In re Paul S. Haar ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-BG-554
IN RE PAUL S. HAAR, RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 368605)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-2012-D392; BDN-2013-D429)
(Argued September 23, 2020 Decided February 24, 2022)
Daniel S. Schumack, with whom McGavock D. Reed Jr. was on the brief, for
Respondent.
Jennifer Lyman, Special Assistant Disciplinary Counsel, with whom
Hamilton P. Fox III, Disciplinary Counsel, and Myles Lynk, Senior Assistant
Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.
Before EASTERLY and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
EASTERLY, Associate Judge: The Office of Disciplinary Counsel charged
immigration attorney Paul S. Haar with misappropriation and commingling of pre-
paid flat fees in two separate cases involving two different clients, in violation of
D.C. R. Prof. Conduct 1.15(e) as clarified in In re Mance, 980 A.2d 1196 (D.C.
2
2009) (requiring attorneys to deposit such in trust) 1; see also D.C. R. Prof. Conduct
1.15(e). Departing from the Hearing Committee’s recommendation, the Board of
Professional Responsibility concluded that (1) there was no misconduct in the first
case, wherein Mr. Haar failed to move into trust a partially unearned flat fee he had
received before Mance was decided, and (2) Mr. Haar was merely negligent in the
second case, when he failed to deposit or subsequently move into trust a partially
unearned flat fee he received after Mance was decided. The Board recommended
that Mr. Haar be suspended for seven months, followed by a one-year period of
probation, during which he was to submit to an evaluation by the D.C. Bar’s Practice
Management Advisory Services (PMAS), and complete up to ten hours of CLE
recommended by PMAS at its sole discretion. We agree with the Board that Mr.
Haar should only be sanctioned for misappropriation and commingling in one of the
two charged cases, and impose the Board’s recommended sanction.
1
When this court decided Mance this rule was denominated Rule 1.15(d). To
avoid confusion, we refer to the past and current iterations of the rule as Rule 1.15(e)
throughout this opinion.
3
I. Factual and Procedural History
A. Mr. Haar’s Practice and the Legal Landscape Before the Charged
Misconduct
Mr. Haar was admitted to practice law in the District of Columbia in 1983. A
decade later, he founded the solo immigration practice he runs today, where he
primarily accepts modest flat fees. Mr. Haar testified, and Disciplinary Counsel does
not dispute, that his fees tend to be small because many of his cases take days or
even hours from start to finish, and because many of his clients are low-income and
pay him what they can afford in incremental amounts. At the time Mr. Haar started
his practice, Rule 1.15(e) provided that any advances of legal fees for unearned work
became the property of the attorney upon receipt. In re Arneja, 790 A.2d 552, 552–
53 (D.C. 2002).
In 1997, this court held that Mr. Haar negligently misappropriated legal fees
owed to him when he withdrew settlement funds held in trust 2 without his client’s
2
Lawyers in the District are required to hold entrusted funds in Interest on
Lawyer Trust Accounts (IOLTA), https://www.dcbarfoundation.org/iolta;
https://perma.cc/3ZQ4-A5M4 (last visited November 11, 2021), and we use the
terms “trust account” and “IOLTA account” interchangeably in this opinion.
4
consent; accordingly, we imposed a thirty-day suspension as a sanction for his
misconduct. See In re Haar, 698 A.2d 412 (D.C. 1997) (hereinafter Haar II); see
also In re Haar, 667 A.2d 1350 (D.C. 1995) (hereinafter Haar I). We concluded
that Mr. Haar’s negligence was in good faith and stemmed from mistakes of both
fact and law. Haar II, 698 A.2d at 421.
In 2000, the D.C. Bar amended Rule 1.15(e), essentially reversing its
directive. In pertinent part, the amended rule requires that “advances of unearned
fees . . . shall be treated as property of the client pursuant to paragraph (a) [requiring
such property to be kept separate from the lawyer’s property in a trust account] until
earned . . . unless the client gives informed consent to a different arrangement.” D.C.
Bar R. I, § 15(e). But as we acknowledged in our 2009 opinion, In re Mance, the
application of Rule 1.15(e) “to flat fees is not clear on its face.” 980 A.2d at 1206.
Accordingly, we clarified that flat fees are a type of advances of fees covered by
Rule 1.15(e), because they consist of “money paid up-front for legal services that
are yet to be performed.” Id. at 1202, 1206. We further held that “the client should
be informed that, unless there is agreement otherwise, the attorney must . . . hold the
flat fee in escrow until it is earned . . . .” Id. at 1207. We stated that our holding
applied only “prospectively,” id. at 1199, but did not explain (because it was not an
5
issue presented to us) how prospective application of the rule should work.
Consequently, we did not discuss whether and how attorneys should handle open
client matters in which flat fees had already been paid. Neither Rule 1.15 nor its
Comment section have ever been updated to reference Mance’s clarification or
implications.
By his own admission, Mr. Haar did not keep up-to-date on changes to Rule
1.15(e) and its interpretation by this court.
B. Ramiro Moya Fees
In 2008, a year before Mance was decided, Mr. Haar deposited in his operating
account a $5,500 flat fee from Ramiro Moya, to assist Mr. Moya in obtaining an
employment-based green card. Not long after, Mr. Moya’s prospective employer
withdrew sponsorship. Mr. Moya stated he would search for another employer, but
he fell out of touch, and Mr. Haar suspended work on the case. Mr. Haar used the
fees, which he had deposited into his operating account, as his own.
6
In 2010, Mr. Moya’s wife unsuccessfully attempted to obtain a refund of her
husband’s fees, though it is unclear whether Mr. Haar was aware of her efforts.
When new counsel for Mr. Moya requested the Moya file, Mr. Haar promptly
complied. Around the same time (October 2012), Mr. Moya filed a bar complaint
against Mr. Haar, alleging that Mr. Haar had taken $5,500 without doing the required
work and asserting that he (Mr. Moya) was entitled to a refund. Mr. Haar asked a
junior associate, Alex Miller, to research the proper method for refunding Mr. Moya,
and Mr. Miller subsequently advised that the refund should come from a trust
account. Mr. Haar deposited $5,500 in his IOLTA account 3 and refunded Mr. Moya
in early November. The parties agree that because Mr. Haar had done some amount
of work on the case, this refund was larger than the amount actually owed.
C. Yalcin Gur Fees and Mance trainings
A few days before issuing Mr. Moya’s refund, Mr. Haar agreed to represent
Yalcin Gur in an unusually complex immigration marriage fraud case. A few days
after issuing Mr. Moya’s refund, Mr. Haar accepted from Mr. Gur a $10,000 flat fee,
3
Mr. Haar testified before the Hearing Committee that he opened this IOLTA
account in 2011 because he knew he had to have one, but he explained that he
“misunderstood the proper use” of the account.
7
which Mr. Haar testified was a much larger pre-payment than those he typically
received. Despite having just refunded the Moya fees from his IOLTA account, Mr.
Haar deposited the Gur fees in his operating account, using at least some of the
unearned fees as if they were his personal funds over the next year. The Gur matter
was assigned to Mr. Haar’s associate, Mr. Miller.
Meanwhile, in response to the Moya bar complaint, Mr. Haar arranged a firm-
wide training with the PMAS in December 2012. At the training, Mr. Haar learned
about Mance and brought his banking practices into compliance, but only with
regard to cases that came into the firm after the training date. In 2013, he also took
a CLE course on IOLTA accounts. Mr. Haar did not move the Gur funds into trust
after either training.
When Mr. Miller left Mr. Haar’s practice in August 2013, taking the Gur
matter with him, he requested that Mr. Haar refund Mr. Gur $8,000 in allegedly
unearned fees. Mr. Haar delayed in doing so (he later explained at the disciplinary
hearing, see infra Part I.D., that he was waiting for Mr. Miller to provide records
confirming how much work he had done on the case while at Mr. Haar’s firm). The
delay led Mr. Gur to file a bar complaint in November. Later that month, Mr. Haar
8
refunded Mr. Gur $8,000 from his operating account, but Mr. Haar still disagrees
that he actually owed that amount.
D. Hearing Committee and Board Findings
The Moya and Gur disciplinary matters came before the Hearing Committee
in late 2017. The parties jointly stipulated that Mr. Haar had rendered partial,
competent services to Mr. Moya and Mr. Gur, but that at least $1,000 of the fees in
each matter were unearned. Disciplinary Counsel also introduced Mr. Haar’s bank
records to prove commingling and misappropriation before Mr. Haar refunded the
fees. Mr. Haar stipulated that the facts showed commingling and misappropriation.
See In re Anderson, 778 A.2d 330, 335 (D.C. 2001) (internal quotation marks
omitted) (explaining that misappropriation includes “any unauthorized use of
client’s funds entrusted to [the lawyer] . . . whether or not [the lawyer] derives any
personal gain or benefit therefrom”); see also In re Gray, 224 A.3d 1222, 1229 (D.C.
2020) (explaining misappropriation occurs when an attorney’s account dips below
the amount of the client’s funds held in trust).
Mr. Haar maintained however that he handled the Moya and Gur fees in good
9
faith and he did not know that Rule 1.15(e) as interpreted in Mance required him to
deposit pre-paid flat fees in trust. He explained that he “honestly didn’t understand
the Mance case” and that if he had, “[he] would have complied immediately.” He
noted that when he learned of Mance from PMAS, he immediately implemented
changes to ensure flat fees paid in all incoming cases were deposited in his trust
account. When questioned how that squared with his contemporaneous failure to
move the Gur fees into trust, Mr. Haar answered that he did not realize he had an
obligation to audit his existing caseload for instances of non-compliance with
Mance. 4
The Hearing Committee “credit[ed] [Mr. Haar’s] testimony that he believed
that client advances of fees became a lawyer’s property upon receipt, consistent with
the understanding of many D.C. Bar members before Mance.” The Committee
further acknowledged “that the evidence does not clearly or convincingly
demonstrate that Respondent actually learned of the rule in Mance before Mr. Moya
4
Mr. Haar also testified that he did not believe he had a Mance problem
related to Mr. Gur’s case because he had completed a substantial portion of work for
Mr. Gur’s case and had therefore “earned a significant amount of the fee.” This
testimony was later undercut by his stipulation, through counsel, that as of the
December 2012 training, “there had not been a substantial amount of money earned
on the [Gur] matter.” Even so, the parties stipulated only that Mr. Haar owed at least
$1,000 to Mr. Gur out of the $10,000 initial fee, see supra p. 8.
10
terminated [Mr. Haar] or before [Mr. Haar] refunded the unearned amount of Mr.
Moya’s prepaid fees.” But the Hearing Committee concluded that (1) because Mr.
Haar had ignored Rule 1.15(e) “either as amended in 2000 or as clarified by Mance,”
he had acted recklessly regarding the Moya fees, and (2) because Mr. Haar both
refunded the Moya fees from trust and participated in trainings on Mance/IOLTA
accounts, his “good-faith beliefs concerning his professional responsibilities” must
have changed by the time (or shortly after) he received the Gur fees, 5 and thus he
acted “at minimum reckless[ly]” and possibly “intentionally” by not receiving or
moving them into trust. For this misconduct, the Committee recommended
disbarment.
On review of the Hearing Committee’s report and recommendation, the Board
largely adopted the Committee’s findings of fact and also made some supplemental
findings, citing directly to the transcripts and exhibits in the Hearing Committee
proceedings, see infra Part III. In its conclusions of law, the Board determined that
Mr. Haar had not violated Rule 1.15(e) in his handling of Mr. Moya’s flat fee and
5
Even as it drew this conclusion, the Hearing Committee acknowledged that
“the record contains no further evidence to show why [Mr. Haar] transferred the
[Moya] funds from [his operating account] to [the trust account to make the transfer],
and the Committee did not press the issue further, leaving the precise reason for
doing so unclear.”
