195 A.3d 65
D.C.2018Background
- Harry Tun, a criminal defense attorney, filed a recusal motion in 2009 accusing Judge Canan of having reported him for ethical violations and stating the resulting investigation was dismissed without disciplinary action; those statements were false.
- The false statements related to Tun’s earlier CJA-voucher misconduct investigation, which had resulted in repayment, reporting to Bar Counsel, negotiated discipline, and ultimately an 18-month suspension (with six months stayed) in 2011.
- Disciplinary Counsel charged Tun with violating Rules 3.3(a)(1) (false statements to a tribunal) and 8.4(c) (dishonesty), and alleged he also testified falsely before the disciplinary Hearing Committee about his intent and about failing to include a required affidavit/certificate.
- The Hearing Committee found Tun intentionally made the false recusal statements and gave knowingly false testimony about intent; it treated false testimony as a significant aggravating factor and recommended a one-year suspension (no fitness requirement).
- The Board agreed Tun violated Rules 3.3(a)(1) and 8.4(c) and recommended a one-year suspension with a proof-of-fitness requirement, citing a ‘‘disturbing pattern of dishonesty.’n
- The D.C. Court of Appeals adopted the one-year suspension but declined to impose a fitness requirement, concluding the record did not show clear and convincing evidence of a serious doubt as to Tun’s future fitness to practice.
Issues
| Issue | Plaintiff's Argument (Disciplinary Counsel) | Defendant's Argument (Tun) | Held |
|---|---|---|---|
| Whether Tun violated Rule 3.3(a)(1) and 8.4(c) by filing false statements in a recusal motion | Tun intentionally filed false factual allegations about prior investigation and disciplinary disposition | Misstatements were inadvertent, a rushed "cut-and-paste"/proofreading error and meant to reference the USAO, not Bar Counsel; at most reckless | Court: Clear and convincing evidence Tun intentionally made false statements; violations of Rules 3.3(a)(1) and 8.4(c) upheld |
| Whether Tun testified falsely before the Hearing Committee about intent and omission of affidavit/certificate | Testimony denying intent and explaining omission was not credible and was false | Testimony was truthful or at worst self-serving; omission was inadvertent and plausible given rushed drafting | Court: Tun lied about intent (false testimony); but did not find clear and convincing evidence he lied about omission of affidavit/certificate |
| Appropriate sanction for intentional false statement(s) and false testimony | One- to three-year suspension; Board urged one-year suspension with fitness requirement given pattern of dishonesty | Proposed 30-day suspension; emphasized cooperation and that the false statement grew from a single pressured incident | Court: One-year suspension adopted (within acceptable range); no proof-of-fitness condition imposed |
| Whether proof-of-fitness is required for reinstatement | Fitness required because of Board’s finding of a disturbing pattern of dishonesty and false testimony before the Committee | Fitness not warranted: misconduct was a single, isolated incident arising from pressured circumstances; insufficient clear and convincing evidence of serious doubt | Court: Declined to impose fitness requirement; record lacks clear and convincing evidence of serious doubt about future ethical practice |
Key Cases Cited
- In re Tun, 26 A.3d 313 (D.C. 2011) (prior negotiated discipline and suspension for CJA voucher misconduct)
- In re Cater, 887 A.2d 1 (D.C. 2005) (standard for imposing proof-of-fitness as condition of reinstatement)
- In re Ditton, 980 A.2d 1170 (D.C. 2009) (proof-of-fitness requires clear and convincing evidence showing serious doubt about continuing fitness)
- In re Martin, 67 A.3d 1032 (D.C. 2013) (deference to Board sanction recommendations and disciplinary purposes)
- In re Howes, 52 A.3d 1 (D.C. 2012) (Board recommendations adopted when within wide range of acceptable outcomes)
- In re Bradley, 70 A.3d 1189 (D.C. 2013) (de novo review of whether respondent gave intentional false testimony to Hearing Committee)
- In re Romansky, 938 A.2d 733 (D.C. 2007) (distinction between negligence, recklessness, and knowing/intentional misconduct)
- In re Cleaver-Bascombe, 892 A.3d 396 (D.C. 2006) (falsehoods and attempts to cover up prior dishonest conduct are intolerable)