In Re Weiss

WASHINGTON, Associate Judge:

The Board on Professional Responsibility (the “Board”) recommended that respondent, Randy A. Weiss, be suspended from the practice of law for a period of three years, with one year suspended in favor of probation for a period of two years or until his therapist concludes that therapy is no longer necessary, for illegally taking funds from his law firm. The suspension, does not require a showing of fitness. Weiss filed an exception to the Board’s Report and Recommendation arguing that a suspension for more than one year is too harsh a sanction in light of his mitigating circumstances. Despite Weiss’ claims, we adopt the recommendation of the Board.

I.

In May of 1997, Weiss notified his law firm and the Bar Counsel that he had improperly diverted funds from the firm. Specifically, Weiss admitted that in a number of transactions he handled on behalf of the firm between April 1993 and May 1997 he diverted portions of title insurance fees from the firm’s escrow accounts to his own personal account. He obtained the funds either by having checks made payable directly to him or by placing the fees into one of the firm’s .escrow accounts over which he had effective control. Weiss took funds from the firm on fifty-four occasions totaling $676,465.99. Weiss placed those funds in a money market account the existence of which was not disclosed to anyone. Ultimately, Weiss repaid the firm the entire amount of money that he had improperly obtained. Based on Weiss’ admissions, Bar Counsel filed a Specification of Charges alleging that Weiss had violated DISTRICT OF COLUMBIA R. OF PROF’L CONDUCT 8.4(b) and (c) (2001).1

On March 18 and May 6, 1998, hearings were held and Weiss offered the following in mitigation of his charges. First, Weiss noted that he voluntarily notified the firm of his misconduct. Second, two psychiatrists concluded that Weiss’ actions were the result of a psychological need for security born of his father’s depression-era fear of poverty. Third, neither psychiatrist believes that Weiss will likely repeat this conduct. Finally, Weiss helped the firm institute new procedures to help reduce the risk of future funds being diverted from the firm.

On December 29, 1998, the Hearing Committee issued its report stating that misconduct had been established and that Weiss had violated Rule 8.4(b) and (c). Despite the seriousness of the misconduct, however, the Hearing Committee, persuaded by the evidence offered in mitigation, recommended that Weiss be suspended for one year without a fitness requirement and then placed on probation for two years. The recommended probation required Weiss to submit quarterly certificates from his therapist confirming his good faith participation in therapy.

The Board agreed with the Hearing Committee that Weiss violated Rule 8.4(b) and (c), but recommended that Weiss be suspended from the practice of law for a period of three years with one year suspended in favor of probation for two years or until his therapist advised Bar Counsel that therapy was no longer necessary. The only condition of probation was that *672Weiss’ treating therapist submit quarterly certificates confirming his continued good faith participation in therapy.

II.

Weiss contends that the Board’s recommendation that he be suspended for more than one year is excessive and fails to adequately take into account the mitigating factors that were presented on his behalf. When reviewing a recommended disciplinary sanction against an attorney, this court must adopt the Board’s recommended sanction “unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.” See D.C. Bar R. XI, § 9(g)(1). When deciding whether there is the possibility for inconsistent dispositions, this court should compare “the gravity and frequency of the misconduct, any prior discipline, and any mitigating factors such as cooperation with Bar Counsel, remorse, illness, or stress” between the present case and past decisions. In re Steele, 630 A.2d 196, 199 (D.C.1993). In determining whether a particular recommendation is warranted, this court should examine “the nature of the violation, the mitigating and aggravating circumstances, [and] the need to protect the public, the courts, and the legal profession.” In re Haupt, 422 A.2d 768, 771 (D.C.1980).

While the evidence offered in mitigation in this case is unique among those cases where attorneys have improperly diverted funds, see In re Appler, 669 A.2d 731, 741 (D.C.1995) (disbarring an attorney for asking clients to bill him directly rather than the firm); see also In re Gil, 656 A.2d 303, 306 (D.C.1995) (disbarring an attorney who took funds from a friend outside the attorney-client context), the Board determined that Weiss should neither be disbarred nor receive a suspension for one year or less, as recommended by the Hearing Committee, but should be suspended for three years with one year suspended in favor of two years probation and no fitness requirement. The question before us is whether the Board’s recommended sanction is inconsistent with prior dispositions for comparable conduct or is otherwise unwarranted under the circumstances.

Weiss argues that in other cases where it was a law firm’s funds that were diverted, this court supported the imposition of lesser sanctions than those recommended by the Board in this case, and, therefore, the Board’s recommendation should be rejected as inconsistent with prior dispositions for comparable conduct. As support for this proposition, Weiss relies on two reciprocal disciplinary cases, In re Paragano, 747 A.2d 1189, 1190 (D.C.2000) and In re Berg, 694 A.2d 876, 877 (D.C.1997). In both of those cases the respondents were suspended for one year or less for diverting funds from their law firm. This court, however, has never ruled that diversion of funds involving a law firm require a lesser sanction. Neither Paragano nor Berg can be cited for that proposition.

Paragano, supra, was a New Jersey case in which the respondent was suspended for six months for writing numerous checks from his law firm business account for personal expenses without his partner’s authorization, and for mischaracterizing the disbursements in the firm’s records in order to conceal his actions. In adopting the Board’s recommendation that we impose identical reciprocal discipline of a six month suspension, we noted that the New Jersey court specifically found that the evidence presented to them failed to establish that the attorney actually stole money from the firm and, thus, they ruled that the attorney was only guilty of mischarac-terizing personal disbursements. Because of that court’s specific finding that, there was no actual theft, we found that the *673discipline imposed, a six month suspension, was reasonable under the circumstances and not inconsistent with our prior decisions.

In Berg, supra, the respondent was suspended for one year after it was determined that he had diverted law firm funds for his own personal use. While the misconduct of Berg, in that case, was substantially similar to the misconduct of Weiss, here, their personal circumstances differ significantly. In Berg, the respondent agreed to permanently retire from the practice of law after serving the court imposed suspension, if the court would agree not to disbar him. Based primarily on his promise to permanently retire, and in deference to what the Court of Appeals for the State of Maryland acknowledged was a long and distinguished career, the court agreed to suspend him for one year and not disbar him. Because Berg’s agreement to permanently retire was tantamount to disbarment, we agreed to impose identical reciprocal discipline. Unlike Berg, however, Weiss clearly intends to return to the practice of law once his suspension is concluded. As such, his circumstances are clearly distinguishable from those presented in Berg.

Finally, Weiss argues that even if this court finds his law firm diversion argument unpersuasive, he has presented compelling mitigating circumstances that should reduce the severity of any proposed sanction for his conduct to a suspension for no more than one year. Weiss relies primarily on our decision in In re Hutchinson, 534 A.2d 919 (D.C.1987), as support for this proposition. In Hutchinson, the respondent engaged in illegal insider trading and then lied to the Securities and Exchange Commission to cover it up. He was suspended for one year for his untruthful testimony.

Weiss contends that the mitigating circumstances relied upon by the Board in recommending a one year suspension in Hutchinson were almost identical to the mitigating circumstances offered here. As a result, he reasons that the recommended sanction in this case is inconsistent with our prior decisions. While Weiss is correct that the mitigation evidence offered here is similar to the mitigation evidence presented in Hutchinson, that is the only similarity that exists between the two cases. Hutchinson’s conduct, unlike this case, did not involve any breach of his fiduciary obligation to his clients or to his law partners. Thus, Weiss’ contention, that this court should look to Hutchinson for guidance because of the similarities between the mitigating circumstances presented in both cases, completely ignores the underlying conduct which gave rise to the ethical violation. Our responsibility is to ensure that the Board is not recommending inconsistent dispositions for “comparable conduct.” It is in that context that we look to see whether mitigating factors are being consistently applied. In the absence of comparable conduct, a mitigation analysis is of little significance.

While Weiss took significant steps to mitigate his misconduct by self-reporting his theft; making efforts to ensure that the opportunity to misappropriate money from his firm and other firms will be more difficult in the future; and seeking counseling to help him address the psychological problems that led him to his ethical lapse, the fact remains that Weiss unlawfully diverted a substantial amount of money from his law firm over a significant number of years and a sanction of one year or less would be wholly inconsistent with the discipline imposed on others for comparable conduct. See Appler, supra, 669 A.2d at 731; Gil, supra, 656 A.2d at 303.

*674Given those prior precedents and the facts of this case, the Board stated that it did not come easily to the conclusion that Weiss should not be disbarred. Ultimately, however, the fact that Weiss self-reported his violation led the Board to conclude that the sanction should be reduced from disbarment to three years suspension with one year suspended. Further, the Board, obviously influenced by the psychological evidence presented by Weiss, decided not to require a showing of fitness as a condition of Weiss resuming his law practice. Both of these accommodations by the Board are significant and were warranted under the circumstances.

Accordingly, it is ORDERED that respondent, Randy A. Weiss, is suspended from the practice of law in the District of Columbia for a period of three years with one year suspended in favor of probation for two years or until his therapist advises Bar Counsel that therapy is no longer necessary. The only condition of probation is that quarterly certificates from Weiss’ treating therapist be submitted confirming his continued good faith participation in therapy. Finally, we direct respondent’s attention to the requirements of D.C. BAR R. XI, § 14 and their effect on his eligibility for reinstatement. See D.C. BAR R. XI § 16(c).

So ordered.

. Rule 8.4 states: "It is professional misconduct for a lawyer to: .. .(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. ...”