IN RE HEWETT
11 A.3d 279 (2011)
In re Willie N. HEWETT, Respondent,
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 372772).
No. 07-BG-624.
District of Columbia Court of Appeals.
Argued February 6, 2009.
Decided January 13, 2011.
Before RUIZ, KRAMER and BLACKBURNE-RIGSBY, Associate Judges.
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. I. FactsThe 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
Jewell's conservator, respondent "completely fulfilled his duties ... and took steps, based on basic human kindness, which went beyond his legal responsibility to his ward." Mr. Jewell, who lived in a nursing home, was confined both to a wheelchair and a feeding tube. Other than respondent and a church group, he had no relatives or visitors; respondent "visited Mr. Jewell on personal, uncompensated visits." Mr. Jewell died on April 21, 2003, and respondent was the only person at his funeral. 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.
1. The rule also permits additional fees for "extraordinary services," Super. Ct. Prob. R. 225(c), including reasonable attorney's fees for "legal services rendered to the fiduciary in the administration of the estate." Id. R. 225(e). The statute governing fees to conservators was modified in 1989, and currently provides for "compensation" for conservator services rather than a commission based on a percentage of disbursements from the estate. D.C.Code § 21-2060 (2001); see Super. Ct. Prob. R. 308 (2010) (referring to "reasonable compensation"). Respondent acknowledges that his fee petition mistakenly made reference to Probate Rule 308, which applies to conservatorships since the statute was amended, and has not challenged the trial court's denial of his petition under Probate Rule 225.
2. Although respondent had always filed the required annual accountings during his appointment as Mr. Jewell's conservator, he had often filed late, after receiving a notice from the clerk's office. The Board found that "it was not uncommon for conservators to be late" in filing their annual accounts.
3. The Board's majority report, authored by Irvin B. Nathan, was joined by five other Board members. Three members of the Board wrote separate opinions: Martin Baach (the Chair), Deborah J. Jeffrey and James P. Mercurio. All three agreed that respondent's misappropriation was intentional or reckless and not negligent. Ms. Jeffrey and Mr. Mercurio both were of the opinion that respondent's case presented "exceptional circumstances" that do not warrant disbarment, and would impose a stayed six-month suspension; Ms. Jeffrey felt constrained by the line of Kersey cases, however, to impose disbarment but suspend its execution in favor of the lesser sanction. Although he thought that disbarment is "too severe and unfortunate in this case," Mr. Baach reasoned that without guidance from this court "as to what `the most stringent ... extenuating circumstances' might be," he could not conclude that the facts and circumstances presented warranted departure from the presumptive disbarment required by Addams.
4. D.C. Professional Conduct R. 1.1(a) provides, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."
5. D.C. Professional Conduct R. 1.1(b) provides, "A lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters."
6. D.C. Professional Conduct R. 1.15(a) provides, "A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property."
7. D.C. Professional Conduct R. 8.4(d) provides, "It is professional misconduct for a lawyer to: ... (d) Engage in conduct that seriously interferes with the administration of justice."
8. Respondent's repayment did not, as required, include any interest which had accrued while he was in possession of the misappropriated funds. See In re Huber, 708 A.2d 259, 260 (D.C.1998) ("The obligation to pay interest is intertwined with the obligation to make restitution. Even [where the respondent] has repaid the principal ... that would not absolve him [or her] of the duty to pay interest for the period between misappropriation and the repayment, if any.").
9. Pleshaw was also found by the Board to have committed "many other disciplinary violations" involving three clients, but the court did not find it necessary to address them because his reckless misappropriation warranted disbarment. 2 A.3d at 175 n. 26.
10. As mentioned earlier, these are the factors that led the Board to conclude that respondent violated Rules 1.1(a) & (b) and 8.4(d). These factors also led Mr. Baach to conclude that respondent's case did not present "exceptional circumstances."
11. There has been no suggestion that respondent's efforts to "spend down" the ward's account with legitimate expenditures in order to maintain critical Medicaid eligibility constituted a fraud on the government or was otherwise improper. To the contrary, the Board found that "[t]here is no question that the[ ] spend-down actions were for Mr. Jewell's benefit and were proper." Bar Counsel's suggestion that respondent should have withdrawn only what was required to bring the account below the eligibility limit would suggest that the expenditure was not independently justified and that respondent was manipulating his fee request to meet the Medicaid asset eligibility requirement.
12. We adopt the Board's finding that respondent's intentional misappropriation violated District of Columbia Rules of Professional Conduct 1.1(a), (b), 1.15(a), and 8.4(d). Bar Counsel urges this court to conclude that respondent also violated Rules 1.3(a) and (c). See D.C. Bar R. 1.3(a) ("A lawyer shall represent a client zealously and diligently within the bounds of the law."); D.C. Bar R. 1.3(c) ("A lawyer shall act with reasonable promptness in representing a client."). Bar Counsel argues that respondent violated Rules 1.3(a) and (c) by intentionally or recklessly misappropriating client funds, and that these additional rule violations warrant a suspension longer than six months. As we have concluded that respondent intentionally misappropriated funds, but that a stay of respondent's six-month suspension is appropriate, we agree with the Board that a determination that respondent violated Rules 1.3(a) and (c) would have no bearing on the sanction and is unnecessary. See In re Gansler, 889 A.2d 285, 290 n. 5 (D.C.2005).
13. Respondent's only objection to the Board's recommendation is that rather than the six-month suspension recommended by the Board, he should be suspended for thirty days as recommended by the Hearing Committee. Because we conclude that respondent engaged in intentional misappropriation, we think that a six-month suspension is the appropriate sanction in light of the type of discipline we have found appropriate in cases of negligent misappropriation.