In re Harry Tun

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-BG-0769
10/18/2018
IN RE HARRY TUN

A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 416262)
On Report and Recommendation of the
Board on Professional Responsibility
(BDN-099-14)
(DDN-463-10)
(Argued May 8, 2018 Decided October 18, 2018)
Hendrik deBoer, Senior Staff Attorney, with whom Elizabeth A. Herman,
Deputy Disciplinary Counsel, Jennifer P. Lyman, Senior Assistant Disciplinary
Counsel, and Jelani C. Lowery, Assistant Disciplinary Counsel, were on the brief,
for petitioner.
Abraham C. Blitzer for respondent.
Before GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior
Judge.
Opinion for the court by Associate Judge THOMPSON.
Opinion by Associate Judge GLICKMAN, concurring in part and dissenting in
part, at page 30.

THOMPSON, Associate Judge: In this original-discipline action, the Board on

Professional Responsibility (the “Board”) recommends that respondent Harry Tun
 2

be suspended for one year, with a requirement of proof of fitness before

reinstatement, for violations of Rules 3.3 (a)(1) and 8.4 (c) of the Rules of

Professional Conduct. We adopt the Board’s recommendation of a one-year

suspension, but decline to impose a fitness requirement.

I.

The Office of Disciplinary Counsel (known until 2015 as the Office of Bar

Counsel) initiated disciplinary proceedings against respondent after he filed, in a

criminal matter before the Honorable Russell F. Canan, a motion for Judge Canan

to recuse himself. The recusal motion, which respondent filed on October 16,

2009, stated in pertinent part as follows:

[S]everal years ago, Judge Canan reported undersigned
counsel for an alleged ethical violation, which was then
investigated by D.C. Bar Counsel. The investigation was
then dismissed without any disciplinary action being
instituted against undersigned counsel.

Respondent acknowledges that these assertions were untrue in that (1) “Judge

Canan had not reported [r]espondent for an ethical violation” and (2) the matter

Judge Canan identified “had not been dismissed but was active in the disciplinary
 3

system” (with the result that respondent “ultimately did receive[] discipline”). The

background is as follows.

Between 1999 and 2003, respondent, a criminal defense attorney, accepted

appointments pursuant to the District of Columbia Criminal Justice Act (“CJA”) to

advise and represent indigent criminal defendants in the Superior Court of the

District of Columbia. Respondent submitted to the Superior Court payment

vouchers in which he indicated the times he started and stopped working on

matters for each individual client. Judge Canan became concerned that respondent

was inaccurately reporting his time and notified the Chief Judge of the Superior

Court, who referred the matter to the United States Attorney’s Office (“USAO”)

for investigation. The USAO’s review of respondent’s vouchers revealed that

respondent had sought payment for the same time period for two or more clients on

162 occasions. The USAO agreed not to file criminal charges against respondent

if he “repaid the $16,034 in overpayments he had received as a result of false

reporting” and “reported his conduct to the Office of Disciplinary Counsel.”

Respondent reported his conduct to the Office of Disciplinary Counsel on

July 26, 2006. On March 27, 2009, Disciplinary Counsel and respondent jointly

filed with a Hearing Committee of the Board a petition for negotiated discipline, in
 4

which respondent stipulated that he violated the Rules of Professional Conduct as

charged in Disciplinary Counsel’s Specification of Charges1 and agreed to a nine-

month suspension and a one-year period of probation. The Hearing Committee

determined that the negotiated discipline was appropriate, and this court referred

the petition to the Board for its views on August 12, 2009 (i.e., two months before

respondent filed the recusal motion that underlies the instant matter). On

November 24, 2009, the Board recommended that this court reject the initial

petition for negotiated discipline “on the grounds that the proposed sanction was

unduly lenient,” a recommendation this court followed. Thereafter, Disciplinary

Counsel and respondent submitted an amended petition. In August 2011, this court

approved the parties’ amended petition for negotiated discipline, under which we

imposed on respondent the sanction of an eighteen-month suspension, with six

months stayed subject to the terms of an agreed-upon probation. See In re Tun, 26

A.3d 313, 314 (D.C. 2011).2

1
Specifically, respondent stipulated that his conduct violated Rule 1.5 (a)
and (f) (in that he charged an unreasonable fee); Rule 3.3 (a)(1) (in that he made a
knowingly false statement of material fact to the tribunal in submitting the
vouchers); Rule 8.4 (c) (in that he engaged in conduct involving dishonesty, fraud,
deceit, or misrepresentation); and Rule 8.4 (d) (in that he engaged in conduct that
seriously interfered with the administration of justice).
2
We found that the CJA-voucher “errors were the result of respondent’s
‘abysmal’ record-keeping” and noted that respondent “repaid to the Superior Court
$16,034, which represented the ‘time that Respondent had double billed minus a
(continued…)
 5

It was while the petition for negotiated discipline was pending before the

Board that respondent filed the recusal motion at issue here, falsely stating that the

CJA-vouchers matter had been “dismissed without any disciplinary action being

instituted against” him.

On the basis of the false statements in the motion to recuse, Disciplinary

Counsel charged appellant anew with violating Rules 3.3 (a)(1),3 8.4 (c),4 and 8.4

(…continued)
reasonable estimate [of the time] that he could have but failed to bill for other
court-appointed matters.”’ In re Tun, 26 A.3d at 314.

