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In re Marshall11/22/2000
A Member of the Bar of the District of Columbia Court of Appeals
On Report and Recommendation of the Board on Professional Responsibility
Argued October 19, 1999
Opinion for the court by Associate Judge Schwelb.
Dissenting opinion by Chief Judge Wagner at p. _.
The Board on Professional Responsibility has recommended that Matthew J. Marshall, Jr. be disbarred for misappropriation of client funds and for submitting fabricated documents to Bar Counsel during Bar Counsel's investigation of the allegations of misappropriation. Marshall has excepted to the Board's recommendation. He contends that a lesser sanction should be imposed because, according to Marshall, his conduct was the result of his addiction to cocaine, an addiction from which he claims to have been substantially rehabilitated. We conclude that the principles of In re Kersey, 520 A.2d 321 (D.C. 1987), should not be applied to Marshall's cocaine addiction, and we adopt the Board's recommendation that Marshall be disbarred.
I. THE FACTS
A. Marshall's misconduct.
Marshall was admitted to practice in the District of Columbia in 1984. He was initially employed by the Council of the District of Columbia, but he was discharged in 1987 for cocaine use. Marshall subsequently became a solo practitioner in the District.
In December 1994, Bar Counsel filed a petition alleging that Marshall had misappropriated the funds of a client, Samuel Warrick, that he had commingled client funds with his own, and that he had misrepresented facts to Bar Counsel. Bar Counsel requested that Marshall be disbarred. Marshall filed a pro se answer in which he admitted his misconduct but ascribed his behavior to "a dysfunctional emotional state" and to "emotional, irrational panic."
Bar Counsel's allegations came before Hearing Committee No. 7, which conducted an extensive evidentiary hearing. The facts regarding Marshall's violations were largely undisputed. The evidence showed, and the Hearing Committee found, that in August 1992, Mr. Warrick had retained Marshall to recover damages for personal injuries sustained by Mr. Warrick in an automobile accident. Mr. Marshall was to be paid a contingent fee of one third of any recovery. Warrick also executed two "Authorizations and Assignments" (A & A's) for the purpose of enabling Marshall to pay his treating physician and physical therapist from the proceeds of any recovery. Marshall agreed to withhold the money due to these providers, a total of $1,110.12, from any damages that he obtained on Warrick's behalf, and to pay the providers with the proceeds of the lawsuit.
In November 1992, Marshall settled Warrick's case for $3,500. Marshall took $100 in cash from the settlement proceeds, and deposited the remaining $3,400 in a non-escrow account. During November 1992, the balance in this account fell from $3,429.07 to $1,423.99, and was subsequently reduced even further as a result of checks drawn on the account by Marshall. None of these checks was used to pay Mr. Warrick or his medical providers. Instead, Marshall used the funds for his own expenses, and he spent approximately $700 to purchase crack cocaine. Mr. Marshall did not reveal to his client that he had used the settlement proceeds for his own purposes.
On May 16, 1994, having received nothing from his lawsuit, Mr. Warrick filed a complaint with Bar Counsel, alleging that Mr. Marshall had failed to disburse to Warrick the client's share of the settlement proceeds. Marshall then met with Warrick and belatedly paid him $2,100 or $2,200. According to Warrick, Marshall also asked him to "be quiet about it."
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