Attorney Grievance Commission v. Tun

HARRELL, J. This reciprocal discipline action arises from a proceeding initiated by the District of Columbia Bar Counsel (“D.C. Bar Counsel”) against Respondent, Harry Tun, for overbilling the District of Columbia Superior Court (“Superior Court”) for legal services rendered to indigent defendants in criminal cases. Between 1999 and 2003, Tun, an experienced defense lawyer who accepted a substantial number of appointments to represent indigent defendants, submitted 162 vouchers seeking payment for the same time period for two or more clients. A Superior Court judge reviewing Tun’s vouchers became suspicious when he discovered an incident of double-billing. The Superior Court referred the matter to the United States Attorney for the District of Columbia, who declined to prosecute the case, but required Tun to self-report the misconduct to D.C. Bar Counsel.

Tun “self-reported,” as required. D.C. Bar Counsel initiated an investigation and filed charges against Tun. The D.C. Court of Appeals issued an order approving a petition for negotiated discipline in which Tun admitted violating D.C. Rules of Professional Conduct (D.C. RPC) 1.5(a) 1 and (f) 2 (Fees); 3.3(a)(1) 3 (Candor Toward the ²³⁸ Tribunal); and 8.4(c) and (d) 4 (Misconduct). 5 As a consequence, Tun was suspended from the practice of law in the District of Columbia for 18 months, with six-months stayed, followed by a one-year probationary period, during which certain conditions were to be met. Petitioner, the Maryland Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary or remedial action against Tun (because he was admitted also in Maryland) based on the misconduct supporting the D.C. RPC violations.

As in the present case, when we do not have available an identical sanction in our regulatory scheme to the one imposed by the D.C. Court of Appeals, we evaluate which sanction in our arsenal and precedents would be applied had the attorney’s conduct occurred in Maryland. Thus, we suspend indefinitely Tun from the practice of law in Maryland, with the right to reapply after he is re-admitted unconditionally to the Bar of the District of Columbia. FACTS AND PROCEDURAL BACKGROUND Tun stipulated to the facts alleged by D.C. Bar Counsel and the parties entered into negotiated discipline for Tun’s admit ²³⁹ ted violations of D.C. RPC 1.5(a) and (f); 3.3(a)(1); and 8.4(c) and (d). The Amended Petition 6 for Negotiated Discipline included the following stipulated facts: 1.

Between 1999 and 2003, Respondent practiced criminal defense law. As part of his practice, he accepted appointments from the Superior Court of the District of Columbia (“Superior Court”), pursuant to the District of Columbia Criminal Justice Act, D.C.Code § 11-2601 et seq. (2001 ed)(“CJA”), to advise and represent indigent criminal defendants in the Superior Court. 2. When the Superior Court appointed Respondent to represent an indigent criminal defendant, it would issue a court order, pursuant to the CJA, to that effect.

The order incorporated and included a form entitled “Appointment and Voucher for Legal Services-Initial Claim” (“voucher”), so that Respondent could claim payment for legal services that he rendered to his clients. The voucher included spaces and sections for Respondent to itemize his time, expenses and compensation claimed on the case. The voucher also included on its face an oath and affirmation of the correctness of the claimed compensation, with a line for Respondent’s signature. 3. After certain intervals in a case, or upon completion of a case, Respondent would fill out a voucher claiming payment for services rendered in that case, swear to its truthfulness and correctness by signing a verification clause on the face of the voucher, and turn the voucher in to the Superior Court for processing and payment. 4.

Between 1999 and 2003, Respondent submitted 162 vouchers to the Superior Court claiming payment for legal services rendered to indigent defendants. In each voucher, ²⁴⁰ Respondent would set forth the time he started and stopped working for a particular client for each day he claimed payment. A review of the vouchers that Respondent submitted between 1999 and 2003 reflects that Respondent sought payment for the same time period for two or more clients on 162 occasions. As a result of the double billing for multiple clients, Respondent sought and received payment for 1,180.25 hours of services he did not provide, or that he did not provide at the time that he claimed. 6.

A judge of the Superior Court became concerned about the accuracy of Respondent’s vouchers and notified the Chief Judge, who then referred the matter to the United States Attorney’s Office for the District of Columbia for investigation. During the course of the United States Attorney’s investigation, Respondent provided evidence that he had rendered legal services in CJA cases and for which he had never submitted vouchers. Although the United States Attorney’s Office determined that it would not proceed with criminal prosecution of Respondent, Respondent and the United States Attorney’s Office agreed that Respondent would remove himself from the Superior Court’s list of attorneys who accept court-appointed cases, and he repaid $16,034 (representing time that Respondent had double billed minus a reasonable estimate that he could have but failed to bill for other court-appointed matters) to the Superior Court. 7. Respondent’s conduct violated the following Rules of Professional Conduct: a.

Rule 1.5(a) and (f), in that Respondent charged a fee that was prohibited by law and therefore per se unreasonable. b. Rule 3.3(a)(1), in that Respondent made a false statement of . material fact or law to a tribunal; c. Rule 8.4(c), in that Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and ²⁴¹ d. Rule 8.4(d), in that Respondent engaged in conduct that seriously interfered with the administration of justice.

During a limited hearing before the D.C. Board of Professional Responsibility Hearing Committee Number Six, the parties stipulated to the following additional findings of fact and conclusions: a. Respondent’s record-keeping was abysmal. b. When Respondent signed the vouchers, he knew that he had not checked to make sure that the details for the entries on the voucher “matched up,” but he did not have the records to be able to do so.... c. Respondent knew that when he signed the vouchers he was making misrepresentations, because he did not check the facts to make sure the entries were accurate when he filed the documents....