11
dismissed the Moya charges, and determined that Mr. Haar was only negligent with
respect to his handling of Mr. Gur’s flat fee. As a sanction, the Board recommended
a seven-month suspension followed by one year of probation with conditions.
Mr. Haar prophylactically sought review by this court, anticipating
Disciplinary Counsel’s argument that his conduct was more than negligent and
therefore subject to presumptive disbarment under In re Addams, 579 A.2d 190(D.C. 1990). As Mr. Haar anticipated, Disciplinary Counsel excepted to the Board’s
recommendation, and argues in its brief to our court that Mr. Haar at least recklessly
violated Rule 1.15(e) in both the Moya and Gur matters and accordingly should be
disbarred.
II. Standard of Review
We accept the Board’s factual findings if they are supported by substantial
evidence in the record. D.C. Bar R. XI, § 9(h)(1). Although we defer to the Board’s
fact finding, the Board in turn must defer to the Hearing Committee’s fact finding
and “accept [those determinations], including credibility findings, if they are
12
supported by substantial evidence in the record.” In re Cleaver-Bascombe, 892 A.2d
396, 401 (D.C. 2006). As for “ultimate facts” or legal conclusions, including
whether the attorney’s conduct was proven by clear and convincing evidence to be
negligent, reckless, or more, we review de novo. In re Micheel, 610 A.2d 231, 234
(D.C. 1992). Finally, we generally “accept 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.’” In re Confidential
(J.E.S.), 670 A.2d 1343, 1346 (D.C. 1996) (quoting D.C. Bar R. XI, § 9(g)(1)).
Nevertheless, “[n]otwithstanding the deference accorded to the Board’s factual
findings and its recommendation, ultimately the system of attorney discipline,
including the imposition of sanctions, is the responsibility and duty of this court.”
In re Pleshaw, 2 A.3d 169, 172 (D.C. 2010) (internal quotation marks, brackets, and
ellipsis omitted).
III. Analysis
Preliminarily, we address Disciplinary Counsel’s argument that the Board
exceeded its authority and “followed a pattern established in recent disciplinary
cases . . . [of] revis[ing] the [Committee’s] most significant underlying fact
13
findings.” Such a pattern—if it exists—is not present here. The Board made
additional findings of fact, as it is authorized to do. In re Schwartz, 221 A.3d 925,
929 (D.C. 2019) (recognizing that “[u]nder Board Rule 13.7 of the Board on
Professional Responsibility, the Board can make findings of fact in the first instance”
provided that “the evidence on the point is clear and convincing”). As for the
Board’s treatment of the Hearing Committee’s factual findings, the Board’s report
rejects exactly two: (1) the Committee’s inference that Mr. Haar learned of his duties
from Mr. Miller and the PMAS/CLE trainings, and (2) its “skepticism as to [Mr.
Haar’s] forthrightness” in some aspects of his testimony. The first of these is
arguably an “ultimate fact” which the Board must review de novo; at any rate, the
Committee’s inference was “not supported by substantial evidence in the record,”
see Cleaver-Bascombe, 892 A.2d at 402; supra note 5; infra Part III.B. On the other
hand, the Committee’s determination that “[a]t times [Mr. Haar’s] testimony
appeared guarded . . . [but we] did not consider [his] testimony dishonest,” is
undoubtedly a credibility assessment that should have been accorded deference, and
the Board’s deference was at least qualified by its “reject[ion] of any suggestion”
that Mr. Haar was less than forthright. But we cannot agree that this rather modest
reevaluation is of much import. Both the Board’s legal conclusions and our own are
grounded not in a dispositive assessment of whether to believe Mr. Haar’s every
word, but in an evaluation of what the Rules of Professional Conduct require and
14
whether Disciplinary Counsel carried its burden of proof.
