In Re Schneider

NEWMAN, Associate Judge,

dissenting:

The majority’s selective silences regarding certain aspects of this case speak louder and reveal more than do the words put to paper in its opinion. In the interest of presenting a complete and fair exposition of the relevant facts, I add the following to fully inform the readers of these opinions.

*213Schneider graduated from law school in June 1980, and was admitted to the District of Columbia Bar on December 19, 1980. He joined the Washington office of Sey-farth, Shaw, Fairweather & Geraldson as an associate. In January 1983, he resigned voluntarily from Seyfarth, Shaw to form another firm. During the following months, protracted and bitter negotiations ensued between Seyfarth, Shaw and Schneider concerning clients who had left Seyfarth, Shaw and followed Schneider to his new firm. On August 31,1983 — almost eight months after Schneider left Seyfarth, Shaw, and more than a year after the firm became aware of the events that bring us here — the managing partner of Seyfarth, Shaw filed a complaint with Bar Counsel.

When Schneider joined Seyfarth, Shaw, he was assigned many clients. One of his clients was the Kellogg Company. The relationship between Kellogg and Schneider had begun years earlier. Schneider had worked as a consultant for Kellogg in the area of labor-management relations prior to attending law school. In addition, Schneider’s father had worked for Kellogg for many years and had been instrumental in getting his son hired as a consultant.

As a consequence of his prompt immersion into full-fledged representation of clients, Schneider did not receive the normal instruction given associates concerning proper accounting procedures. The firm preferred receipts for expenditures in excess of $25.00 incurred by an attorney on behalf of a client. Where receipts were not presented, however, reimbursement was still possible. Indeed, no member of the firm who testified could recall when reimbursement had been denied because of the lack of a receipt. Other lawyers at the firm “lumped” expenses in claims for reimbursement, a practice of which Schneider was aware.

During a seven-month period beginning the month Schneider was admitted to practice, Schneider altered credit card receipts to reflect a higher amount for the express purpose of obtaining reimbursement for funds he had expended properly on behalf of a client. The total sum expended was $800. Schneider asserts that he had no intent to defraud, deceive or materially misrepresent the facts to the law firm or the client when he requested reimbursement for these funds.1

Schneider’s tenure with Seyfarth, Shaw appeared to be profitable for both him and the firm. As an associate, Schneider’s billings exceeded a quarter of a million dollars per year. In 1982, after the partners had met with Schneider to suggest that he adopt a better financial record-keeping system, and almost one year after Schneider altered the last receipt, the firm awarded Schneider the largest bonus and salary increase among all of the associates at Sey-farth, Shaw. In addition, no client had expressed dissatisfaction with Schneider’s performance, including those clients who followed Schneider to his new firm and those who were thereafter informed by Seyfarth, Shaw of its complaint to Bar Counsel in this matter.

The Board on Professional Responsibility found that Schneider violated DR 1-102(A)(4) by “submitting altered receipts for reimbursement,” conduct it found to be “dishonest, fraudulent and deceitful.” Report and Recommendation of the Board on Professional Responsibility (Jan. 3,1986) at 6. The Board acknowledged the Hearing Committee’s finding of fact that Schneider acted not for personal gain but rather to recover legitimate out-of-pocket expenses. Id. The Board concluded, however, that “Schneider not only submitted false expense reports and altered receipts to the Accounting Department, but, in effect, committed fraud. [Tjhere is no doubt that the alteration of the credit card slips could subject [him] to criminal prosecution.” 2 Id. at 6-7. The Board opined fur*214ther that Schneider had “lied to his client [and] deceived his law firm.” Id. at 7. On remand, the Board characterized the violation as follows: “[Schneider] did, in fact, deceive Seyfarth, Shaw and the client because he materially misrepresented the amount of particular expenses for which the altered expense account was submitted on eight different occasions.” Report and Recommendation of the Board on Professional Responsibility (Nov. 25, 1986) at 3 (emphasis added).

Before this court, Schneider challenges the Board’s finding that he violated DR 1-102(A)(4). He contends that a finding of deceitful intent is required to violate the disciplinary rule or, as the majority phrases Schneider’s argument, “that a violation of DR 1-102(A)(4) can occur only when there is proof of scienter.” Supra, at 208. Additionally, Schneider argues that a violation of DR 1-102(A)(4) involving dishonesty, fraud, deceit or misrepresentation occurs only when the false representation is of a material fact.

The majority’s response to these two arguments is deficient. The majority disposes of the intent issue by concluding that Schneider’s alteration of the documents constituted deceit and dishonesty “whatever the ultimate intent or motives may have been in making such alterations.” Supra, at 209 & note 8. I do not think, however, that “the ultimate intent or motives” of an actor can be analytically truncated from the alleged deceitful or dishonest act. Schneider’s “ultimate intent” was to recoup legitimate out-of-pocket client expenses, a fact upon which everyone including Sey-farth, Shaw, Kellogg, the Hearing Commission, the Board, the majority and I agree. In fulfilling this intent to recoup money that was rightfully his, Schneider altered the credit card receipts. Although his conduct was clearly an inappropriate manner in which to proceed, I do not agree with the majority’s conclusion that a violation of DR 1-102 can be predicated on the mere labeling of Schneider’s actions as “dishonest” and “deceitful” without a finding of deceitful intent.

The majority also summarily disposes of the claim that the false representation must be of a material fact. The majority states that “even [ajssuming such a requirement, we cannot characterize the deception here as anything approaching immateriality.” Supra, at 210. Somewhat confusingly, the majority states further that a documentary alteration is “presumptively material,” although situations “might exist where a representation on such a matter could be labeled de minimis.” Id. at 211. To support these views, the majority emphasizes, and rightfully so, that scrupulous care be taken when dealing with client funds. Yet no claims are made here that the client was billed wrongly or that Schneider even thought that the altered receipts would be channelled to the client.

I cannot join this cavalier dismissal of the substantive issues raised by this case. I have serious doubt that we can find a violation of DR 1-102(A)(4), given the record, which my colleagues constituting the majority characterizes as “somewhat ambiguous.” Supra, at 209. Unlike the majority, I think it is necessary that we first resolve the scienter issue. I would require deceitful intent to support a claim of dishonesty or deceit under DR 1-102(A)(4). Additionally, I would require a finding that any representation which is the basis of a claimed violation of DR 1-102(A)(4) must be “material.” I note in this regard that Rules 3.3, 4.1 and 8.1 of the ABA Model Rules of Professional Conduct which are cited by the majority, all require that the misstatement at issue be of a material fact. Supra note 5, at 208. Under any definition of “material fact,” I doubt one can find that the representations in this case are material.

Most important to me, however, is that neither the Board on Professional Responsibility nor — even worse — the majority, have deigned to answer the questions raised by this case. For example: (1) is scienter required to support a violation of DR 1-102(A)(4), (2) how is scienter defined, (3) must the false representation be of a material fact, and (4) how is material defined. I cannot join the majority’s attempt *215to avoid addressing these difficult issues by summarily labeling Schneider’s conduct as “dishonest,” or as constituting “deceit.” In my view, the majority is saying no more than that since we can recognize “dishonesty” when we see it, we can impose sanctions upon one who is “dishonest.”

I am troubled particularly by the majority’s use of the term “dishonest” to find a violation under these facts. Nowhere in the majority’s opinion or in the Board’s two reports is the term “dishonesty” defined as used in DR 1-102(A)(4). I can think of few terms that are more vague when used in a regulatory context. Can anyone doubt that a Code of Professional Responsibility which had one canon — “A lawyer shall always act honestly” — would present substantial problems of vagueness? What about a criminal code that merely interdicted “the failure to do right”? In my view, any definition of “dishonesty” as that term is used in DR 1-102(A)(4) must include a requirement of materiality. Would a lawyer who told a client that he had finished work on a client's case at 3 p.m. on May 15th when the lawyer knew in fact that the work was completed twenty-four hours later, be guilty of violating DR 1-102(A)(4) if the false representation was not material to anything? Clearly, I think not.

Presented with this record and given the findings of the Board, I cannot say with assurance that Schneider has violated DR 1-102(A)(4). Of course, that in no way implies that his actions were proper. He recognizes that they were not.

Even if I found a violation, I would disagree with the majority on the appropriate sanction. Indeed, I find the recommended discipline of six months suspension only slightly less unreasonable than the totally unreasonable sanction of one year which was recommended by the Board in its original report. Taking into account all of the interests to be served by the lawyer disciplinary process, I think the appropriate discipline in this case is public censure.

I suggest that we disserve the public and our profession when we fail to resolve fundamental due process issues before we impose sanction. Likewise, we disserve the public when we impose a thirty-day suspension in a case where the circumstances do not warrant it. I hope in the future we will protect the interests of client-victims with the same diligence as the Board has sought to protect the interest of this law firm-“victim.” See, e.g., In re Thajauna D. Miller, 553 A.2d 201 (D.C.1989) (Board recommends one-year suspension where the only victim was a law firm; the court imposed a one-month suspension).

. The Board’s statement that Schneider intended these receipts to be forwarded ultimately to the client is wrong. Supra, at 208 & note 4. In addition, Seyfarth, Shaw billed clients for reimbursements in lump-sum undifferentiated billings without documentation.

. The Board, in neither its original report nor its report after remand, suggests what criminal statute Schneider violated. At oral argument, I probed Bar Counsel to suggest the criminal statute potentially violated. He suggested none. Neither can I.