Office of Disciplinary Counsel v. Avinante

• Court: Hawaii Supreme Court
• Decided: June 12, 2014
• Docket: SCAD-14-0000775
• Status: Published

Opinion

Electronically Filed Supreme Court SCAD-14-0000775 12-JUN-2014 08:42 AM SCAD-14-0000775

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

OFFICE OF DISCIPLINARY COUNSEL, Petitioner,

vs.

M. CORA AVINANTE, Respondent.

ORIGINAL PROCEEDING (ODC CASE NOS. 10-069-8903; 12-024-9040; 12-030-9046)

ORDER OF SUSPENSION (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Upon consideration of the Report and Recommendation of

the Disciplinary Board of the Supreme Court of the State of

Hawai#i, submitted to this court on April 18, 2014, for the

imposition of, inter alia, a six month suspension upon Respondent

M. Cora Avinante, and upon review of the stipulated facts and the

evidence in the record, this court finds and concludes the

following by clear and convincing evidence:

In Office of Disciplinary Counsel (ODC) Case No. 10-

069-8903, Respondent Avinante, by depositing the client’s

$1,500.00 directly into her business account, rather than her

client trust account, and applying $1,100.00 in unearned funds to her own use and benefit, she breached her fiduciary duties to her

client, commingled the client’s funds with her own, and

misappropriated a portion of those funds, in violation of Rules

1.15(a)(1), 1.15(c), and (d) of the Hawai#i Rules of Professional

Conduct (HRPC).1 By failing to re-submit the motion for a

divorce by publication for seven months, Respondent Avinante

violated HPRC Rules 1.3 and 3.2.

In ODC Case No. 12-024-9040, when, on December 7, 2010,

Respondent Avinante deposited directly into her business account

rather than her client trust account the client’s $2,000.00, and

allowed the balance in her business account to fall below the

amount belonging to the client thereafter, Respondent Avinante

breached her fiduciary duties to the client, commingled the

client’s funds with her own, and misappropriated a portion of

those funds, in violation of HRPC Rules 1.15(a)(1), (c) and (d).

When, on February 7, 2011, Respondent Avinante deposited the

client’s payment of $1,000.00 directly into her business account,

she breached her fiduciary duty to her client and commingled the

client’s funds with her own, in violation of HRPC Rules

1.15(a)(1) and (c). When, on April 4, 2011, she deposited the

final $1,000.00 payment from the client directly into her

business account, Respondent Avinante breached her fiduciary duty

1 All references to the HRPC are to the version in effect prior to January 1, 2014.

2 to her client and commingled the client’s funds with hers, in

violation of HRPC Rules 1.15(a)(1) and (c). Finally, by failing

to file an amended CADS statement in the appeal to the

Intermediate Court of Appeals, Respondent Avinante violated HRPC

Rule 1.3.

In ODC Case No. 12-030-9046, when, on July 28, 2009,

Respondent Avinante deposited the client’s initial $2,800.00

payment in the uncontested divorce proceeding directly into her

business account, she breached her fiduciary duty to the client

and commingled funds, in violation of HRPC Rules 1.15(a)(1) and

(c) and, by overdrawing her business account by $740.75 when her

client had a claim to as much as $1,425.00, but a minimum of

$325.00, in the account, she misappropriated the client’s funds,

in violation of HRPC Rules 1.15(c) and (d). By depositing, on

September 4, 2009, a portion of the client’s $5,000.00 payment

for the appeal of his criminal conviction into her personal

savings account and another portion ultimately into her business

account, Respondent Avinante breached her fiduciary duties to the

client, in violation of HRPC Rule 1.15(a)(1) and (c) and, by

allowing the business account to become overdrawn by $784.47 on

September 10, 2009 when, by her own estimation, the client had a

claim to $2,850.00 in the account, Respondent Avinante

misappropriated the client’s funds, in violation of HRPC Rules

1.15(c) and (d). On November 2, 2009, when Respondent Avinante

3 deposited the client’s $1,000.00 payment for the contested

divorce representation directly into her business account, she

breached her fiduciary duty to her client and commingled funds,

in violation of HRPC Rules 1.15(a)(1) and (c). By allowing the

balance in the business account to fall to $40.85, when, based on

evidence in the record, the client had a claim to $600.00 in the

account, Respondent Avinante misappropriated the client’s funds,

in violation of HRPC Rules 1.15(c) and (d). When Respondent

Avinante deposited directly into her business account the

client’s $800.00 payment for drafting a memorandum in opposition

to a motion for pre-decree relief in the divorce proceedings, she

breached her fiduciary duty to the client and commingled funds,

in violation of HRPC Rule 1.15(a)(1) and (c). By waiting until

December 1, 2010 to provide the client with an accounting of the

funds, requested on July 14, 2010, Respondent Avinante violated

HRPC Rule 1.15(f)(3).

By certifying on her 2009 and 2010 bar registration

materials that she managed client funds in accordance with Rule

11 of the Rules of the Supreme Court of the State of Hawai#i

(RSCH), when during that period she deposited unearned client

funds directly into her business account, Respondent Avinante

misrepresented the truth to the bar authorities, in violation of

HRPC Rule 8.4(c).

In aggravation, we note Avinante’s substantial

4 experience in the practice of law, the pattern of misconduct

involving three separate clients and the multiple violations of

the HRPC. In mitigation, we note Avinante’s clean disciplinary

record after 35 years of practicing law, her refund of the

$5,000.00 criminal appeal fee to the client in ODC Case No. 12-

030-9046, her cooperative attitude to an audit of her practice,

her sincere expressions of remorse, the absence of a dishonest or

selfish motive, her full, cooperative, and free disclosure to ODC

and the Disciplinary Board, her volunteer work, and the letters

attesting to her character. Therefore,

IT IS HEREBY ORDERED that Respondent M. Cora Avinante

is suspended from the practice of law in this jurisdiction for

120 days, effective 30 days from the date of entry of this order,

as provided by RSCH Rules 2.3(a)(2) and 2.16(c). At the

conclusion of the 120-day period of suspension, Respondent

Avinante may apply for reinstatement, as provided by RSCH Rule

2.17(b)(2). Respondent Avinante is reminded she may not resume

the practice of law until reinstated by order of this court,

pursuant to RSCH Rule 2.17.

IT IS FURTHER ORDERED that Respondent Avinante shall

submit an affidavit demonstrating compliance with RSCH Rule

2.16(d) within 10 days after the effective date of her

suspension.

5 IT IS FURTHER ORDERED that Respondent Avinante shall

successfully complete, within 365 days after the date of entry of

this order and at her own cost and expense, an audit of her

practice by the Practicing Attorneys Liability Management Society

(PALMS) or an equivalent program, which shall include a review of

her practice in light of the Hawai#i Rules of Professional

Conduct and the Hawai#i Rules Governing Trust Accounting.

Respondent Avinante shall, within that 365-day period, submit

proof of compliance with the resulting recommendations, said

proof established through a subsequent review by the auditors,

conducted three months after issuance of its initial

recommendations. Failure to timely and successfully complete the

audit and implementation of the recommendations may result in the

imposition of an additional period of suspension, based upon a

review of the record and any program reports.

pay all costs of the proceedings, as approved upon a timely

submission of a bill of costs, as authorized by RSCH Rule 2.3(c).

DATED: Honolulu, Hawai#i, June 12, 2014.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson