In re Bernard Gray, Sr.

Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-BG-818

IN RE: BERNARD A. GRAY, SR., RESPONDENT

A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 955013)

On Report and Recommendation of the
Board on Professional Responsibility
(BDN-349-15)

(Argued October 22, 2019 Decided February 13, 2020)

Traci M. Tait, Assistant Disciplinary Counsel, with whom Hamilton P. Fox,
III, Disciplinary Counsel, was on the brief, for petitioner.

John W. Nields, Jr., for respondent.

Before FISHER and BECKWITH, Associate Judges, and WEISBERG, Senior
Judge, Superior Court of the District of Columbia.∗

PER CURIAM: This disciplinary matter requires us to decide, once again,

whether an attorney’s misappropriation of client funds was “reckless,” triggering

the virtually automatic sanction of disbarment under the holding of In re Addams,

∗
Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
 2

579 A.2d 190, 191 (D.C. 1990) (en banc), or whether instead it resulted from

“simple negligence,” which would allow for the imposition of a lesser sanction.

An Ad Hoc Hearing Committee found that respondent’s misappropriation of client

funds was negligent and recommended that he be suspended for six months with

reinstatement on certain conditions. The Board on Professional Responsibility

accepted the Hearing Committee’s findings of fact but disagreed with the finding

of negligence, concluding that respondent had engaged in reckless

misappropriation. Finding further that respondent had not presented

“extraordinary circumstances” as would justify a departure from the sanction of

disbarment otherwise mandated by Addams, 579 A.2d at 191, the Board

recommended that respondent be disbarred. 1

We agree with the Board that respondent’s misappropriation of entrusted

funds was reckless and that respondent has not presented extraordinary

circumstances to justify a departure from the presumptive sanction of disbarment.

Accordingly, we are bound by the en banc decision in Addams to order that

respondent be disbarred.

1
The Board members unanimously agreed that respondent’s
misappropriation was reckless, but in a separate statement four members expressed
the view that the sanction of disbarment mandated by Addams was too harsh as
applied to respondent.
 3

I.

On July 7, 2016, the Office of Disciplinary Counsel filed a petition for

discipline alleging that respondent had violated Rule 1.15(a) of the District of

Columbia Rules of Professional Conduct by (1) misappropriation of client funds,

(2) commingling of his own funds with entrusted client funds, and (3) failure to

maintain complete records of entrusted client funds.2 On December 14, 2016,

Disciplinary Counsel filed an amended petition, reiterating the original charges and

adding another count alleging a violation of Rule 1.15(a) by commingling and

misappropriation from a second client. The respondent answered the petition by

admitting that he commingled client entrusted funds with his own and that he

failed to maintain adequate records of entrusted client funds, but denying that any

misappropriation was intentional or reckless, asserting that there was a “mistaken

removal of client funds from his trust account.”

An Ad Hoc Hearing Committee conducted an evidentiary hearing and made

detailed findings of fact, concluding that respondent’s commingling of funds and

2
The petition contained a second count alleging a violation of Rule 8.4(d)
in that he engaged in conduct that seriously interferes with the administration of
justice. The Hearing Committee and the Board did not sustain that count, and we
do not consider it.
 4

inadequate record keeping had led to negligent misappropriation. The Board, in

turn, adopted the Hearing Committee’s findings of fact as supported by substantial

evidence in the record as a whole, but rejected the conclusion the Hearing

Committee drew from those facts. The Board unanimously concluded that

respondent’s misappropriation was reckless and not simply negligent, with the

majority of the members recommending disbarment. 3 We will set forth the facts

found by the Board (and the Hearing Committee), mindful of our obligation to

“accept the findings of fact made by the Board unless they are unsupported by

substantial evidence of record.” District of Columbia Bar Rule XI § 9(h) (2018).

