electronically filed supreme court scad-19-0000561 08-aug ... /2019/dubin-odc recommendation...

SCAD ________

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

OFFICE OF DISCIPLINARY COUNSEL, Petitioner

vs.

GARY V. DUBIN, Respondent

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

DISCIPLINARY BOARD’S REPORT, FINDINGS, AND

RECOMMENDATION FOR THE IMPOSITION OF DISCIPLINE; INDEX TO THE RECORD; BOARD CERTIFICATION OF RECORD; and

CERTIFICATE OF SERVICE

CLIFFORD NAKEA, CHAIR DISCIPLINARY BOARD OF THE HAWAIˋI SUPREME COURT 201 Merchant Street, Suite 1600 Honolulu, Hawai‘i 96813 Telephone: (808) 599-1909

Electronically FiledSupreme CourtSCAD-19-000056108-AUG-201910:56 AM

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SCAD ________



vs.



DISCIPLINARY BOARD’S REPORT, FINDINGS, AND RECOMMENDATION FOR THE IMPOSITION OF DISCIPLINE

The Disciplinary Board of the Hawaiʻi Supreme Court (“Board”), pursuant

to RSCH Rule 2.7(d), hereby submits its Report, Findings and Recommendation

for the imposition of discipline to Respondent GARY V. DUBIN.

A. PROCEDURAL BACKGROUND

A Petition for Discipline and Summons and Amended Petition for

Discipline and Summons were filed with the Board on January 4, 2017 and January

9, 2017 respectively and duly served on Respondent. (DBF 1, 2, 3). ODC Petition

16-O-151 (Smith) alleged failure to report his criminal history in Respondent’s

application for a Hawai‘i mortgage solicitor’s license. ODC Petition 16-O-147

(Andia) alleged overcharging clients and forging clients’ names on their settlement

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check without their knowledge or permission. The ODC Petition 16-O-213 (ICA)

alleged incompetence by repeatedly ignoring appellate court rules. ODC Petition

16-O-326 (Kern) alleged failure to provide client with timely accounting,

overcharging, and mishandling of client trust account funds. A Hearing Officer was

appointed. (DBF 8). After an evidentiary hearing and submission of proposed

findings and conclusions the Hearing Officer issued his Findings of Fact,

Conclusions of Law, and Recommendation for Discipline (DBF 71-Disbarment).

Pursuant to RSCH 2.7(d), the matter came on for Board review and hearing on

December 13, 2018 (DBF 68). After consideration of the entire record including

Respondent’s untimely request to disqualify the Hearing Officer, the oral

arguments and Respondent’s responses to Board questions (DBF 98 transcript) the

Board determined Respondent’s request for Hearing Officer disqualification had

been waived. The Board further found that the Hearing Officer’s decision not to

recuse himself was neither an abuse of discretion or nor wrong. The Board

accepted the Hearing Officer’s Findings of Facts and Conclusions of Law and

Recommendations for Discipline (DBF 71) and issued its decision February 13,

2019 to recommend DISBARMENT (DBF 104). Thereafter on April 3, 2019

Respondent submitted a motion for the Board to reconsider its decisions (DBF

104), and to disqualify the entire Disciplinary Board (DBF 110). After briefing

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(DBF 111, 112, 115, 117) and a hearing on the motion at which all parties were

present and heard, (DBF 124 transcript) the Board decided to deny the motion

specifically finding that there was no new evidence regarding the Hearing Officer

and that the record did not support a finding for Board disqualification. (DBF 123)1

B. STANDARD OF REVIEW

The Board applied the following standards to the Hearing Officer’s

report:

Findings of fact, including circumstances in mitigation and

circumstances in aggravation are subject to the “clearly erroneous” standard

of review. DBR 24(c)(i).

Conclusions of Law are subject to the “right/wrong” standard of

review. DBR 24(c)(ii).

1 Respondent waived objection to the Hearing Officer by failing to timely move for recusal as provided by the Rules of the Disciplinary Board or to file a written objection pursuant to the discussion of the parties at the prehearing conference. (DBR 21(a); DBF 96 PHC transcript). Respondent expressly waived objection to the reviewing Board members. (DBF 98 DB transcript pp. 3-4). Further, the Board determined that the individual decisions of the Hearing Officer and the expressly challenged Board member to proceed without recusal did not constitute abuse of discretion. State v. Ross, 89 Haw. 371, 974 P.2d 11 (1998), as amended (May 25, 1999). (DBF 97; DBF 124 hearing transcript).

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Mixed findings of fact and conclusions of law are subject to the

“clearly erroneous” standard of review. DBR 24(c)(iii).

Recommended discipline is subject to de novo review by the Board.

DBR 24 (c)(iv).

C. ANALYSIS

In general, “[t]he object of the disciplinary process is not to punish

lawyers but to protect members of the public and to ensure the orderly and efficient

administration of justice by disciplining those attorneys who do not conform to the

Hawai‘i Rules of Professional Conduct,”2 and to “… maintain the integrity of the

profession and the dignity of the courts, of which the attorney is an officer.”3

The Board employs the American Bar Association Center for

Professional Responsibility Standards for Imposing Lawyer Sanctions (“ABA

Std.”) as a guideline in its analysis of discipline cases.4 “In imposing a sanction

after a finding of lawyer misconduct, a court should consider the following factors:

(a) the duty violated;

2 Akinaka v. Disciplinary Bd. of Hawai'i Supreme Court, 91 Haw. 51, 55 (1999) 3 Disciplinary Board v. Kim, 59 Haw. 449, 455 (1978). 4 ODC v. Au, 107 Haw. 327, 341 (2005) (“The ABA Standards are a useful reference when determining disciplinary sanctions”) citing ODC v. Lau, 79 Hawai‘i 201, 206, 900 P.2d 777, 782 (1995).

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(b) the lawyer's mental state;5

(c) the actual or potential injury caused by the lawyer's misconduct; and

(d) the existence of aggravating or mitigating factors.”6

The Board first evaluates the first three factors to establish the base

line sanction, and then balances the fourth factor to determine whether to depart

from that base line. 7 The Board’s calculation of the disciplinary cases at bar is

based on the most egregious conduct as follows:

5 The Board observes that the ABA Stds recognize three possible mental states for disciplinary purposes. “The mental states used in this model are defined as follows. The most culpable mental state is that of intent, when the lawyer acts with the conscious objective or purpose to accomplish a particular result. The next most culpable mental state is that of knowledge, when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result. The least culpable mental state is negligence, when a lawyer fails to be aware of a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.” ABA Stds. “II Theoretical Framework” (p. 7, emphasis added). Generally, intentional conduct indicates disbarment, knowing conduct indicates suspension, and negligent conduct suggests reprimand. 6 Id., at 341-342, citing ABA Std., Section 3.0. 7 The presumptive sanction is determined prior to consideration of aggravating or mitigating factors. ABA Stds. “I.B Methodology” (p. 5) (“The decision as to the effect of any aggravating or mitigating factors should come only after this initial determination of the sanction.”) Once the presumptive sanction is determined, aggravating and mitigating factors may warrant departure above or below that sanction. In re Disciplinary Proceeding Against Preszler, 169 Wash.2d 1, 18 (2010) (“Second, we determine whether any aggravating or mitigating circumstances call for a departure from the presumptive sanction.”); T. Gronkiewicz & M. Middleton, Annotated Standards for Imposing Lawyer Sanctions, ABA Press (2015) (Comment to Std. 3.0 “…The final step in the four-part analysis under Standard 3.0 is consideration of relevant aggravating or mitigating factors that may justify an upward or downward departure from the baseline sanction.”)

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In ODC 16-O-147 Respondent victimized his clients Mr. and Mrs.

Robert Andia by overcharging $ 19,885.00 for his associates8 and by falsifying his

legal research expense9. He forged their signatures on their settlement check,

deposited it into his CTA, and withdrew for himself a substantial portion of the

funds all without the knowledge or consent of his clients. (DBF 71, FOF 61-121).

