Office of Disciplinary Counsel v. Dubin

• Court: Hawaii Supreme Court
• Decided: September 9, 2020
• Docket: SCAD-19-0000561
• Status: Published

Opinion

Electronically Filed Supreme Court SCAD-XX-XXXXXXX 09-SEP-2020 10:35 AM

SCAD-XX-XXXXXXX

IN THE SUPREME COURT OF THE STATE OF HAWAII

OFFICE OF DISCIPLINARY COUNSEL, Petitioner,

vs.

GARY VICTOR DUBIN, Respondent.

ORIGINAL PROCEEDING (ODC Case Nos. 16-O-147, 16-O-151, 16-O-213, and 16-O-326)

ORDER OF DISBARMENT (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Intermediate Court of Appeals Associate Judge Leonard, assigned by reason of vacancy)

Upon a thorough and careful review of the entire

record in this matter, and the briefs submitted by the parties,

we find and conclude, by clear and convincing evidence, that

Respondent Gary V. Dubin, committed the following misconduct.

In Office of Disciplinary (ODC) Case No. 16-O-151, we

find and conclude that Respondent Dubin violated Rule 8.4(c) of

the Hawaii Rules of Professional Conduct (1994) by knowingly misrepresenting the truth on a government form on which he

certified the information thereon was true.

In ODC Case No. 16-O-147, we find and conclude that

Respondent Dubin violated HRPC Rule 8.4(c) (2014) by signing the

names of his clients, without their permission, in the

endorsement section of a $132,000.00 settlement check made out

to them alone and depositing it in his client trust account,

thereby gaining control over those funds. We find he did not

immediately inform the clients of the receipt of the check when

he learned of it. We also find the invoice he subsequently

issued to the clients on November 7, 2015 was the first billing

statement or accounting since the inception of his

representation of them in February 2012, wherein he asserted

$69,702.87 in fees and costs owing, based upon an hourly rate of

$385.00 an hour for associates on the case. We find and

conclude that this rate was unreasonable because it exceeded by

$115.00 per hour the rate agreed upon in the retainer agreement

for associates and was also applied to one associate for work

done at a time when that associate was not licensed to practice

law in this jurisdiction. We also find the clients were never

contacted or consulted regarding an amendment of the agreed-upon

rate. We find that, as a result, Dubin overcharged the clients

a minimum of $19,885.00. We conclude Respondent Dubin’s conduct

in this regard violated HRPC Rules 1.5(a), 1.5(b), 8.4(c) and

2 1.4(a)(3) (once for failing to timely inform the clients of the

receipt of the check, and once by failing for more than three

years to communicate with the clients regarding the status of

their account) (2014).

We find and conclude that, in ODC Case No. 16-O-326,

Respondent Dubin withdrew $3,500.00 of the client’s funds at a

time when, based upon Respondent Dubin’s own accounting,

Respondent Dubin had not yet earned those funds, thereby

violating HRPC Rules 1.15(a) and 1.15(d) (2014). We find and

conclude he did not inform the client when he fully disbursed

the client’s $45,000.00 from the firm’s client trust account,

thereby violating HRPC Rule 1.15(d) (2014), and he did not

respond to clear inquiries from ODC regarding the matter, in

violation of HRPC Rule 8.4(g) (2014).

We find that Respondent Dubin’s conduct, in ODC Case

Nos. 16-O-147 and 16-O-326, inflicted actual, serious, injury

upon the clients and upon the profession and, in ODC Case No.

16-O-151, inflicted injury on the public at large and the

integrity of the profession.

We have thoroughly reviewed the record, and Respondent

Dubin’s arguments, both at the Disciplinary Board and before

this court, regarding alleged violations of his right to due

process throughout the disciplinary process, and find them to be

without merit.

3 We also find, in aggravation, that Respondent Dubin

has two prior disciplines, evinced a dishonest or selfish

motive, demonstrated a pattern of misconduct, committed multiple

offenses, refused to acknowledge the wrongful nature of his

conduct, and has substantial experience in the practice of law.

In mitigation, the record contains many positive comments from

clients, and Dubin has contributed positively to the development

of the law.

We note relevant disciplinary precedent in this

jurisdiction, including ODC v. Chatburn, Case No. 24777 (May 30,

2002) and ODC v. Burns, Case No. 20882 (December 17, 1999), and

take into consideration ABA Standards for Imposing Lawyer

Sanctions, Standards 4.11, 4.41, and 7.1.

Finally, we have reviewed the arguments from both

parties, and related materials, regarding the July 23, 2020

motion from ODC counsel on this matter, seeking to strike the

exhibits appended to Respondent Dubin’s reply brief.

Hence,

IT IS HEREBY ORDERED that the motion to strike is

denied.

IT IS FURTHER ORDERED that Respondent Dubin is

disbarred, effective 30 days after the entry date of this order.

IT IS FURTHER ORDERED that, pursuant to Rule 2.16(d)

of the Rules of the Supreme Court of the State of Hawaii (RSCH),

4 within 10 days after the effective date of his disbarment,

Respondent Dubin shall submit to this court proof of compliance

with the requirements of RSCH Rule 2.16 regarding disbarred

attorneys.

IT IS FURTHER ORDERED that Respondent Dubin shall pay

$19,885.00 in restitution to the clients named in ODC Case No.

16-O-147 and submit proof of said payment to this court, all

within 30 days after the entry date of this order. The

Disciplinary Board may, on behalf of the clients in ODC Case No.

16-O-147, seek further orders from this court in enforcement of

this directive, pursuant to RSCH Rule 10, or by other means the

Board determines are appropriate to propose.

IT IS FURTHER ORDERED that Respondent Dubin shall bear

the costs of these disciplinary proceedings, upon the approval

of a timely submitted verified bill of costs by ODC, pursuant to

RSCH Rule 2.3(c).

DATED: Honolulu, Hawaii, September 9, 2020.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Katherine G. Leonard