In re Tun

286 A.3d 538

IN RE Harry TUN, Respondent.

A Suspended Member of the Bar of the District of Columbia (Bar Registration No. 416262)

No. 22-BG-054

District of Columbia Court of Appeals.

Argued October 26, 2022

Decided December 22, 2022

Abraham C. Blitzer, Washington, DC, for respondent.

Myles V. Lynk, Senior Assistant Disciplinary Counsel, with whom Julia L. Porter, Deputy Disciplinary Counsel, was on the brief, for the Office of Disciplinary Counsel.

Before Easterly and AliKhan, Associate Judges, and Ruiz, Senior Judge.

AliKhan, Associate Judge:

Considering the record before it, including Disciplinary Counsel's recommendations, the Ad Hoc Hearing Committee's report, and the respondent's counterarguments, the D.C. Board on Professional Responsibility concluded that Harry Tun had violated numerous Maryland Rules of Professional Conduct by committing serious acts of repeated dishonesty. Despite the Hearing Committee's recommendation that Mr. Tun be suspended for three years with a fitness requirement, the Board concluded that he should be disbarred. Because Mr. Tun concedes that he violated the charged rules, and because disbarment is within the acceptable range of outcomes for misconduct of this magnitude, we agree with the Board's recommendation and disbar Mr. Tun from the practice of law in the District of Columbia.¹

I. Factual Background

A. Mr. Tun's D.C. Bar Membership and Disciplinary History

Mr. Tun has been a member of the District of Columbia Bar since 1988. From 1993 to the present, he has received a total of five informal admonitions from the D.C. Office of Disciplinary Counsel (formerly the Office of Bar Counsel) and two suspensions from this court for violating various professional rules.

Mr. Tun's disciplinary history is long, but we review it to provide an accurate timeline of his misconduct. Mr. Tun received his first informal admonition in November 1993 for violating D.C. R. Prof. Conduct 1.4(a) (failing to communicate with a client) and 1.5(b) (failing to provide a client with a written fee arrangement). He received his second in February 1995 for violating then-Rule 1.15(b) (failing to properly transmit funds to a third party). His third came in February 2004, this time for violating Rules 1.15(a) (failing to maintain records of a client's settlement agreement) and 1.16(d) (failing to provide a client's file). He received his fourth in October 2011 for violating Rule 1.6(a) (improperly disclosing a client's confidences). And his fifth and final informal admonition came in October 2013 for violating Rule 4.3(a)(1) (improperly advising an unrepresented person despite a potential conflict with his client's interests).

An informal admonition is a form of discipline. See D.C. Bar R. XI, § 3(a)(5). Each letter of admonition that Mr. Tun received specified the rules he had violated and explained that the admonition constituted discipline pursuant to D.C. Bar R. XI, § 3. And even though a recipient of an informal admonition can request a formal hearing to challenge the charges, D.C. Bar R. XI, § 8(b), Mr. Tun did not do so.

In addition to being informally admonished, Mr. Tun was suspended in both 2011 and 2018 for separate violations of the District of Columbia's professional rules. In 2011, he received an 18-month suspension (with six months stayed in favor of a one-year term of probation) for filing inaccurate Criminal Justice Act vouchers with the Superior Court of the District of Columbia between 1999 and 2003. See In re Tun (Tun I ), 26 A.3d 313, 314 (D.C. 2011) (per curiam). His submissions double-billed for work he had done, resulting in $16,034 of overpaid funds. Id. Mr. Tun and Disciplinary Counsel eventually filed a petition for negotiated discipline, which this court accepted at the Hearing Committee's recommendation. Id. at 314-15.

The proceedings for Tun I , however, spawned yet another disciplinary action. In 2018, Mr. Tun was suspended for one year for lying on a motion to recuse. See In re Tun (Tun II ), 195 A.3d 65, 68-72 (D.C. 2018). The motion, which Mr. Tun filed while the Tun I proceedings were ongoing, falsely stated that the Tun I investigation had concluded without any disciplinary action being instituted against him. Id. at 69-70. In an effort to avoid blame for that misconduct, Mr. Tun also gave intentionally false testimony to the Hearing Committee during the Tun II proceedings. Id. at 74. While the Hearing Committee and Board both recommended a one-year suspension, only the Board recommended an additional fitness requirement. Id. at 71-72. After reviewing comparable cases and determining that a showing of fitness was unnecessary, we suspended Mr. Tun for one year. Id. at 79.²

B. The Present Violations

Mr. Tun was admitted to practice before the U.S. District Court for the District of Maryland in March 1993. He subsequently applied to renew his membership six times: in May 1997, March 1999, March 2002, March 2005, March 2011, and July 2017. Each application asked whether Mr. Tun had ever "been denied admission to practice, disbarred, suspended from practice, or disciplined by any court or bar authority." On the first five renewal applications, he answered "no" even though he had received one or more informal admonitions before each application. On the sixth, which he submitted after his 2011 suspension, he answered "yes," disclosing the suspension but none of the informal admonitions. The renewal application also asked whether Mr. Tun was the subject of any pending disciplinary proceedings. To his credit, he answered "yes" to this question on his fifth renewal application, which he submitted while Tun I was ongoing. But he answered "no" to this question on his sixth renewal application, even though he was in the middle of the proceedings that would ultimately result in his second suspension. In each application, Mr. Tun "declare[d]" or "certif[ied]" under penalty of perjury that his responses were true.

In August 2017, Mr. Tun wrote a letter to the district court admitting that his answer to the pending discipline question in his sixth renewal application was false. Mr. Tun claimed that he had believed that the question only referred to disciplinary actions pending in Maryland, despite having reported the pending District of Columbia disciplinary proceeding in his fifth renewal application.

II. Procedural History

After receiving Mr. Tun's letter, a district court employee informed the D.C. Office of Disciplinary Counsel about the false statements in Mr. Tun's sixth renewal application, and Disciplinary Counsel opened an investigation. In March 2019, Disciplinary Counsel served Mr. Tun with a specification of charges related to his false statements on all six renewal applications, alleging violations of Maryland Rules of Professional Conduct 19-303.3(a)(1) (knowingly making a false statement of fact or law to a tribunal), 19-308.4(b) (committing a criminal act reflecting adversely on the attorney's honesty, trustworthiness, or fitness as an attorney), 19-308.4(c) (engaging in conduct involving dishonesty), and 19-308.4(d) (engaging in conduct that seriously interferes with the administration of justice). Mr. Tun filed an answer admitting to essentially all of the specification's factual allegations. After briefing, both parties presented arguments and testimony before an Ad Hoc Hearing Committee.

At the hearing, Mr. Tun initially claimed that he had not fully understood that informal admonitions were a form of discipline when he submitted his renewal applications. He also claimed that he had not thought it necessary to report District of Columbia disciplinary proceedings in his renewal applications in Maryland federal court, repeating his explanation from the 2017 letter. Later in the hearing, however, Mr. Tun admitted that he had understood the informal admonitions to be forms of discipline and that he had "made a mistake" by omitting them from the applications.

In his post-hearing briefing, Mr. Tun conceded that his failure to report the pending disciplinary matter in his sixth renewal application constituted perjury and violated Maryland Rules 19-303.3(a)(1) and 19-308.4(b) to (d). But, somewhat contradicting his hearing testimony, he again claimed ignorance about the true disciplinary nature of his informal admonitions and argued that those omissions were not perjurious. As to an appropriate sanction, Mr. Tun contended that he should only be suspended for one year. Disciplinary Counsel, in contrast, recommended disbarment.

Upon consideration of the evidence and briefing, the Hearing Committee concluded that Mr. Tun had been fully aware of each informal admonition and had known that each constituted discipline. It also determined that he had given intentionally false testimony at the hearing in attempting to explain why he had omitted them. With respect to Mr. Tun's failure to disclose his ongoing disciplinary proceeding in his sixth renewal application, the Committee found that he had committed perjury in violation of both federal and Maryland law. It also found that he had given intentionally false testimony at the hearing by claiming that he did not know that he needed to report District of Columbia discipline to the Maryland federal court.

The Hearing Committee ultimately concluded that Mr. Tun had violated all of the charged rules and recommended that he be suspended from the practice of law for three years. It did not recommend a fitness requirement, however, explaining that it could "envisage no fitness requirements, probation conditions, or CLE courses that [would] correct [Mr. Tun]'s disregard for the truth when he is confronted with a court submission in the future."

Before the Board, neither party took exceptions to the Hearing Committee's factual findings, but both parties lodged exceptions to its sanctions recommendation. Disciplinary Counsel continued to assert that disbarment was appropriate, while Mr. Tun advocated for an 18-month suspension without a fitness requirement....