A. The Moya Matter
The Board rejected the Hearing Committee’s determination that Mr. Haar was
reckless in the Moya matter and determined that Mr. Haar did not engage in
misconduct of any sort. Citing this court’s decision in In re Kanu, 5 A.3d 1, 5 n.1,
17 n.4 (D.C. 2010), the Board reasoned that “[w]hen he received the fee from Mr.
Moya [pre-Mance], [Mr. Haar]—as did others—treated it as his own and was free
to spend it as he saw fit.” Further, the Board explained that “[n]othing in Mance . . .
supports . . . [the] notion that the Court intended to require [Mr. Haar] (and
presumably, myriad other practitioners) immediately to audit all their pending flat
fee cases, ascertain the amounts of any unearned fees, disgorge those funds, and
place them in trust until ‘earned.’” The Board concluded that if this “[c]ourt [had]
intended members of the Bar to place in trust funds that had been received pre-
Mance [but not yet fully earned at the time Mance was issued]” the court “would
have . . . said so.”
15
We agree with the Board that Mr. Haar’s handling of the Moya fees is not
sanctionable misconduct. Mr. Haar should not be sanctioned for failing to take
affirmative steps to place previously received flat fees in trust, when it was quite
unclear from In re Mance that he was required to take such steps. To begin with,
Mance itself was an acknowledgement that Rule 1.15(e) did not provide clear
guidance as to flat fees. And when we used our decision in Mance to clarify that
rule, holding that flat fees were a type of advance fees, we expressly stated that that
holding was only “prospective,” 980 A.2d at 1206, at least suggesting that already
received flat fees (like the Moya fees) were grandparented. 6
We therefore sustain the Board’s dismissal of the Moya matter.
B. The Gur Matter
The Board also rejected the assessment of the Hearing Committee that Mr.
6
Indeed, discipline in the form of public censure was imposed in Mance only
because counsel had commingled funds and failed to return the flat fee after the
representation had ended, not because counsel had failed to move this money to a
trust account in conformance with the newly announced interpretation of Rule
1.15(e). Mance, 980 A.2d at 1208.
16
Haar recklessly, if not intentionally, misappropriated Mr. Gur’s funds, instead
concluding that Disciplinary Counsel had failed to prove that this misconduct was
more than negligent. Again, we agree. The record evidence does not support
reckless—much less intentional—misappropriation, but it does support a finding of
negligent misappropriation.
An attorney who misappropriates client funds may be deemed to have acted
recklessly when they demonstrate a “conscious indifference to the consequences of
[their] behavior for the security of the funds.” In re Anderson, 778 A.2d at 339. This
conscious indifference is displayed by an attorney’s knowledge either of “the serious
danger to others involved in [their banking practices]” or, more normatively, of
“facts that would disclose this [serious] danger to any reasonable person.” Id.(emphasis added) (internal quotation marks omitted). By contrast, we have held that
the “hallmarks [of negligence] 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.” In re Abbey, 169 A.3d 865, 872 (D.C. 2017), as amended (Oct. 19,
17
2017). 7
The burden is on Disciplinary Counsel to prove state of mind, In re Anderson,
778 A.2d at 339, and if it does not prove intentional or reckless misappropriation by
clear and convincing evidence, it has “proved no more than simple negligence.” In
re Ray, 675 A.2d 1381, 1388 (D.C. 1996); see also In re Gray, 224 A.3d at 1229
(“There must be something more before a misappropriation will cross the line
between simple negligence and recklessness.”). Moreover, the burden of proof does
not shift simply because an attorney attempts to give an explanation for his conduct.
Although “the inadequacy (or non-existence) of [an] attorney’s explanation for the
use of client funds . . . [is] circumstantial evidence” which the Board may consider
in reviewing whether Bar Counsel has proven a more culpable state of mind, this
explanation must be examined “along with all the other evidence.” In re Anderson,
778 A.2d at 337 (discussing dishonest misappropriation) (internal quotation marks
omitted). 8
7
But see Haar II, 698 A.2d at 427 (Ruiz J., dissenting) (“Under traditional
concepts of negligence, an honest but mistaken belief does not constitute negligence
. . . without a further showing that it was unreasonable to hold that belief.”).
See also In re Anderson, 778 A.2d at 337 (“The Addams sanction of near-
8
automatic disbarment for misappropriation resulting from more than negligence is a
18
With these principles in mind, we turn to the Hearing Committee’s assessment
of Mr. Haar’s conduct in the Gur matter. The Committee “credit[ed] [Mr. Haar’s]
testimony that [originally] he believed that client advances of fees became a lawyer’s
property upon receipt, consistent with the understanding of many D.C. Bar members
before Mance.” But the Committee found that Mr. Haar’s “understanding” of the
proper way to treat flat fees changed after Mr. Miller informed him that the Moya
fees needed to be refunded from trust. It concluded that Mr. Haar’s “transfer of Mr.
Moya’s funds from his COA to his IOLTA demonstrates that [he] no longer
maintained a good-faith but mistaken belief that a client’s advance of flat fees
became his property upon receipt . . . .” (emphasis added). In other words, if Mr.
Haar knew that Mr. Moya needed to be refunded from an IOLTA, he must have
known flat fees needed to be deposited in trust upon receipt, and he therefore acted
at least recklessly—and possibly intentionally—in not moving Mr. Gur’s fees into
trust.
This inference is inadequately supported. As the Board observed, “[t]here is
strict one; it should not be triggered . . . solely by proof . . .—even by clear and
convincing evidence—that the attorney let the funds in his operating account drop
below the obligated level, leaving it to him to prove that he lacked the requisite intent
or level of culpability.”).
19
simply no evidence that [the interactions between Mr. Haar and Mr. Miller] had
anything to do with Mance or with the treatment of flat fees upon their receipt”;
indeed, Mr. Miller (who had his own interest in the Gur matter, see supra Part I.C)
was never called to testify. It is true that an attorney’s compliance with a rule can
indicate an “awareness” of the rule. See In re Pleshaw, 2 A.3d 169, 173–74 (D.C.
2010) (the fact that attorney properly withdrew his initial fee as a conservator only
after requesting and receiving court permission was evidence of his conscious
indifference to the rules when he later paid himself commissions from estate funds
without court permission). But there is no indication that Mr. Haar understood Mr.
Miller’s advice about refunding fees to be grounded in a more general rule governing
the treatment of flat fees upon receipt. And while the Committee noted that it did
not “find [Mr. Haar’s] claim of good-faith mistake credible,” and that his testimony
“describing the advice he received from [Mr.] Miller” was “guarded,” these findings
do not lift the burden of proof from Disciplinary Counsel’s shoulders. Indeed, the
Committee itself noted that despite Disciplinary Counsel’s argument, the content of
the conversation with Mr. Miller “remained unclear.” See supra note 5. The
Committee’s conclusion that Mr. Haar knew or had reason to know of the strictures
of Rule 1.15(e) because of an opaque conversation with a non-testifying person
cannot be sustained.
20
The Committee also concluded that Mr. Haar gained actual knowledge of
Mance at his PMAS and CLE trainings. It is undisputed that Mr. Haar learned about
Mance from PMAS. But “[t]here is no evidence . . . that the PMAS representative
told [Mr. Haar to] . . . audit his pending files,” or that the question of how to bring
existing cases into compliance was addressed in the CLE class. Indeed, none of
Disciplinary Counsel’s exhibits mention, let alone answer, questions regarding
Mance’s application to pending cases. The three Washington Lawyer articles
discussing Mance focus entirely on how attorneys should handle fees upon receipt,
as does Ethics Opinion 355 (providing guidance on Mance). Likewise, the submitted
list of CLE classes discussing Mance or IOLTA accounts offers no indication that
pending cases were covered in those sessions. 9 Moreover, we find it difficult to
square the notion that Mr. Haar learned of his auditing duties under Mance with the
undisputed fact that he made extensive efforts to ensure Mance compliance going
forward. After arranging and participating in the PMAS training, “he hired
knowledgeable counsel[,] . . . recrafted his written fee agreements and developed
multilingual client-intake scripts that were Mance compliant”; he also registered for
9
Granted, once this court clarified the meaning of Rule 1.15(e) in Mance,
attorneys should not have placed unearned flat fees (like the Gur fee) in a non-trust
account. But given that the D.C. Bar continued to explain Mance in trainings and
articles for at least seven years following its issuance, it is fair to assume that Mr.
Haar was not the only attorney who failed to put unearned flat fees into trust in the
years following Mance.
21
and took the aforementioned CLE class. For all these reasons, the record does not
support a conclusion that he intentionally disobeyed the rule’s application to the Gur
matter.
Nor did the Committee provide adequate support for a determination by clear
and convincing evidence that Mr. Haar was “conscious[ly] indifferen[t] to the
consequences of his . . . behavior”; i.e. that he was aware of facts which should have
put him on notice of a “serious danger to others.” In re Anderson, 778 A.2d at 339.
The Committee blamed Mr. Haar’s inattention to legal education for his confusion
about Mance’s application to the Gur matter. To be sure, Mr. Haar’s inattention to
continuing legal education is lamentable. See In re Smith, 817 A.2d 196, 202 (D.C.
2003). By his own admission, Mr. Haar simply did not take active steps to stay
updated on the field of legal ethics. However, we cannot say that this inattention
automatically renders him “consciously indifferent” with respect to any violation of
the Rules of Professional Conduct, regardless of context: indeed, in this case, we
conclude that it did not. Mr. Haar’s clients typically did not pay large fees and had
their matters resolved quickly, and thus his cases were not often pending for very
long: the Gur matter was exceptional. Thus, even a more diligent Mr. Haar may
have had little reason to consider Mance’s application to unearned flat fees. Or to
22
put it differently, “[t]he question” of how Mance applied to unearned fees “may have
seemed beside the point to [Mr.] Haar, and thus he may not have mentally addressed”
it. Haar II, 698 A.2d at 421. 10 Moreover, as discussed, the proper interpretation of
Rule 1.15(e) has been the subject of substantial confusion, and the rule still has not
been updated to reflect Mance, despite 1) this court’s conclusion that “[t]he rule’s
application to flat fees is not clear on its face,” In re Mance, 980 A.2d at 1206, and
2) the fact that the rule now imposes essentially the opposite restriction to that which
it required when Mr. Haar began his career. Thus we conclude that a practitioner
who operated according to Mr. Haar’s typical fee arrangements could reasonably fail
to perceive such a danger, especially if the trainings he attended never mentioned it.
The lack of reckless misappropriation “hallmarks,” In re Anderson, 778 A.2d
at 338, bolsters our conclusion that Disciplinary Counsel did not prove recklessness
to a clear and convincing degree. We have held the hallmarks of reckless
misappropriation to include:
10
Nor are we persuaded that Mr. Haar’s prior suspension put him on any
special notice of serious danger such that it weighs in favor of a higher degree of
culpability. His discipline occurred over a decade earlier, involved an entirely
distinct aspect of Rule 1.15, and happened prior to the rule changes which caused so
much confusion in the present case. See Haar I, 667 A.2d at 1351–53.
23
the indiscriminate commingling of entrusted and personal
funds; a complete failure to track settlement proceeds;
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 the disregard of inquiries
concerning the status of funds.
Id. Certainly, Mr. Haar commingled funds. But Disciplinary Counsel has never
contended a “complete failure to track settlement proceeds” or a “repeated
overdraft” on his sweep account. 11 Likewise, there is no contention that Mr. Haar
indiscriminately moved money between accounts or ignored inquiries from clients
about the status of funds. Of course, the Anderson hallmarks are just that: hallmarks,
not an exhaustive set of criteria. See In re Gray, 224 A.3d at 1231. But their absence
is a further indication that Mr. Haar lacked the requisite “conscious indifference” to
11
To the contrary, it seems the sweep account was designed to prevent any
overdraft. According to SunTrust Bank’s own explanation:
At the end of each business day, Business Sweep
calculates the net available balance position in your
commercial checking account and then compares the
result to a predetermined target balance. Then, if your net
cash position is greater than your target balance, Business
Sweep automatically uses excess funds to pay down your
line of credit, or transfers excess funds into an investment
vehicle that you select. If your net cash position is less
than your target balance, Business Sweep automatically
transfers funds from your chosen investment vehicle to
cover the shortage or borrows the necessary funds against
your line of credit.
