Tuesday, October 30, 2018
Attorney, 79, Says Ninth Circuit Should Not Suspend Him
Lawyer Albert Kun, Under Two-Year Suspension by State Bar, Asserts Reciprocal Discipline by Federal Court Based on ‘De Minimis’ $460 Misappropriation Would Be Unwarranted
By a MetNews Staff Writer
A 79-year-old attorney—whose disbarment is presently being sought by the State Bar of California—is asking that the two-year suspension imposed on him last year, in a separate disciplinary matter, be disregarded by the Ninth U.S. Circuit Court of Appeals, arguing that his act in appropriating a client’s $460 advance on a filing fee was too trivial to justify reciprocal discipline.
Albert Miklos Kun, of San Francisco, fielded questions for nearly 90 minutes on Thursday from Ninth Circuit Appellate Commissioner Peter Shaw, and was given until Friday of this week to file a supplemental brief setting forth why his equal protection argument survives a 2016 Ninth Circuit opinion.
There was only fleeting discussion of the Sept. 21 recommendation to the California Supreme Court by the State Bar Court Review Department that Kun be disbarred. That recommendation is based on new offenses including misleading a court.
Shaw’s task is to make a report and recommendation to the Ninth Circuit as to whether it should give effect to Kun’s suspension from practice in the California courts, which went into effect Sept. 8, 2017. The Review Department made a recommendation of an actual suspension of that duration on April 24, 2017, and the state high court on Aug. 9, 2017, adopted it.
The hearing before Shaw stemmed from the Ninth Circuit’s order to show cause to Kun why reciprocal discipline should not be imposed. He has received a similar OSC from the U.S. District Court for the Northern District of California.
Kun told Shaw that the Ninth Circuit should apply the principle of “de minimis non curat lex” which he said means that “courts will refuse to consider a trifling matter.” He remarked that this is a concept “going back to Roman times.”
The lawyer maintained that $460 is an “unreasonable, small amount” for the State Bar to have been concerned over.
(The Office of Chief Trial Counsel sought disbarment at that point, but the Review Department said in its 2017 opinion: “Given the small sum misappropriated, Kun’s prior misconduct, and the comparable case law, we conclude that the proper discipline is a two-year actual suspension, continuing until Kun pays restitution and proves his rehabilitation and fitness to practice law, along with his successful completion of Ethics School and Client Trust Accounting School within his first year of probation, and other conditions.”)
2002, 2004 Discipline
Kun—who received a private reproval in 2002 for misconduct that included failure to return a client’s file and a 30-day actual suspension in 2004 for offenses that included failing to file papers and misleading a client as to the status of a case—told Shaw he took the $460 advance because he thought that, under the Commercial Code, he had a right to do so. The practitioner explained that the client owed him more than $460.
Shaw pointed out that by taking the money, he no longer had sufficient funds in his attorney-client trust fund to pay the filing fee. Kun insisted that it didn’t matter because the client had come to him seeking a restraining order against her brother and there is “no filing fee for a restraining order,” and that, in any event, “that project was abandoned.”
(The Reviewing Department’s opinion says the client fired him.)
Kun also maintained that he actually has two “trustee accounts” and together, they contain more than $2,000.
Wells Fargo Account
He had explained earlier in the hearing that he came to California in 1965, went to work for Wells Fargo in 1965, and got a free account there, which he still has. After he was admitted to the State Bar (on June 28, 1973), Kun disclosed, he used that account both for personal funds and client funds.
After it was established that the State Bar is entitled to interest on client trust accounts, he said, he set up a separate account for such funds at Bank of the West.
(Under the “Interest on Lawyers’ Trust Accounts”—or “IOLTA”—program, established by legislation effective Jan. 1, 2008, interest is diverted to the State Bar’s Legal Services Trust Fund Program.)
When Kun alluded to the second trust account, Shaw tried to explain that an account in which an attorney places personal funds cannot also serve as a client trust account. Kun said of the Wells Fargo Account:
“It was my only trustee account for 30 years.”
The April 24, 2017 Review Department opinion sustains the findings of a hearing judge not only of “gross negligence” in connection with the $460, but also “commingling” funds.
Kun also put forth a equal protection argument, claiming that lawyers are not accorded rights in disciplinary matters accorded licensees in all other trades or professions.
In an April 4, 2016 Ninth Circuit opinion—Scheer v. Kelly—Judge Marsha Berzon declared that the appellant, suspended Van Nuys attorney Marilyn Scheer, “may be right that the regulation of lawyers in California is unlike California’s regulation of any other professionals; but she has not demonstrated that this regulatory scheme violates Equal Protection.”
Berzon added that the scheme has a rational basis “because the historically unique role of lawyers allows states to treat legal practice differently from other professions.”
Shaw said of Kun’s equal protection argument:
“That issue was finally decided by the Ninth Circuit in a decision saying, ‘No, there is no equal protection violation by the California scheme.’ That binds me.
“I can’t get around that decision.”
Kun sought to differentiate that case, as well as the California Supreme Court’s 2000 decision in In re Rose, by saying that those decisions deal with the alleged inadequacy of judicial scrutiny of State Bar decisions, while his point is that the State Bar, unlike other regulatory agencies, undertakes both investigatory and adjudicatory tasks.
“What I’m saying is the search for facts by the State Bar of California violates my Fourth Amendment rights,” he pointed out.
The commissioner responded that he did not fathom what Kun is trying to convey, but might be able do so if it were in writing, granting him leave to file a supplemental brief of no more than five pages.
Shaw noted that Kun had failed to observe a Ninth Circuit rule that an attorney admitted to practice before it must provide notification of a suspension or disbarment by another court. The lawyer responded that his impression was that suspension from practice in the Ninth Circuit “was automatic” and said he was delighted to be informed that it is not.
“I have a very extensive bankruptcy practice,” he advised, saying that the right to practice in federal courts is “not academic.”
Queried as to the nature of the current disciplinary charges, Kun said he caused the issuance of an order for the appearance of a judgment debtor and it was found that the person summoned was other than the true debtor.
The Sept. 21 recommendation of disbarment by the State Bar Court Review Department upholds the hearing judge’s finding that Kun “intentionally sought to mislead the superior court” as well as other findings. It says:
“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.”
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