Respondent has been a member of the bar since 1978. Throughout his

career he has been a sole practitioner, working from his home office, without

benefit of a support staff. The vast majority of his clients have been low and

moderate income tenants and small landlords, primarily in the Landlord and

Tenant Branch of Superior Court. He typically charged below market fees, and he

often let his clients pay in installments, or not pay at all, when they could not meet

their obligations under their fee agreements. As a result, much of his work ended

up being without compensation. Respondent deposited his retainer fees into his

trust account because he understood they were the property of the client until
3
See supra, note 1.
 5

earned. Because the fees were relatively small, they were usually earned before, or

shortly after, he deposited them. Respondent’s practice, however, was to leave the

earned fees in the trust account until he needed to withdraw money for personal or

professional expenses. On occasion respondent also deposited what he called pure

client funds into the trust account, such as proceeds from the sale of property or

from settlements or judgments he obtained on behalf of his clients.

From the time he began his practice, respondent understood his obligation to

maintain client funds in a trust account and to keep them separate from his

operating account and his own money, and he understood the reasons behind the

prohibition against commingling. From all that appears in the record, for many

years respondent was able to account for his entrusted client funds, and he

maintained a computerized record of his trust account for that purpose. He admits,

however, that beginning in 2007 he stopped tracking client funds in his trust

account and his “record-keeping became haphazard and incomplete.” He testified

at the hearing that he allowed his accounting to lapse “because his practice became

too busy and due to some health challenges.” Respondent believed he had a

“reasonably accurate understanding” of the amount of money in the trust account

that belonged to him. Unfortunately, as will be shown, objective facts tell a

different story. Indeed, it would have been nearly impossible for respondent to
 6

know at any given time how much of the trust account belonged to him and how

much to his clients, since respondent made frequent deposits of his money and

client money (unearned fees) into the account and regularly withdrew money from

the account, but from 2007 forward he made no attempt to reconcile his account

balance against deposits he made or checks he wrote and rarely even looked at his

monthly bank statements.

A. Walker Misappropriation

The misappropriations that are at issue in this case did not begin to surface

until 2013. In April of that year, respondent represented Alice Walker, the

personal representative of a family estate, in connection with the sale of real

property owned by the estate. Respondent deposited the sale proceeds of

$121,133.99 into his trust account, and made various disbursements pursuant to

Ms. Walker’s instructions. One of the disbursements was a check for $986.25 to

Anthony Thomas, which was never cashed. After all of the distributions had been

made, Ms. Walker instructed respondent to retain $10,000 in the account as a

contingency against a possible claim by an attorney who had done work for the

estate. No such claim was ever made. In addition to the $10,000 hold back,

respondent was owed his fee of $15,373.99 from the proceeds of the sale of the

property, which he left in the account until such time as he chose to withdraw it.
 7

As of June 30, 2014, respondent’s trust account contained $10,986.25

belonging to the estate represented by Ms. Walker, consisting of the $10,000 held

for a possible claim by the former attorney and $986.25 still owed to Mr. Thomas

because he had not cashed the original check. On that day, respondent withdrew

the entire balance of $14,444.25 from the account at Sun Trust Bank and opened a

new trust account at PNC Bank. 4

Between July 1, 2014, and March of 2015, the balance in the PNC trust

account had declined to $1,688.85. Thus, respondent had spent virtually all of the

Walker money that had been entrusted to him. He had apparently forgotten that

$10,986.25 that had been in the account did not belong to him. This

misappropriation did not come to light until July of 2016 during Disciplinary

Counsel’s investigation of a separate misappropriation, when respondent and his

attorney discovered it as they were attempting to reconstruct the bank records and

brought it to the attention of Disciplinary Counsel. Because the trust account did

not have sufficient funds to repay the Walker money, respondent paid Ms. Walker
4
When respondent closed the Sun Trust account, he failed to notice that a
$500 check he had previously written to himself from that account had not yet
cleared. When that check was presented for payment later that same day, the
account was closed and Sun Trust dishonored it. The record is unclear when, if
ever, respondent became aware that the check had bounced. Had respondent been
paying attention, it would have put him on notice that his “haphazard record-
keeping” was not working.
 8

$10,000 from his personal funds and issued a new check to Mr. Thomas for

$986.25 from the trust account.

B. Artis Misappropriation

In 2015 respondent represented another client, Stephanie Artis, in a civil

action for damages against her landlord and a suit by her landlord against her for

possession of her apartment based on nonpayment of rent. In the civil action, Ms.