Respondent asserts that “[d]uring Disciplinary Counsel’s investigation, [he]
presented evidence that he had provided representation to indigent defendants in 42
CJA cases for which he had not sought compensation,” for which he asserts he
would have been “entitled to additional compensation estimated at between
$16,800 and $37,000.” The Board acknowledged respondent’s contention that he
“fail[ed] to charge for time worked on CJA matters in excess of the erroneously
double-bill[ed] charges.” Respondent testified that he is no longer on the CJA
panel but “do[es] at least two pro bono [criminal] cases every year.”
3
Rule 3.3 (a)(1) provides generally that “[a] lawyer shall not
knowingly . . . [m]ake a false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the tribunal by the
lawyer.”
4
Rule 8.4 (c) provides that “[i]t is professional misconduct for a lawyer
to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.”
 6

(d).5 An Ad Hoc Hearing Committee held an evidentiary hearing on the new

charges on May 5, 2015. The hearing focused on the following passages from the

recusal motion:

Page 1 of the recusal motion, where respondent wrote:

Judge Russell Canan has previously reported undersigned
counsel for ethical violations and professional
misconduct, which then led to an investigation by the
[USAO] for criminal conduct by undersigned counsel.
This investigation was ultimately . . . dismissed without
any criminal charges being lodged against undersigned
counsel. The investigation of Judge Canan’s referral
included, but was not limited to, the execution of a search
warrant upon undersigned counsel’s office. Undersigned
counsel submits that he was then investigated by D.C.
Bar Counsel as a result of Judge Canan’s actions. This
occurrence created a great deal of animosity between
undersigned counsel and Judge Canan, to the extent that
Judge Canan has stated on numerous occasions that
undersigned counsel was on “thin ice” for his conduct
during some proceedings.

And pages 3-4 of the motion, where respondent wrote:

With regard to the present matter, several years ago,
Judge Canan reported undersigned counsel for an alleged
ethical violation, which was then investigated by D.C.

5
Rule 8.4 (d) provides that “[i]t is professional misconduct for a lawyer
to . . . [e]ngage in conduct that seriously interferes with the administration of
justice.”
 7

Bar Counsel. The investigation was then dismissed
without any disciplinary action being instituted against
undersigned counsel. Since this time, Judge Canan has
fostered a hostile relationship with undersigned counsel.
He has an established prejudice against undersigned
counsel and, consequently, has an established prejudice
against the [d]efendant in this matter, which was not
acquired from his participation in this case. Judge
Canan’s hostility and bias against undersigned counsel
and his client has [sic] been readily apparent in trial in
the above-captioned matter.

At the hearing, respondent acknowledged that he made statements in the

recusal motion that were untrue. He testified that he knew at the time he wrote and

filed the motion that he “w[as] being prosecuted by” Bar Counsel and had joined a

petition for negotiated discipline in which he admitted to violations of the Rules.

Respondent further told the Hearing Committee that the recusal motion was

“a very, very rushed job,” which he filed “at 8:30 or 9 at night” after a “heated

argument” with Judge Canan that day, and that he “didn’t really proofread” the

document (an omission he said was shown by the uncorrected “big gap” between

the paragraphs on page 3 of the motion). Respondent asserted that his

misrepresentation in the motion was due to a proofreading error, and that instead of

“D.C. Bar Counsel” (in the sentence on pages 3-4 of the motion stating that

“several years ago, Judge Canan reported undersigned counsel for an alleged
 8

ethical violation, which was then investigated by D.C. Bar Counsel”), respondent

should have written the “United States Attorney’s Office.”6 Respondent

characterized the misstatement as an “inartful[]” “recap” of the sentence on page 1

of the motion that stated that an “investigation [by the USAO] was

ultimately . . . dismissed without any criminal charges being lodged against” him.

He further explained that if he had proofread the motion, he “never would have

filed it” as written and “would have said” instead that he was investigated by the

USAO, which was “the one[] who dismissed it.” Respondent maintained that the

recusal motion contained “a typographical error” and that he did not intentionally

or knowingly write statements that falsified or misled as to the facts.

In addition, referring to the fact that he had failed to file with the recusal

motion the affidavit and certificate required by Super. Ct. Civ. R. 63-I (a) & (b) —

an affidavit stating “the facts and the reasons for the belief that bias or prejudice

exists” and a certificate of counsel stating that the motion was being “made in good

faith” — respondent explained that he “didn’t know that [he] had to file [an]

6
Respondent testified that the beginning portion of the statement that
“several years ago Judge Canan reported undersigned counsel for alleged ethical
violations” was “correct.”
 9

affidavit” with the motion.7 He made that assertion notwithstanding the fact that

the second page of the recusal motion cited and quoted Rule 63-I. Respondent

attributed this contradiction to his having “cut and paste[d]” language (which he

took from “the computer”) without actually “think[ing] it through.”

