In re Ekekwe-Kauffman

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-BG-1207

IN RE OLEKANMA A. EKEKWE-KAUFFMAN, RESPONDENT.

A Suspended Member of the Bar of the District of Columbia Court of Appeals
(Bar Registration No. 479967)

On Report and Recommendation of the
Board on Professional Responsibility
(16-BD-039)

(Argued February 25, 2021 Decided January 27, 2022)

Olekanma A. Ekekwe-Kauffman, pro se.

Julia L. Porter, Deputy Disciplinary Counsel, with whom Hamilton P. Fox,
III, Disciplinary Counsel, and Myles V. Lynk, Senior Assistant Disciplinary
Counsel, were on the brief, for the Office of Disciplinary Counsel.

Before EASTERLY and DEAHL, Associate Judges, and WASHINGTON, Senior
Judge.

DEAHL, Associate Judge: The Board on Professional Responsibility

unanimously recommends we disbar Olekanma Ekekwe-Kauffman from the

practice of law in the District of Columbia. It makes that recommendation

principally upon a finding that Ekekwe-Kauffman engaged in reckless
 2

misappropriation of entrusted client funds with respect to four clients, though it also

found a host of other violations of the District of Columbia Rules of Professional

Conduct. Ekekwe-Kauffman raises several exceptions to the Board’s Report and

Recommendation, but only one is of any consequence: she contends there was not

substantial evidence to support the Board’s finding that she engaged in reckless

misappropriation. Rather, she maintains that the evidence shows any

misappropriations were the result of mere negligent recordkeeping, rather than

recklessness.

We conclude there is substantial evidence to support the Board’s finding that

Ekekwe-Kaufmann recklessly misappropriated client funds and we therefore adopt

that finding. Disbarment is the presumptive sanction for reckless misappropriation.

In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). This case involves no

“extraordinary circumstances” meriting departure from the presumptive sanction,

id., and none of Ekekwe-Kauffman’s other challenges alter the conclusion that

disbarment is warranted here. We therefore adopt the Board’s recommended

sanction and disbar Ekekwe-Kauffman from the practice of law in the District of

Columbia.
 3

I.

This is not Ekekwe-Kauffman’s first time through the disciplinary process. In

2008, Disciplinary Counsel opened an investigation into Ekekwe-Kauffman in

response to a former client’s complaint. See In re Ekekwe-Kauffman, 210 A.3d 775,

782-83 (D.C. 2019). In that case, like this one, the Board ultimately recommended

we disbar Ekekwe-Kauffman based on her reckless misappropriation of client funds.

We rejected that recommendation because we concluded the evidence did not

support the conclusion that Ekekwe-Kauffman had in fact misappropriated client

funds; although the evidence showed that she commingled client funds with her own,

the evidence was lacking as to the “more egregious” conduct of misappropriation.

Id. at 792-93 (“When an attorney deposits client funds into the attorney’s operating

account, she engages in commingling. She does not engage in misappropriation,

however, until ‘the balance in that account falls below the amount due to the

client.’”) (citation omitted). While Ekekwe-Kauffman had deposited client funds

into her operating account and thereby commingled funds, it did not appear that the

operating account had ever “dropped below the amount she should have been

holding” on behalf of her client. Id. at 793-94. We nonetheless suspended her from

the practice of law in the District for three years for a host of other violations. Id. at

797-800.
 4

This appeal arises from the complaint of another former client, Florence

Myers. In response to that complaint, Disciplinary Counsel opened another

investigation in 2013. The investigation eventually revealed that between May 2014

and June 2015, Ekekwe-Kauffman’s trust accounts in which she held client funds

were overdrawn eight times. Disciplinary Counsel later filed a Specification of

Charges. Some of the charges related to Ekeke-Kauffman’s failure to provide legal

advice to Myers after being paid to do so,1 while others concerned Ekeke-

Kauffman’s handling of client-entrusted funds on behalf of four clients in 2014 and

2015: James Short, LaToya King, Dewaine Drew, and DePaul Eppright. 2 For

purposes of this appeal, we narrow our focus to the second set of charges concerning

misappropriation, because they underpin the Board’s recommendation to disbar

Ekekwe-Kauffman. The core evidence relevant to misappropriation as to each of

the four clients was as follows.

1
More specifically, Disciplinary Counsel alleged Ekekwe-Kauffman violated
Rule 1.4(a) by failing to keep Myers reasonably informed; Rule 1.16(d) by failing
to promptly return Myers’s money upon notice of termination; and Rule 8.4(c) by
engaging in conduct involving dishonesty and misrepresentation.
2
With respect to the misuse of entrusted client funds, Disciplinary Counsel
alleged Ekekwe-Kauffman violated Rule 1.15(a) by failing to keep and preserve
complete records of trust-account funds as well as recklessly misappropriating
funds; Rule 8.1(b) by failing to respond to a lawful demand for information by
Disciplinary Counsel; and Rule 8.4(d) by seriously interfering with the
administration of justice.
 5

James Short

In March of 2015, Ekekwe-Kauffman received a settlement check on behalf

of James Short for $8500, which she deposited into a Bank of America trust account.

Of that amount, Ekekwe-Kauffman’s closing statement indicated she was

withholding the following amounts: $2250 for her attorney’s fees, $500 for “Office

Expense/Postage & Copies,” and $2562.86 for amounts owed to third parties

($460.75 to the D.C. Fire and EMS Department; $1350 to “Pain & Rehab Center”;

and $752.11 to Medicare). Ekekwe-Kauffman acknowledged she was not

authorized to use the money earmarked for those third parties for any purpose aside

from paying them the amounts indicated.

Ekekwe-Kauffman’s bank records reflect that she both overpaid herself and

kept much of the money earmarked for third parties. She paid herself $3000 in

attorney’s fees, which was $750 more than the (apparently already overinflated)

closing statement indicated she was due. 3 More specifically, she wrote herself two

3
The closing statement listed Ekekwe-Kauffman’s attorney’s fees as twenty-
five percent of the settlement, which would be $2125, or $125 less than the $2250
miscalculated in the closing statement. In her testimony, Ekekwe-Kauffman
attempted to explain the discrepancy by stating she charged a higher rate because
the case went to trial. That is not much of an explanation, however, where the
closing statement reflected the rate as 25% and simply inflated what that amounted
 6

checks—with “James Short” and “Short’s case” in the memo lines—totaling $3000

in March and April of 2015, and that was in addition to another check for $500 she

had written herself in mid-March, presumably to cover the closing statement’s line

item for $500 in expenses. As for the $2562.86 earmarked for third parties, the

evidence shows that Ekekwe-Kauffman kept more than $2000 of that for herself.

She never paid the $460.75 due to D.C. Fire and EMS; she never paid the $1350 due

to “Pain and Rehab Center”; and she paid Medicare just $450.12 of the $752.11

indicated on the closing statement, passing $100 of the difference on to Short and

keeping the remaining $201.99 for herself.

All told, the records indicate Ekekwe-Kauffman misappropriated more than

$2750 of Short’s funds, more than doubling the amount she was owed in fees and

expenses. Even if, as Ekekwe-Kauffman insists, Short and all of the third parties

eventually “got paid,” we note the Bank of America trust account in question was

overdrawn by $750 on May 27, 2015, and its balance remained below the

approximately $2750 owed in connection with Short’s case for the entirety of June.

Her account balance was thus below the amount she owed to Short and to third

to. If she was charging a higher rate, that was not apparent from the face of the
closing statement unless one did the math.
 7

parties on his behalf for an extended period, with no evidence that Ekekwe-

Kauffman had paid them the amounts due in that time.

LaToya King

Ekekwe-Kauffman deposited a $2000 settlement check on behalf of Latoya

King into the Bank of America trust account in May of 2014, when the account was

already overdrawn by $12.35. After disbursing her own fee and some attendant

expenses to herself, and paying King her share of the settlement, Ekekwe-Kauffman

owed $150 to a third-party medical provider on King’s behalf, and sent the provider

a check in that amount. However, the trust account did not have the necessary $150

to cover that expense—it had just $137.65 (i.e., the account was still $12.35 short).

Ekekwe-Kauffman remedied the matter within the week by transferring $50 into the

account. Ekekwe-Kauffman testified that she did not have authorization from King

or from the provider to use, even briefly, any portion of the $150.

Dewaine Drew

Dewaine Drew received $8000 in settlement funds, which Ekekwe-Kauffman

deposited into the Bank of America trust account on May 1, 2015. Drew’s closing
 8

statement indicated some withheld funds would be used to pay $480.25 to Anacostia

River Emergency Physician PC. While Ekekwe-Kauffman wrote a check for that

exact amount to Credence Resource Management, the collection company that

apparently had taken over the debt, there is no indication this check was actually

mailed or cashed between May and September 2015. During that time, the trust

account’s balance not only fell below the amount owed, it was overdrawn at least

three times. Ekekwe-Kauffman testified that she did not have authority to use any

portion of this money.

DePaul Eppright

DePaul Eppright received $12,500 in settlement funds which Ekekwe-

Kauffman deposited into the Bank of America trust account on May 11, 2015.

Eppright’s closing statement reflected that $1100 of those settlement funds were to

be paid to Doctors “Grover, Christie & Merritt.” Between the time when Ekekwe-

Kauffman deposited the settlement funds and eventually paid those medical

providers, the trust account was overdrawn and fell below the amount owed

numerous times. Ekekwe-Kauffman testified that neither the providers nor Eppright

gave her permission to use any portion of their money.
 9

* * *

After conducting a hearing on the matter, the Hearing Committee found,

among other violations, the four above instances of reckless misappropriation and

consequently recommended Ekekwe-Kauffman be disbarred. The Board on

Professional Responsibility unanimously agreed with that recommendation, though

one Board member was recused and did not participate. Ekekwe-Kauffman now

takes exception to that recommendation and to a variety of findings of fact and

conclusions of law.

II.

“[W]e must accept the Board’s evidentiary findings if they are supported by

substantial evidence in the record.” In re Howes, 52 A.3d 1, 12 (D.C. 2012) (citing

Cleaver-Bascombe I, 892 A.2d 396, 401-02 (D.C. 2006)). However, we review the

Board’s conclusions of law de novo. In re Saint-Louis, 147 A.3d 1135, 1147 (D.C.

2016) (citation omitted); see also D.C. Bar R. XI, § 9(h)(1). We will “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
 10

unwarranted.” In re Saint-Louis, 147 A.3d at 1147 (citing In re Rodriguez-Quesada,

122 A.3d 913, 921 (D.C. 2015)).

Ekekwe-Kauffman raises a number of challenges to the Board’s findings of

fact and conclusions of law, but only one of them requires detailed consideration:

she contends that substantial evidence does not support the Board’s conclusions that

she recklessly misappropriated entrusted funds. To the extent she misappropriated

client funds at all, she maintains that the evidence shows her lapses were the result

of mere “negligent record-keeping.” We limit our consideration to these

misappropriation offenses because both the Hearing Committee and the Board

recommended disbarment based on the misappropriations alone. Disbarment is also

the presumptive sanction for even one instance of reckless or intentional

misappropriation, absent extraordinary circumstances that are not presented here. In

re Addams, 579 A.2d at 191. Because disbarment is the harshest discipline we can

impose, it is “unnecessary for us to determine” whether substantial evidence

supports the other violations found by the Board, and it is likewise “unnecessary for

us to determine the appropriate sanctions for” those other violations, assuming the

evidence supports them. In re Pleshaw, 2 A.3d 169, 175 n.26 (D.C. 2010).
 11

A.

Ekekwe-Kauffman argues the evidence did not support a finding that she

recklessly misappropriated entrusted funds in the King, Short, Drew, and Eppright

matters. This argument raises two separate questions. First is whether substantial

evidence supports the Board’s finding that Ekekwe-Kauffman misappropriated

funds. If she did, then the second question is whether her misappropriations were

the result of mere negligence, or instead were reckless or intentional. See In re Saint-

Louis, 147 A.3d at 1147. We consider those questions in turn.

1.

Misappropriation is “any unauthorized use of client[] funds entrusted to the

lawyer.” In re Anderson, 778 A.2d 330, 335 (D.C. 2001) (quoting In re Harrison,

461 A.2d 1034, 1036 (D.C. 1983)). It includes “not only stealing but also

unauthorized temporary use for the lawyer’s own purpose, whether or not [she]

derives any personal gain or benefit therefrom.” Id. An attorney commits

misappropriation when the balance of the attorney’s account holding client funds

drops below the amount the attorney owes to the client and/or owes to third parties

on the client’s behalf. In re Edwards, 990 A.2d 501, 518 (D.C. 2010). “There is no
 12

‘scienter’ requirement in this court’s approach to misappropriation,” which “is

essentially a per se offense” regardless of the mental state with which it is committed.

In re Saint Louis, 147 A.3d at 1149 (quoting In re Berryman, 764 A.2d 760, 768

(D.C. 2000)).

Substantial evidence supports the Board’s finding that there was

misappropriation in all four instances. First, Ekekwe-Kauffman testified that none

of the four clients authorized her to use their money, or to use money set aside to

pay third parties on their behalf, for any purpose aside from paying the amounts due.

Yet, in all four cases the record establishes that, at least temporarily, Ekekwe-

Kauffman used entrusted funds by letting her trust account dip below the amounts

owed to clients and to third parties on their behalf. Her misappropriations were not

always of substantial sums, and were not always for protracted periods, but in each

case the evidence shows that some misappropriation occurred.

To illustrate, we recap the relevant facts of Short’s case, which presents the

most egregious of the misappropriations. In Short’s case, the evidence demonstrated

that Ekekwe-Kauffman never paid some third-party providers at all, pocketed

reductions in fees that should have been passed along to Short, and took more than

her share of attorney’s fees and expenses. Whether or not she permanently stole
 13

those amounts, her bank records show that she at least temporarily misappropriated

over $2750, and her trust account dipped well below that amount for a stretch of

time when she still owed it to Short and to third parties on his behalf. In fact, the

account balance was repeatedly in the negative during the relevant period between

May and June of 2015.

Ekekwe-Kauffman’s arguments to the contrary do not actually grapple with

the evidence of misappropriation. She stresses that (1) Disciplinary Counsel did not

prove she derived any benefit from any purported misappropriations, (2) all of the

clients “got paid” eventually, and (3) none of these four clients ever filed a complaint

against her. Even if each of those things were true—and the second appears to be

false at least with regard to Short’s funds—none of them alters the conclusion that

Ekekwe-Kauffman misappropriated funds. Misappropriation does not depend on a

showing that the attorney derived any benefit from the co-opted funds. See In re

Anderson, 778 A.2d at 335. Nor does it depend upon a deprivation that is permanent

in character or of any particular duration. Even brief misappropriations are

misappropriations. Id. It also does not matter, nor is it particularly surprising, that

none of these clients filed complaints against Ekekwe-Kauffman. In the King, Drew,

and Eppright cases, the misappropriation consisted of amounts owed to third parties,
 14

as did some of the misappropriation in Short’s case. Whether the clients complained

or even noticed the misappropriations is immaterial to the fact that they occurred.

2.

Next, Ekekwe-Kauffman takes aim at the Board’s finding that she acted

recklessly, as opposed to merely negligently, in committing these misappropriations.

“[M]isappropriation revealing an unacceptable disregard for the safety and welfare

of entrusted funds” constitutes reckless misappropriation. Id. at 338; see also In re

Saint-Louis, 147 A.3d 1147; In re Ahaghotu, 75 A.3d 251, 256 (D.C. 2013). As In

re Ahaghotu explained, some of the “hallmarks” of reckless misappropriation are:

‘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.’

75 A.3d at 256 (quoting In re Anderson, 778 A.2d at 338). Even one instance of

misappropriation lasting only a brief period can constitute reckless misappropriation

if the attorney misappropriated with “casual indifference in maintaining the security”

of the entrusted funds. Id. at 255-58 (finding reckless misappropriation where
 15

evidence showed “just one instance of misappropriation—lasting only a day at

that”).

