South Korean Conviction May Result In District Of Columbia Disbarment

A District of Columbia Hearing Committee has recommended disbarment of an attorney for conduct that led to a conviction in South Korea

This matter arises out of Jinhee K. Wilde’s (“Respondent” or “Ms. Wilde”) conduct on a plane flying to Seoul, South Korea. After a flight attendant reported to her supervisor that she had observed Respondent with her hands in another passenger’s purse, the flight crew’s subsequent investigation revealed that Respondent had some $100 bills with serial numbers that were sequential to those on $100 bills remaining in the other passenger’s purse. The flight crew called the police who questioned Respondent and the other passenger. Respondent was charged with theft and convicted in absentia in South Korea. After Respondent learned of her conviction, she sought and was granted a new trial, where she was again convicted of theft, which was upheld on appeal.

Respondent’s conduct in the South Korean criminal proceedings and in subsequent disciplinary proceedings in Maryland and D.C. is marked by repeated instances of dishonesty, forgery, and false testimony, as she attempted to create a factual record to support her contention that the $100 bills in her possession had been withdrawn from her bank. Respondent created a series of forged letters in an attempt to prove that she had withdrawn the funds from the bank. Respondent also forged checks to implicate her former law partner in an attempt to frame her for the theft on the plane. She repeatedly testified dishonestly before this Hearing Committee.

We find that Disciplinary Counsel proved by clear and convincing evidence that Respondent violated the following District of Columbia Rules of Professional Conduct (the “Rules”) – 3.3(a)(1) (knowing false statement to a tribunal), 3.3(a)(4) (offering false evidence), 3.4(b) (falsification of evidence), 8.1(a) (false statement in connection with a disciplinary matter), 8.1(b) (failure to respond to lawful demand by disciplinary authority for information), 8.4(b) (criminal act), 8.4(c) (fraud, deceit, misrepresentation, and/or dishonesty), and 8.4(d) (serious interference with administration of justice). We recommend that she be disbarred because she stole money from the other airplane passenger and because her conduct following the theft constitutes repeated flagrant dishonesty, either of which alone would constitute a sufficient basis for disbarment.

Because the committee declined to afford collateral estoppel effect to the conviction, Disciplinary Counsel called 15 witnesses to prove its case.

The tale told in the findings is one of theft, lies and forged documents.

The committee notes that the attorney was essentially acquitted of identical charges in Maryland.

the Hearing Committee reached a result at odds with that of the Circuit Court for Montgomery County, finding that Respondent did commit the theft. The Hearing Committee notes that it was presented with more evidence than that which had been submitted in the Maryland proceeding, including the testimony of witnesses who did not testify in Maryland.

Sanction

Other than a violent crime or an offense doing irreparable harm to a client, the Hearing Committee is hard pressed to imagine more serious misconduct for a lawyer than Respondent’s repeated presentation of forged documents to the Korean courts, perjured testimony concerning them, and repetition of this conduct in connection with her disciplinary hearings. If Respondent were accused only in this matter of having impulsively stolen some cash from a fellow passenger on her way to Korea, and she had been forthright with Disciplinary Counsel, the Hearing Committee might have entertained a recommendation for a lesser sanction. However, as is often the case, the seriousness of the cover-up far exceeds that of the crime.

I found it gratifying that the committee relies on a case of mine – In re Goffe- in support of its sanction recommendation.

The committee was chaired by Laura Shores.

 The recommendation in In re Wilde can be found at this link.

The Court of Appeals in 2013 declined to treat the conviction in South Korea under the summary procedures accorded to domestic crimes and remanded for these further proceedings.

This case of first impression raises the question whether a criminal conviction entered in a foreign country is a “conviction of [a] crime” within the meaning of D.C. Bar R. XI, § 10, and can be the basis for imposing the mandatory disbarment provisions of D.C.Code § 11–2503(a) (2001) for conviction of a crime of moral turpitude. We agree with the unanimous recommendation of the Board on Professional Responsibility (“the Board”) that the conviction of a member of the District of Columbia Bar in a court of a foreign country is not a conviction of a crime within the meaning of the aforementioned rule and statute. Accordingly, a conviction in a court of a foreign country, unlike a conviction in a court of this country, is not automatically given conclusive effect for purposes of suspension or disbarment pursuant to D.C.Code § 11–2503(a) and D .C. Bar R. XI, § 10. We also recognize, however, that Bar Counsel can initiate original proceedings against an attorney pursuant to D.C. Bar R. XI, § 8, based upon alleged criminal conduct in a foreign country. The prospect of such a § 8 proceeding raises another issue of first impression, viz., whether in a § 8 proceeding offensive collateral estoppel effect may be given to the conviction of a crime in the court of a foreign country. We conclude that the factual and legal determinations embodied in a foreign conviction may be given conclusive effect in a § 8 proceeding pursuant to principles of collateral estoppel if the Board, in its discretion, determines that Bar Counsel has established that it is fair and reasonable to do so.

Away back in 1978, the Minnesota Supreme Court indefinitely suspended an attorney for a conviction in Canada, finding that the procedures were fundamentally fair. 

With the globalization of law practice, the court may have the opportunity to revisit this issue.

Andrew Hunt had this thoughtful analysis of the remand order

As technology and globalization change perceptions of physical boundaries, attorney discipline proceedings may begin to encounter more attorneys on the wrong side of foreign criminal justice systems. Attorney disciplinary proceedings are designed to efficiently and justly regulate the industry to better serve the public. To accomplish this, criminal convictions from domestic jurisdictions are treated as conclusive evidence of the attorney’s behavior because Americans trust in our own due process of law. However, the lack of uniformity in due process among foreign criminal justice systems may not justify the same confidence.

The court in In re Wilde reflected this notion in ruling that it would not automatically utilize issue preclusion regarding the admissibility of an attorney’s conviction in South Korea. Rather, in order to preclude the issue, Bar Counsel would have to show, on a case-by-case basis, that precluding argument on the admissibility of the conviction would be fair under the circumstances. This requires both a detailed analysis of the foreign country’s criminal justice system and a sufficient gathering of facts concerning the fairness of the actual proceedings and the attorney’s conduct that resulted in the conviction.

For the cash-strapped D.C. Bar Counsel, this is not an easy order to fill, especially since preclusion is only the first hurdle in the process. Bar Counsel then must show the conduct violated the state code of conduct and the basis for the recommended punishment. However, Bar Counsel could use the conviction and investigation as evidence without moving to preclude the issue– provided they can obtain such evidence–because attorney disciplinary proceedings, especially in  D.C., often have lower standards for the admissibility of evidence. Rather than affirmatively showing the fairness of the proceeding when moving to preclude the issue, if such evidence is admitted, the burden would shift to the attorney to rebut the evidence with his or her own evidence of the unfairness of the proceeding.

In re Wilde may be indicative of future challenges in attorney discipline, but it shows that the procedures in place can effectively cope with changes in the legal landscape.

(Mike Frisch)