Artis recovered a judgment against her landlord for $8,381.49, which the landlord

paid with two checks in March and April of 2015. Respondent deposited the

money into his trust account, except for $500 he paid out to Ms. Artis at her

request. Subsequently, the landlord’s suit for possession was settled with Ms. Artis

agreeing to pay her landlord $3,848 in back rent. Ms. Artis instructed respondent

to pay that amount from the funds he was holding in trust from the civil judgment.

On October 21, 2015, respondent wrote a check from the trust account to the

landlord in the amount of $3,848. At that time, the trust had a balance of

$9,295.85, sufficient to cover the check to the landlord, but insufficient to cover

the funds respondent was still holding in trust for Ms. Walker and Mr. Thomas.

On October 29, 2015, respondent checked the balance of the trust account

and learned that it was more than $9,000. Oblivious to the fact that all of that
 9

money, and then some, belonged to Ms. Walker and Mr. Thomas, and without

noticing that the $3,848 check to Ms. Artis’ landlord had not yet cleared,

respondent withdrew $9,000 from the account for his personal use. When the

landlord’s check was presented for payment the following day, PNC Bank

dishonored it based on insufficient funds. 5

Respondent did not tell Ms. Artis that the check to her landlord had bounced,

and he promptly wrote another check for $3,848 to the landlord from another

account. The landlord refused to accept the substitute check because it was past

the deadline in the settlement agreement. Again without informing Ms. Artis,

respondent went to court on her behalf and convinced the judge to enforce the

agreement by ordering the landlord to accept the late payment. In November 2015,

after deducting his agreed upon fee, respondent paid Ms. Artis the balance of the

civil judgment proceeds he was supposedly holding for her in his trust account.

However, since the trust account lacked sufficient funds to cover that payment,

respondent wrote her a check from another account, annotating the check with the

words “From Trust…” Respondent did not inform Ms. Artis of these events or that

her settlement had been in jeopardy because of the late payment to her landlord

5
This overdraft and the Bank’s notice to Disciplinary Counsel triggered the
investigation, resulting in the original petition for discipline in July of 2016.
 10

until shortly before the disciplinary hearing in January 2017, more than a year

later.

The Hearing Committee, and the Board, credited respondent’s testimony that

he “believed [he] had a reasonably accurate understanding of what was in [his]

trust account,” and he believed he had earned (and therefore owned) any funds he

withdrew from the trust account for his own use. Respondent’s belief

notwithstanding, it is apparent that his assessment of whose money was in the

account was not accurate and his misunderstanding led him to misappropriate

money held in trust for two clients. The Hearing Committee found those

misappropriations to be the result of simple negligence. The Board, on the other

hand, characterized respondent’s conduct as reckless, and Disciplinary Counsel

urges us to find likewise. The determination of whether respondent’s conduct falls

on the negligent or the reckless side of the culpability line is consequential. If the

misappropriation resulted from conduct that was more than simply negligent, under

our precedents respondent must be disbarred.

II.

We begin with a restatement of familiar principles that guide our analysis.

Disciplinary Counsel bears the burden of proving intentional or reckless
 11

misappropriation—i.e. more than “simple negligence”—by clear and convincing

evidence. In re Anderson, 778 A.2d 330, 335, 337 (D.C. 2001). The Board found,

unanimously, that Disciplinary Counsel had met its burden of proving reckless

misappropriation in this case. “[T]he Court shall accept the findings of fact made

by the Board unless they are unsupported by substantial evidence of record, and

the 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.” D.C. Bar Rule XI § 9(h); see In re Kanu, 5

A.3d 1, 14 (D.C. 2010); In re Berryman, 764 A.2d 760, 766 (D.C. 2000).

Similarly, the Board must accept the Hearing Committee’s findings of fact and

defer to its credibility determinations if they are supported by substantial evidence

in the record, viewed as a whole. D.C. Bar Rule XI § 9(h); In re Speights, 173

A.3d 96, 99 (D.C. 2017); In re Micheel, 610 A.2d 231, 234 (D.C. 1992). The

Hearing Committee in this case determined that respondent’s misappropriation was

negligent, but not reckless. As to that determination of ultimate fact—really a

conclusion of law—the Board owed the Hearing Committee no deference.

Micheel, 610 A.2d at 234-35. The Board rejected the Hearing Committee’s finding

of negligence and concluded that respondent’s misappropriation was reckless. In

our review of the Board’s decision, since the question of whether respondent’s

misappropriation resulted from more than simple negligence is a question of law
 12

concerning ultimate facts, we do not defer to the Board’s conclusion on that

question and our review is de novo. In re Abbey, 169 A.3d 865, 872 (D.C. 2017);

In re Ahaghotu, 75 A.3d 251, 253 (D.C. 2013); Anderson, 778 A.2d at 339 n.5.

We conclude that the evidence in this record demonstrates clearly and

convincingly that respondent’s misappropriation of entrusted funds from two

clients went beyond simple negligence and was therefore reckless. We reach that

conclusion fully mindful of the sanction of disbarment that must follow from it,

and we recognize the harshness of that sanction as applied to sole practitioners

such as this respondent, whose misappropriation did not involve dishonesty.

Misappropriation occurs when the balance of an attorney’s trust account

falls below the amount of the client’s funds held in trust. Abbey, 169 A.3d at 872

(quoting Ahaghotu, 75 A.3d at 251). It includes any unauthorized use of a client’s

entrusted funds and does not require dishonesty or proof of a larcenous intent; even

temporary unauthorized use for the lawyer’s own purposes is misappropriation,

whether or not the lawyer derives any personal gain or benefit. Anderson, 778

A.2d at 335. It does not matter that the lawyer has sufficient funds on hand to pay

the money back, or even whether the lawyer replenishes the trust account with his

own funds without the client finding out that the money was missing. See In re

Pels, 653 A.2d 388, 393–94 (D.C. 1995). As it relates to the sanction of
 13

disbarment under Addams, the decision is binary: either a misappropriation results

from mere negligence (no automatic disbarment), or from a higher degree of

culpability, including both intentional and reckless misappropriation (virtually

automatic disbarment). Anderson, 778 A.2d at 338.

Reckless misappropriation reflects “an unacceptable level of disregard for

the safety and welfare of entrusted funds,” essentially manifesting a “conscious

indifference to the consequences of [the attorney’s] behavior for the security of the

[client’s] funds.” Ahaghotu, 75 A.3d at 253 (quoting Anderson, 778 A.2d at 336,

339). Proof of commingling and inadequate record keeping standing alone will

ordinarily not be sufficient to prove reckless misappropriation. Anderson, 778

A.2d at 340. There must be something more before a misappropriation will cross

the line between simple negligence and recklessness.

Here, respondent certainly commingled his own funds with money entrusted

to him by his clients and, at least as of 2007, engaged in grossly inadequate record

keeping. But we also find on this record much more conduct indicative of

recklessness. To begin with, based on his own testimony at the hearing,

respondent knew he was required to hold his clients’ entrusted funds in a trust

account and to keep them separate from his own. Furthermore, he understood that

the reason for the requirement is to make absolutely sure that the client’s money
 14

would be untouchable until the balance owed to the client comes due. Respondent

also knew that his retainer fees were the property of the client until earned and

knew that as fees were earned they became his property and should not be

commingled with entrusted client funds. Yet he nonetheless commingled his

money with his clients’ money in a single trust account, not removing his fees as

they were earned and instead taking money out of the commingled account

whenever he needed it.

For all we know from this record, respondent’s accounting practices appear

to have worked reasonably well for him and for his clients for many years.

Starting in 2007, however, respondent’s ability to account for his clients’ entrusted

funds—flawed from the beginning—became hazardous, and respondent

consciously ignored the hazard at his peril. Knowing that the whole purpose of

maintaining a trust account was to keep the clients’ money safe and secure,

respondent essentially stopped monitoring in any meaningful way the status of his

trust account. He continued to deposit earned and unearned fees into the account

and to withdraw money from the account as needed, not differentiating between

funds that belonged to him and those that belonged to his clients. If he kept

records, he did not rely on them. He admitted that he rarely, if ever, looked at his

monthly bank statements and made no attempt to reconcile his account balance
 15

with deposits he had made or checks he had written.