Ekekwe-Kauffman’s handling of entrusted funds evinces practically all of the

hallmarks of reckless misappropriation. She commingled funds between her trust

and operating accounts repeatedly and indiscriminately. She likewise moved money

among her personal, business, and trust accounts, haphazardly covering shortfalls in

each account by drawing on the balance of the others. For example, in May 2015

(when some of the relevant misappropriations occurred), Ekekwe-Kauffman

transferred $10,000 from her trust account to her operating account and then used

the funds in her operating account to make an $18,480.41 payment to a third party

on behalf of Serah’s Outdoor Adventures & Recreation, a non-legal business she

owned. This $10,000 transfer caused her trust fund account balance to drop to

around $3300 on May 22. Then when two checks to Eppright’s service providers

were cashed on May 27, the account became overdrawn by about $750, which

Ekekwe-Kauffman remedied with a $900 deposit a couple of days later. Because

she “injected personal funds to make up for a low trust account balance, instead of

sitting down . . . to figure out what went wrong, it was likely something would go

wrong again.” In re Ahaghotu, 75 A.3d at 257. “[This] commingling of funds only
 16

papered over the problem and, unfortunately, showed a continued lack of interest in

tracking what client funds were available at any given moment.” Id.

Furthermore, the eight overdrafts in Ekekwe-Kauffman’s trust accounts over

the course of roughly a year show a “pattern or course of conduct demonstrating an

unacceptable disregard for the welfare of entrusted funds.” In re Cloud, 939 A.2d

653, 660 (D.C. 2007). In June of 2014, Disciplinary Counsel sent Ekekwe-

Kauffman an inquiry letter concerning a May 2014 notice that her SunTrust trust

account was overdrawn by more than $3000 and attached a copy of the relevant D.C.

Bar Rule requiring her to maintain complete records of entrusted funds. This was

right after her trust account was overdrawn leading to the misappropriation in King’s

case, so one might have expected her to take the warning to heart and remedy her

behavior. However, the Short, Drew, and Eppright misappropriations took place

nearly a year later, showing Ekekwe-Kauffman did not meaningfully change her

accounting practices to prevent future misappropriations. 4 Like the attorney in In re

Ahaghotu, Ekekwe-Kauffman “was clearly on notice of problems with [her]

accounting practices and [her] escrow account” and yet did not take sufficient action

4
While it is not material to our disposition here, Disciplinary Counsel stresses
that Ekekwe-Kauffman’s financial records were so incomplete and scattered that the
handful of misappropriations it was able to prove by piecing together what few
financial records she provided may only scratch the surface of her misappropriations.
 17

to prevent further endangerment of entrusted funds. 75 A.3d at 255. In her

testimony, Ekekwe-Kauffman seemed to suggest that her bank statements

constituted adequate financial records to track client funds. But Disciplinary

Counsel’s letter should have disabused her of that belief, long before the Short,

Drew, and Eppright misappropriations.

Ekekwe-Kauffman stresses that her “negligent record-keeping” should not

warrant a sanction, citing In re Cloud, 939 A.2d 653 (D.C. 2007). We do not think

that case is of any help to her. In In re Cloud, the Board credited an attorney’s

testimony that he honestly misinterpreted a letter from a third party to indicate that

he owed them less than he in fact did. Id. at 661. He then drew down an account

holding client settlement funds to a point below what was actually owed to the third

party, but only because of his honest belief that he owed less. Id. Prior to receiving

that letter and misinterpreting it, the attorney had kept adequate funds in his accounts

to cover the debt. Id. We adopted the Board’s recommendation that this did not

amount to reckless misappropriation because the attorney “did not display the

conscious indifference necessary for a finding of recklessness.” Id. However, we

also agreed with the Board that the attorney committed reckless misappropriation

when he later discovered his mistake and yet failed to pay the money back for four

years. Id. at 661-62.
 18

Unlike In re Cloud, Ekekwe-Kauffman did not make a one-time mistake

leading to a misappropriation that we could chalk up to neglect. She had a practice

of commingling funds and repeatedly overdrew accounts holding client funds well

below the amounts owed. She insists that everybody eventually “got paid” as if that

excuses her misappropriations. It does not. All it does is further underscore that

