Court: Court of Appeals of Maryland; August 22, 2012; Maryland; State Supreme Court
Harry Tun, a defense attorney, faced reciprocal disciplinary action due to misconduct related to overbilling the D.C. Superior Court while representing indigent defendants from 1999 to 2003. He submitted 162 vouchers for payment, including instances of double-billing, which prompted a Superior Court judge to refer the issue to the U.S. Attorney. Although the U.S. Attorney declined prosecution, Tun was required to self-report the misconduct to D.C. Bar Counsel, which led to an investigation and subsequent charges against him. Tun admitted to violations of several D.C. Rules of Professional Conduct, resulting in an 18-month suspension, with six months stayed, and a one-year probationary period.
The Maryland Attorney Grievance Commission, acting through Bar Counsel, subsequently filed a petition for disciplinary action against Tun based on the same misconduct. As Maryland does not have an identical sanction to that imposed in D.C., the commission decided to indefinitely suspend Tun from practicing law in Maryland, allowing him the right to reapply only after his unconditional re-admittance to the D.C. Bar. Tun stipulated to the facts outlined by D.C. Bar Counsel, which included his acceptance of court appointments to represent indigent defendants and the proper use of a voucher system for claiming legal service payments, which he was found to have misused.
Respondent submitted 162 vouchers to the Superior Court between 1999 and 2003, claiming payment for legal services provided to indigent defendants. Each voucher included specific time entries for work done, but Respondent was found to have double billed for the same time periods across multiple clients, resulting in seeking payment for 1,180.25 hours of services that were either not provided or not provided at the claimed times. Concerns about the accuracy of these vouchers led a Superior Court judge to alert the Chief Judge, who referred the matter to the U.S. Attorney’s Office for investigation. Although criminal prosecution was not pursued, Respondent agreed to withdraw from the court-appointed attorney list and repaid $16,034 for the double-billed hours. Respondent’s actions violated several Rules of Professional Conduct, including charging unreasonable fees, making false statements to a tribunal, and engaging in dishonesty. A limited hearing revealed Respondent's poor record-keeping, awareness of inaccuracies in his vouchers, and reckless disregard for the potential overcharging of the CJA fund. Despite these violations, Respondent did not accept any funds from the District of Columbia that he was not entitled to if the vouchers had accurately reflected his work.
Respondent, Harry Tun, was granted compensation but failed to provide adequate documentation for his services. The D.C. Court of Appeals suspended him from practicing law for 18 months, with six months stayed, and imposed one year of probation with specific conditions, including oversight by a practice monitor from the D.C. Bar. This monitor is responsible for bi-monthly reports assessing Tun’s business practices, including financial records and client interactions. Noncompliance with probation terms would result in the activation of the suspended six-month suspension and require Tun to demonstrate fitness for reinstatement.
Subsequently, the Fourth Circuit suspended Tun under reciprocal discipline principles, maintaining the 18-month suspension until Tun is reinstated to the D.C. Bar. The U.S. District Court for Maryland also suspended Tun for 18 months, mirroring the D.C. Court's probationary conditions. Maryland’s Bar Counsel initiated disciplinary proceedings against Tun, citing violations of Maryland Lawyers’ Rules of Professional Conduct based on the D.C. findings. A Show Cause order was issued, and both parties provided written responses, with oral arguments presented. Bar Counsel recommended indefinite suspension, while Tun sought a lesser six-month suspension or equivalent to the D.C. discipline.
The court retains original jurisdiction over attorney disciplinary actions and treats findings from other jurisdictions as conclusive evidence of misconduct, although it allows for additional evidence or arguments regarding the imposition of discipline.
Tun admitted to submitting vouchers for payment for services rendered to multiple clients simultaneously on 162 occasions, which constituted double-billing due to poor record-keeping. This misconduct violated several provisions of the D.C. Rules of Professional Conduct (RPC). The findings from the D.C. Court of Appeals are accepted as definitive evidence of these violations under the corresponding Maryland Lawyers' Rules of Professional Conduct (MLRPC). In determining the appropriate reciprocal sanction in Maryland, the court balances the need to follow the original jurisdiction’s disciplinary actions with prior Maryland cases and the need to protect the public.
Maryland Rule 16-721 outlines five potential sanctions for attorney misconduct, including disbarment, suspension, reprimand, conditional diversion, and termination with a warning. None of these sanctions directly correspond to the 18-month suspension with conditions imposed by the D.C. Court of Appeals. Previous cases, such as Thaxton, indicated that similar misconduct would lead to an indefinite suspension in Maryland. The court found that exceptional circumstances existed under Maryland Rule 16-773(e), suggesting that if Tun's actions had occurred in Maryland, the sanction would differ from that imposed by D.C.