In 2013 respondent sold the property for his client Ms. Walker and deposited

more than $120,000 into the trust account. Except for respondent’s fee of

approximately $15,000, all of the money belonged to the estate for which Ms.

Walker served as personal representative. At Ms. Walker’s direction, respondent

made numerous disbursements to beneficiaries and creditors of the estate,

including the check for $986.25 to Mr. Thomas, which was never cashed, although

respondent failed to account for it. Worse still, within the next year respondent

simply forgot that he was still holding $10,000 of the Walker money in trust for the

estate in the event a former attorney for the estate made a claim. Because he

retained no record of that money belonging to the estate, respondent continued to

spend it as if it were his own. Whenever the balance of the trust account dipped

below $10,986.25, which it did almost every month in 2015, respondent was

misappropriating his client’s money. If Ms. Walker had asked respondent to send

her the $10,000 he was holding for her, the trust account lacked sufficient funds to

pay it. It does not matter that Ms. Walker never asked or that, had she asked,

respondent could have paid her from other assets. Neither circumstance is a

defense to misappropriation. See Pels, 653 A.2d at 394 (“restitution is not a

defense to the charge of having misappropriated trust funds”). Given respondent’s
 16

utter failure to monitor the money going into and out of his trust account over a

period of eight years, his good faith but erroneous belief that the money he was

spending was his own reflected an unacceptable disregard for the safety of

entrusted funds and a conscious indifference to the consequences of ignoring his

fiduciary obligation to protect his client’s money; and it certainly does not make

his conduct less reckless that his good faith belief was based on his having

forgotten he was holding more than $10,000 of his client’s money in the first place.

Respondent’s misappropriation of the Walker money went unnoticed

throughout 2015. It might never have been discovered had it not been for

respondent’s misappropriation of money he held in trust for a second client in

October of 2015, which gave rise to Disciplinary Counsel’s investigation. This

occurred when respondent removed $9,000 from the trust account for his own use

on October 29, 2015, without realizing that a $3,848 check he had written to

Stephanie Artis’ landlord from funds she had entrusted to him in April 2015 had

not yet cleared. 6 When the check was presented for payment the next day, the

6
Even before respondent removed the $9,000, the trust account balance of
approximately $9,700 included a loan or gift of $5,500 respondent’s son had
mistakenly deposited into the trust account rather than another of respondent’s
accounts. Without that money, which should not have been in the trust account,
the account balance would have been approximately $4,200, not nearly enough to
cover the money held in trust for Ms. Walker ($10,986) and Ms. Artis ($7,881.49).
 17

account was overdrawn and the check was dishonored, placing Ms. Artis’

settlement with her landlord in jeopardy.

In reality, respondent had misappropriated the Artis funds even before he

withdrew the $9,000 from the account, because the account did not have enough to

cover both the entrusted funds of Ms. Walker and Ms. Artis at any time in 2015.

The $9,000 withdrawal and the dishonored check merely brought the Artis

misappropriation to light. Even then, respondent did not identify the loss of the

$10,986.25 belonging to Ms. Walker (and Mr. Thomas) until more than a year

later, after he engaged counsel and, with the aid of an accountant, was able to

reconstruct most of the account transactions.

When respondent discovered that the check to Ms. Artis’ landlord had

bounced, he replaced it with a check drawn on his own funds and, after the

landlord declined to accept the late payment and attempted to back out of the

settlement, respondent went to court and was able to salvage the settlement, all

without telling Ms. Artis. However, the fact that Ms. Artis ultimately suffered no

loss does not make respondent’s unauthorized use of her money any less of a

misappropriation; and, because it resulted from respondent’s “unacceptable

disregard for the safety and welfare of entrusted funds,” Anderson, 778 A.2d at

338, the misappropriation was reckless.
 18

Respondent does not deny that he misappropriated money from two clients,

but he maintains that he had a good faith belief that the money he was spending

was his own, and he was not “on notice” that his mishandling of his trust account

had resulted in misappropriations until the October 30, 2015, overdraft. From this

premise he argues that he was not “consciously indifferent” to the security of his

clients’ entrusted funds because he did not become aware of the problem until the

October 2015 overdraft and took steps to correct it immediately.

