BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE,
Appellant v. RICHARD BONNINGTON, Appellee
[NO NUMBER IN ORIGINAL]
Supreme Court of Tennessee
762 S.W.2d 568;
1988 Tenn. LEXIS 248
December 5, 1988, Filed
PRIOR HISTORY:
[**1]
Hamilton Law, Honorable William Inman, Chancellor
DISPOSITION: AFFIRMED.
COUNSEL: Robert Fellman, Disciplinary Counsel, Nashville, Tennessee, For Appellant.
James C. Lee, P.C., Attorney-at-Law, Chattanooga, Tennessee, For Appellee.
JUDGES: Wm. H. D. Fones, Justice. Cooper, Drowota, O'Brien, JJ., concur. Concurring
in part and dissenting in part William J. Harbison, C.J.
OPINIONBY: FONES
OPINION:
[*568] A hearing committee found that Respondent, Richard Bonnington, had
misappropriated funds belonging to the estate of Cleo B. Durrah, deceased, and
suspended him from the
practice of law for a period of four years, conditioning his
reinstatement on full
restitution of interest, attorney's fees and costs, respondent having returned the
principal sums appropriated before discovery of his
misdeeds. The Circuit Court of Hamilton County affirmed the judgment of the hearing
committee and the Board of Professional Responsibility appealed to this Court,
insisting that
disbarment is the only appropriate disposition of a
misappropriation case such as this.
Respondent, Richard Bonnington, was admitted to the bar in 1975. He began the
practice of law in Chattanooga in September 1976. Between September 1976 and
[*569] early 1980 he practiced with four different law firms or lawyer groups. He was
practicing alone
[**2] in Red Bank in June 1980, when his lawyer friend, Mitchell Byrd, called him
and
asked him if he would handle the estate of Cleo B. Durrah. The sole
beneficiary of the estate, Albert Sims, of Detroit, Michigan, was in Mr. Byrd's office at
that time. Respondent agreed and was duly appointed
administrator by the
Probate Court of Hamilton County and served as lawyer for the
administrator. On 1 April 1981, Joe Harrison, Mitchell Byrd, and respondent began practicing
law as
partners with the firm name of Harrison, Bonnington and Byrd. Respondent continued to
practice with that firm until he voluntarily
withdrew from the
practice of law in June 1986.
The gross receipts that came into respondent's hands as
administrator of the Durrah estate was $ 28,636.29. That sum included a check for $ 2,800
given as earnest money on the purchase of the house and lot belonging to the
estate that was dishonored by the bank. Thus, the gross estate was actually $
25,836.29. The house was eventually sold and respondent received the net
proceeds of the sale, $ 19,640.08 on
15 April 1981. Upon receipt of that sum, respondent had $ 21,956.82 in the
estate bank account. The
disbursements he had made included an
[**3]
unauthorized check to himself on 19 August 1980 in the sum of $ 1,500 that he testified he
used to purchase a copy machine.
On 9 June 1981, respondent disbursed $ 5,003 to Albert Sims, the estate
beneficiary. On 26 February 1982, respondent paid himself $ 9,289.46 out of the estate
account. On 1 August 1982, respondent returned that identical sum to the estate
account.
Thereafter, respondent wrote
unauthorized checks to himself as follows:
(1) 21 December 1982, $ 1,000;
(2) 14 February 1983, $ 1,100;
(3) 16 March 1983, $ 5,000;
(4) 18 May 1983, $ 3,000.
The only sum brought into the estate after the proceeds of the sale of the
house was $ 262.57, on 11 February 1983, described as
"Whitehead --
Garnishment Proceeds." On 9 March 1983, respondent made a second partial distribution to Albert Sims
of $ 5,000. It is clear from the record before us that a final accounting
should have been filed at that time, a full distribution made to Sims and the
estate closed.
The
Probate Court of Hamilton County approved the sum of $ 7,198.05 for respondent's
services and expenses as
administrator and attorney for the estate. Respondent
withdrew that sum from the estate on 31 October 1983.
Respondent
[**4] reimbursed the estate for the sums he improperly
withdrew, as follows:
(1) 1 November 1983, $ 10,000;
(2) 7 February 1986, $ 1,600.
At some date near the end of 1985 the
Probate Court removed respondent as
administrator and appointed Walter Grantham as his successor. The record does not reveal the
date respondent learned of his removal but clearly implies that it was prior to
7 February 1986. On that date respondent wrote a
check payable to the Durrah Estate, drawn on his law firm's
trust account for $ 1,600. That sum completed the return to the estate of all the principal
that he had improperly withdrawn.
On 12 February 1986, respondent filed an accounting in the
Probate Court that correctly reflected all of the receipts and
disbursements except the six checks to himself
totalling $ 20,889.46 and the three
restitution checks
totalling that same amount.
Albert Sims called Mitchell Byrd about closing the estate, apparently in early
1986, and that, and other events, led Mr. Byrd to have an accountant
audit the firm
trust account and the Durrah estate account. The results of that
audit were delivered to Mr. Byrd at about the same time that Respondent decided to
and did reveal to his law
[**5]
partners that he had misappropriated funds from the Durrah estate.
Apparently respondent had theretofore advised the
probate judge of the
misappropriations. On 11 June 1986, Respondent's counsel, James C. Lee,
advised the Board of Professional Responsibility that Bonnington
[*570] had made
unauthorized borrowings from the Durrah estate while serving as its
administrator and attorney and that Bonnington was voluntarily withdrawing from the
practice of law.
At the time of the hearings below, respondent was represented by counsel other
than Mr. Lee in the proceedings in the
probate court to determine the exact amount due the estate. There was testimony in
this case that the successor
administrator had informally advised respondent that he owed approximately $ 4,000 interest
plus the repayment of the fee allowed in the Durrah estate of approximately $
7,000. Respondent acknowledged his indebtedness for those sums and it appears
from this record that when respondent's interest in the
law firm and some real estate it owns is forthcoming, that that indebtedness to the
Durrah estate will be satisfied. We will assume for the purpose of this
proceeding that respondent will satisfy the judgment rendered
[**6] by the
probate court, expeditiously. It will be essential that he prove that he has done so
as one of the
prerequisites to restatement of his license to practice law if and when he
makes application.
It is appropriate to observe at this point that a
suspension of four years from the
practice of law is only one year short of the maximum punishment of
disbarment from the
practice of law. A lawyer suspended for one year or more must apply for
reinstatement and go through the same procedure that a disbarred lawyer must do after five
years, to-wit: prove by clear and convincing evidence in the established
tribunals of the
disciplinary system that he or she has the moral qualifications, competency and learning in
law required for admission to practice in this State and that his resumption of
the
practice of law within the State will not be detrimental to the integrity and standing of the
bar or the administration of justice or subversive to the public interest.
See Supreme Court Rule 9,
§ 19.
At the hearing before
Chancellor Inman, the attorney for the Board
stated that no new evidence would be presented because
"both sides basically accept the findings of fact" of the
hearing panel.
[**7] Thereafter, he observed that the Board's only disagreement with the
hearing panel was its finding that respondent's admission of guilt was voluntary. The
Board's contention before the
chancellor and in this Court is that the time has arrived to promulgate a
hard and fast rule that all
misappropriations of funds by lawyers should result in
disbarment, unless the lawyer is shown to be under a disability that negates the
mens rea at the time of the taking. In short, the Board says that the only
mitigating factor that should be considered is one that would establish that the lawyer did not
know right from wrong at the time of the taking. Cases in other jurisdictions
are cited holding that
restitution should not be considered a
mitigating factor in any circumstances.
See
Ambrose v. State Bar, 31 Cal.3d 184, 643 P.2d 486, 181 Cal. Rptr. 903 (1982);
Oklahoma Bar Association v. Lowe, 640 P.2d 1361 (Okla. 1982);
In re Galloway, 278 S.C. 615, 300 S.E.2d 479 (1983). The Board acknowledges that other jurisdictions do consider
restitution as an appropriate
mitigating factor.
See
People v. Luxford, 626 P.2d 675 (Colo. 1981);
The Florida Bar v. Pincket, 398 So.2d 802 (Fla.1981) and
In
[**8]
re Suemnick, 108 Wis.2d 427, 321 N.W.2d 298 (1982).
We considered
restitution to be a
mitigating circumstance in
Disciplinary Board of the Supreme Court v. Banks, 641 S.W.2d 501 (Tenn.1982). Although the circumstances in that case of the lawyer's misuse of a client's
funds were significantly different from the case at bar, we think it is
appropriate to
give consideration to the factor of
restitution as a possible
mitigating circumstance. The contrast between the facts of this case and
Banks remind us that there are widely
varying degrees of
misappropriation of funds and widely
varying degrees of the circumstances of
restitution. In our view, the objective of achieving uniformity of punishment in
disciplinary proceedings does not require that every named offense be accorded identical
punishment. Like murder in the first degree,
[*571] lawyer
misappropriation of funds is subject to more than one punishment.
Under the heading of aggravating and
mitigating factors, the
hearing panel noted that respondent had diabetes and takes constant medication; that that
disease has caused injury to his eyesight and he has had to undergo laser
surgery to both eyes; and that he has sought psychological
[**9] counselling. The
chancellor did not mention those factors and we agree with his implicit rejection
thereof. No matter how regrettable, health problems are not an appropriate
mitigating factor, unless they clearly affect a lawyer's
ability to distinguish between right and wrong. Respondent did not assert that
he suffered from any physical or mental disability at the time of any of the
acts of
misappropriation. The
chancellor concurred with the hearing committee in finding as
mitigating factors
restitution, revelation to the
probate judge and the Board of Professional Responsibility of his
misdeeds, voluntarily ceasing practice and genuine remorse for his
misdeeds.
Our scope of review in
disciplinary matters is
de novo upon the record of the trial court with a presumption of correctness unless
the evidence preponderates against those findings.
Office of Disciplinary Counsel v. McKinney, 668 S.W.2d 293 (Tenn.1984). In that case we held that the trial judge should not have imposed a harsher
sentence than that imposed by the
hearing panel unless the evidence
preponderated against the panel's findings. Here, the
chancellor expressly said that he could not hold that the evidence
preponderated
[**10] against the judgment of the
hearing panel. While this Court is
not bound to follow a concurrent finding as to punishment in a
disciplinary matter, we think it appropriate to do so in this case.
CONCURBY: HARBISON (In Part)
DISSENTBY: HARBISON (In Part)
DISSENT: CONCURRING IN PART AND DISSENTING IN PART William J. Harbison, C.J.
I concur in the conclusion reached by the majority that fixed or rigid rules
for
disciplinary sanctions are generally not practicable. Ordinarily all of the circumstances
of each individual case must be considered, and I would be reluctant to impose
a
hard and fast rule that
disbarment must follow in every case of
embezzlement or
defalcation by an attorney.
Nevertheless, there is hardly any misconduct less tolerable or excusable on the
part of a lawyer than to embezzle funds of a client. In this case
embezzlement took place on six different occasions over a period of more than three years,
totalling $ 20,789.46 out of a small estate which had gross assets of about $ 28,600.00.
Of course, the appellee made partial
restitution from time to time, but he testified that he could have made complete
restitution long before he did and that he
simply could not bring himself to do so
"mentally."
[**11]
Appellee concealed his
defalcations from the
beneficiary of the estate, from the
probate court and from his
law firm. The last attempt which he made at
restitution was in February 1986, nearly three years after his last
embezzlement. He had the poor judgment to make this
restitution out of his law firm's
trust account. While he reimbursed that account, his
defalcation was obvious and would certainly have been exposed when one of the firm members
called for an
audit of the firm account. It was at that point, and only at that point, that
appellee came forward to admit a course of
embezzlement which by then had gone on for a period of nearly six years.
In my opinion, no
mitigating circumstances have been shown in this case, and I think that
disbarment is the appropriate punishment. As pointed out by the majority, the physical
health of appellant urged as mitigation neither factually nor legally justifies
leniency in this case. The fact that some
restitution has been made might be an appropriate circumstance to consider if and when
appellee should seek
reinstatement to the
practice of law; but, in my opinion, the attempts at
restitution in this
[*572] case are not
mitigating circumstances in
[**12] view of the fact that the
defalcations occurred on six separate and distinct occasions beginning on August 19, 1980,
and extending through May 18, 1983. Appellee took these funds out of the estate
for his personal use and deliberately failed to close this small, simple estate
and make
disbursement to the single
beneficiary who was the only child of the intestate decedent. Only after the enraged and
embittered
beneficiary angrily called appellee's
partner did the
defalcations come to light. Appellee was allowed a fee and expenses of nearly one-fourth of
this small estate, and he has not yet made
restitution of that fee, although he has agreed to do so, at some future date.
I realize that the difference between four years'
suspension and the
five years attendant upon permanent
disbarment is only a matter of degree. Further, I recognize that there is no right of
reinstatement whatever after a
suspension of either four or five years. Complete
restitution, including attorney's fees and interest, has appropriately been made a
condition of any effort at
reinstatement which appellee may attempt. Nevertheless, deliberate, unexcused
embezzlement of client funds is one of the most serious offenses
[**13] of which a licensed attorney can be guilty. The misconduct shown in this case,
in my opinion, disgraces the legal profession and calls for permanent
disbarment.
