In re Harry Tun , 195 A.3d 65 ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-BG-0769
10/18/2018
IN RE HARRY TUN
A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 416262)
On Report and Recommendation of the
Board on Professional Responsibility
(BDN-099-14)
(DDN-463-10)
(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 for the court by Associate Judge THOMPSON.
Opinion by Associate Judge GLICKMAN, concurring in part and dissenting in
part, at page 30.
THOMPSON, Associate Judge: In this original-discipline action, the Board on
Professional Responsibility (the “Board”) recommends that respondent Harry Tun
2
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
3
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
4
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
1
Specifically, respondent stipulated that his conduct violated Rule 1.5 (a)
and (f) (in that he charged an unreasonable fee); Rule 3.3 (a)(1) (in that he made a
knowingly false statement of material fact to the tribunal in submitting the
vouchers); Rule 8.4 (c) (in that he engaged in conduct involving dishonesty, fraud,
deceit, or misrepresentation); and Rule 8.4 (d) (in that he engaged in conduct that
seriously interfered with the administration of justice).
2
We found that the CJA-voucher “errors were the result of respondent’s
‘abysmal’ record-keeping” and noted that respondent “repaid to the Superior Court
$16,034, which represented the ‘time that Respondent had double billed minus a
(continued…)
5
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
(…continued)
reasonable estimate [of the time] that he could have but failed to bill for other
court-appointed matters.”’ In re Tun, 26 A.3d at 314.
Respondent asserts that “[d]uring Disciplinary Counsel’s investigation, [he]
presented evidence that he had provided representation to indigent defendants in 42
CJA cases for which he had not sought compensation,” for which he asserts he
would have been “entitled to additional compensation estimated at between
$16,800 and $37,000.” The Board acknowledged respondent’s contention that he
“fail[ed] to charge for time worked on CJA matters in excess of the erroneously
double-bill[ed] charges.” Respondent testified that he is no longer on the CJA
panel but “do[es] at least two pro bono [criminal] cases every year.”
3
Rule 3.3 (a)(1) provides generally that “[a] lawyer shall not
knowingly . . . [m]ake a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the tribunal by the
lawyer.”
4
Rule 8.4 (c) provides that “[i]t is professional misconduct for a lawyer
to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.”
6
(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.
5
Rule 8.4 (d) provides that “[i]t is professional misconduct for a lawyer
to . . . [e]ngage in conduct that seriously interferes with the administration of
justice.”
7
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
8
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]
6
Respondent testified that the beginning portion of the statement that
“several years ago Judge Canan reported undersigned counsel for alleged ethical
violations” was “correct.”
9
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 supporting affidavit along
with the motion — was “self-serving and not credible” given that the omitted
7
Because respondent failed to attach the required affidavit and certificate to
the recusal motion, Judge Canan denied the motion on procedural grounds.
10
affidavit “would [have] be[en] particularly damning to [respondent] if found to be
false.” The Hearing Committee majority stated that, at a minimum, respondent’s
“actions [in including false statements in the recusal motion] amounted to a
reckless disregard of the truth,” but also found that in the recusal motion
respondent “intentionally misrepresented the facts” in order to “bolster the
legitimacy of his recusal argument.” The Hearing Committee majority further
found that respondent testified falsely to the Committee by claiming that the
misstatements in his motion were inadvertent.
The Hearing Committee majority concluded that “the evidence clearly and
convincingly support[ed] a finding” that respondent violated Rules 3.3 (a)(1) and
8.4 (c).8 The Hearing Committee majority noted that this court has imposed
sanctions ranging from public censure to a 60-day suspension for single instances
of misrepresentations to courts. Finding, however, that respondent’s prior
discipline9 and his false testimony to the Hearing Committee were aggravating
8
Noting that Judge Canan had denied the recusal motion on procedural
grounds, see supra note 7, the Hearing Committee majority “conclude[d] that
[respondent’s] improper conduct did not taint the judicial process in more than a de
minimis way” and therefore found no violation of Rule 8.4 (d).
9
The Hearing Committee majority cited respondent’s “previous suspension
for double billing” as well as “the spate of informal admonitions he ha[d]
received.” The Hearing Committee majority noted that in 1993, respondent was
(continued…)
11
factors (and that the latter was a “significant aggravating factor”), the Hearing
Committee majority recommended the sanction of a one-year suspension without a
proof-of-fitness requirement for reinstatement.10 In declining to recommend a
fitness requirement, the Hearing Committee majority found “no evidence that
supports a finding that there is clear and convincing evidence of a serious doubt as
(…continued)
found to have violated Rule 1.4 (a) for his “failure to keep his client informed
about the status of a matter” and Rule 1.5 (b) for his “failure to provide his client
with a writing setting forth the basis or rate of his fee” (Docket No. 308-93); that in
1995, he was found to have again violated Rule 1.15 (b) by failing “to notify and
deliver promptly to a third person any funds to which that person was entitled”
(Docket No. 330-94); that in 2004, he was found to have violated Rule 1.15 (a) and
also Rule 1.16 (d) for failing “to retain a client’s file and records reflecting how he
handled settlement funds” (Docket No. 2003-D385); that in 2011, he was found to
have violated Rule 1.6 by “revealing a client’s confidences and secrets” (Docket
No. 2010-D040); and that in 2013, he was found to have violated Rule 4.3 (a)(1)
for “giving legal advice to an unrepresented person other than advice to secure
counsel, when the interests of that person were in conflict with the interests of his
client” (Docket No. 2009-D381).
10
The Hearing Committee Chair concurred in part and dissented in part.
The Chair disagreed that respondent knowingly made a false statement in violation
of Rule 3.3 (a)(1). The Chair was persuaded that respondent “did not intend to
mislead or deceive Judge Canan when he filed the recusal motion that contained a
false statement” and credited respondent’s testimony that he prepared the motion
“after a very difficult day” through a rushed ‘“cut and paste job”’ and that he did
not pay attention to the content of the motion. Because the Chair concluded that
respondent did not intend to mislead Judge Canan, but instead “recklessly” made a
misrepresentation, the Chair also found that respondent testified honestly before
the Hearing Committee. The Chair agreed that Disciplinary Counsel proved that
respondent violated Rule 8.4 (c) in that the recusal motion “contained a
misrepresentation that was made recklessly.” Taking into account respondent’s
prior discipline, the Chair favored the sanction of a three-month suspension.
12
to [r]espondent’s ability to practice ethically” and no “clear and convincing
evidence that [his “intentional misrepresentation to Judge Canan”] was anything
other than a single, isolated incident.”
The Board concurred with the Hearing Committee majority that respondent
“violated Rules 3.3 (a)(1) and 8.4 (c) by making an intentional false statement in
his recusal motion” and also that he “testified falsely in front of the Hearing
Committee.” However, the Board disagreed with Disciplinary Counsel, and with
the Hearing Committee, on the appropriate sanction. The Board disagreed with
Disciplinary Counsel’s recommendation of a three-year suspension, reasoning that
this sanction generally applies where there has been “a pattern of dishonesty and
misrepresentation over a lengthy period,” whereas in this case, respondent’s
“conduct neither involved the protracted and repeated dishonesty nor any other
overt act to conceal the dishonesty.” (internal quotation marks omitted). The
Board nevertheless concluded that respondent’s conduct “involved multiple
instances of dishonesty — to the court (in the recusal motion) and the Hearing
Committee (in his false testimony)” and a “disturbing pattern of dishonesty” and
determined that a one-year suspension, as recommended by the Hearing
Committee majority, was appropriate, but with a proof-of-fitness requirement. The
Board stated “that there is a serious doubt as to [r]espondent’s ability to practice
13
law [ethically] following his suspension.” (internal quotation marks omitted).
Finally, the Board reasoned that “[r]espondent’s false testimony to the Hearing
Committee shows that he does not understand the seriousness of his false
statements to Judge Canan” and “does not appreciate his obligation to be honest.”
The Board also cited the absence of “evidence that [r]espondent has taken any
steps to remedy his misrepresentation to Judge Canan.”
Respondent takes exception to the Hearing Committee’s findings that his
false statements in the recusal motion and his failure to file the Rule 63-I affidavit
and certificate were intentional and that the testimony he gave before the Hearing
Committee was false. He argues that because the finding that he gave false
testimony before the Hearing Committee “form[ed] the basis for the Board’s
recommendation that [he] be required to show fitness,” this court should not
impose a fitness requirement. He contends that the appropriate sanction is a thirty-
day suspension. Disciplinary Counsel urges us to adopt the Board’s
recommendation.
II.
14
Disciplinary Counsel must establish a violation of a Rule of Professional
Conduct by clear and convincing evidence. See, e.g., In re Anderson, 778 A.2d
330, 335 (D.C. 2001). This court “review[s] de novo the Board’s legal conclusions
and other legal questions, but we defer to the factual findings of the Hearing
Committee and the Board [on subsidiary facts] ‘unless they are unsupported by
substantial evidence’ in the record.” In re Speights, 173 A.3d 96, 99 (D.C. 2017)
(internal footnote omitted) (quoting D.C. Bar R. XI, § 9 (h)(1)). “[W]e are
required to defer to Hearing Committee credibility findings if they are supported
by substantial evidence on the record.” In re Pye, 57 A.3d 960, 973 (D.C. 2012)
(noting that “deference to the Hearing Committee’s factual findings and credibility
determinations is especially heightened where the determinations are based on
direct observation of the [r]espondent” (internal quotation marks omitted)).
That said, in some circumstances, a Hearing Committee’s finding as to a
respondent’s credibility “does not warrant the normal deference.” In re Anderson,
778 A.2d at 341-42 (reaching that conclusion in a case where the credibility
determination was based on rejection of the respondent’s testimony as “self-
serving” (“because testimony by a respondent in explanation of his conduct is
almost by definition self-serving”); there was a “mistaken understanding” of the
evidence; the Hearing Committee report “g[ave] no indication that it was based on
15
respondent’s demeanor in testifying and responding to questions”; and the Hearing
Committee’s disbelief was based on an “analysis . . . in the nature of a legal
conclusion”). “Whether [a] respondent gave sanctionable [i.e., intentional] false
testimony before the Hearing Committee is a question of ultimate legal fact that the
Board and this court review de novo.” In re Bradley, 70 A.3d 1189, 1194-95 (D.C.
2013) (citing that principle in concluding, notwithstanding the general deference
owed to “credibility determinations made by Hearing Committee members who are
in a better position than either the Board or this court to assess the truthfulness of
witness testimony” and “[d]espite the Hearing Committee’s finding that
respondent’s demeanor ‘seemed honest,’” that the Board “did not err in concluding
that respondent was intentionally untruthful in her testimony before the Hearing
Committee”; noting that there was “no factual support in the record for the
Committee’s conclusion that [the respondent] simply misremembered what had
occurred,” that her detailed testimony undermined that claim, that “her testimony
was contradicted by [that of other witnesses],” and that no evidence in the record
supported a finding that she was “merely confused”); see also In re Romansky, 938
A.2d 733, 739 (D.C. 2007) (“[N]o deference is owed [by this court] with respect to
[the Board’s determination of] ultimate facts that are really conclusions of law,”
such as whether an attorney’s conduct was negligent or reckless or intentional, an
issue as to which this court has “the obligation to make our own determination”; id.
16
(“[W]e next consider de novo the Board’s conclusion that the respondent did not
act knowingly or recklessly, but merely negligently, in charging the premiums to
[clients].”).
III.
In this case, the subsidiary facts are undisputed; as the Hearing Committee
Chair wrote, “[t]here is no question that [r]espondent drafted and filed a motion
that contained a false statement.” The issues before us are whether respondent
made the false statement in his recusal motion intentionally or, as respondent
contends, recklessly, and, concomitantly, whether respondent’s testimony before
the Hearing Committee as to his intent was false, in aggravation of the charged
misconduct.
The explanation respondent gave the Hearing Committee for his false
statement on pages 3-4 of the recusal motion (i.e., that “[t]he investigation [into his
alleged ethical violation] was . . . dismissed without any disciplinary action being
instituted”) was that he was “recap[ping]” or “reiterating” what he had written on
page 1 of the motion, but did so “inartfully.” If respondent had written on pages 3-
4 that the investigation was dismissed by Bar Counsel without any “charges” being
17
instituted, it might be believable that the misstatement on these pages was an
inadvertently incorrect “recap” of what respondent wrote on page 1. Page 1
referred to both the USAO and Bar Counsel and referred to an investigation that
was “dismissed without any . . . charges being lodged.” However, the reference on
pages 3-4 to dismissal without “disciplinary action” is new, i.e., not a repeat of
what was said on page 1, and thus, rather than reflecting a careless effort at
recapping, sets out what appears to be a deliberately new narrative. What also
seems clear is that what respondent meant to convey by what he wrote on pages 3-
4 was that Judge Canan’s suspicions about respondent’s billing irregularities
lacked foundation, when respondent knew that was not true. We therefore agree
with the Hearing Committee and the Board that the evidence is clear and
convincing that the false statement on pages 3-4 of the recusal motion was
intentional (made in an apparent effort to bolster the recusal argument).