Ekekwe-Kaufmann remains seemingly indifferent to misappropriating funds so long

as everybody is eventually paid. Ekekwe-Kauffman’s “conscious failure to act” in

response to the numerous warning signs—the overdrafts from trust accounts, the

letters from Disciplinary Counsel, etc.—and “protect [her] clients from future

misappropriation” shows these misappropriations crossed the line from negligent to

at least reckless due to her “conscious indifference” to the possibility of future

problems. In re Ahaghotu 75 A.3d at 258. A defense of “faulty recording-keeping”

will not absolve an attorney who knows her recordkeeping is faulty but does not fix

the problem. See In re Smith, 817 A.2d 196, 202-03 (D.C. 2003) (rejecting Hearing

Committee’s finding of negligent misappropriation, and adopting the Board’s

finding of reckless misappropriation, where attorney’s repeated misappropriations

were “so persistent . . . that his misappropriation was reckless, not merely

negligent”).
 19

B.

We now turn our focus to the appropriate sanction. “[I]n 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.” In re

Addams, 579 A.2d at 191; In re Myers, 114 A.3d 1274, 1279 (D.C. 2015). Only if

there are “extraordinary circumstances” will a sanction less than disbarment be

appropriate in contested cases of reckless or intentional misappropriation. In re

Hewett, 11 A.3d 279, 287-90 (D.C. 2011) (highlighting “truly unique”

circumstances); see also In re Mensah, 262 A.3d 1100 (D.C. 2021) (negotiated-

discipline process “permit[s] a somewhat more flexible approach” than what applies

to contested cases). There are no “extraordinary circumstances” here that would

warrant our departure from the presumptive discipline of disbarment. There is no

evidence, for instance, that Ekekwe-Kauffman suffered from a disabling condition

that prompted her misconduct. See In re Kersey, 520 A.3d 321, 325-27 (D.C. 1987)

(disabling condition of chronic alcoholism contributed to the misconduct). Nor is

this a circumstance, as in In re Hewett, where the misappropriation was committed

“for the purpose of benefitting the client, and in fact did benefit the client.” 11 A.3d

at 282, 286 (prematurely withdrawing attorney’s fees from client’s account to ensure

client did not lose Medicaid eligibility due to an excess of funds in the account).
 20

Ekekwe-Kauffman, aside from arguing that her misappropriations were

negligent rather than reckless, does not suggest that any extraordinary circumstances

apply here as to merit a departure from the presumptive discipline of disbarment.

We see none. Even the “usual sort” of mitigating factors, which tend not to be

grounds to depart from a sanction of disbarment unless they are “especially strong,”

are generally lacking here. In re Addams, 579 A.2d at 191. The usual sort of

mitigating factors include “(1) an admission of wrongdoing, (2) full cooperation with

the disciplinary authorities, (3) prompt return of the disputed funds, and, most

importantly, (4) an unblemished record of professional conduct.” In re Edwards,

990 A.2d at 527 (quoting In re Pierson, 690 A.2d 941, 950 (D.C. 1997)). As to

those, Ekekwe-Kauffman does not admit to wrongdoing beyond acknowledging that

she should “better maintain records.” She did not fully cooperate with the

disciplinary authorities, as Disciplinary Counsel points out, but generally obstructed

the investigation and “produced only minimal financial records, in no discernable

order.” Some of the misappropriated funds are still unaccounted for and there is no

indication they have every been remitted to the rightful party. And Ekekwe-

Kauffman does not have an unblemished disciplinary record, but instead is already

in the midst of serving a three-year suspension.

IV.
 21

Accordingly, it is ORDERED that Ekekwe-Kauffman is hereby disbarred

from the practice of law in the District of Columbia. Inasmuch as Ekekwe-

Kauffman’s right to practice law in the District has been and remains suspended in

another matter, this order of disbarment is effective immediately. For purposes of

reinstatement, however, the period of Ekekwe-Kauffman’s disbarment shall not

begin to run until such time as she files an affidavit in compliance with D.C. Bar R.

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

So ordered.