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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-BG-52
IN RE SANDY CHANG, RESPONDENT.
A Suspended Member of the Bar
Of the District of Columbia Court of Appeals
(Bar Registration No. 989203)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-052-12 & 156-12)
(Submitted November 26, 2013 Decided January 23, 2014)
Bernard J. DiMuro, for respondent.
Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant
Bar Counsel, and Joseph C. Perry, Senior Staff Attorney, filed a statement
regarding reciprocal discipline for the Office of Bar Counsel.
Before EASTERLY, Associate Judge, and PRYOR and BELSON, Senior Judges.
PER CURIAM: Respondent, Sandy Chang, is a member of the Bar of the
District of Columbia, having been admitted by motion on August 10, 2009. On
January 23, 2013, the District of Columbia Office of Bar Counsel notified this
court that respondent had been disciplined in multiple jurisdictions as a result of
misconduct in over twenty-one bankruptcy cases where she appeared as the
attorney of record. Respondent was suspended from practicing law for a period of
2
one year before, respectively, the United States Bankruptcy Court for the Eastern
District of Virginia on November 16, 2011, and the United States District Court for
the District of Maryland on November 26, 2012. In addition, the United States
District Court for the District of Columbia imposed a one-year reciprocal
suspension in August, 2012.
Bar Counsel now recommends that this court impose reciprocal suspension
for two years with reinstatement conditioned upon a showing of fitness. This court
temporarily suspended respondent from the practice of law in the District of
Columbia at the outset of these proceedings, beginning March 27, 2013, pending
final disposition of this proceeding. We now impose reciprocal discipline of two
years suspension from practice, with reinstatement conditioned upon a showing of
fitness.
I.
On May 6, 2011, a bankruptcy judge in the United States District Court for
the District of Maryland requested that an inquiry be conducted regarding
respondent’s representation of clients. Other concerns arose and disciplinary
proceedings were commenced. The Disciplinary Panel found numerous
irregularities and reported:
3
All of the Certificates of Credit Counseling filed by Ms.
Chang were filed electronically using her login and
password. Apparently, she provided that login and
password to the former car salesman who made the
alterations and entered the documents on her behalf.
This is, however, a distinction without a difference and
only goes to the question of mitigation of sanction. By
authorizing an employee to utilize her login and
password, she became personally responsible for
whatever was filed.
The Panel also found that “as a result of [respondent’s] mismanagement of her
office and failure to supervise an employee [who] filed numerous altered
documents on her behalf, she failed both directly and indirectly in her obligations
to her clients and to the courts in which these cases were filed.” On November 26,
2012, the United States District Court for the District of Maryland suspended
respondent from practice for one year, and required respondent to file monthly
status reports of her activities, and engage the services of a mentor to supervise her
practice.
In 2011, the Office of the United States Trustee initiated an investigation in
involving respondent’s handling of cases in the United States Bankruptcy Court for
the Eastern District of Virginia. In eight separate cases where respondent was
attorney of record, it appeared that the dates of credit counseling certificates had
4
been altered, and, in a different case, a client’s signature on a petition for relief had
been forged. On November 16, 2011, pursuant to stipulation, respondent was
suspended from practice before the United States Bankruptcy Court for the Eastern
District of Virginia for one year (with other financial conditions).
The investigation in Virginia led to the discovery of an altered credit
counseling certificate in one of respondent’s cases in the United States Bankruptcy
Court for the District of Columbia. On January 13, 2012, respondent stipulated to
misconduct in the District of Columbia and agreed to the entry of an order pursuant
to which she would relinquish her admission before the United States Bankruptcy
Court for the District of Columbia for one year. The Bankruptcy Court did not
sign the order but instead referred the matter to the Committee on Grievances of
the United States District Court for the District of Columbia, which directed
respondent to submit a formal answer. On August 9, 2012, the United States
District Court for the District of Columbia imposed a one-year reciprocal
suspension based upon respondent’s suspension in the Bankruptcy Court for the
Eastern District of Virginia, nunc pro tunc to December 17, 2011. Respondent has
failed to respond to the request of the Committee on Grievance of the United States
District Court for the District of Columbia for a formal answer and also failed to
respond to a Show Cause Order.
5
On January 23, 2013, D.C. Bar Counsel filed the suspension orders from the
above-mentioned jurisdictions in this court. On March 27, 2013, this court
imposed temporary reciprocal discipline. We suspended respondent pending the
final disposition of this proceeding, ordered respondent to show cause why
reciprocal discipline should not be imposed, and notified respondent of the
requirements of D.C. Bar R. XI, § 14. Although respondent has submitted a
response to the Show Cause Order, she has still not filed a D.C. Bar R. XI, § 14
affidavit attesting that she has notified her clients of her suspension in the District
of Columbia. At the time these respective disciplines were imposed, respondent
failed to advise other jurisdictions of these reciprocal matters. Bar Counsel now
recommends a two year suspension from practice with reinstatement conditioned
on a showing of fitness, based upon the one year suspension from practice before
the U.S. Bankruptcy Court in Virginia to which she stipulated, and the one year
suspension by the U.S. District Court for Maryland.