Accordingly, we agree that respondent violated Rules 3.3 (a)(1) and 8.4 (c). We
also agree that respondent’s testimony to the contrary before the Hearing
Committee was false.
IV.
18
We turn now to what sanction is appropriate. ‘“The discipline we impose
should serve not only to maintain the integrity of the profession and to protect the
public and the courts, but also to deter other attorneys from engaging in similar
misconduct.”’ In re Martin, 67 A.3d 1032, 1053 (D.C. 2013) (quoting In re
Scanio, 919 A.2d 1137, 1144 (D.C. 2007)). While it is “the court which decides
the sanction to be imposed,” id., unless the Board’s sanction recommendation
would “foster a tendency toward inconsistent dispositions for comparable conduct
or would otherwise be unwarranted,” D.C. Bar R. XI, § 9 (h)(1), it “comes to us
with a strong presumption in favor of its imposition.” In re Martin, 67 A.3d at
1053 (internal quotation marks omitted). “Generally speaking, if the Board’s
recommended sanction falls within a wide range of acceptable outcomes, it will be
adopted and imposed.” In re Howes, 52 A.3d 1, 13 (D.C. 2012) (internal quotation
marks omitted).
This case involves respondent’s dishonesty to the court in the recusal motion
and what we agree was respondent’s intentionally false testimony before the
Hearing Committee regarding whether the false statements in the recusal motion
were intentional (which is an aggravating factor). Thus, in that sense, this case
“involve[s] multiple instances of dishonesty,” as the Board found. The Hearing
Committee majority treated respondent’s false testimony before the Committee as
19
a “significant” aggravating factor. We note, however, that this court has treated
false testimony before the Hearing Committee as a significant aggravating factor
where a respondent lied by “denying the misconduct,” see In re Chapman, No. 07-
BG-800, 2009 D.C. App. LEXIS 16, *6 (D.C. Feb. 5, 2009), thereby
demonstrating “[a] failure to appreciate the impropriety of [the charged] conduct,”
id. at *7 (citing In re Goffe, 641 A.2d 458, 466 (D.C. 1994)). Here, by contrast,
respondent acknowledges that he made statements in the recusal motion that were
untrue, recognizes that he should not have filed in court a motion containing false
statements, acknowledges that his conduct was reckless, and agrees that a sanction
is warranted; and the Hearing Committee found that he “cooperated with
Disciplinary Counsel’s investigation,” which is “a mitigating factor.” Id. at *6.
The net result is that while we treat as an aggravating factor respondent’s false
testimony regarding whether the untrue statements in the recusal motion were
intentional, we give that aggravating factor somewhat less weight than the Board
gave it.
Further, the Hearing Committee majority and the Board found that
respondent gave intentionally false testimony about why he did not attach an
affidavit and certificate to the recusal motion. Asserting that the Hearing
Committee “evaluated [respondent’s] demeanor while testifying,” Disciplinary
20
Counsel suggests that “traditional deference” to the Hearing Committee’s
majority’s credibility determination is warranted. We reject that suggestion
because nothing in the Hearing Committee report refers to respondent’s demeanor
while testifying as a basis for the majority’s finding that respondent gave false
testimony before the Committee. We do not imply that a Hearing Committee is
required to express whether it relied on a respondent’s demeanor, but in this case
what the Hearing Committee did express was that it rejected respondent’s
testimony as “self-serving” and (apparently for that reason) “not credible.” We
have observed that “testimony by a respondent in explanation of his conduct is
almost by definition self-serving,” In re Anderson, 778 A.2d at 341, so the self-
serving nature of respondent’s testimony was not a substantial basis for rejecting it.
Moreover, the Hearing Committee’s other articulated reason for finding
respondent’s testimony about the affidavit not credible — the Committee’s
suggestion that respondent’s purpose in failing to attach an affidavit to the recusal
motion might have been to avoid the “particularly damning” effect to him if the
affidavit were found to be false — is speculative and in our view is less persuasive
than respondent’s point that “[t]o believe that [he] intentionally failed to include
the affidavit and certificate is to believe that [he] intentionally sabotaged his own
motion.”
21
In addition, respondent’s explanation that the recusal motion was a “copy
and paste” job from “the computer” into an electronic document, and that he
included in the motion a block quote of the language of Rule 63-I without actually
“think[ing] it through” is not “improbable”11 in this age of computer-based legal
research and word processing. Respondent’s testimony was not so precise12 that it
suggests a carefully fabricated explanation rather than the truth, and it was at least
weakly corroborated by his uncontradicted testimony that a recusal motion was one
he had “never filed before.” Cf. In re Bradley, 70 A.3d at 1194-95 (agreeing with
Board rejection of Hearing Committee finding that the respondent/guardian
“seemed honest” and did not intentionally testify untruthfully about visits to her
ward, because the testimony was contradicted by the testimony of social workers at
the ward’s nursing home, and because it contained a level of detail that undercut
the respondent’s claim that she had merely misremembered when she claimed to
have visited the ward). In addition, the recusal motion described a history between
respondent and Judge Canan which the judge knew first-hand, a fact that could
have made an affidavit about the grounds for recusal seem like surplusage.
Accordingly, we cannot agree that there was “demonstrable fabrication or perjury,”
11
In re Martin, 67 A.3d at 1051 (internal quotation marks omitted).
12
For example, respondent agreed with the questioner that he did not know
he had to file a “certificate of good standing” along with the recusal motion
(whereas Rule 63-I requires a certificate of good faith).
22
In re Cleaver-Bascombe, 892 A.2d 396, 411 (D.C. 2006), in respondent’s
testimony about why he did not include the required Rule 63-I affidavit and
certification with his recusal motion.
This court has imposed sanctions ranging from public censure to a 60-day
suspension for misrepresentations to courts or other tribunals. Here, respondent’s
multiple instances of prior discipline, including most prominently his suspension
for double billing through CJA vouchers, are aggravating factors that make a
suspension sanction appropriate. While a longer period of suspension would also
have been justified, we are satisfied that the one-year suspension recommended by
the Hearing Committee and the Board falls “within [the] wide range of acceptable
outcomes.” In re Howes, 52 A.3d at 13 (internal quotation marks omitted). See,
e.g., In re Rodriguez-Quesada, 122 A.3d 913, 921 (D.C. 2015) (two-year
suspension where attorney “intentionally made a false statement to an immigration
judge and then gave false testimony to the Hearing Committee about having done
so,” but also showed “a pattern of lack of competence, lack of diligence, neglect of
his clients’ cases, failure to communicate with his clients, and refusal to return case
files and unearned payments”); In re Guberman, 978 A.2d 200, 204, 210 (D.C.
2009) (eighteen-month suspension for lying to a law firm supervisor about having
filed an appeal and creating false court filing stamps on papers, thereby “falsely
23
certifying that the papers had been filed in court” (internal quotation marks
omitted)); In re Kerr, 611 A.2d 551, 552 (D.C. 1992) (one-year suspension for
knowingly filing a false federal income tax return); In re Hutchinson, 534 A.2d
919, 919-20 (D.C. 1987) (one-year suspension for untruthful testimony before the
Securities and Exchange Commission). We therefore adopt the Board’s
recommendation of a one-year suspension.
Finally, we consider the Board’s recommendation that respondent be
required to show fitness to practice prior to reinstatement. As we have explained, a
“fitness requirement depends on a specific finding beyond the finding of a
violation of the Rules.” In re Cater, 887 A.2d 1, 25 (D.C. 2005). “[P]roof of a
violation of the Rules that merits even a substantial period of suspension is not
necessarily sufficient to justify a fitness requirement[.]” Id. at 22. The reason for
imposing a proof of fitness requirement is “conceptually different from the reason
for suspending a respondent for a period of time,” id.; in contrast to a suspension,
which is “intended to serve as the commensurate response to the attorney’s past
ethical misconduct,” “the open-ended fitness requirement is intended to be an
appropriate response to serious concerns about whether the attorney will act
ethically and competently in the future, after the period of suspension has run,” id.
‘“[T]o justify requiring a suspended attorney to prove fitness as a condition of
24
reinstatement, the record in the disciplinary proceeding must contain clear and
convincing evidence that casts a serious doubt upon the attorney’s continuing
fitness to practice law.”’ In re Ditton, 980 A.2d 1170, 1174 (D.C. 2009) (quoting
In re Cater, 887 A.2d at 6). “The term ‘doubt’ . . . connote[s] real skepticism, not
‘just a lack of certainty.”’ In re Cater, 887 A.2d at 24. This court’s primary
“concern is that the attorney’s resumption of the practice of law will not be
detrimental to the integrity and standing of the Bar, or to the administration of
justice, or subversive to the public interest.” Id. at 22 (internal quotation marks
and brackets omitted). “[T]he decision to impose a fitness requirement turns on a
partly subjective, predictive evaluation of the attorney’s character and ability.” Id.
Our caution about imposing a fitness requirement reflects a recognition that
“while a fitness requirement is not quite as severe an enhancement as disbarment,
it comes close,” as it “can transform a [relatively short period of] suspension into
one that lasts for years.” Id. at 25. “The fitness requirement can be a tail that wags
the disciplinary dog,” as it “may have the practical effect of greatly prolonging –
even tripling or quadrupling – a respondent’s period of suspension.” Id. at 23
(internal quotation marks omitted). “[T]ak[ing] into account th[ose] consequences
for respondent attorneys,” we “require[] Bar Counsel to prove the facts that justify
the enhancement with evidence that is clear and convincing.” Id. at 23, 25. We
25
have said that “if no serious doubt exists about an attorney’s fitness, it would be
unnecessary and unfair to augment the sanction of a limited period of suspension
with [the] onerous obligation” to prove fitness prior to reinstatement. Id. at 24. In
the end, “evidence of circumstances surrounding and contributing to the
misconduct may be what tips the balance in favor of [or against] the [proof-of-
fitness] condition.” Id. at 22.
The Board found that Disciplinary Counsel “proved by clear and convincing
evidence” respondent’s “disturbing pattern of dishonesty” and thus proved “that
there is a serious doubt as to [r]espondent’s ability to practice law [ethically]
following his suspension.” (internal quotation marks omitted). The Board
reasoned that “[r]espondent’s false testimony to the Hearing Committee shows that
he does not understand the seriousness of his false statements to Judge Canan” and
“does not appreciate his obligation to be honest.”
As discussed above, while we agree that respondent gave false testimony to
the Hearing Committee when he insisted that his false statement in the recusal
motion was not intentional, we do not agree that he gave false testimony about
non-inclusion of an affidavit and certification. Thus, in our view, the pattern of
dishonesty is not as discernible as the Board found it to be. Nor, in light of
26
respondent’s acknowledgment that a sanction is warranted for his conduct in
connection with the recusal motion, do we agree that the record shows that
respondent does not understand the seriousness of his false statements to Judge
Canan. Also, as the Board recognized, respondent’s “false statements arise from a
prior history between Judge Canan and [r]espondent,” a history that led respondent
to state in his recusal motion that the judge “ha[d] fostered a hostile relationship
with” respondent. Respondent explained in his testimony before the Hearing
Committee that he filed the recusal motion (and ended up withdrawing from the
case after the motion was denied) because he did not want his client to “suffer” by
having Judge Canan’s “bias against [respondent] . . . spill[] over to [his] client.”
He told the Hearing Committee that he was “trying to protect” his client, a twenty-
four-year-old man, from “go[ing] to jail for a long time” and thought he had “a fair
shot at winning the case” if he could “get a fair shake.” Respondent testified that
the case was “emotional” because he “care[d] for” his client, and because he
(respondent) “g[o]t scared” after Judge Canan told him, after a “heated argument”
in the courtroom, that he was “on thin ice” and risking contempt. The Hearing
Committee did not discredit any of the foregoing testimony.
