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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-BG-700

                    IN RE CATHERINE E. ABBEY, RESPONDENT.
                                                                           09/21/2017

                         A Suspended Member of the Bar
                   of the District of Columbia Court of Appeals
                          (Bar Registration No. 436925)

                        On Report and Recommendation
                   Of the Board on Professional Responsibility
                                 (BDN-370-12)

(Argued April 14, 2017                              Decided September 21, 2017)

      Abraham C. Blitzer for respondent.

      H. Clay Smith, III, Assistant Disciplinary Counsel, with whom Wallace E.
Shipp, Jr., Disciplinary Counsel at the time the brief was filed, Jennifer P. Lyman
and Julia L. Porter, Senior Assistant Disciplinary Counsel, were on the brief, for
the Office of Disciplinary Counsel.

      Before BECKWITH and EASTERLY, Associate Judges, and REID, Senior Judge.

      REID, Senior Judge: In its Report and Recommendation, dated July 12,

2016, the Board on Professional Responsibility has recommended that respondent,

Catherine E. Abbey, be disbarred from the practice of law in the District of

Columbia because of clear and convincing evidence that she (1) engaged in

reckless misappropriation of entrusted funds, in violation of Rule 1.15 (a) of the
                                        2
District of Columbia Rules of Professional Conduct, and (2) failed to promptly

notify and/or deliver the funds to the third parties entitled to receive them, in

violation of Rule 1.15 (b). Ms. Abbey‘s main argument on appeal is that her

misappropriation constituted negligent, rather than reckless, misappropriation and

the sanction should be a six-month suspension. For the reasons stated below, we

accept the recommendation of the Board.



                            FACTUAL SUMMARY



      During these proceedings, Disciplinary Counsel,1 an Assistant Disciplinary

Counsel, Ms. Abbey, and her attorney agreed to factual stipulations, including the

following. Ms. Abbey was admitted by motion to the Bar of this court in 1993.

Sometime around May 2010, Guy Vouffo was injured in an automobile accident,

and he retained Ms. Abbey to represent him in a personal injury lawsuit. During

Ms. Abbey‘s representation, Mr. Vouffo executed an assignment of insurance

benefits to Medtaris Rehabilitation and also signed a separate document

authorizing direct payment to Medtaris Rehabilitation. Ms. Abbey executed a
      1
         While the disciplinary proceedings against Ms. Abbey were in progress,
this court changed the name of Bar Counsel to Disciplinary Counsel, effective
December 19, 2015. We use Disciplinary Counsel throughout this opinion.
                                        3
related document ―agree[ing] to follow the aforementioned authorization and

direction of my client to pay Medtaris Rehabilitation any sums due and owing from

the proceeds of any settlement, judgment or insurance payments.‖ Mr. Vouffo

signed two additional medical authorizations addressed to Doctor‘s Community

Hospital, and to Kaiser Permanente. Each of these authorizations stated: ―I hereby

direct and authorize [Ms. Abbey] to pay all unpaid medical and hospital bills

presented to her before the distribution of any proceeds to me out of any sums of

money received by her to which I may be entitled.‖



      The stipulations of fact also indicated that the Liberty Mutual Insurance

Company issued a check on December 28, 2011, in the amount of $12,500,

payable to Ms. Abbey and Mr. Vouffo. Ms. Abbey deposited the check in her

IOLTA account.2 In January 2012, Ms. Abbey prepared a settlement distribution

sheet, showing that she withheld $4,498.83 for Mr. Vouffo‘s medical providers

(after Medtaris Rehabilitation agreed to reduce its bill to $2,700, and Ms. Abbey
      2
          Rule 1.15 of the District of Columbia Rules of Professional Conduct
concerns the safekeeping of property. The rule requires all attorneys to keep funds
earmarked for clients or third persons separate from an attorney‘s own funds.
Client and third party funds must be placed in a trust account, an ―approved
depository,‖ known as an IOLTA account. Moreover, upon receiving client or
third person funds, an attorney must promptly notify and promptly deliver the
funds to the client and third persons. Rule 1.15 (a), (b), and (c).
                                          4
agreed to reduce her fee to $3,803.86). In January 2012, she sent a check totaling

$4,003.81 to Mr. Vouffo. She did not issue checks to Medtaris Rehabilitation (in

the amount of $2,700) or Kaiser Permanente (in the amount of $866.44) until

November 14, 2012. The remaining $932.39 (of the amount withheld for medical

providers) was never distributed. On numerous occasions, between January 5,

2012, and November 1, 2012, the balance in Ms. Abbey‘s IOLTA account fell

below the $4,498.83 that she should have retained for all of Mr. Vouffo‘s medical

providers. By November 1, 2012, the balance, in her IOLTA account, stood at

$621.26.



      Based on additional evidence presented by Disciplinary Counsel, Hearing

Committee No. 7 of the Board found that under the settlement distribution sheet,

which Mr. Vouffo and Ms. Abbey had signed on January 10, 2012, the $4,498.83

reserved for medical providers was to be distributed as follows:          $2,700 to

Medtaris Rehabilitation, $625 to Kaiser Permanente,3 $607.83 to Doctors

Community Hospital, $487 to Doctors Emergency Physicians, and $79 to

Diagnostic Imaging.      Despite the settlement distribution agreement, Medtaris

Rehabilitation made multiple requests to Ms. Abbey for payment from February

      3
          Kaiser agreed to settle its bill for $866.44 in mid-November 2012.
                                       5
23, 2012 through August 9, 2012; in a letter dated July 12, 2012, Medtaris

Rehabilitation‘s representative, Mark Pappas, detailed his efforts to collect

payment from Ms. Abbey and advised her that he would file a Bar complaint. Ms.

Abbey continued to withhold payment to Medtaris Rehabilitation, and on October

3, 2012, Mr. Pappas filed a complaint with Disciplinary Counsel. Nevertheless,

Ms. Abbey did not turn over the entrusted funds to Medtaris Rehabilitation until

November 14, 2012, the date on which she also paid Kaiser Permanente.



      In addition, Hearing Committee No. 7 found that Ms. Abbey withdrew funds

from her IOLTA account before paying all of Mr. Vouffo‘s medical providers. On

March 22, 2012, she made a $2,000 cash withdrawal from her IOLTA account. On

November 9, 2012, she made another $2,000 cash withdrawal from the same

account, even though she ―was aware of her responsibility to pay all of Mr.

Vouffo‘s medical providers.‖



      In its Report and Recommendation, dated July 12, 2016, the Board adopted

and incorporated by reference the Hearing Committee Report of March 29, 2016.

The Board agreed with the Hearing Committee that there was clear and convincing

evidence that Ms. Abbey acted recklessly, rather than negligently, in
                                         6
misappropriating entrusted funds. Consequently, in accordance with this court‘s

case law, the Board recommended that Ms. Abbey be disbarred.



                         STANDARD OF REVIEW



      D.C. Bar Rule XI § 9 (h)(1) provides that ―the Court shall accept the

findings of fact made by the Board unless they are unsupported by substantial

evidence of record. . . .‖ Similarly, ―[t]he Board . . . is required to accept the

factual findings of the hearing committee that are supported by substantial

evidence in the record, viewed in its entirety.‖ In re Samad, 51 A.3d 486, 495

(D.C. 2012). Just as ―the Board owes no deference to the hearing committee‘s

determination of ultimate facts, which are really conclusions of law,‖ ―[t]his court

reviews the Board‘s legal conclusions de novo.‖ Id.
                                          7
                                    ANALYSIS



      The Waiver Issue



      Disciplinary Counsel argues that ―[b]y failing to take exception to the

Hearing Committee Report and Recommendation and failing to file a brief to the

Board, [Ms. Abbey] waived her right to litigate her issues on appeal before the

[c]ourt.‖   During oral argument in this court, Ms. Abbey‘s appellate counsel

indicated that he was retained after the Board proceedings, but that he regarded

waiver to be a question of ultimate fact. The Board stated in its Report and

Recommendation that ―Disciplinary Counsel took no exception to the Report and

Recommendation of the Hearing Committee,‖ but that ―[o]n April 7, 2016, [Ms.

Abbey] filed a Notice of Exceptions to the Hearing Committee Report and

Recommendation.‖ The Board further indicated that ―no briefs were filed with the

Board and there was no oral argument; [therefore under Board Rule 13.4 (a)], the

Board will decide the matter on the available record.‖4


      4
          Rule 13.4 (a) of the Rules of the Board on Professional Responsibility
provides in pertinent part: ―A party failing to file a brief with the Board waives the
right to oral argument and the Board will decide the matter based on the available
record.‖
                                          8
      The waiver issue presents a question of law, and our review is de novo. In

re Samad, supra, 51 A.3d at 495. Our analysis is guided by the following legal

principles. Because ―[o]ur consideration of Board findings and recommendations

is similar to our review of administrative agency decisions[,] . . . we do not address

objections that could have been, but were not raised prior to judicial review.‖ In re

James, 452 A.2d 163, 169 (D.C. 1982). In In re James, we recognized that

―Respondent could have objected to the lack of notice during the proceedings

before the Hearing Committee, or at any time thereafter.‖ Id. at 168. In In re

Holdmann, 834 A.2d 887, 889 (D.C. 2003), a reciprocal discipline case, we cited

several cases, including In re James, in declaring that ―we have consistently held

that an attorney who fails to present a point to the Board waives that point and

cannot be heard to raise it for the first time here.‖ In re Holdmann, supra, 834

A.2d at 889.



      Later, in In re Hargrove, 155 A.3d 375 (D.C. 2017), we agreed with

Disciplinary Counsel that respondent had ―forfeited‖ her appellate contentions

because she ―had numerous opportunities to challenge the allegations against her

and to object to any procedural errors, but she failed to properly do so‖—for

example, she ―did not timely file an answer to the specification of charges,‖ ―did
                                          9
not appear either at a pre-hearing conference or at the hearing before the Hearing

Committee,‖ and did not ―file notice of exceptions to the Hearing Committee‘s

findings and recommendations.‖ Id. at 376. Furthermore, in In re Johnson, 158

A.3d 913 (D.C. 2017), we observed that the Hearing Committee heard an argument

that respondent made on appeal, and the respondent took no exception to the

Hearing Committee‘s conclusion but ―let the Hearing Committee report be

submitted to the Board without briefing or argument.‖ Id. at 917. We stated that

―[w]hile we re-emphasize that arguments to this court should ordinarily be

presented to the Board to ensure proper appellate review, in this case the Board

explicitly acknowledged the existence of the issue and concurred with the Hearing

Committee‘s rejection of the argument‖; we further said that ―[i]n this posture, and

to put the question to rest, we have determined to address the tardy argument.‖ Id.



      Here, Ms. Abbey participated in the disciplinary proceedings against her. In

her answer to the specification of the charges, she denied the violation of Rules

1.15 (a) and (b), as alleged in the specification of charges. She (1) testified before

the Hearing Committee, (2) filed ―proposed finding[s] of fact[] and conclusions of

law,‖ in which she conceded misappropriation but stated that her misappropriation

was not intentional, reckless, or willful, but that it was negligent, and (3) filed a
                                          10
notice of exceptions to the Hearing Committee Report and Recommendation.

Hence, under In re James, supra, and In re Hargrove, supra, she clearly raised her

objection to the type of misappropriation ruling Disciplinary Counsel sought

before the Board—intentional, reckless or willful as opposed to negligent—―prior

to judicial review.‖ In re James, supra, 452 A.2d at 169; In re Hargrove, supra,

155 A.3d at 376. Moreover, as in In re Johnson, supra, the Board ―explicitly

acknowledged the existence of the [type of misappropriation] issue and concurred

with the Hearing Committee‘s rejection of [Ms. Abbey‘s] argument‖ that her

misappropriation was negligent instead of reckless. 158 A.3d at 917. Indeed, as

we have previously indicated, the Board specifically declared that it would ―decide

the matter on the available record.‖5 Thus, as we asserted in In re James, ―even

when the complaining party does not get satisfaction from the administrative [here

the disciplinary] body, the appellate court‘s task is facilitated by the record of the

agency‘s [here the Board‘s] attention to the issue.‖ 452 A.2d at 169. In short, we

are convinced that Ms. Abbey raised the misappropriation issue she presents in this


      5
         Significantly, the Board invoked its Rule 13.4 (a) regarding waiver only of
the right to oral argument before the Board, and did not and could not have relied
on its Rule 13.5 (because Ms. Abbey noticed exception to the Hearing
Committee‘s Report); the Rule specifies that ―[i]f no notice of exceptions is filed
within the time allotted, the rights of the parties to brief and argue before the Board
shall be waived, and the Board shall take action on the record.‖
                                        11
court before the Board, prior to judicial review, and she has not waived her

argument on that issue, even though she waived oral argument before the Board.

The Board determined that it was able to decide the misappropriation issue on the

basis of the record Disciplinary Counsel and Ms. Abbey made before the Hearing

Committee, and her arguments in this court are consistent with her arguments

before the Hearing Committee. Hence, like the Board, we proceed to consider the

merits of the misappropriation issue.



      The Misappropriation Issue



      In her appellate brief, Ms. Abbey argues ―that by holding funds aside in her

non-trust accounts so as to protect the recipients of the entrusted funds indicates

that [she] demonstrated concern for the safety and welfare of entrusted funds,

which is the ‗central issue in determining whether misappropriation is reckless.‘‖

She claims that she ―never had an overdraft,‖ and ―[a]lthough she admittedly had

deficits in managing her escrow account, she had fashioned a system that assure[s]

that the entrusted funds would be paid to the appropriate parties.‖ She insists that

while there was misappropriation, it ―was negligent rather than reckless[,]‖ and

―that the typical sanction for negligent misappropriation is six month suspension.‖
                                        12
      Disciplinary Counsel essentially argues that under this court‘s case law and

based upon the Hearing Committee‘s findings in this case, the Board correctly

concluded that Ms. Abbey‘s misappropriation was reckless rather than negligent.

Specifically, Disciplinary Counsel contends that ―[i]n practice, [Ms. Abbey] did

not differentiate entrusted from non-entrusted funds.‖ Rather, ―she treated all

funds in her possession as her own, which ultimately led to her reckless

misappropriation of the third-party healthcare provider[s‘] funds.‖ In addition,

Disciplinary Counsel emphasizes (1) the Hearing Committee‘s finding about Ms.

Abbey‘s ―failure to reconcile her trust account records and reliance on end-of-the-

year accounting that never identified amounts relating to each individual client‖;

and (2) the ―clear and convincing evidence‖ that Ms. Abbey ―disregarded

inquiries‖ from Medtaris Rehabilitation about her lack of payment, and her

knowing failure to pay Medtaris while ―allow[ing] the balance in her trust account

repeatedly to fall below the amount due to Medtaris.‖



      ―[W]e are faced with a legal question, which we review de novo,‖ because

―whether any misappropriation resulted from more than simple negligence [is a]

question[] of law concerning ultimate facts.‖ In re Berryman, 764 A.2d 760, 766

(D.C. 2000) (citing In re Utley, 698 A.2d 446, 449 (D.C. 1997)) (internal quotation
                                         13
marks omitted). This court‘s legal principles concerning misappropriation are well

established. Misappropriation is ―any unauthorized use of client‘s funds entrusted

to [the lawyer], including not only stealing but also unauthorized temporary use for

the lawyer‘s own purpose, whether or not he derives any personal gain or benefit

therefrom.‖ In re Anderson, 778 A.2d 330, 335 (D.C. 2001) (internal quotation

marks and citation omitted). ―Misappropriation happens when the balance in [the

attorney‘s] trust account falls below the amount due the client.‖ In re Ahaghotu,

75 A.3d 251, 256 (D.C. 2013) (internal quotation marks and citation omitted).



             Reckless misappropriation reveal[s] an unacceptable
             disregard for the safety and welfare of entrusted funds,
             and its hallmarks include:             the indiscriminate
             commingling of entrusted and personal funds; a complete
             failure to track settlement proceeds; the total disregard of
             the status of accounts into which entrusted funds were
             placed, resulting in a repeated overdraft condition; the
             indiscriminate movement of monies between accounts;
             and finally the disregard of inquiries concerning the
             status of funds.


Id. at 256 (internal quotation marks and citation omitted). ―The severity of the

sanction for misappropriation depends on whether the misappropriation was (1)

intentional or reckless, or (2) merely negligent.‖ Id. (citing In re Anderson, supra,

778 A.2d at 338). ―[I]n virtually all cases of misappropriation, disbarment will be
                                         14
the only appropriate sanction unless it appears that the misconduct resulted from

nothing more than simple negligence.‖ In re Berryman, supra, 764 A.2d at 769

(citing In re Addams, 579 A.2d 190, 199 (D.C. 1990)).



      Negligent misappropriation is an attorney‘s non-intentional, non-deliberate,

non-reckless misuse of entrusted funds or an attorney‘s non-intentional, non-

deliberate, non-reckless failure to retain the proper balance of entrusted funds. Its

hallmarks include a good-faith, genuine, or sincere but erroneous belief that

entrusted funds have properly been paid; and an honest or inadvertent but mistaken

belief that entrusted funds have been properly safeguarded. See In re Choroszej,

624 A.2d 434, 435-37 (D.C. 1992) (Board found that attorney representing client

in claim for personal injury ―genuinely believed that he had paid [a doctor],‖ had

not done so but paid the doctor upon discovery of error; Board concluded that

attorney‘s conduct was inadvertent and negligent); In re Ray, 675 A.2d 1381, 1387

(D.C. 1996) (Hearing Committee found no ―clear and convincing evidence that

[the respondent] deliberately or recklessly attempted to deprive estate of its funds‖

by taking his legal fee without a court order); In re Reed, 679 A.2d 506, 507-08

(D.C. 1996) (Board found failure of attorney to pay a client‘s doctor‘s bill was

―inadvertent‖—attorney believed she had paid the bill but upon discovery of no
                                        15
record of payment, attorney mailed payment to doctor); In re Chang, 694 A.2d 877

(D.C. 1997) (attorney mistakenly believed that funds in escrow account were

sufficient to pay property taxes for which no funds had yet been received; attorney

paid the dishonored checks upon discovery of his mistake).



      Here, the Hearing Committee‘s findings (adopted and incorporated by the

Board), based upon clear and convincing evidence, do not support Ms. Abbey‘s

argument that her behavior amounted to negligent rather than reckless

misappropriation. Nor does our case law suggest that Ms. Abbey‘s conduct was

simply negligent. The Hearing Committee found that Ms. Abbey received the

insurance settlement check from Liberty Mutual in January 2012; properly

deposited the check in her IOLTA account; and properly prepared and signed

(along with Mr. Vouffo) a settlement distribution sheet in January 2012, showing

the amount withheld for payment to Mr. Vouffo‘s medical providers.

Nevertheless, she made a cash withdrawal of $2,000 from her IOLTA account on

March 22, 2012, and another cash withdrawal from the same account on November

9, 2012, despite being ―aware of her responsibility to pay all of Mr. Vouffo‘s

medical providers.‖
                                        16
      The Hearing Committee also determined that one of Mr. Vouffo‘s medical

providers, Medtaris Rehabilitation (through its representative, Mr. Pappas), agreed

to reduce Medtaris‘s bill from $5,200 to $2,700 after speaking with Ms. Abbey on

January 9, 2012. When Medtaris did not receive the medical fee, Mr. Pappas sent

communications to Ms. Abbey, making multiple requests for payment from

February 23, 2012, through August 9, 2012. Even when Medtaris‘s representative

notified Ms. Abbey in a letter of July 12, 2012, that he would file a Bar complaint

if Medtaris was not paid the reduced fee on which they had reached agreement,

Ms. Abbey still did not pay the bill. Nor had she paid Medtaris‘s fee by October 3,

2012, the date on which Medtaris filed its Bar complaint; in fact, she did not pay

the fee until November 14, 2012. In addition, the record contains no proof that Ms.

Abbey has paid all of Mr. Vouffo‘s medical providers, including Doctor‘s

Community Hospital, Doctor‘s Emergency Physicians, and Diagnostic Imaging.‖6




      6
          During her December 1, 2015, testimony before the Hearing Committee,
Ms. Abbey responded to the inquiry from a member of the Hearing Committee
relating to payment of these medical providers. She stated that she ―tried to pay
[Doctor‘s Community Hospital]‖ before attending the hearing, ―but they‘ve not
responded, so [the bill] has not been paid.‖ She asserted that she received no
response from Doctor‘s Emergency Physicians, but that she ―[thought Diagnostic
Imaging] has been paid off.‖ Ms. Abbey acknowledged that she did not have any
documents showing payment.
                                       17
      In addition, the Board determined that Ms. Abbey ―did not reconcile her

IOLTA records during the time she held Mr. Vouffo‘s funds in trust and she did

not keep a ledger.‖    She also ―failed to track settlement proceeds relating to

individual clients.‖



      The aforementioned findings of the Hearing Committee and the Board do

not reveal a good-faith, genuine, or sincere but erroneous belief that entrusted

funds were properly safeguarded and paid, or that Ms. Abbey‘s failure to pay Mr.

Vouffo‘s medical bills in a timely manner was inadvertent or due to an honest

mistake. Thus, Ms. Abbey is not in the same position as the respondents in In re

Choroszej, supra, In re Reed, supra, and In re Chang, supra.



      Nor can Ms. Abbey succeed in her effort to align her conduct with that of

the respondent in In re Anderson, supra, a case on which Ms. Abbey relies that

also involved a personal injury settlement and alleged violations of Rule 1.15 (a)

and (b). There, the attorney mistakenly thought he had paid the client‘s medical

provider. This court concluded that ―[Disciplinary] Counsel failed to prove by

clear and convincing evidence a pattern of conduct by [the respondent] manifesting

a reckless disregard of his duty to safeguard [entrusted] funds.‖ 778 A.2d at 339.
                                             18
Although Mr. Anderson‘s record-keeping system was rudimentary and flawed, we

stated that ―our decisions . . . have rejected the proposition that recklessness can be

shown by inadequate record-keeping alone combined with commingling and

misappropriation.‖ Id. at 340 (citation omitted). We also said that respondent‘s

―fail[ure] to pay a single client obligation is not evidence that he flagrantly

disregarded     the   integrity    of   third-party   funds‖;   respondent   ―did   not

indiscriminately write checks on the operating account, and he did not write checks

that were dishonored or that caused the account to be in overdraft.‖ Id. Moreover,

―the record [did] not support the finding that respondent ignored post-settlement

inquiries by [his client] . . . .‖ Id. at 341.



       Unlike the respondent in In re Anderson, Ms. Abbey repeatedly ignored

inquiries from Medtaris Rehabilitation about payment of its reduced bill, and failed

to pay all of Mr. Vouffo‘s medical providers, while making $4,000 in unexplained

cash withdrawals from the entrusted funds and allowing the balance of entrusted

funds to fall below the level needed to pay the medical providers. 7 Ms. Abbey


       7
        During her December 1, 2015, testimony before the Hearing Committee,
Ms. Abbey admitted on cross-examination that if she had written a $2,700 check to
Medtaris Rehabilitation between September 7 and 24, or October 9 through the end
of October, or on November 1, 2012, the bank would have dishonored the check.
                                                                    (continued…)
                                        19
made a conscious decision not to make a sharp distinction between entrusted funds

and non-entrusted funds, and as the Hearing Committee and the Board concluded,

she made no effort to reconcile her trust account records, depending instead on an

annual accounting that did not pinpoint what amounts were identified with each of

her clients.



       Ms. Abbey‘s reliance on In re Burton, 472 A.2d 831 (D.C. 1984); In re Pels,

653 A.2d 388 (D.C. 1995), and In re Ahaghotu, supra, does not advance her effort

to convince this court that her misappropriation was negligent rather than reckless.

She relies on these cases in arguing that she ―never had an overdraft.‖ In doing so,

she lifts up only one of the hallmarks of reckless misappropriation identified by In

re Anderson—―total disregard of the status of accounts into which entrusted funds

are placed, resulting in a repeated overdraft condition.‖ 778 A.2d at 338. In re

Burton, a case resulting in disbarment, involved two disciplinary matters and

violations different from those in Ms. Abbey‘s case—failure to deposit client funds

in a separate account, and dishonesty, fraud, deceit or misrepresentation, 472 A.2d

at 831.        That case does not compel a conclusion here that Ms. Abbey‘s

(…continued)
When asked by her counsel whether the $2,000 cash withdrawal she made on
November 9, 2012, went to her office account, Ms. Abbey replied, ―I don‘t know.‖
                                         20
misappropriation was negligent rather than reckless. In In re Burton, this court,

issued a short order disbarring the respondent; the order incorporated the Board‘s

Report and Recommendation which recognized that (1) the hearing committee

―expressly reject[ed] respondent‘s contention that in making unauthorized

withdrawals he violated no ethical prescription because he always ‗maintained

sufficient funds to satisfy the requirement of the trust,‘‖ and (2) ―even if

respondent did have sufficient cash on hand to cover the shortages, it would not

excuse . . . his unauthorized use of trust funds.‖ 472 A.2d at 838. What the Board

said in In re Burton is applicable to Ms. Abbey‘s situation.



      In re Pels, a case also resulting in disbarment, concerned a situation similar

to the instant case—a personal injury client, violations of Rules 1.15 (a) and (c),

failure to immediately pay the client‘s medical providers, and a trust account that

fell below the level needed to pay medical providers. See 653 A.2d at 389. Both

the hearing committee and the Board concluded that respondent Pels‘

misappropriation was reckless, in part because of overdrafts, but also because, as is

true in Ms. Abbey‘s case, (1) his ―conduct . . . was marked by a pervasive failure to

maintain contemporaneous records accounting for the flow or disposition of client

funds. . .‖; and (2) ―besides the per se act of misappropriating funds needed to pay
                                        21
the client‘s bills, respondent failed to account for or deliver‖ the remaining funds

to the client. 653 A.2d at 396. Furthermore, this court ―reject[ed] respondent‘s

argument that his objective good faith—his reasonable but erroneous belief that he

was entitled to the balance of the funds—reduced his culpability to simple

negligence.‖ Id. at 397.



      In re Ahaghotu, supra, involved violations of several rules of professional

conduct, including Rule 1.15 (a) and (b); the respondent was disbarred. 75 A.3d at

253. Similar to Ms. Abbey, Mr. Ahaghotu admitted misappropriation but argued

that it was negligent. Like Ms. Abbey, he received entrusted funds designed in

part to cover the fees of his client‘s medical providers. He deposited the funds in

his trust account and was aware that he owed money to a medical provider;

however, prior to paying the medical provider, the funds in his trust account fell

below the amount needed to pay the provider. 75 A.3d at 253-54. Like Ms.

Abbey, the respondent ―did not closely reconcile his records and bank statements‖

and ignored problems with his trust account. Id. at 254. This court concluded that

the respondent ―exhibited an ‗unacceptable level of disregard for the safety and

welfare of entrusted funds‘ – that is, ‗a conscious indifference to the consequences
                                        22
of his behavior for the security of the funds.‘‖ Id. at 253 (citing In re Anderson,

supra, 778 A.2d at 339).



      When we apply the legal principles embedded in our misappropriation case

law to Ms. Abbey‘s conduct, the record before us lacks clear and convincing

evidence to support a conclusion of inadvertence or honest mistake, or a good faith

belief that the funds entrusted to her were being handled properly. Rather, the

record before us contains clear and convincing evidence that Ms. Abbey‘s

misappropriation was deliberate and reckless. Ms. Abbey (1) was clearly aware

that she owed entrusted funds to Mr. Vouffo‘s medical providers; (2) failed to

reconcile her trust account, examine the status of the trust account on a regular

basis, or institute an accounting system that enabled her to determine what funds

were allocated to what client or what medical provider and the status of those

funds; (3) ignored repeated inquiries about and request for the agreed upon reduced

medical fee by one of Mr. Vouffo‘s medical providers; (4) made two $2,000 (total

$4,000) unexplained cash withdrawals from her trust account prior to paying some

of Mr. Vouffo‘s medical providers, leaving insufficient funds, for months, to pay

medical providers; and (5) apparently has not yet paid all of the medical providers
                                          23
from the funds entrusted to her care. See In re Anderson, supra; In re Ahaghotu,

supra.



         Finally, on this record we must impose the sanction of disbarment. In In re

Addams, supra, this court ―reaffirm[ed] that in virtually all cases of

misappropriation, disbarment will be the only appropriate sanction unless it

appears that the misconduct resulted from nothing more than simple negligence‖;

this court also declared that it ―shall regard a lesser sanction as appropriate only in

extraordinary circumstances.‖ Id. at 191. Furthermore, D.C. Bar R. XI, § 9 (g)

provides in pertinent part that this court ―shall adopt the recommended disposition

of the Board unless to do so would foster a tendency toward inconsistent

dispositions for comparable conduct or would otherwise be unwarranted.‖ We

discern no danger of an inconsistent disposition, and no ―extraordinary

circumstances‖ in this case. Consequently, we adopt the recommended sanction of

disbarment. See In re Ahaghotu, supra, 75 A.3d at 258-59; In re Pels, supra, 653

A.2d at 397-98.



         Accordingly, for the foregoing reasons, it is ORDERED that respondent

Catherine E. Abbey is disbarred from the practice of law in the District of
                                        24
Columbia, effective thirty days from the date of this opinion. For purposes of

reinstatement, the period of disbarment will begin to run from the filing of the

affidavit required by D.C. Bar R. XI, § 14 (g). See D.C. Bar R. XI, § 16 (c).



                                      So ordered.
