||In the first of two charges before the Hearing Committee, Respondent obtained from his client, a criminal defendant, a treasurer's check made payable to his client in the amount of $8,000. The client endorsed the check and delivered it to Respondent. The client intended the $8,000 he delivered to Respondent to be an entrustment which was to be used to obtain a dismissal of a criminal matter by the payment of restitution to the victim of her alleged criminal conduct. Respondent endorsed the check and deposited it into his IOLTA account. Due to Respondent's delay in satisfying his client's restitution obligation, his client retained successor counsel. Successor counsel corresponded with Respondent and requested that Respondent withdraw his appearance, deliver the client's files to him and forward the $8,000 entrustment. Respondent replied to that correspondence by delivering a copy of the client's file to her new counsel and a check drawn on Respondent's IOLTA account in the amount of $7,465.99, rather than the $8,000 with which he had been entrusted by the client. A complaint in mortgage foreclosure had been filed against Respondent and his wife several months before he deposited the client's $8,000 entrustment into his IOLTA account. On the same date that Respondent deposited the client's $8,000, he withdrew funds from his IOLTA account totaling $32,806.10 to purchase a cashier's check which he forwarded to the mortgagee in order to settle and discontinue the mortgage foreclosure action. Respondent's IOLTA account balance, either by the actual balance in the account or when considering the total amount with which Respondent had been entrusted on behalf of all clients and third parties, was deficient during the time that he had been entrusted with the $8,000 entrusted to him by his client. Petitioner specifically proved that on various dates in September and October 2002 the actual account balance in Respondent's IOLTA account was less than $8,000. Although Respondent claimed that a portion of the $8,000 was intended to pay the outstanding balance of his fee, Respondent provided no corroboration for that claim, such as a writing by which he should have communicated to his client the basis or rate of his fee for the representation. Although the Hearing Committee concluded that "Respondent's conduct constitutes sloppy management of his affairs and serious failures to abide by applicable Rules of Professional Conduct, but did not, in the Committee's view, rise to dishonesty, fraud, deceit or misrepresentation," the Committee did find that the balance in his IOLTA account was deficient during the time he was entrusted with the $8,000 on behalf of that client.
The other charge before the Hearing Committee involved Respondent's representation of a client in divorce, custody and support matters. Respondent told her that the matter would consume a minimum of ten hours of Respondent's time at a rate of $150 per hour. Again, Respondent failed to communicate to his client in writing the basis or rate of his fee for services. The client gave Respondent an advance payment of $1,500 toward his fee, to be drawn upon as earned. Respondent deposited at least $1,300 of that advance into his office account, rather than into his IOLTA account. At the time Respondent deposited the advance the office account had a negative balance. When the client terminated Respondent's services she requested a return of her file and any unearned balance of the advance payment of fee. Respondent failed to timely remit the balance to his client.
In four previous instances, Respondent received private discipline for similar misconduct.
The Hearing Committee recommended a two year suspension. Both Petitioner and Respondent took exception to the Hearing Committee's recommendation for discipline. The Disciplinary Board recommended that Respondent receive a two year suspension. Respondent filed a Petition for Review with the Supreme Court. The Supreme Court entered an Order suspending Respondent for two years.