Attorney Grievance Commission v. Burka

Cole, J., delivered the opinion of the Court. The issue presented here is whether, under the facts of this case, a psychiatrist’s diagnosis of "anxiety neurosis with associated depression” is a compelling extenuating circumstance such that it would warrant a sanction less severe than disbarment when an attorney has been found guilty of behavior involving fraud, deceit, or dishonesty. ²²² The chain of events pertinent to resolution of this issue began in August of 1974. At that time Leonard Burka had a successful law practice in the District of Columbia and in the State of Maryland. He was apparently regarded as a respected practitioner who had never before been accused of untoward conduct in the practice of his profession.

In August of 1974 Burka’s father suffered a debilitating stroke that required the use of life support equipment to keep him alive. After consultation with the doctors, Burka made the decision to discontinue the heroic efforts to preserve his father’s life. As a result, Burka’s father expired on August 24, 1974. On May 12, 1975, Burka was appointed successor conservator of the Estate of Rose E. Leonard by the Superior Court of the District of Columbia.

Burka apparently did not ask for this assignment but he accepted it and its attendant responsibilities. Between October 9,1975 and May 21,1976, Burka made fifteen unauthorized withdrawals from the Leonard Estate checking account in the total amount of $41,100. Roughly half of that sum corresponds by date and amount to deposits and withdrawals from Burka’s personal checking account. By December 14, 1977, Burka had paid into the estate account all the money he was accused of taking, plus interest, so that there is no evidence that the estate suffered any ultimate injury.

In April of 1979 Burka was called before the District of Columbia Bar Hearing Committee for disciplinary proceedings regarding the misappropriation of his client’s funds. He appeared without counsel and admitted to taking the funds. He did not at that time raise any issue regarding his mental health. He failed to respond to Bar Counsel’s request for information before the hearing and was unable to relate how much money he had taken, when he had taken it, or to what use he had put the money.

Burka requested and received two weeks 1 to find out the information he was ²²³ unable to provide. He did not supply the information. Subsequently, two members of the Committee voted to disbar him and the third recommended a five year suspension. On August 17, 1979, Burka, through his counsel, filed a motion with the District of Columbia Board of Professional Responsibility to stay the proceedings before the Disciplinary Board and to remand for further proceedings predicated on new evidence, raising the issue of his mental disability for the first time.

He appended a letter indicating that on August 10,1979, he had consulted a psychiatrist, Dr. Sydney Shankman, who diagnosed his condition as anxiety neurosis with associated depression, caused by guilt feelings generated from Burka’s role in his father’s death. Dr. Shankman’s letter opined that Burka’s guilt feelings resulted in a desire to punish himself and that these were the motivations behind Burka’s misappropriation of his client’s funds. Later, at the hearing on the motion, the Board offered to postpone its proceedings if Burka would voluntarily refrain from practice until a determination was made. Burka refused and the Board ordered disbarment.

In its report the Board of Professional Responsibility stated that it was unconvinced that Burka’s misconduct was the result of his mental condition. In the Board’s opinion the psychiatrist’s letter was weak and presented unexplained inconsistences. For instance, Dr. Shankman felt that Burka was incapable of taking care of his own affairs but capable of taking care of the affairs of others. Dr. Shankman also said that Burka was not seeking personal gain, yet the financial statement made in the Report of the Auditor Master shows that $20,224.72 2 was expended by Burka for personal use, e.g., car note, home mortgage loans, country club dues, college tuition for his children, coat for his wife, and household bills.

Furthermore, the Board noted that the psychiatric examination took place four years after the misconduct occurred and found that there was no evidence that Burka’s mental condition affected his personal affairs or his clients’ affairs, or that Burka was anti-social. ²²⁴ The District of Columbia Court of Appeals affirmed the decision of the Board of Professional Responsibility in Matter of Burka, 423 A.2d 181 (D. C. App. 1980). Specifically, Burka was found guilty of violating the following disciplinary rules: (1) DR 9-102 (A), knowingly commingling estate funds with his own; (2) DR 9-102 (B) (3), failing to maintain complete records and render appropriate accounts of client funds; (3) DR 9-102 (B) (4), failing to pay over promptly funds which his client’s account was entitled to receive; (4) DR 1-102 (A) (4), engaging in dishonesty and deceit in making unauthorized withdrawals of client funds for his own use; and (5) DR 1-102 (A) (5), engaging in conduct prejudicial to the administration of justice in failing to turn over assets of the estate properly to the court or successor conservator, and in failing to submit bank statements to the Auditor upon request. The Attorney Grievance Commission of Maryland thereafter brought these proceedings against Burka and it recommended that Burka be disbarred in this State. At an evidentiary hearing before Judge Philip M. Fairbanks of the Circuit Court for Montgomery County Burka was found to have violated these disciplinary rules: a.

Disciplinary Rule 1-102 (A) (1), a lawyer shall not violate a disciplinary rule; b. Disciplinary Rule 1-102 (A) (3) by his unauthorized removal of funds from the Estate of Rose E. Leonard, and a diversion of those'funds to his personal use; c. Disciplinary Rule 1-102 (A) (4) by engaging in ²²⁵ conduct involving dishonesty, fraud,