II.
This court in In re Sibley, explained the principles governing our review of
reciprocal discipline matters:
6
With regard to attorney-discipline cases that come to us
as reciprocal matters, D.C. Bar R. XI, § 11 (c) establishes
a rebuttable presumption in favor of this court’s
imposition of discipline identical to that imposed by the
original disciplining jurisdiction . . . . The presumption
applies unless the party opposing discipline (or urging
non-identical discipline) shows, by clear and convincing
evidence, that an exception should be made on the basis
of one or more of the grounds set out in Rule XI,
§ 11 (c) (1)-(5) . . . . Rule XI, § 11 (c) imposes a “rigid
standard,” as to which exceptions “should be
rare” . . . . “[R]eciprocal discipline proceedings are not a
forum to reargue the foreign discipline.”
In re Sibley, 990 A.2d 483, 487-88 (D.C. 2010).
D.C. Bar R. XI, § 11 (c) provides in pertinent part:
Reciprocal discipline shall be imposed unless the
attorney demonstrates to the Court, by clear and
convincing evidence, that:
(1) The procedure elsewhere was so lacking in notice or
opportunity to be heard as to constitute a deprivation of
due process; or
(2) There was such infirmity of proof establishing the
misconduct as to give rise to the clear conviction that the
Court could not, consistently with its duty, accept as final
the conclusion on that subject; or
(3) The imposition of the same discipline by the Court
would result in grave injustice; or
(4) The misconduct established warrants substantially
different discipline in the District of Columbia; or
(5) The misconduct elsewhere does not constitute
misconduct in the District of Columbia.
D.C. Bar R. XI, § 11 (c) (1)-(5).
7
Respondent opposes reciprocal discipline. She contends that the additional
discipline by this court would result in a grave injustice and that in the present
circumstances she should receive substantially less discipline than already
rendered.
A. Imposing a Prospective, Two Year Suspension With a
Fitness Requirement Would Not Constitute a Grave
Injustice.
This court applies prospective reciprocal discipline in cases where the
attorney has failed to comply with the notice and affidavit requirements of D.C.
Bar R. XI, § 14 (g). See D.C. Bar R. XI, § 16 (c); see, e.g., In re Coates, 855 A.2d
1116, 1117 (D.C. 2004). However, there is an exception to the presumption of
reciprocal discipline if the party opposing discipline or urging non-identical
discipline shows by clear and convincing evidence that “[t]he imposition of the
same discipline by the Court would result in grave injustice.” D.C. Bar R. XI,
§ 11 (c) (3). Respondent essentially argues that she has already paid the price for
her prior acts of misconduct, and that the imposition of reciprocal discipline would
result in a grave injustice because she has sustained substantial professional and
financial losses as a result of the existing suspensions. Under the circumstances,
the purpose of the reciprocal discipline rule is served by the imposition of a two
year prospective suspension.
8
The United States Bankruptcy Court for the Eastern District of Virginia and
the United States District Court for the District of Maryland imposed stern
remedial and restitution requirements that must be met before respondent can be
readmitted to practice before those courts.1 Respondent claims that these measures
ensure that there will not be a recurrence of the issues that arose in this case. In
support of her contention respondent provided a letter written by the court-
appointed mentor supervising her practice, who noted that based on new
management practices and procedures, the firm seemed “to be well run and well
managed.”2 Respondent also argues that any discipline imposed in the District
would be unjust because of the time-lapse between disciplinary proceedings and
delays in adjudicating her readmission motion before the United States Bankruptcy
Court for the Eastern District of Virginia.
1
In addition to paying sanctions and restitution costs, totaling over $34,000,
respondent must take ethics and professionalism courses, file monthly reports of
her activities with the courts, engage the services of a mentor to supervise her
practice, and apply for readmission to practice law before the United States District
Court for the District of Maryland, and the United States District Court for the
District of Columbia.
2
The letter that respondent provides from her supervising mentor appears to
be based solely on information provided by respondent, rather than based on
independent investigation of the underlying misconduct. Importantly, the letter is
only a preliminary assessment of respondent’s practice, as the letter closes by
stating, “I think it would be a good idea for us to confer quarterly and meet in your
office at least annually until we are each comfortable with terminating my
involvement.”
9
Respondent’s arguments are insufficient to establish that the imposition of
reciprocal discipline would constitute a “grave injustice.” First, respondent’s
foreign discipline does not satisfy the purpose of reciprocal discipline. The
rationale behind reciprocal discipline is “to deter other attorneys from engaging in
similar misconduct, and to notify members of the public of — and protect them
from — attorney misconduct.” In re Davy, 25 A.3d 70, 73 (D.C. 2011) (citing
In re Uchendu, 812 A.2d 933, 941 (D.C. 2002)) (imposing reciprocal discipline
seven years after the original jurisdiction imposed discipline to “allow those
seeking representation in the District of Columbia to be aware of the respondent’s
prior negligence . . . . [and to] maintain the integrity of the District of Columbia
Bar”).
Most importantly, respondent’s failure to self-disclose and cooperate with
disciplinary authorities is the primary cause of what respondent characterizes as a
grave injustice. We have held that “when the delay of judicial decision-making is
largely a result of the respondent’s own actions or inactions, such circumstances
are not sufficiently unique or compelling to mitigate discipline.” In re Davy, 25
A.3d at 73-74 (citing In re Fowler, 642 A.2d 1327, 1331 (D.C. 1994)). Just as in
In re Davy, 25 A.3d at 73, where the court found that there was no grave injustice
in imposing reciprocal discipline because the delay between disciplinary
10
proceedings was respondent’s own doing, here the delay was largely caused by
respondent’s own actions or inaction. Respondent failed to notify D.C. Bar
Counsel of her prior reprimands in 2010 and of her suspensions in 2011 and the
2012, as was her obligation under D.C. Bar R. XI, § 11 (b). Respondent has also
failed to comply with the D.C. Bar R. XI, § 14 affidavit requirement, despite
various reminders to do so by this court and Bar Counsel. Respondent’s conduct
demonstrates a consistent pattern of non-disclosure, and her failure to assist
disciplinary authorities in investigating her conduct has caused delays to herself
and her clients. It is not a grave injustice, therefore, to apply prospective,
reciprocal discipline.
B. Respondent’s Conduct Does Not Warrant Substantially
Different Discipline.
There is a rebuttable presumption favoring identical reciprocal discipline.
See D.C. Bar R. XI, § 11 (f); In re Coates, 855 A.2d at 1117; In re Goldsborough,
654 A.2d 1285, 1287 (D.C. 1995). Respondent invokes an exception to the
presumption, asserting that her misconduct warrants substantially different
discipline in the District of Columbia from the discipline imposed in Maryland and
Virginia. This court, in In re Salo, recently summarized the two-step inquiry to
assess the substantially different discipline exception:
11
First, we determine whether the conduct in question
would not have resulted in the same punishment in the
District of Columbia as it did in the disciplining
jurisdiction. Second, if the discipline imposed here
would be different from that of the disciplining court, we
must decide whether the difference between the two is
substantial.
In re Salo, 48 A.3d 174, 178 (D.C. 2012).
Here, respondent fails to meet the first part of the inquiry, as she does not
demonstrate that her misconduct would result in a different sanction in this
jurisdiction. Respondent attempts to analogize her case to In re Cohen, 847 A.2d
1162 (D.C. 2004), and In re Carter, 887 A.2d 1 (D.C. 2005), where attorneys were
suspended no more than 180 days as a result of their failure to supervise
employees, which resulted in various types of misconduct, including
embezzlement of client funds. Respondent’s conduct, however, is not analogous to
the two cases respondent presents.
In both cases, the court attributed the misconduct to a simple failure to
supervise, whereas here, the misconduct cannot credibly be attributed to a single
rogue employee and passive failure to supervise. See In re Cohen, 847 A.2d at
1167; In re Carter, 887 A.2d at 16, 17. In two matters where respondent was the
12
attorney of record, she filed bankruptcy petitions without client consent, and in
other cases false credit counseling certificates were filed without verifying whether
the client had actually received the required counseling. Additionally, respondent
did not delegate her authority to a single employee, but rather exposed all her
clients to risk by giving her login and password information to her entire staff,
without any monitoring system in place. Finally, respondent did not heed
warnings of problems in her firm’s practice. Despite prior discipline for identical
conduct, respondent did not conduct any internal investigation or take any
corrective action.
Respondent, therefore, has failed to show her misconduct would not have
resulted in this same sanction in this jurisdiction. Additionally, a fitness
requirement is particularly important in this matter because all three courts that
disciplined respondent were concerned about her ability to practice law and
respondent has not yet filed a formal answer with the Committee on Grievances of
the United States District Court for the District of Columbia. Given respondent’s
grave misconduct, her two one-year suspensions in the United States Bankruptcy
Court for the Eastern District of Virginia and the United States District Court for
the District of Maryland, and noting also the reciprocal discipline imposed by the
13
United States District Court for the District of Columbia, we now impose a
suspension of two years.
Accordingly, it is ORDERED that respondent shall be, and hereby is,
suspended from the practice of law in the District of Columbia for two years, with
reinstatement conditioned upon a showing of fitness. This suspension will be
effective as of the date respondent files an affidavit in compliance with D.C. Bar R.
XI, § 14 (g).
So ordered.