The Hearing Committee submitted its report and recommendation to the

Board on August 30, 2016. A majority of the Hearing Committee rejected as false

respondent’s testimony that his misstatement in the recusal motion (i.e., that the

disciplinary investigation had been dismissed) was “inadvertent.” The Hearing

Committee majority found respondent’s explanation “not credible and contrary to

the weight of the evidence.” Addressing respondent’s testimony about his

“negligent” “failure to proofread” the recusal motion, the Hearing Committee

majority found respondent’s explanation about “inartful[]” “recap[ping]” both

“inconsistent with the motion to recuse itself” and “nonsensical.” (internal

quotation marks omitted). The Hearing Committee majority found that

respondent’s further explanation — that even though page 2 of the recusal motion

quoted Rule 63-I in full, he did not know he had to file a supporting affidavit along

with the motion — was “self-serving and not credible” given that the omitted

7
Because respondent failed to attach the required affidavit and certificate to
the recusal motion, Judge Canan denied the motion on procedural grounds.
 10

affidavit “would [have] be[en] particularly damning to [respondent] if found to be

false.” The Hearing Committee majority stated that, at a minimum, respondent’s

“actions [in including false statements in the recusal motion] amounted to a

reckless disregard of the truth,” but also found that in the recusal motion

respondent “intentionally misrepresented the facts” in order to “bolster the

legitimacy of his recusal argument.” The Hearing Committee majority further

found that respondent testified falsely to the Committee by claiming that the

misstatements in his motion were inadvertent.

The Hearing Committee majority concluded that “the evidence clearly and

convincingly support[ed] a finding” that respondent violated Rules 3.3 (a)(1) and

8.4 (c).8 The Hearing Committee majority noted that this court has imposed

sanctions ranging from public censure to a 60-day suspension for single instances

of misrepresentations to courts. Finding, however, that respondent’s prior

discipline9 and his false testimony to the Hearing Committee were aggravating

8
Noting that Judge Canan had denied the recusal motion on procedural
grounds, see supra note 7, the Hearing Committee majority “conclude[d] that
[respondent’s] improper conduct did not taint the judicial process in more than a de
minimis way” and therefore found no violation of Rule 8.4 (d).
9
The Hearing Committee majority cited respondent’s “previous suspension
for double billing” as well as “the spate of informal admonitions he ha[d]
received.” The Hearing Committee majority noted that in 1993, respondent was
(continued…)
 11

factors (and that the latter was a “significant aggravating factor”), the Hearing

Committee majority recommended the sanction of a one-year suspension without a

proof-of-fitness requirement for reinstatement.10 In declining to recommend a

fitness requirement, the Hearing Committee majority found “no evidence that

supports a finding that there is clear and convincing evidence of a serious doubt as

(…continued)
found to have violated Rule 1.4 (a) for his “failure to keep his client informed
about the status of a matter” and Rule 1.5 (b) for his “failure to provide his client
with a writing setting forth the basis or rate of his fee” (Docket No. 308-93); that in
1995, he was found to have again violated Rule 1.15 (b) by failing “to notify and
deliver promptly to a third person any funds to which that person was entitled”
(Docket No. 330-94); that in 2004, he was found to have violated Rule 1.15 (a) and
also Rule 1.16 (d) for failing “to retain a client’s file and records reflecting how he
handled settlement funds” (Docket No. 2003-D385); that in 2011, he was found to
have violated Rule 1.6 by “revealing a client’s confidences and secrets” (Docket
No. 2010-D040); and that in 2013, he was found to have violated Rule 4.3 (a)(1)
for “giving legal advice to an unrepresented person other than advice to secure
counsel, when the interests of that person were in conflict with the interests of his
client” (Docket No. 2009-D381).
10
The Hearing Committee Chair concurred in part and dissented in part.
The Chair disagreed that respondent knowingly made a false statement in violation
of Rule 3.3 (a)(1). The Chair was persuaded that respondent “did not intend to
mislead or deceive Judge Canan when he filed the recusal motion that contained a
false statement” and credited respondent’s testimony that he prepared the motion
“after a very difficult day” through a rushed ‘“cut and paste job”’ and that he did
not pay attention to the content of the motion. Because the Chair concluded that
respondent did not intend to mislead Judge Canan, but instead “recklessly” made a
misrepresentation, the Chair also found that respondent testified honestly before
the Hearing Committee. The Chair agreed that Disciplinary Counsel proved that
respondent violated Rule 8.4 (c) in that the recusal motion “contained a
misrepresentation that was made recklessly.” Taking into account respondent’s
prior discipline, the Chair favored the sanction of a three-month suspension.
 12

to [r]espondent’s ability to practice ethically” and no “clear and convincing

evidence that [his “intentional misrepresentation to Judge Canan”] was anything

other than a single, isolated incident.”

The Board concurred with the Hearing Committee majority that respondent

“violated Rules 3.3 (a)(1) and 8.4 (c) by making an intentional false statement in

his recusal motion” and also that he “testified falsely in front of the Hearing

Committee.” However, the Board disagreed with Disciplinary Counsel, and with

the Hearing Committee, on the appropriate sanction. The Board disagreed with

Disciplinary Counsel’s recommendation of a three-year suspension, reasoning that

this sanction generally applies where there has been “a pattern of dishonesty and

misrepresentation over a lengthy period,” whereas in this case, respondent’s

“conduct neither involved the protracted and repeated dishonesty nor any other

overt act to conceal the dishonesty.” (internal quotation marks omitted). The

Board nevertheless concluded that respondent’s conduct “involved multiple

instances of dishonesty — to the court (in the recusal motion) and the Hearing

Committee (in his false testimony)” and a “disturbing pattern of dishonesty” and

determined that a one-year suspension, as recommended by the Hearing

Committee majority, was appropriate, but with a proof-of-fitness requirement. The

Board stated “that there is a serious doubt as to [r]espondent’s ability to practice
 13

law [ethically] following his suspension.” (internal quotation marks omitted).

Finally, the Board reasoned that “[r]espondent’s false testimony to the Hearing

Committee shows that he does not understand the seriousness of his false

statements to Judge Canan” and “does not appreciate his obligation to be honest.”

The Board also cited the absence of “evidence that [r]espondent has taken any

steps to remedy his misrepresentation to Judge Canan.”

Respondent takes exception to the Hearing Committee’s findings that his

false statements in the recusal motion and his failure to file the Rule 63-I affidavit

and certificate were intentional and that the testimony he gave before the Hearing

Committee was false. He argues that because the finding that he gave false

testimony before the Hearing Committee “form[ed] the basis for the Board’s

recommendation that [he] be required to show fitness,” this court should not

impose a fitness requirement. He contends that the appropriate sanction is a thirty-

day suspension. Disciplinary Counsel urges us to adopt the Board’s

recommendation.

II.
 14

Disciplinary Counsel must establish a violation of a Rule of Professional

Conduct by clear and convincing evidence. See, e.g., In re Anderson, 778 A.2d

330, 335 (D.C. 2001). This court “review[s] de novo the Board’s legal conclusions

and other legal questions, but we defer to the factual findings of the Hearing

Committee and the Board [on subsidiary facts] ‘unless they are unsupported by

substantial evidence’ in the record.” In re Speights, 173 A.3d 96, 99 (D.C. 2017)

(internal footnote omitted) (quoting D.C. Bar R. XI, § 9 (h)(1)). “[W]e are

required to defer to Hearing Committee credibility findings if they are supported

by substantial evidence on the record.” In re Pye, 57 A.3d 960, 973 (D.C. 2012)

(noting that “deference to the Hearing Committee’s factual findings and credibility

determinations is especially heightened where the determinations are based on

direct observation of the [r]espondent” (internal quotation marks omitted)).

That said, in some circumstances, a Hearing Committee’s finding as to a

respondent’s credibility “does not warrant the normal deference.” In re Anderson,

778 A.2d at 341-42 (reaching that conclusion in a case where the credibility

determination was based on rejection of the respondent’s testimony as “self-

serving” (“because testimony by a respondent in explanation of his conduct is

almost by definition self-serving”); there was a “mistaken understanding” of the

evidence; the Hearing Committee report “g[ave] no indication that it was based on
 15

respondent’s demeanor in testifying and responding to questions”; and the Hearing

Committee’s disbelief was based on an “analysis . . . in the nature of a legal

conclusion”). “Whether [a] respondent gave sanctionable [i.e., intentional] false

testimony before the Hearing Committee is a question of ultimate legal fact that the

Board and this court review de novo.” In re Bradley, 70 A.3d 1189, 1194-95 (D.C.

2013) (citing that principle in concluding, notwithstanding the general deference

owed to “credibility determinations made by Hearing Committee members who are

in a better position than either the Board or this court to assess the truthfulness of

witness testimony” and “[d]espite the Hearing Committee’s finding that

respondent’s demeanor ‘seemed honest,’” that the Board “did not err in concluding

that respondent was intentionally untruthful in her testimony before the Hearing

Committee”; noting that there was “no factual support in the record for the

Committee’s conclusion that [the respondent] simply misremembered what had

occurred,” that her detailed testimony undermined that claim, that “her testimony

was contradicted by [that of other witnesses],” and that no evidence in the record

supported a finding that she was “merely confused”); see also In re Romansky, 938

A.2d 733, 739 (D.C. 2007) (“[N]o deference is owed [by this court] with respect to

[the Board’s determination of] ultimate facts that are really conclusions of law,”

such as whether an attorney’s conduct was negligent or reckless or intentional, an

issue as to which this court has “the obligation to make our own determination”; id.
 16

(“[W]e next consider de novo the Board’s conclusion that the respondent did not

act knowingly or recklessly, but merely negligently, in charging the premiums to

[clients].”).

III.

In this case, the subsidiary facts are undisputed; as the Hearing Committee

Chair wrote, “[t]here is no question that [r]espondent drafted and filed a motion

that contained a false statement.” The issues before us are whether respondent

made the false statement in his recusal motion intentionally or, as respondent

contends, recklessly, and, concomitantly, whether respondent’s testimony before

the Hearing Committee as to his intent was false, in aggravation of the charged

misconduct.

The explanation respondent gave the Hearing Committee for his false

statement on pages 3-4 of the recusal motion (i.e., that “[t]he investigation [into his

alleged ethical violation] was . . . dismissed without any disciplinary action being

instituted”) was that he was “recap[ping]” or “reiterating” what he had written on

page 1 of the motion, but did so “inartfully.” If respondent had written on pages 3-

4 that the investigation was dismissed by Bar Counsel without any “charges” being
 17

instituted, it might be believable that the misstatement on these pages was an

inadvertently incorrect “recap” of what respondent wrote on page 1. Page 1

referred to both the USAO and Bar Counsel and referred to an investigation that

was “dismissed without any . . . charges being lodged.” However, the reference on

pages 3-4 to dismissal without “disciplinary action” is new, i.e., not a repeat of

what was said on page 1, and thus, rather than reflecting a careless effort at

recapping, sets out what appears to be a deliberately new narrative. What also

seems clear is that what respondent meant to convey by what he wrote on pages 3-

4 was that Judge Canan’s suspicions about respondent’s billing irregularities

lacked foundation, when respondent knew that was not true. We therefore agree

with the Hearing Committee and the Board that the evidence is clear and

convincing that the false statement on pages 3-4 of the recusal motion was

intentional (made in an apparent effort to bolster the recusal argument).

Accordingly, we agree that respondent violated Rules 3.3 (a)(1) and 8.4 (c). We

also agree that respondent’s testimony to the contrary before the Hearing

Committee was false.

IV.
 18

We turn now to what sanction is appropriate. ‘“The discipline we impose

should serve not only to maintain the integrity of the profession and to protect the

public and the courts, but also to deter other attorneys from engaging in similar

misconduct.”’ In re Martin, 67 A.3d 1032, 1053 (D.C. 2013) (quoting In re

Scanio, 919 A.2d 1137, 1144 (D.C. 2007)). While it is “the court which decides

the sanction to be imposed,” id., unless the Board’s sanction recommendation

would “foster a tendency toward inconsistent dispositions for comparable conduct

or would otherwise be unwarranted,” D.C. Bar R. XI, § 9 (h)(1), it “comes to us

with a strong presumption in favor of its imposition.” In re Martin, 67 A.3d at

1053 (internal quotation marks omitted). “Generally speaking, if the Board’s

recommended sanction falls within a wide range of acceptable outcomes, it will be

adopted and imposed.” In re Howes, 52 A.3d 1, 13 (D.C. 2012) (internal quotation

marks omitted).

This case involves respondent’s dishonesty to the court in the recusal motion

and what we agree was respondent’s intentionally false testimony before the

Hearing Committee regarding whether the false statements in the recusal motion

were intentional (which is an aggravating factor). Thus, in that sense, this case

“involve[s] multiple instances of dishonesty,” as the Board found. The Hearing

Committee majority treated respondent’s false testimony before the Committee as
 19

a “significant” aggravating factor. We note, however, that this court has treated

false testimony before the Hearing Committee as a significant aggravating factor

where a respondent lied by “denying the misconduct,” see In re Chapman, No. 07-

BG-800, 2009 D.C. App. LEXIS 16, *6 (D.C. Feb. 5, 2009), thereby

demonstrating “[a] failure to appreciate the impropriety of [the charged] conduct,”

id. at *7 (citing In re Goffe, 641 A.2d 458, 466 (D.C. 1994)). Here, by contrast,

respondent acknowledges that he made statements in the recusal motion that were

untrue, recognizes that he should not have filed in court a motion containing false

statements, acknowledges that his conduct was reckless, and agrees that a sanction

is warranted; and the Hearing Committee found that he “cooperated with

Disciplinary Counsel’s investigation,” which is “a mitigating factor.” Id. at *6.

The net result is that while we treat as an aggravating factor respondent’s false

testimony regarding whether the untrue statements in the recusal motion were

intentional, we give that aggravating factor somewhat less weight than the Board

gave it.

Further, the Hearing Committee majority and the Board found that

respondent gave intentionally false testimony about why he did not attach an

affidavit and certificate to the recusal motion. Asserting that the Hearing

Committee “evaluated [respondent’s] demeanor while testifying,” Disciplinary
 20

Counsel suggests that “traditional deference” to the Hearing Committee’s

majority’s credibility determination is warranted. We reject that suggestion

because nothing in the Hearing Committee report refers to respondent’s demeanor

while testifying as a basis for the majority’s finding that respondent gave false

testimony before the Committee. We do not imply that a Hearing Committee is

required to express whether it relied on a respondent’s demeanor, but in this case

what the Hearing Committee did express was that it rejected respondent’s

testimony as “self-serving” and (apparently for that reason) “not credible.” We

have observed that “testimony by a respondent in explanation of his conduct is

almost by definition self-serving,” In re Anderson, 778 A.2d at 341, so the self-

serving nature of respondent’s testimony was not a substantial basis for rejecting it.

Moreover, the Hearing Committee’s other articulated reason for finding

respondent’s testimony about the affidavit not credible — the Committee’s

suggestion that respondent’s purpose in failing to attach an affidavit to the recusal

motion might have been to avoid the “particularly damning” effect to him if the

affidavit were found to be false — is speculative and in our view is less persuasive

than respondent’s point that “[t]o believe that [he] intentionally failed to include

the affidavit and certificate is to believe that [he] intentionally sabotaged his own

motion.”
 21

In addition, respondent’s explanation that the recusal motion was a “copy

and paste” job from “the computer” into an electronic document, and that he

included in the motion a block quote of the language of Rule 63-I without actually

“think[ing] it through” is not “improbable”11 in this age of computer-based legal

research and word processing. Respondent’s testimony was not so precise12 that it

suggests a carefully fabricated explanation rather than the truth, and it was at least

weakly corroborated by his uncontradicted testimony that a recusal motion was one

he had “never filed before.” Cf. In re Bradley, 70 A.3d at 1194-95 (agreeing with

Board rejection of Hearing Committee finding that the respondent/guardian

“seemed honest” and did not intentionally testify untruthfully about visits to her

ward, because the testimony was contradicted by the testimony of social workers at

the ward’s nursing home, and because it contained a level of detail that undercut

the respondent’s claim that she had merely misremembered when she claimed to

have visited the ward). In addition, the recusal motion described a history between

respondent and Judge Canan which the judge knew first-hand, a fact that could

have made an affidavit about the grounds for recusal seem like surplusage.

Accordingly, we cannot agree that there was “demonstrable fabrication or perjury,”

11
In re Martin, 67 A.3d at 1051 (internal quotation marks omitted).
12
For example, respondent agreed with the questioner that he did not know
he had to file a “certificate of good standing” along with the recusal motion
(whereas Rule 63-I requires a certificate of good faith).
 22

In re Cleaver-Bascombe, 892 A.2d 396, 411 (D.C. 2006), in respondent’s

testimony about why he did not include the required Rule 63-I affidavit and

certification with his recusal motion.

This court has imposed sanctions ranging from public censure to a 60-day

suspension for misrepresentations to courts or other tribunals. Here, respondent’s

multiple instances of prior discipline, including most prominently his suspension

for double billing through CJA vouchers, are aggravating factors that make a

suspension sanction appropriate. While a longer period of suspension would also

have been justified, we are satisfied that the one-year suspension recommended by

the Hearing Committee and the Board falls “within [the] wide range of acceptable

outcomes.” In re Howes, 52 A.3d at 13 (internal quotation marks omitted). See,

e.g., In re Rodriguez-Quesada, 122 A.3d 913, 921 (D.C. 2015) (two-year

suspension where attorney “intentionally made a false statement to an immigration

judge and then gave false testimony to the Hearing Committee about having done

so,” but also showed “a pattern of lack of competence, lack of diligence, neglect of

his clients’ cases, failure to communicate with his clients, and refusal to return case

files and unearned payments”); In re Guberman, 978 A.2d 200, 204, 210 (D.C.

2009) (eighteen-month suspension for lying to a law firm supervisor about having

filed an appeal and creating false court filing stamps on papers, thereby “falsely
 23

certifying that the papers had been filed in court” (internal quotation marks

omitted)); In re Kerr, 611 A.2d 551, 552 (D.C. 1992) (one-year suspension for

knowingly filing a false federal income tax return); In re Hutchinson, 534 A.2d

919, 919-20 (D.C. 1987) (one-year suspension for untruthful testimony before the

Securities and Exchange Commission). We therefore adopt the Board’s

recommendation of a one-year suspension.

Finally, we consider the Board’s recommendation that respondent be

required to show fitness to practice prior to reinstatement. As we have explained, a

“fitness requirement depends on a specific finding beyond the finding of a

violation of the Rules.” In re Cater, 887 A.2d 1, 25 (D.C. 2005). “[P]roof of a

violation of the Rules that merits even a substantial period of suspension is not

necessarily sufficient to justify a fitness requirement[.]” Id. at 22. The reason for

imposing a proof of fitness requirement is “conceptually different from the reason

for suspending a respondent for a period of time,” id.; in contrast to a suspension,

which is “intended to serve as the commensurate response to the attorney’s past

ethical misconduct,” “the open-ended fitness requirement is intended to be an

appropriate response to serious concerns about whether the attorney will act

ethically and competently in the future, after the period of suspension has run,” id.

‘“[T]o justify requiring a suspended attorney to prove fitness as a condition of
 24

reinstatement, the record in the disciplinary proceeding must contain clear and

convincing evidence that casts a serious doubt upon the attorney’s continuing

fitness to practice law.”’ In re Ditton, 980 A.2d 1170, 1174 (D.C. 2009) (quoting

In re Cater, 887 A.2d at 6). “The term ‘doubt’ . . . connote[s] real skepticism, not

‘just a lack of certainty.”’ In re Cater, 887 A.2d at 24. This court’s primary

“concern is that the attorney’s resumption of the practice of law will not be

detrimental to the integrity and standing of the Bar, or to the administration of

justice, or subversive to the public interest.” Id. at 22 (internal quotation marks

and brackets omitted). “[T]he decision to impose a fitness requirement turns on a

partly subjective, predictive evaluation of the attorney’s character and ability.” Id.

Our caution about imposing a fitness requirement reflects a recognition that

“while a fitness requirement is not quite as severe an enhancement as disbarment,

it comes close,” as it “can transform a [relatively short period of] suspension into

one that lasts for years.” Id. at 25. “The fitness requirement can be a tail that wags

the disciplinary dog,” as it “may have the practical effect of greatly prolonging –

even tripling or quadrupling – a respondent’s period of suspension.” Id. at 23

(internal quotation marks omitted). “[T]ak[ing] into account th[ose] consequences

for respondent attorneys,” we “require[] Bar Counsel to prove the facts that justify

the enhancement with evidence that is clear and convincing.” Id. at 23, 25. We
 25

have said that “if no serious doubt exists about an attorney’s fitness, it would be

unnecessary and unfair to augment the sanction of a limited period of suspension

with [the] onerous obligation” to prove fitness prior to reinstatement. Id. at 24. In

the end, “evidence of circumstances surrounding and contributing to the

misconduct may be what tips the balance in favor of [or against] the [proof-of-

fitness] condition.” Id. at 22.

The Board found that Disciplinary Counsel “proved by clear and convincing

evidence” respondent’s “disturbing pattern of dishonesty” and thus proved “that

there is a serious doubt as to [r]espondent’s ability to practice law [ethically]

following his suspension.” (internal quotation marks omitted). The Board

reasoned that “[r]espondent’s false testimony to the Hearing Committee shows that

he does not understand the seriousness of his false statements to Judge Canan” and

“does not appreciate his obligation to be honest.”

As discussed above, while we agree that respondent gave false testimony to

the Hearing Committee when he insisted that his false statement in the recusal

motion was not intentional, we do not agree that he gave false testimony about

non-inclusion of an affidavit and certification. Thus, in our view, the pattern of

dishonesty is not as discernible as the Board found it to be. Nor, in light of
 26

respondent’s acknowledgment that a sanction is warranted for his conduct in

connection with the recusal motion, do we agree that the record shows that

respondent does not understand the seriousness of his false statements to Judge

Canan. Also, as the Board recognized, respondent’s “false statements arise from a

prior history between Judge Canan and [r]espondent,” a history that led respondent

to state in his recusal motion that the judge “ha[d] fostered a hostile relationship

with” respondent. Respondent explained in his testimony before the Hearing

Committee that he filed the recusal motion (and ended up withdrawing from the

case after the motion was denied) because he did not want his client to “suffer” by

having Judge Canan’s “bias against [respondent] . . . spill[] over to [his] client.”

He told the Hearing Committee that he was “trying to protect” his client, a twenty-

four-year-old man, from “go[ing] to jail for a long time” and thought he had “a fair

shot at winning the case” if he could “get a fair shake.” Respondent testified that

the case was “emotional” because he “care[d] for” his client, and because he

(respondent) “g[o]t scared” after Judge Canan told him, after a “heated argument”

in the courtroom, that he was “on thin ice” and risking contempt. The Hearing

Committee did not discredit any of the foregoing testimony.

Respondent’s explanations — his perception of Judge Canan’s hostility

toward him, his emotional state, and his objective to “protect” his client by getting
 27

Judge Canan to recuse — in no way justify or excuse his false statements to the

court or his false testimony to the Hearing Committee. We reiterate that “lying

under oath on the part of an attorney for the purpose of attempting to cover up

previous dishonest conduct is absolutely intolerable.” In re Cleaver-Bascombe,

892 A.2d at 412. But respondent’s uncontroverted testimony about the heightened

emotional circumstances surrounding his drafting of the recusal motion does

inform our view about whether respondent would be likely to repeat his dishonest

conduct if he is permitted to resume practice at the end of the suspension period.

We have said that “where the misconduct involved a response to the ‘pressure of

the moment’ or a situation unlikely to be repeated, we are less likely to impose a

condition on the respondent’s resumption of practice.” In re Guberman, 978 A.2d

at 212-13 (internal footnotes omitted) (declining to impose a fitness requirement

where the respondent’s conduct began with “a ‘foolish and imprudent’ response to

a particular pressure, and developed into misconduct that snowballed as respondent

made effort after effort to conceal his initial lie to his supervisor about having filed

an appeal on behalf of the client”).13 Here, as the Hearing Committee found,

respondent’s instances of misconduct grew out of “a single, isolated incident.”

13
See also, e.g., In re McBride, 642 A.2d 1270, 1272-73, 75 (D.C. 1994)
(declining to impose a fitness requirement where the respondent, who was
convicted of aiding and abetting for signing a false statement to help a pro bono
client obtain a U.S. passport, ‘“let his heart carry his head”’); Goffe, 641 A.2d at
(continued…)
 28

The facts that none of respondent’s informal admonitions were for dishonest

conduct and that his discipline in the CJA-vouchers matter was for conduct

resulting from “abysmal” record-keeping rather than intentional dishonesty,

likewise inform our view.14

On this record, although we obviously lack certainty regarding whether

respondent will practice ethically if permitted to resume practice at the end of his

one-year suspension, we cannot say that we have real skepticism about whether he

will do so. “[T]he requisite ‘serious doubt’ must be generated by evidence that is

‘clear and convincing’”; there must be “[a] firm belief in a serious doubt.” Cater,

887 A.2d at 24 We do not see clear and convincing evidence of a pattern of

dishonesty; at best (or worst), the evidence on this score is in equipoise, meaning

(…continued)
465 (disbarring respondent — and thus requiring a demonstration of fitness before
he might resume practice after five years — because he “did not engage in bad acts
out of sympathy for another or because of the pressure of the moment”; rather, “his
conduct was part of a plan to commit fraud intended to benefit himself”).
14
The Hearing Committee acknowledged that respondent’s prior discipline
in connection with the CJA vouchers matter was “the result of recklessly sloppy
timekeeping practices.”
 29

that we must give the respondent the benefit of the doubt.15 Like the Hearing

Committee majority, we find “no evidence that supports a finding that there is

clear and convincing evidence of a serious doubt as to [r]espondent’s ability to

practice ethically” and no “clear and convincing evidence that [his ‘intentional

misrepresentation to Judge Canan’] was anything other than a single, isolated

incident.”

Moreover, consistency with our precedents does not compel us to impose a

fitness requirement on the basis of respondent’s intentional misrepresentation to

the court and his denial before the Hearing Committee that his false statement to

the court was intentional. See, e.g., In re Chapman, No. 07-BG-800, 2009 D.C.

App. LEXIS 16, *2, 11-13 (D.C. Feb. 5, 2009) (imposing a sixty-day suspension,

with thirty days stayed in favor of a one-year period of probation during which

respondent was required to complete certain CLE courses, but no fitness

requirement, where respondent Chapman neglected his client’s case, resulting in

her case being dismissed, had a minor disciplinary history, showed a lack of

remorse for the harm caused to the client, and “was found to be deliberately

dishonest in his dealings with Bar Counsel and not credible in his testimony before

15
Cf. In re Romansky, 938 A.2d at 742 (“Because we view the facts as
virtually in equipoise, we cannot conclude that [there] has been [proof] by the
requisite ‘clear and convincing’ evidence.”)
 30

the [Hearing] Committee”).16 We conclude that a fitness requirement is not

warranted.

For the foregoing reasons, we adopt the Board’s recommendation that

respondent be suspended for one year. See D.C. Bar R. XI, § 14 (f). We decline to

condition his reinstatement upon proof of fitness. It is

So ordered.

GLICKMAN, Associate Judge, concurring in part and dissenting in part: I

concur in the court’s adoption of the recommended sanction of a one-year

suspension. I respectfully dissent from the decision not to require respondent to

demonstrate his fitness to practice law ethically and competently as a condition of

his reinstatement.

Respondent comes before us with the following history of having violated

the Rules of Professional Conduct: In 1993, he was disciplined for violating Rule

16
See also id. at 7 (“[A]n attorney deliberately attempting to cover up
misconduct is absolutely intolerable, regardless of whether it is under oath or
during an investigation [by Disciplinary Counsel].”
 31

1.4 (a) by failing to keep his client informed about the status of a matter, and Rule

1.5 (b) by failing to give his client a written statement of the basis or rate of his fee.

In 1995, respondent was disciplined for violating Rule 1.15 (b) by withholding

funds that a third person was entitled to receive. In 2004, respondent was

disciplined for violating Rules 1.15 (a) and 1.16 (d) by failing to retain a client’s

file and records showing how he had handled settlement funds. In 2011, he was

disciplined for violating Rule 1.6 by revealing a client’s confidences and secrets.

In 2013, respondent was disciplined for violating Rule 4.3 (a)(1) by giving legal

advice to an unrepresented person whose interests conflicted with the interests of

his client.

In addition to that history, there are the Rule violations that preceded and

that underlie the present matter. In 2011, this court imposed an eighteen-month

suspension, with six months stayed, and a term of probation, for the several Rule

violations respondent committed by submitting to the Superior Court a multitude

of false and overstated payment vouchers. Respondent stipulated that he made

knowingly false statements of material fact to the Court in the vouchers, in

violation of Rule 3.3 (a)(1); that his conduct involved dishonesty, fraud, deceit or
 32

misrepresentation, in violation of Rule 8.4 (c); and that his conduct seriously

interfered with the administration of justice, in violation of Rule 8.4 (d).1

In the present case, the court upholds findings that respondent intentionally

made false statements in a motion seeking a judge’s recusal in violation of Rule 3.3

(a)(1) and that, in so doing, he engaged in conduct involving dishonesty, fraud,

deceit, or misrepresentation. The court also upholds the finding that respondent

testified falsely to the Hearing Committee in denying that his misstatements were

intentional.2

All this adds up to a lengthy series of ethical violations spanning two

decades, one in which the misconduct grew more serious as time went on.

Warnings and chastisements failed to impress respondent with the need to conform

1
The serious dishonesty of respondent’s 162 identified instances of double
billing is not minimized, in my view, by characterizing them as “the result of
respondent’s ‘abysmal’ record-keeping.” In re Tun, 26 A.3d 313, 314 (D.C. 2011).
2
My colleagues do not agree with the determinations by the Hearing
Committee and the Board that respondent also testified falsely when he explained
his failure to attach an affidavit and certificate of good faith to his recusal motion.
I am inclined to defer to the Hearing Committee’s assessment of respondent’s
truthfulness rather than reevaluate it on the paper record before us; it is the
exceptional case in which this court can reject a fact finder’s evaluation of a
witness’s credibility. I do not consider the issue to be material to our sanction
determination, however.
 33

to ethical standards of practice. Based on this history of ethical breaches, the

gravity of the more recent ones, the disturbing pattern of disregard for ethical

norms and dishonesty they evince, and the absence of significant countervailing

evidence in respondent’s favor, I have a serious doubt – “real skepticism” – about

respondent’s ability to practice law ethically following his suspension.

Moreover, that is the Board’s judgment as well. It applied the correct legal

standard in concluding that Disciplinary Counsel had proved by clear and

convincing evidence that respondent’s continuing fitness to practice law is a matter

in serious doubt. This judgment call is, of necessity, “a partly subjective,

predictive evaluation of the attorney’s character and ability,” In re Cater, 887 A.2d

1, 22 (D.C. 2005)); it has record support cited by the Board; and it “comes to us

with a strong presumption in [its] favor.” In re Martin, 67 A.3d 1032, 1053 (D.C.

2013). The Board’s judgment may be debatable, but I do not think that

presumption has been overcome.