Respondent’s explanations — his perception of Judge Canan’s hostility
toward him, his emotional state, and his objective to “protect” his client by getting
27
Judge Canan to recuse — in no way justify or excuse his false statements to the
court or his false testimony to the Hearing Committee. We reiterate that “lying
under oath on the part of an attorney for the purpose of attempting to cover up
previous dishonest conduct is absolutely intolerable.” In re Cleaver-Bascombe,
892 A.2d at 412. But respondent’s uncontroverted testimony about the heightened
emotional circumstances surrounding his drafting of the recusal motion does
inform our view about whether respondent would be likely to repeat his dishonest
conduct if he is permitted to resume practice at the end of the suspension period.
We have said that “where the misconduct involved a response to the ‘pressure of
the moment’ or a situation unlikely to be repeated, we are less likely to impose a
condition on the respondent’s resumption of practice.” In re Guberman, 978 A.2d
at 212-13 (internal footnotes omitted) (declining to impose a fitness requirement
where the respondent’s conduct began with “a ‘foolish and imprudent’ response to
a particular pressure, and developed into misconduct that snowballed as respondent
made effort after effort to conceal his initial lie to his supervisor about having filed
an appeal on behalf of the client”).13 Here, as the Hearing Committee found,
respondent’s instances of misconduct grew out of “a single, isolated incident.”
13
See also, e.g., In re McBride, 642 A.2d 1270, 1272-73, 75 (D.C. 1994)
(declining to impose a fitness requirement where the respondent, who was
convicted of aiding and abetting for signing a false statement to help a pro bono
client obtain a U.S. passport, ‘“let his heart carry his head”’); Goffe, 641 A.2d at
(continued…)
28
The facts that none of respondent’s informal admonitions were for dishonest
conduct and that his discipline in the CJA-vouchers matter was for conduct
resulting from “abysmal” record-keeping rather than intentional dishonesty,
likewise inform our view.14
On this record, although we obviously lack certainty regarding whether
respondent will practice ethically if permitted to resume practice at the end of his
one-year suspension, we cannot say that we have real skepticism about whether he
will do so. “[T]he requisite ‘serious doubt’ must be generated by evidence that is
‘clear and convincing’”; there must be “[a] firm belief in a serious doubt.” Cater,
887 A.2d at 24 We do not see clear and convincing evidence of a pattern of
dishonesty; at best (or worst), the evidence on this score is in equipoise, meaning
(…continued)
465 (disbarring respondent — and thus requiring a demonstration of fitness before
he might resume practice after five years — because he “did not engage in bad acts
out of sympathy for another or because of the pressure of the moment”; rather, “his
conduct was part of a plan to commit fraud intended to benefit himself”).
14
The Hearing Committee acknowledged that respondent’s prior discipline
in connection with the CJA vouchers matter was “the result of recklessly sloppy
timekeeping practices.”
29
that we must give the respondent the benefit of the doubt.15 Like the Hearing
Committee majority, we find “no evidence that supports a finding that there is
clear and convincing evidence of a serious doubt as to [r]espondent’s ability to
practice ethically” and no “clear and convincing evidence that [his ‘intentional
misrepresentation to Judge Canan’] was anything other than a single, isolated
incident.”
Moreover, consistency with our precedents does not compel us to impose a
fitness requirement on the basis of respondent’s intentional misrepresentation to
the court and his denial before the Hearing Committee that his false statement to
the court was intentional. See, e.g., In re Chapman, No. 07-BG-800, 2009 D.C.
App. LEXIS 16, *2, 11-13 (D.C. Feb. 5, 2009) (imposing a sixty-day suspension,
with thirty days stayed in favor of a one-year period of probation during which
respondent was required to complete certain CLE courses, but no fitness
requirement, where respondent Chapman neglected his client’s case, resulting in
her case being dismissed, had a minor disciplinary history, showed a lack of
remorse for the harm caused to the client, and “was found to be deliberately
dishonest in his dealings with Bar Counsel and not credible in his testimony before
15
Cf. In re Romansky, 938 A.2d at 742 (“Because we view the facts as
virtually in equipoise, we cannot conclude that [there] has been [proof] by the
requisite ‘clear and convincing’ evidence.”)
30
the [Hearing] Committee”).16 We conclude that a fitness requirement is not
warranted.