There are a number of problems with respondent’s position, which the Board

considered and rejected. First, although repeated writing of checks against

insufficient funds in a commingled account is one of the hallmarks of reckless

misappropriation we identified in Anderson, 778 A.2d at 338, and was a factor we

relied on to find recklessness in Micheel, 610 A.2d at 236, we have never insisted

on such “notice” as a sina qua non of reckless misappropriation. Indeed, the five

hallmarks of reckless misappropriation discussed in Anderson are neither intended

to be an exhaustive list of relevant factors, nor must all of them be present before

conduct resulting in misappropriation can be considered reckless. In Ahaghotu, for

example, we found the attorney to have misappropriated entrusted client funds

recklessly based on three of the five Anderson hallmarks. 75 A.3d at 257.

Similarly, in Pels we discussed only three of the five hallmarks in finding the
 19

attorney responsible for reckless misappropriation. 653 A.2d at 395-96. And in In

re Pleshaw, 2 A.3d 169, 173-74 (D.C. 2010), an attorney who withdrew his fees

from a conservatorship account on two occasions without prior court approval (one

of which was approved after the fact and the other of which was denied without the

attorney’s knowledge) was disbarred for reckless misappropriation with no

discussion of the Anderson hallmarks.

These cases and others illustrate that no one factor is dispositive and that

each case must be considered on its own facts. Here, while several of the

Anderson hallmarks are in fact present (indiscriminate commingling, complete

failure to track settlement proceeds, total disregard of the status of accounts

holding entrusted funds), what sets this case apart from those involving simple

negligence is respondent’s knowledge of his obligation to segregate and

meticulously protect client funds and his knowledge that from 2007 until the

bottom finally fell out in 2015 he was consciously ignoring that fiduciary

obligation. Even though he did not receive actual notice that he had bounced a

check that was supposed to be paid out of entrusted client funds until October

2015, he had been inadvertently spending his clients’ money for an entire year

before that check was dishonored.

Second, we have never held that an attorney’s assertion of a good faith belief
 20

that he was using his own money will preclude a finding of reckless

misappropriation where that belief was objectively unreasonable. In Anderson, for

example, we cited with approval the following definition from 57 Am. Jur. 2d

Negligence § 302 (1989): “Reckless misconduct requires a conscious choice of a

course of action, either with knowledge of the danger to others involved in it or

with knowledge of facts that would disclose this danger to any reasonable person.”

778 A.2d at 339. We have sustained a finding of negligent misappropriation where

we found that the attorney’s good faith belief in his or her entitlement to the

misappropriated funds was objectively reasonable. See, e.g., In re Chang, 694

A.2d 877, 880–82 (D.C. 1997). But we have also declined to hold that an

attorney’s good faith belief was sufficient to reduce reckless misappropriation to

mere negligence, where the facts demonstrated that such a belief, even if honestly

held, was not reasonable. See, e.g., Abbey, 169 A.3d at 875; In re Pierson, 690

A.2d 941, 949 (D.C. 1997); Pels, 653 A.2d at 397.

Third, the only reason respondent could credibly claim that he believed in

good faith that the money he withdrew from the trust account was his own money,

and that the bounced check to Ms. Artis’ landlord was his first notice to the

contrary, is that he did none of the things required of him as a fiduciary to

safeguard client funds held in escrow, any one of which would have put him on
 21

notice that he had already misappropriated his clients’ money or was in imminent

danger of doing so. It was initially proper for respondent to put unearned retainer

fees in his trust account together with other money entrusted by his clients, but it

was not proper to leave those fees in the trust account and not transfer them to an

operating account as they were earned. The resulting commingling of his money

with his clients’ money was itself a violation of Rule 1.15(a) of the Rules of

Professional Conduct. Even though he knew he had stopped monitoring the trust

account after 2007, he continued to withdraw money whenever he needed it,

believing it to be his, but making no effort to ensure that it was not his clients’. In

2014, when he closed his trust account at Sun Trust Bank and moved it to PNC, he

was apparently unaware that a $500 check he had written to himself from the Sun

Trust account had not yet cleared and that Sun Trust dishonored the check when it

was presented later that same day. He was unaware that the check for $986.25 to

Mr. Thomas from the Walker estate had never been cashed and should have still

been in the account. He totally lost track of the $10,000 Ms. Walker had asked

him to keep in the account for a possible future claim by the estate’s former

lawyer, so that respondent was spending his client’s money throughout 2015 when

the account balance was continuously below that amount. When he checked the

account balance on October 29, 2015, before withdrawing $9,000 for his own use,

he not only failed to notice that the check to Ms. Artis’ landlord had not yet
 22

cleared, but he was also apparently unaware that $5,500 of the balance was

attributable to a loan or gift that his son had mistakenly deposited into the trust

account on May 4, 2015, and should have been in one of respondent’s other

accounts. Without that $5,500, the balance of the trust account on October 29

would have been insufficient to pay Ms. Artis and her landlord, with nothing left

over to pay Ms. Walker, even before respondent withdrew any money. Finally,

even after respondent made good on the $3,848 owed to Ms. Artis’ landlord, there

was only a little more than $1,000 in the trust account for the remainder of 2015

and 2016, yet respondent was still unaware that he had spent $10,000 of the

Walker money months before, and he did not discover that misappropriation until

late in 2016 when he attempted to reconcile the trust account with the assistance of

counsel in response to the disciplinary investigation. On this record, demonstrating

an unacceptable disregard for the safety and welfare of entrusted funds,

respondent’s good faith, but mistaken, belief that the money he took out of the trust

account belonged to him cannot transform respondent’s reckless misappropriation

into one that was merely negligent.

The Board rejected respondent’s argument based on his good faith belief that

he had earned the fees he spent out of the trust account, finding that respondent’s

asserted good faith belief was not objectively reasonable. Respondent accuses the
 23

Board of improperly importing into the standard for reckless misappropriation the

element of objective reasonableness, which in his view belongs exclusively in the

realm of negligence. We disagree. As we have shown, the Board’s insistence on

objective reasonableness is a correct reading of our prior decisions that have

articulated the line between negligent and reckless misappropriation. Moreover,

we reject respondent’s premise that in this context objective reasonableness

belongs exclusively to the realm of negligence. While it is true that an attorney’s

good faith belief—mistaken, but objectively reasonable—will sometimes be

enough to reduce a resulting misappropriation from reckless to merely negligent, it

does not follow that a good faith belief—mistaken and objectively unreasonable—

will never be enough for us to find the conduct that caused the misappropriation to

have been reckless. Here, what makes respondent’s belief objectively

unreasonable is his knowledge of his duty to keep his clients’ funds separate from

his own and his unacceptable disregard, from 2007 forward, for the safety and

welfare of entrusted funds manifesting a conscious indifference to the

consequences of his conduct for the security of those funds. See Anderson, 778

A.2d at 338–39. This is the very essence of reckless misappropriation,

respondent’s good faith notwithstanding.
 24

III.

Having concluded that respondent recklessly misappropriated client funds

entrusted to him, we are bound by the en banc decision in Addams:

We now reaffirm that in virtually all cases of
misappropriation, disbarment will be the only appropriate
action unless it appears that the misconduct resulted from
nothing more than simple negligence. While eschewing
a per se rule, we adhere to the presumption laid down in
our prior decisions and shall regard a lesser sanction as
appropriate only in extraordinary circumstances.

579 A.2d at 191. The burden of proving extraordinary circumstances in mitigation

is on the respondent. Anderson, 778 A.2d at 337–38. Respondent cites the fact

that he is a sole practitioner with a modest practice, focused almost exclusively on

low and moderate income clients in landlord and tenant matters. He charged those

clients below market fees, allowing them to pay in installments or not pay at all,

often working without compensation. He points out that no client was ultimately

harmed by his misappropriations, that he went to court to save Ms. Artis’

settlement agreement, and that he fully reimbursed both Ms. Artis and Ms. Walker

from his own money. Finally, respondent told the Board that he intends to retire

from the practice of law. He does not object to a suspension, but he asks that, once