Maryland's disciplinary framework differentiates between intentional and unintentional misappropriation, with disbarment typically reserved for intentional acts. In Tun's case, the court believes the misconduct aligns more closely with negligence, warranting an indefinite suspension. The court emphasizes the importance of consistent sanctions for similar misconduct among attorneys.
Disbarment is typically assumed to be the appropriate sanction for intentional dishonest misconduct, particularly in cases of intentional misappropriation of funds. However, in previous cases, such as Att’y Griev. Comm’n v. Santos, the court opted for indefinite suspension when the attorney's misappropriation was found to be unintentional. In the current matter, the D.C. Court of Appeals determined that Tun's misappropriation stemmed from poor record-keeping rather than intentional wrongdoing.
In Attorney Grievance Commission v. Calhoun, the court imposed an indefinite suspension on an attorney who violated multiple Maryland Rules of Professional Conduct (MLRPC) while representing a client in a sexual discrimination case. Calhoun's misconduct included charging unauthorized fees and causing delays that inflated costs. The court emphasized that the attorney's intent, rather than a finding of dishonesty or fraud, is critical in determining the appropriate sanction. If no intentional misappropriation occurs and there is no financial loss to clients, an indefinite suspension is typically warranted.
The court reinforced that in instances of unintentional misappropriation of client funds, indefinite suspension has been deemed appropriate in various cases. Consequently, the court decided that an indefinite suspension for Tun, contingent upon his unconditional readmission in D.C., is suitable, aligning with sanctions for negligent financial misconduct in Maryland. The court also noted that allowing a less severe sanction from another jurisdiction could unjustly benefit certain Maryland Bar members over others facing stricter sanctions.
Respondent is ordered to pay all costs as taxed by the clerk of the court, with judgment entered in favor of the Attorney Grievance Commission of Maryland against Harry Tun. The document cites D.C. RPC 1.5(a), which prohibits lawyers from charging unreasonable fees or expenses, detailing factors for assessing fee reasonableness: time and labor required, complexity of legal questions, likelihood of precluding other employment, customary fees in the locality, results obtained, time limitations, the professional relationship length, the lawyer’s experience and reputation, and whether the fee is fixed or contingent. D.C. RPC 1.5(d) explicitly disallows contingent fees for criminal defense representation. D.C. RPC 3.3(a)(1) mandates lawyers not to knowingly make false statements to a tribunal, while D.C. RPC 8.4 outlines professional misconduct involving dishonesty or actions that interfere with justice. D.C. Bar Rule XI. 12.1 allows attorneys under investigation to negotiate discipline with Bar Counsel before a Hearing Committee's report. Tun had previously negotiated a petition for discipline that was rejected by the D.C. Court of Appeals due to the Board of Professional Responsibility's view that a nine-month suspension was insufficient given his violations' extent and duration. Maryland Rule 16-751(a)(2) permits Bar Counsel to file a Petition for Disciplinary Action without prior Commission approval if authorized. Maryland Rule 16-773(b) allows Bar Counsel to act upon verified information of attorney discipline in another jurisdiction. Additionally, MLRPC 1.5(a) reiterates the prohibition against unreasonable fees and outlines similar factors for determining fee reasonableness.
Factors influencing the acceptance of legal employment include: the likelihood that accepting the job will hinder other employment opportunities for the lawyer; the customary fees for similar services in the locality; the amount at stake and the outcomes achieved; time constraints set by the client or circumstances; the nature and duration of the lawyer-client relationship; the experience, reputation, and skills of the lawyers involved; and whether the fee structure is fixed or contingent. Maryland's legal rules differ from those in D.C., as it lacks a rule equivalent to D.C. RPC 1.5(f). Maryland Rule 3.3(a)(1) prohibits lawyers from knowingly making false statements to a tribunal or failing to correct such statements. Rule 8.4 identifies professional misconduct as including dishonesty, fraud, deceit, or actions detrimental to justice. While Maryland rules mention conditions related to sanctions and probation, they do not allow for partial stays of suspensions. The closest provision is a deferral of the suspension's effective date, granting the attorney time to meet certain obligations. Additionally, Maryland Rule 16-760(c) outlines responsibilities for attorneys in winding down their practice prior to disbarment, suspension, or inactive status. In a related case, Tun reimbursed the Superior Court for fees that were double-billed.
