In re Cynthia S. Malyszek , 182 A.3d 1232 ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-BG-663
IN RE CYNTHIA S. MALYSZEK, RESPONDENT.
A Member of the Bar of the District of Columbia Court of Appeals
(Bar Registration No. 396875)
On Report and Recommendation
Of the Board on Professional Responsibility
(BDN 334-09, BDN 101-07 & BDN 10-14)
(Board Docket Nos. 13-BD-102 & 14-BD-98)
(Decided April 26, 2018)
Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.
PER CURIAM: In this case, the Board on Professional Responsibility
concurred with the Ad Hoc Hearing Committee’s findings and recommended
discipline. In its report, the Board acknowledged that the Ad Hoc Hearing
Committee found that respondent Cynthia Malyszek had committed numerous
violations in the course of her representation of three clients; however, in accepting
the recommendation of disbarment the Board relied on the factual findings that
respondent engaged in at least reckless misappropriation of client funds in the
2
Mills matter.1 Specifically, respondent failed to deposit the retainer she received
from her client Ortez Mills into a trust account and instead commingled the
unearned fees with her own funds in her operating account. Further, although
respondent had only earned part of the retainer, the operating account fell far
below the amount owed to Mr. Mills and was overdrawn on a day when, as
respondent acknowledged, she owed Mr. Mills $990 in unearned fees. Finally,
respondent failed to return the unearned fees to Mr. Mills upon his request,
resulting in his contacting Disciplinary Counsel.
In light of this record, we agree with the Board’s determination that
respondent recklessly misappropriated entrusted client funds. See In re Edwards,
990 A.2d 501, 518-19 (D.C. 2010) (misappropriation occurs when the balance of
the account falls below the amount owed to the client). The presumptive discipline
for reckless misappropriation is disbarment. See, e.g., In re Addams, 579 A.2d
190, 193 (D.C. 1990) (en banc).
1
In the Mills matter the Hearing Committee found that respondent
misappropriated client funds in violation of the Rules of Professional Conduct 1.15
(a) & (b), 1.16 (d), and 5.3 (b) & (c). The Hearing Committee further found that
the facts established that the misappropriation was at least reckless and that no
circumstances existed to justify straying from the presumed penalty of disbarment.
The Hearing Committee therefore concluded that respondent should be disbarred.
3
Under D.C. Bar R. XI, § 9 (h)(2), “if no exceptions are filed to the Board’s
report, the [c]ourt will enter an order imposing the discipline recommended by the
Board upon the expiration of the time permitted for filing exceptions.” See also In
re Viehe, 762 A.2d 542, 543 (D.C. 2000) (“When . . . there are no exceptions to the
Board’s report and recommendation, our deferential standard of review becomes
even more deferential.”). While respondent did file exceptions, she failed to file
her brief as directed, and most of her exceptions focus on the two matters that were
not relied on by the Board to support its recommended sanction. As to the Mills
matter, respondent merely asserted that the recommended discipline of disbarment
was too harsh; her exceptions do not address her actions in the Mills case and fail
to provide a basis for this court to depart from the Board’s recommendation.
Accordingly, it is ORDERED that respondent Cynthia Malyszek is hereby
disbarred. For purposes of reinstatement the period of respondent’s disbarment
will not begin to run until such time as she files a D.C. Bar R. XI, § 14 (g)
affidavit.
So ordered.