reinstated, he be allowed to retire as a member of the bar.
 25

Respondent’s showing—while sympathetic and in many respects

admirable—is not sufficient to rebut the presumption of disbarment. Since

Addams, we have found extraordinary circumstances in only one case, where a

court-appointed conservator withdrew his fee from his ward’s account without

prior court approval in order to benefit his ward by preserving his Medicaid

eligibility. In re Hewett, 11 A.3d 279 (D.C. 2011). Respondent’s showing does

not meaningfully distinguish his case from others in which we have found similar

circumstances insufficient to rebut the presumption of disbarment for reckless or

intentional misappropriation. See, e.g., In re Thomas-Pinkney, 840 A.2d 700, 701

(D.C. 2004) (no prior discipline, no dishonesty, “very considerable service to her

community”); Berryman, 764 A.2d at 773 (small amount of money

misappropriated, prompt repayment, no harm to client, inexperience of counsel,

evidence of good character); Pierson, 690 A.2d at 949–50 (history of pro bono

work, no prior discipline, cooperation with disciplinary investigation); Pels, 653

A.2d at 397–98 (small amount of money misappropriated, no harm to client,

inexperience of counsel); In re Robinson, 583 A.2d 691, 692 (D.C. 1990) (small

amount of money misappropriated, prompt repayment, no harm to client, no prior

discipline, inexperience of counsel, evidence of good character).

In the present case, the Hearing Committee cited many of these same factors
 26

in support of its finding that respondent’s misappropriation resulted from

negligence, not recklessness, a finding that the Board rejected, as do we. And,

while four members of the Board lamented that disbarment must follow from the

Board’s unanimous finding of reckless misappropriation, those members did not

disagree that respondent had failed to show extraordinary circumstances to

overcome the Addams presumption of disbarment, urging only that this court

should “expand consideration of what sanction is appropriate in a case like this.”

Board Report, Separate Statement of Four Members at p. 4. The Board majority

did not share the sentiment that disbarment was excessive in light of respondent’s

reckless misappropriation. In any event, even if we were to agree with the four

members in the minority, as a division of the court we are not free to modify the

holding of Addams, which was itself an en banc decision. See Thomas-Pinkney,

840 A.2d at 701.

We appreciate that the sanction of disbarment may seem harsh as applied to

sole practitioners like this respondent, who lack the resources to employ the kind

of support staff more affluent lawyers rely on to steer them clear of bad accounting

practices that can lead to unintentional misappropriation. This is particularly true

where, as here, no one contends that respondent’s conduct was dishonest, or even

that it was motivated by avarice or a desperate need for money he knew was not
 27

his to take. He simply took his eye off the ball, but he did so over many years,

involving thousands of dollars of entrusted funds, knowing that he was ignoring his

fiduciary duty to keep track of those funds and to keep them secure. He now finds

himself facing disbarment at the twilight of a long career of providing much

needed legal services to an underserved population of low and moderate income

residents of our community.

Nonetheless, respondent’s clients had a right to expect from their lawyer the

same degree of vigilance in protecting their entrusted funds that any client, rich or

poor, would expect when they hand their money over to their lawyer for

safekeeping. The rule of Addams—while inflexible and sometimes harsh—is

designed to protect all clients, to enhance public trust and confidence in the

integrity and trustworthiness of all lawyers, and to deter the kind of misconduct we

see all too often in this case and others like it. See Pels, 653 A.2d at 398 (quoting

Addams, 579 A.2d at 198). Given those purposes, exercise of discretion to impose

lesser sanctions in cases of intentional or reckless misappropriation with

sympathetic facts would come at a steep cost. It would promote inconsistent

decisions and confuse the guidance it is our duty to provide to the bar, and it would

dilute the strength of the rule and weaken its deterrence, risking a further erosion of

public trust and confidence in the legal profession. Those steps should not be
 28

undertaken lightly, and this case does not present a suitable occasion for starting

down that path.

Accordingly, it is ORDERED that Bernard A. Gray, Sr. be, and hereby is,

disbarred from the practice of law in the District of Columbia. For purposes of

reinstatement, the period of respondent’s disbarment shall not begin to run until

such time as he files an affidavit in compliance with D.C. Bar R. XI § 14(g). See

D.C. Bar R. XI § 16(c).

So ordered.