You Do Have Some Duties To Adverse Parties
An attorney was found to have misrepresented the defendant’s identity in seeking to falsely enforce a default judgment should be disbarred, per this recommendation of the California State Bar Court Review Department.
Kun’s misconduct significantly harmed Connor, a non-party to the Stone matter. Connor had to hire an attorney to resist Kun’s inappropriate efforts to collect the default judgment against Jan-Pro International, Inc., from Connor through an attempt to sell his residence.
The issues on appeal
As Kun states in his appeal, the primary issue here is whether any disciplinary proceeding against him, based on the hearing judge’s factual findings, is time-barred by the statute of limitations set forth in section 340.6, subdivision (a), of the Code of Civil Procedure. Kun also argues two additional points: (1) his misconduct in an action involving an adverse party cannot be the basis for discipline; and (2) the counts for which he was found culpable in this case should have been charged in Kun III, and the failure to do so violates his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. None of these arguments is successful, as we explain below.
Kun argues that the limitations period in section 340.6, subdivision (a), of the Code of Civil Procedure governs State Bar Court disciplinary proceedings, and thus “mandates the dismissal” of any charges for which he was found culpable by the hearing judge. This argument is without merit. The statute’s wording makes clear that its limitations period applies only to civil litigation matters: “[a]n action against an attorney” in which there is a “plaintiff.” As OCTC correctly points out, disciplinary proceedings do not resolve actions, but are regulatory matters intended to protect the public. The Supreme Court recognizes that State Bar Court disciplinary proceedings are different from proceedings in other courts.
Another losing proposition
Kun contends that the State Bar’s purpose in protecting the public precludes it from disciplining attorneys for misconduct against adversaries. He bases this claim on his belief that “The law says an attorney has no duty at all to an adverse party.” Kun cites no authority for this position, and he is mistaken.
And
Kun claims that the Fifth and Fourteenth Amendments to the United States Constitution prohibit OCTC from “[i]ndiscriminate charging,” and specifically contends that these constitutional rights were violated when some of the misconduct alleged in the November 14, 2016 NDC took place in 2012 and 2013 and the misconduct in his previous discipline, Kun III, took place in 2014. Kun’s argument falls short, considering his lack of citation to either case law or specific constitutional language. We are unpersuaded since Kun fails to cite specific legal authority as to how his due process rights were violated.
Sanction
Over the years, Kun has engaged in a plethora of ethical misconduct, including, but not limited to, multiple acts of very serious misconduct that include disclosing client secrets, misappropriation of client funds, four counts of moral turpitude, two counts of seeking to mislead a judge, and failing to obey a court order. We find that his overall record of misconduct presents an unacceptably high risk that future misconduct will recur. Therefore, we recommend that Kun be disbarred.
(Mike Frisch)