Office of Disciplinary Counsel v. Tagupa

• Court: Hawaii Supreme Court
• Decided: March 24, 2016
• Docket: 26762
• Status: Published

Opinion

Electronically Filed Supreme Court 26762 24-MAR-2016 01:54 PM

NO. 26762

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

OFFICE OF DISCIPLINARY COUNSEL,

Petitioner,

vs.

WILLIAM TAGUPA,

Respondent.

ORIGINAL PROCEEDING

(ODC CASE NO. 14-020-9163)

ORDER OF SUSPENSION

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

Upon review of the report and recommendation submitted

by the Disciplinary Board of the Supreme Court of the State of

Hawai'i on July 29, 2015 in this matter, we find and conclude,

based upon clear and convincing evidence, that this court’s

March 3, 2005 order of suspension, enjoining Respondent

William Tagupa from the practice of law, remains valid and

continues to prohibit Respondent Tagupa from practicing law in

this jurisdiction, and further find and conclude, in the first

matter before the court, that in August, 2010 Respondent Tagupa

formed an attorney-client relationship with Mr. K, a distant

relative, and thereafter assisted Mr. K, through January, 2014,

with a civil rights proceeding and subsequent litigation

regarding a wrongful discharge claim, by discussing the legal

aspects of the claim, including interpreting relevant statutes

and case law, performing legal analysis and developing legal

strategies, including, inter alia, arguments based upon statutes

of limitation, the doctrine of preemption, rational

relationships, and disparate impact, advising Mr. K on deposition

and discovery strategies, providing legal arguments for

responding to a motion for summary judgment, drafting legal

memoranda for use in the litigation, discussing settlement

strategy and the characteristics of a valid settlement agreement,

drafting a legal memorandum for Mr. K to use in a settlement

conference in the federal litigation, advising Mr. K on an appeal

to the United States Court of Appeals for the Ninth Circuit,

drafting an opening brief for use by Mr. K and his formal

counsel, and drafting a reply brief which Mr. K submitted to the

Ninth Circuit under his own name on January 14, 2014.

We decline to address the second matter in the Board’s

report, involving an application for a writ of certiorari to this

court, as the matter was not alleged in the original petition.

Upon review of the above conduct, we conclude

Respondent Tagupa engaged in the practice of law, in violation of

this court’s injunction. See ODC v. Gould, 119 Hawai'i 265, 270,

195 P.3d 1197, 1202 (2008) and Fought & Co., Inc. v. Steel

Engineering and Erection, Inc., 87 Hawai'i 37, 45, 951 P.2d 487,

495 (1998); see also Gould, 119 Hawai'i at 271, 195 P.3d at 1203;

Attorney Grievance Comm’n of Maryland v. Brisbon, 31 A.3d 110,

118 (Md. 2011); In re Chavez, 1 P.3d 417, 424 (N.M. 2000);

Disciplinary Counsel v. Coleman, 724 N.E.2d 402, 404 (Ohio 2000);

In re Conduct of Devers, 974 P.2d 191, 196 (Or. 1999); Kansas v.

Schumacher, 519 P.2d 1116, 1121 (Kan. 1974); Edwards, Inc. v.

Hert, 504 P.2d 407, 416 (Okla. 1972); Cf. Matter of Discipline of

Jorissen, 391 N.W.2d 822, 825 (Minn. 1986). A suspended attorney

is, indeed, under greater strictures than a layperson with

regards to conduct that may constitute the practice of law. See

Gould, 119 Hawai'i at 268-69, 195 P.3d at 1200-01; see also In re

Martin, 400 F.3d 836, 843 (10th Cir.2005); In re Disciplinary

Action Against Larson, 485 N.W.2d 345, 349 (N.D. 1992); State of

Nebraska ex rel. Nebraska State Bar Ass’n v. Butterfield, 111

N.W.2d 543, 546-47 (Neb. 1961); Schumacher, 519 P.2d at 1122,

1125. This is because, in contrast to a lay person, a suspended

attorney applying legal skills to a matter gives the appearance

of, and equates to, engagement in the practice of law. See Comm.

on Prof’l Ethics & Conduct of Iowa State Bar Ass’n v. Gartin, 272

N.W.2d 485, 491-92 (Iowa 1978)).

Finally, we concur with the Hearing Officer’s

characterization of Respondent Tagupa as “intelligent and

competent” with “legal research skills and analysis [which] are

certainly quite good, if not superior,” and, hence, concur

Respondent Tagupa was “certainly quite capable of accurately

researching the existing case law about what constitutes the

practice of law . . . in Hawai'i and in other jurisdictions, as

well as any attorney,” but, nevertheless, despite that ability,

and the Gould holding provided him by the Hawai'i Civil Rights

Commission, Tagupa never sought advice of counsel from ODC or any

other party concerning whether his activities were permitted as a

suspended attorney.

We conclude Respondent Tagupa’s conduct violated Rules

3.4(e) and 5.5(a) of the Hawai'i Rules of Professional Conduct by

violating RSCH Rules 2.16(c) and 2.17(a) and the standing

injunction against him imposed by this court on March 3, 2005,

though we also note Respondent Tagupa did not gain financially

from any of the assistance provided to his distant relative.

Therefore,

IT IS HEREBY ORDERED that Respondent William Tagupa is

suspended from the practice of law for a further two years. In

light of Respondent Tagupa’s long-standing suspension, the

instant suspension is effective upon entry of this order.

Respondent Tagupa, therefore, may not apply for reinstatement

until the passage of at least one year from the entry date of

this order, pursuant to RSCH Rule 2.17(b)(3).

IT IS FURTHER ORDERED that Respondent Tagupa shall bear

the costs of the disciplinary proceedings, upon the timely

submission of a verified bill of costs by the Office of

Disciplinary Counsel, pursuant to RSCH Rule 2.3(c).

IT IS FINALLY ORDERED that Respondent Tagupa is hereby

notified that any further misconduct that can be established as

the unauthorized practice of law under either the Hawai'i or

foreign case law cited above may be grounds for a criminal

contempt proceeding against him, pursuant to HRS §§ 710­

1077(1)(c), 710-1077(1)(g), and 710-1077(3)(b) (Supp. 2008), as a

knowing violation of a valid order of this court enjoining him

from the practice of law.

DATED: Honolulu, Hawai'i, March 24, 2016.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson