lack of focus and, indeed, anxiety in the layman s sense of anxiety, that which causes many if not most humans to lie awake some or even many nights. Tr. 1056-1057. [Disciplinary Counsel’s expert] Dr. Candilis, too, readily acknowledged these devastating effects, using the very same adjective, and later referring to the outsized psychological effect a cancer diagnosis has on anybody. Tr. 1138, 1172-1173.

What Respondent failed to prove, is that these devastating effects caused him to suffer a disability or that they substantially affected his misconduct, two essential elements of a Kersey mitigation. Dr. Tellefsen failed to persuade us that there was any connection between the effects of his cancer diagnosis and the extensive wrongful conduct we set forth in the foregoing findings of fact.

This finding begins with the absence of any proof of a mental health condition. As Dr. Tellefsen admitted on cross-examination, Respondent had never been diagnosed with any mental health impairment before her examination; there were no records of Respondent complaining about anxiety, mental health issues or inability to work; he had no physical manifestations of mental health issues; he had never been prescribed any medications for anxiety; during this time, he was able to function at a high degree professionally; there was never a report of Respondent making a financial or bookkeeping mistake in favor of the client rather than to the client s detriment; anxiety disorder does not typically impact one s ability to be honest, and anxiety does not usually result in acts of commission rather than the customary acts of omission.

Dr. Candilis added to this litany of reasons why Respondent was not impaired: Respondent discussed no symptoms of depression; his radiologist, did not see any behavior or cognitive problems; Respondent made no indication of mental health issues; Respondent was able to navigate through a bankruptcy and rebuild a law practice; Respondent had no history of depressive symptoms, homicidal or suicidal ideation, anxiety, psychotic symptoms, paranoia, fixed false beliefs, imagined thought readings, or auditory or visual hallucinations; Respondent ran a complicated business that included gold trading; and Respondent was fully capable and treated by everyone as being fully capable of making important complex decisions including international travel and medical choices regarding eye surgery and cancer treatments and all the releases and related decisions they entail.

We also base our findings that Respondent did not suffer a disability on the lack of a single area in which he has claimed to be impaired other than in managing an escrow. Indeed, he readily admitted to Dr. Candilis that he was never good at these financial portions of his business, that in his first career they were done for him, and that he probably should have taken a course on them earlier. In fact, he did not blame his conduct on any disability. Instead, he said it was a result of the rules regarding escrows being less clear than traffic regulations.  For all of these reasons, we find that Respondent has failed to prove by clear and convincing evidence he suffered a disability as required for a Kersey mitigation.

For many of the same reasons, we find that the condition Respondent cites as a disability did not cause the conduct of which he has been accused and has herein been found to have committed. We note the similarity between the Kersey causation necessary for mitigation and what Dr. Candilis so ably described as the connection necessary to prove a disabling impairment. We find credible his opinion s reliance on the absence of any outside evidence of impairment, the failure to show impairment anywhere other than one specific narrow area, and the absence of general dysfunction or any noticeable manifestations of impairment. We are especially persuaded in our finding of no causation by Respondent s admission that he did not know his escrow obligations well and that he should have taken a class in them sooner; by the wholly one-way nature of his transfer of funds; by the fact that he usually committed the misappropriations when he needed money, and by Dr. Tellefsen s own admission that there was no impairment before 2018.

(Mike Frisch)