In ODC 16-O-326 Respondent did not provide a requested timely

accounting, paid himself unearned fees from the client trust account (DBF 71, FOF

150-152), and personally billed for over 30 hours on a single day (DBF 48 p. 1021,

Resp. Hrg. Part 1, Exhibit 1).

The Board did not determine which case was more egregious as there

was overlapping misconduct.

1. The Duties Violated:

The Board adopted the Conclusions of Law identified by the Hearing

Officer in paragraphs 167- 186 of his Report.

8 The fee agreement recited the billing rate for "associates" at $150-$250/hr; but Respondent billed their time at $385/hr. (DBF 71 FOF 107-117). 9 Respondent invoiced the Andias $1865.00 for Westlaw Computer Research although, according to the invoice, legal research was done in only 3 months and the time expended by the researchers was billed separately. (DBF 95, pdf p. 611).

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Accordingly, the Board determined that Respondent’s wrongful

conduct in these cases violated the duties imposed by the following Hawai‘i Rules of

Professional Conduct:

Rule 1.15. PRESERVING IDENTITY OF FUNDS AND PROPERTY OF A CLIENT OR THIRD PERSON.

(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property, as a fiduciary. The lawyer shall not commingle such funds or property with his or her own or misappropriate such funds or property to his or her own use or benefit.… (Andia, Kern) (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. (Kern)

(d) Upon receiving or disbursing funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (Andia, Kern)

Rule 1.4. COMMUNICATION.

(a) A lawyer shall:

(3) keep the client reasonably informed about the status of the matter; (Kern)

(4) promptly comply with reasonable requests for information; (Andia, Kern)

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Rule 8.4. MISCONDUCT.

It is professional misconduct for a lawyer to:

(a) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (Andia, Kern)

(g) fail to cooperate during the course of an ethics investigation or disciplinary proceeding. (Kern)

Rule 1.5. FEES.

(a) Reasonableness of Fee. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. (Andia, Kern) (b) Manner In Which Fees are Earned. The scope of the representation and the basis or rate of the fee and expenses for which the client will be

responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or the rates of the fee or expenses shall also be communicated to the client. (Andia) 2. Mental State:

Respondent at all times acted intentionally and knowingly. (DBF 71 p.

39)

3. Actual or Potential Injury Caused by misconduct:

Respondent’s conduct caused actual financial and emotional injury to

his clients and to the profession. (DBF 71 pp. 40-41)

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ABA Baseline Discipline

The Board found the following ABA guidelines most applicable and the basis

for the determination of the presumptive sanction for the most serious misconduct:

4.0 Failure to Preserve the Client’s Property

4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.

7.0 Violations of Other Duties Owed As A Professional 7.1 Disbarment is Generally ppropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system

4. Relevant aggravating or mitigating factors:

The Board accepts the Hearing Officer’s finding of no factors in mitigation.

(DBF 71 ¶ 207). The Board also accepts the Hearing Officer’s findings of factors in

aggravation:

• Dishonest or Selfish Motive (DBF 71 ¶ 201)

• A Pattern of Misconduct (DBF 71 ¶202; see also CAAP-18-0000118 Order 5/17/19) • Multiple Offenses (DBF 71 ¶ 203) • Bad Faith Obstruction of the Disciplinary Process (DBF 71 ¶ 204)

• Refusal to Acknowledge Wrongful Nature of Conduct (DBF 71 ¶ 205)

• Substantial Experience in the Practice of Law (DBF 71 ¶ 206)

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• Prior Disciplinary Offenses (DBF 71 ¶ 200)

D. RECOMMENDED DISCIPLINE

Based upon the accepted Findings of Fact, Conclusions of Law, Matters in

Aggravation and Mitigation, review of the records, and analysis of the relevant

standards, the following discipline is recommended:

DISBARMENT. RSCH 2.3(a)(1).

E. ADDITIONAL TERMS AND CONDITIONS OF DISCIPLINE

In addition to the foregoing sanctions, the following additional terms and

conditions are recommended:

Respondent shall make restitution in the amount of$19,885.00 by payment

to Robert K. Andia and Carmelita A. Andia, within seven (7) days of the entry of

any final order issued by the Supreme Court or the Board in this matter. RSCH

2.3(c).

