Machado v. Van De Car

Opinion

Electronically Filed

Supreme Court

SCPW-14-0000786

03-JUN-2014

10:15 AM

SCPW-14-0000786

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

DIANA R. MACHADO, Petitioner-Defendant,

vs.

HONORABLE LLOYD VAN DE CAR, JUDGE OF THE FAMILY COURT OF THE THIRD CIRCUIT, STATE OF HAWAII, Respondent Judge,

and

JOHN A. MACHADO, Respondent-Plaintiff.

ORIGINAL PROCEEDING

(FC-D NO. 08-01-0037)

ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Upon consideration of petitioner Diana R. Machado’s

petition for a writ of mandamus, filed on April 29, 2014, the

documents attached thereto and submitted in support thereof, and

the record, it appears that petitioner fails to demonstrate that

the respondent judge committed a flagrant and manifest abuse of

discretion by denying the motion to disqualify counsel inasmuch

as (1) petitioner was not a client of the law firm at the time of

the divorce proceeding as contemplated under HRPC Rule 1.7,

(2) petitioner does not establish that the prior matter in which

2

the law firm represented petitioner and respondent is

substantially related to the current divorce matter, and

(3) petitioner appears to have waived any conflict of interest objection. Petitioner, therefore, is not entitled to a writ of mandamus. See Kema v. Gaddis, 91 Hawai'i 200, 204-05, 982 P.2d 334, 338-39 (1999) (a writ of mandamus is meant to restrain a judge of an inferior court who has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which he or she has a legal duty to act); Otaka v. Klein, 71 Haw. 376, 386, 791 P.2d 713, 719 (1980) (applying the “substantial relationship” test to review issues related to the disqualification of an attorney who is allegedly representing a party whose interests are adverse to those of the attorney’s former client); Straub Clinic & Hosp. v.

Kochi, 81 Hawai'i 410, 415, 917 P.2d 1284, 1289 (1996) (the grant or denial of a motion for disqualification is within the

discretion of the trial court). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied.

DATED: Honolulu, Hawai'i, June 3, 2014.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson