Office of Disciplinary Counsel v. Sims

• Court: Hawaii Supreme Court
• Decided: September 24, 2015
• Docket: SCAD-15-0000495
• Status: Published

Opinion

Electronically Filed Supreme Court SCAD-15-0000495 23-SEP-2015 10:50 AM SCAD-15-0000495

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

OFFICE OF DISCIPLINARY COUNSEL,

Petitioner,

vs.

CYNTHIA LOCK SIMS,

Respondent.

ORIGINAL PROCEEDING

(ODC CASE NOS. 13-025-9095, 13-030-9100;

13-051-9121; AND 13-057-9127)

ORDER OF SUSPENSION

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

Upon de novo review of the Report and Recommendation of

the Disciplinary Board of the Supreme Court of the State of

Hawai'i, the stipulated facts, and the evidence in the record, we

conclude by clear and convincing evidence that Respondent

Cynthia L. Sims, in four separate client matters, engaged in

misconduct warranting discipline.

In Office of Disciplinary Counsel (ODC) Case No. 13­

025-9095, Respondent Sims, on May 25, 2012, deposited her

client’s $3,000.00 advanced fee payment into her business account

rather than her client trust account, before performing the

agreed-upon legal services described in their written agreement,

thereby commingling the client’s funds with her own and

misappropriating them for her own use and benefit and engaging in

conduct involving dishonesty, fraud, deceit or misrepresentation,

in violation of Rules 1.15(a)(1), 1.15(c), 1.15(d), and 8.4(c) of

the Hawai'i Rules of Professional Conduct (HRPC) (1994).1 By

depositing the unearned fees into her business account without

first providing the client an accounting of how she had earned

the funds, Respondent Sims also violated HRPC Rule 1.15(f)(3).

By failing to file a motion objecting to the awarding of

attorney’s fees to the opposing party when asked to do so by the

client on August 9, 2012, Respondent Sims violated HRPC Rule 1.3.

By failing to withdraw from the representation until

September 14, 2012, Respondent Sims violated HRPC Rules 1.3 and

3.2. Docket 3:82-83. Finally, Respondent Sims’s failure to

timely provide documents requested by ODC in the subsequent

investigation, necessitating the issuance of a subpoena, violated

HRPC Rules 8.1(b) and 8.4(d).

In ODC Case No. 13–030-9100, when, on May 10, 2013,

Respondent Sims deposited the client’s $750.00 of unearned

advance fees into her business account, before performing the

agreed-upon legal services described in their written fee

agreement, she commingled the client’s funds with her own funds

and misappropriated them for her use and benefit, in violation of

HRPC Rules 1.15(a)(1), 1.15(c), 1.15(d), and 8.4(c). Between

All references in this order to the Hawai'i Rules of Professional Conduct refer to the version in effect from 1994 through 2013.

May 30 and June 19, 2012, when Respondent Sims did not promptly

respond to the client’s inquiries about the status of his divorce

proceedings, she violated HRPC Rules 1.4(a) and 1.4(b). By

subsequently failing to promptly file with the court the divorce

documents, executed on April 27, 2012, Sims violated HRPC Rules

1.3 and 3.2. Finally, by failing to respond to ODC’s May 24,

2013 request for documents and information regarding this

representation, thereby requiring the issuance on July 24, 2013

of a subpoena and a subpoena duces tecum, Respondent Sims

violated HRPC Rules 8.1(b) and 8.4(d).

In ODC Case No. 13-051-9121, when, on June 26, 2012,

Respondent Sims cashed the client’s $1,250.00 check (representing

half of the agreed-upon fee) and, on November 6, 2012, cashed a

second check, for $1,500.00, $1,250.00 of which represented the

remainder of her advance fee – both times failing to deposit the

funds into her client trust account, and before she had performed

the agreed-upon legal services, including the preparation of the

divorce decree – Respondent Sims misappropriated those funds for

her own use and benefit, in violation of HRPC Rules 1.15(a)(1),

1.15(c), 1.15(d), 1.15(f)(3), and 8.4(c). When Respondent Sims

failed to respond within a reasonable time to the client’s

repeated inquiries regarding the status of her divorce

proceedings (including the date of service on her husband, when a

motion for a default judgment could be entered, and when the

divorce decree would be prepared), Respondent Sims violated HRPC

Rules 1.4(a) and 1.4(b). When, after divorce proceedings were

initiated in July, 2012, Respondent Sims neglected, over a period

of several months, to diligently and timely obtain evidence the

client’s husband had been successfully served by mail, and failed

to prepare updated asset and debt, and income, statements, or to

prepare a divorce decree, she violated HRPC Rules 1.3 and 3.2.

When, upon termination of the representation on April 8, 2013,

Respondent Sims failed to return the client’s file, account to

the client for unearned client funds, or to refund to the client

any unearned funds, Resondent Sims violated HRPC Rules 1.15(f)(3)

and 1.16(d). Finally, when Respondent Sims failed to respond to

two requests from ODC for information regarding the

representation, causing ODC to serve a subpoena upon her on

August 28, 2013, she violated HRPC Rules 8.1(b) and 8.4(d).

In ODC Case No. 13-057-9127, when, on December 1, 2011,

and on February 29, March 12, and April 13, 2012, Respondent Sims

deposited the client’s unearned client funds into her business

account, rather than her client trust account, at a time when she

had not entered an appearance in the client’s divorce case or

prepared a divorce decree, Respondent Sims thereby commingled

client funds with her own and misappropriated them for her

personal use and benefit, in violation of HRPC Rules 1.15(a)(1),

1.15(c), 1.15(d), and 8.4(c). After the initiation of the

divorce proceedings in December, 2011, Respondent Sims failed to

diligently and timely monitor the status of the case for

approximately eight months, in violation of HRPC Rules 1.3 and

3.2.

We find, in aggravation, that Respondent Sims engaged

in a pattern of misconduct, had a dishonest or selfish motive in

using unearned client funds for her personal use, committed

multiple offenses, had substantial experience in the practice of

law, and initially failed to cooperate in the investigation,

requiring the use of a subpoena duces tecum. In mitigation, we

find Respondent Sims had a clean disciplinary record prior to

these matters, made a full and free disclosure to the

Disciplinary Board, and exhibited a cooperative attitude toward

the disciplinary proceedings. Therefore, it appearing that

suspension is appropriate,

IT IS HEREBY ORDERED that Respondent Sims is suspended

from the practice of law in this jurisdiction for a period of one

year and one day, effective 30 days after the date of entry of

this order, as provided by Rules 2.3(a)(2) and 2.16(c) of the

Rules of the Supreme Court of the State of Hawai'i (RSCH).

IT IS FURTHER ORDERED that Respondent Sims shall, as a

prerequisite to reinstatement and at her own expense, submit to

an audit of the procedures and practices of her legal practice by

the Practicing Attorneys’ Liability Management Society (PALMS) or

an equivalent organization, and shall submit a report to this

court in this case and to any review board convened pursuant to

RSCH Rule 2.17, setting forth the conclusions of the audit, the

steps taken by her to implement any resulting recommendations,

and the results of a three-month review following implementation

of the recommendations. The audit shall specifically address

practices and procedures implemented to comply with the financial

and record keeping provisions of the Hawai'i Rules of

Professional Conduct and the Hawai'i Rules Governing Trust

Accounting.

IT IS FURTHER ORDERED that, in addition to any other

requirements for reinstatement imposed by the Rules of the

Supreme Court of the State of Hawai'i, Respondent Sims shall pay

all costs of these proceedings as approved upon the timely

submission of a bill of costs by ODC, as prescribed by RSCH Rule

2.3(c).

IT IS FURTHER ORDERED that Respondent Sims shall,

within ten days after the effective date of her suspension, file

with this court an affidavit she has fully complied with the

duties of a suspended attorney set forth in RSCH Rule 2.16(d).

DATED: Honolulu, Hawai'i, September 23, 2015.

/s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson