In re Tun

• Decision Date: 18 October 2018
• Docket Number: No. 17-BG-0769,17-BG-0769
• Citation: 195 A.3d 65
• Parties: IN RE Harry TUN A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 416262)
• Court: D.C. Court of Appeals

195 A.3d 65

IN RE Harry TUN A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 416262)

No. 17-BG-0769

District of Columbia Court of Appeals.

Argued May 8, 2018

Decided October 18, 2018

Hendrik deBoer, Senior Staff Attorney, with whom Elizabeth A. Herman, Deputy Disciplinary Counsel, Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, and Jelani C. Lowery, Assistant Disciplinary Counsel, were on the brief, for petitioner.

Abraham C. Blitzer for respondent.

Before Glickman and Thompson, Associate Judges, and Nebeker, Senior Judge.

Opinion by Associate Judge Glickman, concurring in part and dissenting in part, at page 79.

Thompson, Associate Judge:

In this original-discipline action, the Board on Professional Responsibility (the "Board") recommends that respondent Harry Tun be suspended for one year, with a requirement of proof of fitness before reinstatement, for violations of Rules 3.3 (a)(1) and 8.4 (c) of the Rules of Professional Conduct. We adopt the Board's recommendation of a one-year suspension, but decline to impose a fitness requirement.

I.

The Office of Disciplinary Counsel (known until 2015 as the Office of Bar Counsel) initiated disciplinary proceedings against respondent after he filed, in a criminal matter before the Honorable Russell F. Canan, a motion for Judge Canan to recuse himself. The recusal motion, which respondent filed on October 16, 2009, stated in pertinent part as follows:

[S]everal years ago, Judge Canan reported undersigned counsel for an alleged ethical violation, which was then investigated by D.C. Bar Counsel. The investigation was then dismissed without any disciplinary action being instituted against undersigned counsel.

Respondent acknowledges that these assertions were untrue in that (1) "Judge Canan had not reported [r]espondent for an ethical violation" and (2) the matter Judge Canan identified "had not been dismissed but was active in the disciplinary system" (with the result that respondent "ultimately did receive[ ] discipline"). The background is as follows.

Between 1999 and 2003, respondent, a criminal defense attorney, accepted appointments pursuant to the District of Columbia Criminal Justice Act ("CJA") to advise and represent indigent criminal defendants in the Superior Court of the District of Columbia. Respondent submitted to the Superior Court payment vouchers in which he indicated the times he started and stopped working on matters for each individual client. Judge Canan became concerned that respondent was inaccurately reporting his time and notified the Chief Judge of the Superior Court, who referred the matter to the United States Attorney's Office ("USAO") for investigation. The USAO's review of respondent's vouchers revealed that respondent had sought payment for the same time period for two or more clients on 162 occasions. The USAO agreed not to file criminal charges against respondent if he "repaid the $16,034 in overpayments he had received as a result of false reporting" and "reported his conduct to the Office of Disciplinary Counsel."

Respondent reported his conduct to the Office of Disciplinary Counsel on July 26, 2006. On March 27, 2009, Disciplinary Counsel and respondent jointly filed with a Hearing Committee of the Board a petition for negotiated discipline, in which respondent stipulated that he violated the Rules of Professional Conduct as charged in Disciplinary Counsel's Specification of Charges¹ and agreed to a nine-month suspension and a one-year period of probation. The Hearing Committee determined that the negotiated discipline was appropriate, and this court referred the petition to the Board for its views on August 12, 2009 (i.e., two months before respondent filed the recusal motion that underlies the instant matter). On November 24, 2009, the Board recommended that this court reject the initial petition for negotiated discipline "on the grounds that the proposed sanction was unduly lenient," a recommendation this court followed. Thereafter, Disciplinary Counsel and respondent submitted an amended petition. In August 2011, this court approved the parties' amended petition for negotiated discipline, under which we imposed on respondent the sanction of an eighteen-month suspension, with six months stayed subject to the terms of an agreed-upon probation. See In re Tun , 26 A.3d 313, 314 (D.C. 2011).²

It was while the petition for negotiated discipline was pending before the Board that respondent filed the recusal motion at issue here, falsely stating that the CJA-vouchers matter had been "dismissed without any disciplinary action being instituted against" him.

On the basis of the false statements in the motion to recuse, Disciplinary Counsel charged appellant anew with violating Rules 3.3 (a)(1),³ 8.4 (c),⁴ and 8.4 (d).⁵ An Ad Hoc Hearing Committee held an evidentiary hearing on the new charges on May 5, 2015. The hearing focused on the following passages from the recusal motion:

Page 1 of the recusal motion, where respondent wrote:

Judge Russell Canan has previously reported undersigned counsel for ethical violations and professional misconduct, which then led to an investigation by the [USAO] for criminal conduct by undersigned counsel. This investigation was ultimately ... dismissed without any criminal charges being lodged against undersigned counsel. The investigation of Judge Canan's referral included, but was not limited to, the execution of a search warrant upon undersigned counsel's office. Undersigned counsel submits that he was then investigated by D.C. Bar Counsel as a result of Judge Canan's actions. This occurrence created a great deal of animosity between undersigned counsel and Judge Canan, to the extent that Judge Canan has stated on numerous occasions that undersigned counsel was on "thin ice" for his conduct during some proceedings.

And pages 3-4 of the motion, where respondent wrote:

With regard to the present matter, several years ago, Judge Canan reported undersigned counsel for an alleged ethical violation, which was then investigated by D.C. Bar Counsel. The investigation was then dismissed without any disciplinary action being instituted against undersigned counsel. Since this time, Judge Canan has fostered a hostile relationship with undersigned counsel. He has an established prejudice against undersigned counsel and, consequently, has an established prejudice against the [d]efendant in this matter, which was not acquired from his participation in this case. Judge Canan's hostility and bias against undersigned counsel and his client has [sic] been readily apparent in trial in the above-captioned matter.

At the hearing, respondent acknowledged that he made statements in the recusal motion that were untrue. He testified that he knew at the time he wrote and filed the motion that he "w[as] being prosecuted by" Bar Counsel and had joined a petition for negotiated discipline in which he admitted to violations of the Rules.

Respondent further told the Hearing Committee that the recusal motion was "a very, very rushed job," which he filed "at 8:30 or 9 at night" after a "heated argument" with Judge Canan that day, and that he "didn't really proofread" the document (an omission he said was shown by the uncorrected "big gap" between the paragraphs on page 3 of the motion). Respondent asserted that his misrepresentation in the motion was due to a proofreading error, and that instead of "D.C. Bar Counsel" (in the sentence on pages 3-4 of the motion stating that "several years ago, Judge Canan reported undersigned counsel for an alleged ethical violation, which was then investigated by D.C. Bar Counsel"), respondent should have written the "United States Attorney's Office."⁶ Respondent characterized the misstatement as an "inartful[ ]" "recap" of the sentence on page 1 of the motion that stated that an "investigation [by the USAO] was ultimately ... dismissed without any criminal charges being lodged against" him. He further explained that if he had proofread the motion, he "never would have filed it" as written and "would have said" instead that he was investigated by the USAO, which was "the one[ ] who dismissed it." Respondent maintained that the recusal motion contained "a typographical error" and that he did not intentionally or knowingly write statements that falsified or misled as to the facts.

In addition, referring to the fact that he had failed to file with the recusal motion the affidavit and certificate required by Super. Ct. Civ. R. 63-I (a) & (b) — an affidavit stating "the facts and the reasons for the belief that bias or prejudice exists" and a certificate of counsel stating that the motion was being "made in good faith" — respondent explained that he "didn't know that [he] had to file [an] affidavit" with the motion.⁷ He made that assertion notwithstanding the fact that the second page of the recusal motion cited and quoted Rule 63-I. Respondent attributed this contradiction to his having "cut and paste[d]" language (which he took from "the computer") without actually "think[ing] it through."

The Hearing Committee submitted its report and recommendation to the Board on August 30, 2016. A majority of the Hearing Committee rejected as false respondent's testimony that his misstatement in the recusal motion (i.e., that the disciplinary investigation had been dismissed) was "inadvertent." The Hearing Committee majority found respondent's explanation "not credible and contrary to the weight of the evidence." Addressing respondent's testimony about his "negligent" "failure to proofread" the recusal motion, the Hearing Committee majority found respondent's explanation about "inartful[ ]" "recap[ping]" both "inconsistent with the motion to recuse itself" and "nonsensical." (internal quotation marks omitted). The Hearing Committee majority found that respondent's further explanation — that even though page 2 of the recusal motion quoted Rule 63-I in full, he did not know he had to file a...