24
be adjudged reckless.
Mr. Haar was, however, negligent. As a member of the Bar, Mr. Haar had a
duty to keep himself reasonably informed of his obligations under the Rules of
Professional Conduct from the text and commentary of the Rules and as interpreted
by this court. We specifically reject any argument that he could be subject to
sanction for violating Rule 1.15(e) only after he personally learned of Mance’s
clarification of the rule. Mr. Haar—like all practitioners—was obligated to follow
Rule 1.15(e) as interpreted by Mance upon our issuance of that decision. He should
have understood when he received a flat fee from Mr. Gur in 2012—three years after
Mance made clear that, per Rule 1.15(e), flat fees were advance fees—that he had
to deposit that money in a trust account. And his failure to understand and conform
with Rule 1.15(e) as interpreted by Mance three years after we issued that decision
clearly amounts to negligent misconduct.
IV. Sanction
Generally, a “sanction recommendation from the Board comes to us with a
25
strong presumption in favor of its imposition.” In re Rodriguez-Quesada, 122 A.3d
913, 920 (D.C. 2015) (internal quotation marks omitted). We “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.” Id. (citing D.C. Bar R. XI, § 9(h)(1)) (internal quotation marks
omitted). Here, we agree with the Board’s conclusion that Mr. Haar was negligent
only in the Gur matter and accept also the Board’s recommended sanction: a seven-
month suspension plus one year of probation, to include a PMAS evaluation and
CLE recommended by PMAS at its discretion.
“The purpose of imposing discipline is to serve the public and professional
interests identified and to deter future and similar conduct rather than to punish the
attorney.” In re Rodriguez-Quesada, 122 A.3d at 921 (internal quotation marks
omitted). In assessing Mr. Haar’s negligence in the Gur case, the Board
demonstrated fidelity to this principle. The Board thoughtfully and appropriately
considered a number of relevant factors, including “(1) the seriousness of the
conduct, (2) prejudice to the client, (3) whether the conduct involved dishonesty,[12]
12
Though Disciplinary Counsel appears to object to the Board’s “revisit[ing]
of Mr. Haar’s” honesty, it also acknowledges that “no one has claimed Mr. Haar
gave sanctionable false testimony.” We agree.
26
(4) violation of other disciplinary rules, (5) [Mr. Haar’s] disciplinary history [which
the Board noted was a “substantial aggravating factor”], (6) whether [Mr. Haar had]
acknowledged his . . . wrongful conduct, and (7) mitigating circumstances,” In re
Martin, 67 A.3d 1032, 1053 (D.C. 2013), as amended (Oct. 23, 2014); the Board
also reviewed cases comparable to Mr. Haar’s. Mindful that “[a] six-month
suspension without a fitness requirement is the norm for attorneys who have
committed negligent misappropriation of entrusted funds,” In re Edwards, 870 A.2d
90, 94 (D.C. 2005), the Board recommended a harsher sanction in Mr. Haar’s case
in order to impress upon the District’s attorneys that “every lawyer—regardless of
his or her employment, area of practice or level of seniority—should read, become
familiar with, understand, and adhere to the Rules of Professional Conduct and the
Court’s decisions applying those Rules.” Accordingly, it recommended a seven-
month suspension, followed by a one-year period of probation with conditions.
We therefore suspend Mr. Haar for seven months for negligent
misappropriation under Rule 1.15(e) in the Gur matter, after which we impose a one-
year period of probation, during which Mr. Haar must submit to a PMAS evaluation
and complete up to ten hours of CLE recommended by PMAS at its sole discretion.
27
So ordered.