Office of Disciplinary Counsel v. Kvam

• Court: Hawaii Supreme Court
• Decided: January 17, 2023
• Docket: SCAD-22-0000380
• Status: Published

Opinion

Electronically Filed Supreme Court SCAD-XX-XXXXXXX 17-JAN-2023 02:43 PM SCAD-XX-XXXXXXX Dkt. 106 OSUS IN THE SUPREME COURT OF THE STATE OF HAWAI#I

OFFICE OF DISCIPLINARY COUNSEL, Petitioner,

vs.

ERIK W. KVAM, Respondent.

ORIGINAL PROCEEDING (ODC CASE NO. 20-9001)

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

Upon consideration of the June 9, 2022 report submitted

to this court by the Disciplinary Board of the Supreme Court of

the State of Hawai#i, the arguments set forth in the parties’

briefs, and the record in its entirety, we find and conclude, by

clear and convincing evidence, that the record supports the

Board’s Findings of Fact.

Furthermore, we conclude, based upon clear and

convincing evidence in the record, that Respondent Kvam violated

the following provisions of the Hawai#i Rules of Professional

Conduct (HRPC) (1994) through the following misconduct:

Respondent Kvam, in 2010, failed to communicate the

basis or rate of his fees to a new client within a reasonable time after commencing the representation, in violation of HRPC

Rule 1.5(b), and invoiced, and received from, his client

$59,750.00 for 59.75 hours of legal work, asserting a rate of

$1,000.00 an hour, thereby charging an unreasonable fee, in

violation of HRPC Rule 1.5(a).

Respondent Kvam, in violation of HRPC Rules 1.13(b) and

1.13(e) (1994), failed to act in the best interest of his

corporate client, including by failing to consult with a higher

authority at the corporation when confronted by, and conceding

to, an employee’s request both for a cash commission for

assisting with securing the representation and for the drafting

of an indemnity agreement of extraordinary scope and breadth to

indemnify the employee against the interests of the corporation,

and invoicing his client for the preparation of the indemnity

agreement.

For representing to the corporation that the entirety

of the $59,750.00 fee paid to him was for legal services, when a

significant portion was instead paid to the employee as a

commission, Kvam violated HRPC Rule 8.4(c) (1994) and, for paying

the commission, Kvam violated HRPC Rule 7.2 (1994).

We adopt the Board’s recommended aggravating and

mitigating factors; that, in aggravation, Kvam evinced a

dishonest or selfish motive, committed multiple violations in the

present matter, and has refused to acknowledge the wrongful

nature of his conduct but, in mitigation, has a heretofore clean

disciplinary record.

2 We concur with the Board that Respondent Kvam’s conduct

was knowing and intentional and caused serious injury to his

client and, therefore, that under Standards 4.31(b), 4.61,

5.11(b), and 7.1 of the American Bar Association Standards for

Imposing Lawyer Sanctions, his conduct warrants disbarment.

However, we find, based upon the particulars of the record in

this case, Respondent Kvam’s clean disciplinary record prior to

this matter to be of persuasive significance. Therefore,

IT IS HEREBY ORDERED that Respondent Erik W. Kvam

is suspended for two years from the practice of law in this

jurisdiction, effective 30 days after the date of entry of this

order, pursuant to Rule 2.16(c) of the Rules of the Supreme Court

of the State of Hawai#i (RSCH).

IT IS FURTHER ORDERED that Respondent Kvam shall, in

accordance with RSCH Rule 2.16(d), file with this court, within

10 days after the effective date of his suspension, an affidavit

showing compliance with RSCH Rule 2.16(d) and this order.

IT IS FURTHER ORDERED that Respondent Kvam shall pay

all costs of these proceedings as approved upon the timely

submission of a bill of costs and an opportunity to respond

thereto, as prescribed by RSCH Rule 2.3(c).

DATED: Honolulu, Hawai#i, January 17, 2023.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins