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Attorney Grievance Commission of v. White11/6/1992
d).
It may be that the distinction the majority seeks to draw is between cases in which there is evidence that the attorney has acted calculatingly and those where the evidence to that effect is less clear. The majority emphasizes counsel's proffer which indicates that the respondent knew the money he misappropriated was not his, but nevertheless set out on a deliberate course to use it, rationalizing that he would not be caught. The majority then tells us that causation was not shown in this case because no strong substantive evidence was presented. It does not tell us, unfortunately, what would have sufficed as such evidence. The "guidance" it gives is not at all helpful in determining when a hearing court must make findings and when it may not. Certainly, whatever the context of the misappropriation, what the majority has said here will have equal applicability.
The lengthy history of the respondent's alcoholism was presented to establish the probability that his addiction was substantially the cause of the misappropriation. What the majority calls a generalized claim that the theft was caused by alcoholism was Vincent's attempt to draw the "connection," or the causal relationship, if you will. A rational trier of fact, the hearing court, could have found from that evidence that, more than being in the throes of alcoholism at the time he misappropriated client funds, the "root cause" of the respondent's misconduct was his alcoholism. Of course, it also could have found, as the majority has done, that it was insufficient. But it is the trial court, not this court, that should have initially made that call. Only in the most obvious circumstance should we preclude or discourage it from doing so. This is not such an obvious circumstance.
I do not disagree with the majority, I repeat, that more than an historical recitation is required. I am satisfied, as is it, that the alcoholism must be the root cause of the misconduct or have triggered it. I do not agree that the evidence in this case is insufficient, as a matter of law, to establish that connection. A remand is necessary in order that the hearing court may decide if the evidence offered convinces it that there is the requisite causal relationship.
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