For the foregoing reasons, we adopt the Board’s recommendation that
respondent be suspended for one year. See D.C. Bar R. XI, § 14 (f). We decline to
condition his reinstatement upon proof of fitness. It is
So ordered.
GLICKMAN, Associate Judge, concurring in part and dissenting in part: I
concur in the court’s adoption of the recommended sanction of a one-year
suspension. I respectfully dissent from the decision not to require respondent to
demonstrate his fitness to practice law ethically and competently as a condition of
his reinstatement.
Respondent comes before us with the following history of having violated
the Rules of Professional Conduct: In 1993, he was disciplined for violating Rule
16
See also id. at 7 (“[A]n attorney deliberately attempting to cover up
misconduct is absolutely intolerable, regardless of whether it is under oath or
during an investigation [by Disciplinary Counsel].”
31
1.4 (a) by failing to keep his client informed about the status of a matter, and Rule
1.5 (b) by failing to give his client a written statement of the basis or rate of his fee.
In 1995, respondent was disciplined for violating Rule 1.15 (b) by withholding
funds that a third person was entitled to receive. In 2004, respondent was
disciplined for violating Rules 1.15 (a) and 1.16 (d) by failing to retain a client’s
file and records showing how he had handled settlement funds. In 2011, he was
disciplined for violating Rule 1.6 by revealing a client’s confidences and secrets.
In 2013, respondent was disciplined for violating Rule 4.3 (a)(1) by giving legal
advice to an unrepresented person whose interests conflicted with the interests of
his client.
In addition to that history, there are the Rule violations that preceded and
that underlie the present matter. In 2011, this court imposed an eighteen-month
suspension, with six months stayed, and a term of probation, for the several Rule
violations respondent committed by submitting to the Superior Court a multitude
of false and overstated payment vouchers. Respondent stipulated that he made
knowingly false statements of material fact to the Court in the vouchers, in
violation of Rule 3.3 (a)(1); that his conduct involved dishonesty, fraud, deceit or
32
misrepresentation, in violation of Rule 8.4 (c); and that his conduct seriously
interfered with the administration of justice, in violation of Rule 8.4 (d).1
In the present case, the court upholds findings that respondent intentionally
made false statements in a motion seeking a judge’s recusal in violation of Rule 3.3
(a)(1) and that, in so doing, he engaged in conduct involving dishonesty, fraud,
deceit, or misrepresentation. The court also upholds the finding that respondent
testified falsely to the Hearing Committee in denying that his misstatements were
intentional.2
All this adds up to a lengthy series of ethical violations spanning two
decades, one in which the misconduct grew more serious as time went on.
Warnings and chastisements failed to impress respondent with the need to conform
1
The serious dishonesty of respondent’s 162 identified instances of double
billing is not minimized, in my view, by characterizing them as “the result of
respondent’s ‘abysmal’ record-keeping.” In re Tun, 26 A.3d 313, 314 (D.C. 2011).
2
My colleagues do not agree with the determinations by the Hearing
Committee and the Board that respondent also testified falsely when he explained
his failure to attach an affidavit and certificate of good faith to his recusal motion.
I am inclined to defer to the Hearing Committee’s assessment of respondent’s
truthfulness rather than reevaluate it on the paper record before us; it is the
exceptional case in which this court can reject a fact finder’s evaluation of a
witness’s credibility. I do not consider the issue to be material to our sanction
determination, however.
33
to ethical standards of practice. Based on this history of ethical breaches, the
gravity of the more recent ones, the disturbing pattern of disregard for ethical
norms and dishonesty they evince, and the absence of significant countervailing
evidence in respondent’s favor, I have a serious doubt – “real skepticism” – about
respondent’s ability to practice law ethically following his suspension.
Moreover, that is the Board’s judgment as well. It applied the correct legal
standard in concluding that Disciplinary Counsel had proved by clear and
convincing evidence that respondent’s continuing fitness to practice law is a matter
in serious doubt. This judgment call is, of necessity, “a partly subjective,
predictive evaluation of the attorney’s character and ability,” In re Cater, 887 A.2d
1, 22 (D.C. 2005)); it has record support cited by the Board; and it “comes to us
with a strong presumption in [its] favor.” In re Martin, 67 A.3d 1032, 1053 (D.C.
2013). The Board’s judgment may be debatable, but I do not think that
presumption has been overcome.