RUIZ, Associate Judge:
In this case, we determine, for the first time, that the presumptive rule of disbarment established in In re Addams, 579 A.2d 190, 191 (D.C.1990) (en banc), should not be imposed as a sanction for intentional misappropriation. We adopt the Board on Professional Responsibility's uncontested finding that respondent misappropriated client funds but, unlike the Board, conclude that the misappropriation was intentional, not negligent. However, we agree with the Board's alternative recommendation, and conclude that the facts of this case present "extraordinary circumstances" that warrant an exception to Addams's presumptive discipline of disbarment for intentional misappropriation, id., and adopt the Board's recommended sanction that respondent be suspended for six months, with the suspension stayed in favor of probation.
The Hearing Committee found the following facts, which the Board adopted. Respondent, Willie N. Hewett, has practiced law in the District of Columbia for over 15 years without any prior ethical complaint against him. On March 6, 1992, respondent was appointed by the Probate Court to serve as successor conservator for Ralph H. Jewell, who had been a ward of the court since 1985. The Hearing Committee and the Board found that, as
The facts giving rise to the instant disciplinary matter occurred when respondent was given notice in March of 2001 that Mr. Jewell would be undergoing a Medicaid eligibility review in the next few months and that his cash assets "could not exceed $2500 or he would be disqualified for Medicaid." (internal alterations omitted). Mr. Jewell's nursing home care was paid for by Medicaid; his only source of income was $90 per month from the Veterans Administration. After he was appointed as conservator, respondent had established a bank account in Mr. Jewell's name, in which the monthly Veterans Administration checks were deposited and for which respondent filed an annual accounting. In March of 2001, there was a total of $7,820.79 in Mr. Jewell's account, $5,320.79 over the maximum allowed to maintain Medicaid eligibility. "Respondent believed and the Hearing Committee found that a disqualification would have been devastating to the interests of the ward."
In preparation for the Medicaid eligibility review, respondent began to spend down Mr. Jewell's bank account. Among other items, respondent purchased a blue serge suit and gloves, which had been requested by Mr. Jewell, and paid a funeral home for "pre-need funeral expenses," and for "Grave opening and closing; Marker and Vault Placement," at a cemetery. In total, respondent spent $4,646.54 on behalf of Mr. Jewell, but after deducting back charges and adding the month's $90 veteran's check, on May 30, the account was still approximately $750 over the Medicaid limit. The report to Medicaid concerning Mr. Jewell's assets was due May 31.
On May 31, 2001, respondent filed with the probate court the ninth annual accounting of Mr. Jewell's finances, together with a separate petition seeking a fee of $2,006.25 for his "legal services." The Board found that "but for the impending Medicaid review, Respondent would not have filed the petition for legal fees." Respondent's petition detailed the time he had spent on Mr. Jewell's matters during the year, and "carefully documented" 16.05 hours, which included "filing appropriate documents on the ward's behalf when necessary, and visiting the ward to assess his needs and provide for those needs." The petition requested a "reasonable fee" of $125 an hour. Contrary to the applicable statute and court rule, respondent withdrew the requested funds from Mr. Jewell's account the same day he filed the petition, before any approval had been granted by the probate court. Although the petition stated that "[t]he ward is currently in the process of spending down to maintain Medicaid eligibility," it did not inform the court that the fees requested in the petition were being withdrawn as part of the spend-down. After the withdrawal, Mr. Jewell's account carried a balance of $1,244.09, within the Medicaid limit.
Respondent's ninth annual accounting was approved, but his fee petition was denied by the probate court on September 11, 2001, because the services respondent had provided to Mr. Jewell were "not legal in nature nor compensable as attorney's fees pursuant to court rule." (internal alterations omitted) Even though respondent had been appointed in 1992, because
Subsequently, the Probate Court scheduled a show-cause hearing for December 10, 2002, because respondent had not filed the next (tenth) annual accounting, due April 12, 2002.
II. The Disciplinary Proceedings
The Hearing Committee was "constrained to find a misappropriation" but thought that "the stigma attached to a finding of misappropriation" was not warranted in respondent's case. Because there was no "evidence of fraud, self-dealing, misrepresentation, conflict of interest, or any pattern of inappropriate conduct," and, to the contrary, respondent's action "was, in intent and effect, in the best interest of his ward," the Committee recommended that respondent be suspended for thirty days, stayed during a one-year probationary period during which respondent would be required to complete six hours of legal education "on the subject of representing wards before the probate court." The Board issued a Report
Upon review of a report and recommendation of the Board in an original disciplinary matter, "the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record...." D.C. Bar R. XI, § 9(g)(1). However, the court owes no deference to "ultimate facts" or questions of law determined by the Board. See In re Micheel, 610 A.2d 231, 235 (D.C.1992). Where, as here, the question before the court deals with misappropriation, "[w]hether [the] underlying circumstances constitute misappropriation and whether any misappropriation resulted from more than simple negligence are questions of
Respondent "concedes [the Board's] findings of facts and the violations supported by them." Because respondent withdrew funds from Mr. Jewell's account "without authorization," the Board concluded, and it is not now contested, that respondent misappropriated funds. The question for the court is whether respondent's misappropriation was intentional, reckless, or negligent. Except where the misappropriation was the result of simple negligence, we are bound by our holding in Addams, that "in virtually all cases of misappropriation, disbarment will be the only appropriate sanction." 579 A.2d at 191.
A. Intentional Misappropriation
This is not a case where the misappropriation of funds resulted from "simple negligence." Id. Even though the Hearing Committee found that the misappropriation resulted from respondent's "failure to anticipate the May 31, 2001 [Medicaid] deadline, craft a game plan, and implement the plan with the necessary dispatch"— classic negligence language—respondent knowingly withdrew funds from his ward's account before the court had authorized his fee petition. While it is true that respondent withdrew the fee "not for [his] own use in the sense of stealing or for a temporary `loan' but rather as a satisfaction for accruing fees ... against funds which would ultimately be expected to be utilized for that purpose," In re Fair, 780 A.2d 1106, 1112 (D.C.2001), he nevertheless intentionally withdrew funds in order to pay what he thought was his fee without first obtaining court authorization that he knew was required.
Respondent's actions, therefore, are distinguishable from those in cases in which we concluded that the respondents' "honest, but erroneous belief" that they were entitled to withdraw the misappropriated funds constituted "simple negligence." In Fair, for example, the personal representative of an estate withdrew requested fees without prior court approval. 780 A.2d at 1110. We concluded that the unauthorized withdrawal constituted negligent misappropriation because the Board had found that it had become the accepted practice to withdraw fees in advance of probate court approval and, less than a year later, the legislature eliminated the need for prior approval. Id. at 1111-12. In In re Travers, withdrawal of fees prior to court approval was negligent because the lawyer "`sincerely believed' ... his actions in obtaining the consents of the heirs and filing those consents with the court `supported a finding that he was not reckless and that he was [in] no way trying to mislead [the court] or conceal his conduct.'" 764 A.2d 242, 249 (D.C.2000) (second and third alteration in original). See also Berryman, 764 A.2d at 770-72 (summarizing cases of negligent misappropriation). The Hearing Committee found that respondent believed that the probate court would ratify his fee "because of the nature of what he was facing"—his ward's potential disqualification from Medicaid benefits—and thus "honestly" believed he was entitled to the funds. But despite finding that respondent "was not dishonest in any respect," the Hearing Committee found that respondent
B. Exceptional Circumstances
We have said that even where a lawyer has engaged in intentional misappropriation of funds, a sanction less than disbarment may be appropriate "in extraordinary circumstances," Addams, 579 A.2d at 191, or "[o]nly in the most stringent of extenuating circumstances," id. at 193 (quoted in In re Pennington, 921 A.2d 135, 141 (D.C.2007)). Previously we have found "extraordinary circumstances" only where the respondent's misconduct was shown to be caused by a disabling addiction, such as chronic alcoholism, see In re Kersey, 520 A.2d 321, 326-27 (D.C.1987), or depression, see In re Verra, 932 A.2d 503, 505 (D.C.2007). We have not otherwise defined what will constitute "extraordinary circumstances," but have noted 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 [whether] they substantially outweigh any aggravating factors such that the presumption of disbarment is rebutted." Addams, 579 A.2d at 195. Although we disagree with the Board's characterization that respondent's misappropriation was "negligent," we agree with the Board's alternative conclusion that the circumstances of this case, where respondent engaged in intentional misappropriation for the purpose of benefitting the client, and in fact did benefit the client, warrant a departure from the presumption established by our decision in Addams that disbarment is the appropriate sanction for intentional misappropriation.
In Addams, we noted that mitigating factors "of the usual sort" "will suffice to overcome the presumption of disbarment only if they are especially strong
In addition to these "usual sort" of mitigating factors, several other factors distinguish respondent's conduct from Addams and other cases of intentional misappropriation we have considered. First, as the Hearing Committee concluded, "[t]here is no question that Respondent's actions were in the best interest of his ward." Second, the posture of this case is truly unique. As the Board noted, "[w]e are aware of no prior cases in which the intentional misappropriation was intended for and, in fact, benefitted the client." Thus, this case goes beyond lack of concealment and corruption. Cf. Bach, 966 A.2d at 352. ("[A]n attorney who knows he has done what the law forbids may not leave it to chance or the diligence of auditors to bring (or not bring) the action to light; and so the fact that respondent revealed the improper payment confirms only, we think, that he acted without the `moral corruptness' of an intent to deceive—a factor that Addams makes irrelevant to deliberate misappropriation and the attendant sanction."). Here, where the Hearing Committee found that, but for the impending Medicaid review, respondent would not have filed the petition for legal fees and withdrawn the funds when he did, we are persuaded that this is the exceptional case envisioned in Addams where, notwithstanding intentional misappropriation, "giving effect to mitigating circumstances is consistent with protection of the public and preservation of public confidence in the legal profession." Addams, 579 A.2d
Bar Counsel argues that there are aggravating factors that preclude our finding "extraordinary circumstances" warranting a lesser sanction than disbarment: (1) that respondent ought to have withdrawn only the amount necessary ($750) to bring his ward's account below the Medicaid minimum; (2) that respondent ought to have sought the advice of more experienced attorneys or court personnel in order to determine a more appropriate way to spend down his ward's account; (3) that respondent should have disclosed the impending Medicaid review to the probate court when requesting fees and requested expedited approval by the court; and (4) that respondent's 18-month delay in checking the court docket to see if his fee request had been approved was inexplicable.
We disagree with Bar Counsel that respondent's withdrawal of $2,000 rather than the $750 that was strictly necessary to bring Mr. Jewell's account below the Medicaid minimum is an aggravating factor.
Bar Counsel compares this case to Berryman, where we said that it was not sufficient, to avoid disbarment, that the lawyer who misappropriated client funds had "rendered extraordinary service" to his client before her death. 764 A.2d at 774. What distinguishes this case from Berryman, however, is that the action for which respondent is being charged was itself motivated solely by a desire to protect his ward's interest, whereas, in Berryman, the lawyer withdrew client funds, using a back-dated deposit slip, in order to protect her own fee from the client's other creditors. 764 A.2d at 772-73. Similarly, in Addams the lawyer improperly withdrew entrusted funds for his own benefit, not the client's. 579 A.2d at 199. In sum, we conclude that though the surrounding circumstances present both mitigating and aggravating factors, the former more than "substantially outweigh" the latter and the presumption of disbarment has been rebutted. Id. Respondent's case is not only compelling but, we think, likely to be one of the rare cases that presents "the most stringent of extenuating circumstances," id. at 193, that overcomes the presumption that disbarment is the appropriate sanction for intentional misappropriation.
This is the first case in which the Board has asked the court to conclude that the "extraordinary circumstances" exception noted in Addams has been satisfied. Notwithstanding differing opinions by a minority of the Board members as to whether respondent's misappropriation should be characterized as intentional, reckless or negligent, all nine members of the Board believe that respondent should not be disbarred. See note 3, supra. The Board's majority report summarizes its recommendation, as follows:
In conclusion, although we agree with Bar Counsel that Willie Hewett intentionally misappropriated funds,