Attorney Grievance Commission v. Tun

51 A.3d 565, 428 Md. 235, 2012 Md. LEXIS 477
CourtCourt of Appeals of Maryland
DecidedAugust 22, 2012
DocketMisc. Docket AG No. 71
StatusPublished
Cited by10 cases

This text of 51 A.3d 565 (Attorney Grievance Commission v. Tun) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attorney Grievance Commission v. Tun, 51 A.3d 565, 428 Md. 235, 2012 Md. LEXIS 477 (Md. 2012).

Opinion

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]*238Tribunal); 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]*239ted violations of D.C. RPC 1.5(a) and (f); 3.3(a)(1); and 8.4(c) and (d). The Amended Petition6 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]*240Respondent 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]*241d. 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.

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Bluebook (online)
51 A.3d 565, 428 Md. 235, 2012 Md. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-grievance-commission-v-tun-md-2012.