However, Respondent did not have records accurate enough to check these vouchers---- d. Because Respondent did not verify that the vouchers were correct, that is a misrepresentation.... e. Respondent recklessly maintained inadequate time records and consciously disregarded the risk that he might be overcharging the C JA fund in a specific case.... f. In the aggregate, Respondent did not accept any funds from the District of Columbia that he was not entitled to receive if he had correctly filled out the vouchers to reflect the work he had performed.... g.

Respondent was entitled to the compensation he sought, but he failed to document accurately the services he had provided. The D.C. Court of Appeals approved the petition for negotiated discipline on 11 August 2011 and suspended Tun from the practice of law in the District of Columbia for 18 months, with six months of the suspension stayed, followed by one year of probation with conditions as agreed to by Tun and Bar Counsel. In re Harry Tun, 26 A.3d 313 (D.C.2011). The probation conditions included a mandatory practice monitor, obtained through the Practice Management Advisory Service ²⁴² of the D.C. Bar, who will submit reports every two months to the D.C. Bar Counsel containing a “full assessment of [Tun’s] business structure and his practice, including but not limited to reviewing financial records, invoices, client files, engagement letters, supervision and training of staff, and responsiveness to clients.” If Tun fails to comply with the terms of his probation, the stay of the six-months of the total suspension is lifted, the additional six-month suspension is imposed, and Tun then must show fitness to practice as a condition of his reinstatement.

Concomitantly, on 19 October 2011, the United States Court of Appeals for the Fourth Circuit (before which Tun was admitted) issued, under reciprocal discipline principles, an order suspending Tun from the practice of law for 18 months, continuing until he is readmitted to the Bar of the District of Columbia and petitions the Fourth Circuit Court for readmission. On 22 November 2011, the United States District Court for the District of Maryland suspended Tun for 18 months, with six months stayed, followed by a one-year period of supervised probation, according to the conditions provided in the D.C. Court of Appeals’s order suspending Tun. Bar Counsel in Maryland, for its part, filed a petition for disciplinary or remedial action pursuant to Maryland Rules 16-751(a)(2) 7 and 16-773(b), 8 charging Tun, also admitted to practice in Maryland, with violations of the analogous Maryland Lawyers’ Rules of Professional Conduct (MLRPC) ²⁴³ 1.5(a) 9 (Fees); 3.3(a)(1) 10 (Candor Toward the Tribunal); and 8.4(c) and (d) (Misconduct), 11 based on the findings of fact and conclusions of law that underlaid the D.C. RPC violations. We issued a Show Cause order on 23 January 2012 to Tun and Bar Counsel requiring them to provide, in writing, any grounds for why corresponding discipline should not be imposed by this Court.

Both parties responded in writing and the Court heard oral argument on 6 June 2012. Bar Counsel recommended that Tun be suspended indefinitely from the practice of law in Maryland. Tun requested that this Court impose lesser discipline, “i.e. six month suspension with same conditions imposed by [the] District of Columbia Court of Appeals” or, alternatively, to impose identical discipline to that imposed by the D.C. Court of Appeals. ²⁴⁴ STANDARD OF REVIEW This Court has “original and complete jurisdiction over attorney disciplinary proceedings.” Att’y Griev. Comm’n v. Weiss, 389 Md. 531, 544 , 886 A.2d 606, 613 (2005); Att’y Griev.

Comm’n v. Tayback, 378 Md. 578, 585 , 837 A.2d 158, 162 (2003). In an action for reciprocal discipline, we treat as conclusive evidence of attorney misconduct from “a final adjudication in a disciplinary or remedial proceeding by another court, agency, tribunal.” Md. Rule 16-773(g); see also Att’y Griev. Comm’n v. Thaxton, 415 Md. 341, 361 , 1 A.3d 470, 482 (2010); Att’y Griev. Comm’n v. Whitehead, 390 Md. 663, 669 , 890 A.2d 751, 754 (2006).

This does not preclude, however, Bar Counsel or the attorney from “introducing additional evidence or preclude the attorney from introducing evidence or otherwise showing cause why no discipline or lesser discipline should be imposed.” Md. Rule 16-773(g). DISCUSSION Tun admitted submitting vouchers to the Superior Court seeking payment for services rendered during the same time period for two or more clients on 162 occasions. He admitted also that, although the “double-billing” was the result of his “abysmal record-keeping,” the misconduct violated D.C. RPC 1.1(a) and (f), 3.3(a)(1), and 8.4(c) and (d). Because we accept the findings and conclusions of the D.C. Court of Appeals that Tun violated the D.C. RPC as conclusive evidence of his violation of the corresponding MLRPC, we consider only what is the most appropriate reciprocal sanction in Maryland.

In deciding what is the appropriate sanction in a reciprocal discipline action, we balance “our tendency to follow the original jurisdiction’s sanction under our reciprocal discipline doctrine, against our prior cases and the sanctions imposed upon members of this Bar for similar misconduct committed in this jurisdiction, always with a view towards the protection of the public.” Weiss, 389 Md. at 546 , 886 A.2d at 614 . As we explained in Whitehead , Maryland Rule 16-773(f) is permissive in its directions, rather than mandatory, stating ²⁴⁵ that we “may impose corresponding discipline, not that we shall impose identical discipline.” Thaxton, 415 Md. at 362 , 1 A.3d at 483 (internal quotation omitted). Maryland Rule 16-721 provides five possible sanctions for attorney misconduct under our regulatory scheme, including: