Office of Disciplinary Counsel v. Wooten

• Court: Hawaii Supreme Court
• Decided: December 11, 2015
• Docket: SCAD-14-0001333
• Status: Published

Opinion

Electronically Filed Supreme Court SCAD-14-0001333 11-DEC-2015 08:28 AM

SCAD-14-0001333

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

OFFICE OF DISCIPLINARY COUNSEL, Petitioner,

vs.

ANDRÉ S. WOOTEN, Respondent.

ORIGINAL PROCEEDING (ODC 11-025-8949, 11-065-8990, 12-041-9057)

ORDER OF SUSPENSION (By: Recktenwald, C.J., Nakayama, and McKenna, JJ., Circuit Judge To#oto#o, in place of Pollack, J., recused, and Circuit Judge Nakasone, in place of Wilson, J., recused)

Upon consideration of the December 2, 2014 report

submitted by the Disciplinary Board of the Hawai#i Supreme Court,

the exhibits appended thereto, the briefs submitted to this

court, the allegations made by the Office of Disciplinary Counsel

in its Summons and Petition, and the record in this matter, we

make the following Findings of Fact and Conclusions of Law based

upon clear and convincing evidence.

In ODC Case No. 11-025-8949, Respondent Wooten charged

a non-refundable retainer fee, in violation of Rule 1.15(d) of the Hawai#i Rules of Professional Conduct (HRPC) (1994).1

Respondent Wooten did not communicate in a reasonable and timely

manner with his client regarding her request to amend the initial

complaint filed in her lawsuit, and did not inform her he had

decided to postpone further work on her case until further

payment of his retainer was received, in violation of HRPC Rules

1.4(a) and 1.4(b). Respondent Wooten did not amend the complaint

until after both the expiration of the October 27, 2005 deadline

imposed by the Equal Employment Opportunity Commission on

litigating the underlying claims, or the November, 2005 running

of the two-year statute of limitations of his client’s assertion

of her defamation and slander claims, and the United States

District Court for the District of Hawai#i relied in part, when

dismissing his client’s suit, on the fact the claims against two

of the defendants were time-barred due to the late filing of the

amended complaint, grounds which were affirmed by the United

States Court of Appeals for the Ninth Circuit, conduct which

violated HRPC Rule 1.3. We note Respondent Wooten’s client, in

her initial complaint to the Office of Disciplinary Counsel

(ODC), complained of Wooten’s failure to offer to refund her fees

for what she deemed sub-standard services, but that the record

does not contain any evidence she requested from Wooten an

1 All citations to the HRPC in this order are to the 1994 version of the Rules.

2 accounting of the fees earned by him over the course of the

representation, nor did ODC allege the fees charged were

unreasonable, and further note the record does contain reasonable

assertions by Wooten the fees were fully earned, and therefore

decline to find a violation of HRPC Rule 1.15(f)(3). See ODC v.

Manuia, SCAD-13-136 Docket 13:4.

In ODC Case No. 11-065-8990, Respondent Wooten

inadvertently overpaid a client an award in a settlement of an

insurance claim, thereby overdrawing his client trust account, in

violation of HRPC Rule 1.15(d), though we further find the

incident was due to negligence or inattention and not based upon

a selfish or dishonest motive. Respondent Wooten also did not

maintain a subsidiary ledger of the client’s funds, in violation

of HRPC Rule 1.15(g)(2). The record, however, does not support

the conclusion that Respondent Wooten violated HRPC Rule 1.15(c)

by allegedly failing to promptly remove his contingency fee from

the client trust account but, rather, that he promptly removed

the funds but erroneously provided his client with a portion of

them.

In ODC Case No. 12-041-9057, Wooten, in responding to

an order to show cause from the Intermediate Court of Appeals

(ICA) arising from his failure to file an opening brief in a

timely manner, failed to obey a directive of the ICA, in

violation of HRPC Rule 3.4(e), by filing his response to the

3 court’s order as an unsigned “memorandum of explanation,” rather

than as an affidavit or a declaration, as expressly required by

the order.

In aggravation, we find multiple violations in the

present matter and two prior disciplines by this court,

reflecting a pattern of conduct that failed to meet the

professional standards of organization, efficiency, diligence,

and promptness required of an attorney, despite Respondent

Wooten’s substantial number of years in practice.

In mitigation, we note Respondent Wooten’s misconduct

does not arise from a selfish or dishonest motive, and note his

role as an advocate for the underserved members of the community,

and his cooperative attitude during the disciplinary

investigation and proceedings.

Finally, we conclude there was nothing improper about

the timing of this disciplinary proceeding in relation to the

earlier disciplinary proceedings concluded against Respondent

Wooten on February 15, 2013 (hereinafter, “the 2010

proceedings”). The complaint for the earliest of the three

instant matters, in ODC Case No. 11-028-8949, was not received by

ODC until December 9, 2010, more than three months after the 2010

proceedings had commenced with the August 26, 2010 issuance of

the summons and petition in that matter. ODC was notified of the

second of the three instant matters, ODC Case No. 11-065-8990, on

4 May 3, 2011, while the 2010 proceedings were engaged in hearings.

The most recent of the three instant matters, ODC Case No. 12-

041-9057, was received from the ICA on August 20, 2012, after the

2010 proceedings had concluded hearings and the matter had been

submitted to this court for disposition. ODC cannot be faulted

for pursuing the earlier disciplinary proceedings even as new

complaints of misconduct against Respondent Wooten were brought

to ODC’s attention.

In sum, upon review of the record and the pattern of

misconduct evidenced by it, we conclude a substantial period of

suspension is necessitated to protect the public. See Akinaka v.

Disciplinary Bd. of the Hawai#i Supreme Court, 91 Hawai#i 51, 55,

57-58, 979 P.2d 1077, 1081, 1083-84 (1999). Therefore,

IT IS HEREBY ORDERED that Respondent André S. Wooten is

suspended from the practice of law in this jurisdiction for six

months, effective 30 days after the entry date 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 HEREBY 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 Wooten shall

pay all costs of these proceedings as approved upon timely

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

5 IT IS FURTHER ORDERED that Respondent Wooten shall,

within 10 days after the effective date of his suspension, file

with this court an affidavit in full compliance with RSCH Rule

2.16(d).

IT IS FINALLY ORDERED that, in light of the pattern and

nature of the misconduct underlying Respondent Wooten’s

suspension, proof of completion of the audit of his practice by

the Practicing Attorneys Liability Management Society (PALMS) and

of adoption of its recommendations must accompany any affidavit

submitted by Respondent Wooten, pursuant to RSCH Rule 2.17(b)(2),

to obtain reinstatement.

DATED: Honolulu, Hawai#i, December 11, 2015.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Fa#auuga To#oto#o

/s/ Karen T. Nakasone