Respondent shall pay the costs of these proceedings to the Disciplinary

Board in such time and amount as to be stated in any final order or judgment

issued by the Supreme Court in this matter.

August 8, 2019

SCAD ________



vs.



INDEX TO THE RECORD TRANSMITTED TO THE HAWAI‘I SUPREME COURT

Item:

A. Disciplinary Board File (DBF) docket:

DBF Date Filed Description of Document

1. 01/04/17 SUMMONS AND PETITION

2. 01/09/17 SUMMONS AND AMENDED PETITION

3. 01/23/17 RETURN OF SERVICE

4. 02/09/17 REQUEST FOR EXTENSION TO FILE ANSWER

5. 02/10/17 ORDER re EXTENSION OF TIME TO FILE AMENDED ANSWER

6. 02/13/17 VERIFIED ANSWER TO AMENDED PETITION

7. 03/21/17 APPEARANCE OF COUNSEL and CERTIFICATE OF SERVICE

8. 04/18/17 APPOINTMENT OF HEARING OFFICER


9. 04/21/17 PROCEEDINGS ARE NOW PUBLIC

10. 04/21/17 CONFIRMATION OF PREHEARING CONFERENCE

11. 05/15/17 PREHEARING CONFERENCE ORDER

12. 08/11/17 LETTER TO HEARING OFFICER RE WITNESS AND EXHIBIT LIST DEADLINE

13. 08/11/17 APPEARANCE OF NEW LEAD COUNSEL and CERTIFICATE OF SERVICE

14. 08/21/17 PETITIONER OFFICE OF DISCIPLINARY COUNSEL’S EXHIBIT LIST and EXHIBIT A

15. 08/21/17 PETITIONER OFFICE OF DISCIPLINARY COUNSEL’S WITNESS LIST and CERTIFICATE OF SERVICE

16. 08/14/17 LETTER FROM HEARING OFFICER GRANTING EXTENSION

17. 08/24/17 RESPONDENT’S REQUEST FOR EXTENSION TO FILE EXHIBIT LIST, EXHIBITS, AND WITNESS LIST

18. 08/24/17 HEARING OFFICER’S APPROVAL OF DBF 17

19. 08/31/17 RESPONDENT’S REQUEST FOR ONE (1) DAY EXTENSION TO FILE EXHIBIT LIST, EXHIBITS, AND WITNESS LIST

20 09/05/17 RESPONDENT’S EXHIBIT LIST

21. 09/05/17 RESPONDENT’S WITNESS LIST

22. 09/05/17 RESPONDENT’S OBJECTIONS TO ODC’S PROPOSED WITNESSES

23. 09/05/17 RESPONDENT’S OBJECTIONS TO ODC’S PROPOSED EXHIBITS

24. 09/05/17 PETITIONER OFFICE OF DISCIPLINARY COUNSEL’S REQUEST FOR EXTENSION


25. 09/05/17 HEARING OFFICER’S APPROVAL OF DBF 24

26. 09/08/17 PETITIONER OFFICE OF DISCIPLINARY COUNSEL’S PREHEARING STATEMENT; EXHIBITS A-D; CERTIFICATE OF SERVICE

27. 09/08/17 PETITIONER’S MOTION IN LIMINE NO. 1 RE: PRECLUDING RESPONDENT FROM CALLING ASSISTANT DISCIPLINARY COUNSEL JANE S. PREECE AS A WITNESS IN THESE PROCEEDINGS and CERTIFICATE OF SERVICE

28. 09/08/17 PETITIONER’S MOTION IN LIMINE NO. 2 RE: LIMITING RESPONDENT IN ELICITING TESTIMONY FROM INVESTIGATOR GEORGE ELERICK AS A WITNESS IN THESE PROCEEDINGS and CERTIFICATE OF SERVICE

29. 09/08/17 PETITIONER’S MOTION IN LIMINE NO. 3 RE: LIMITING RESPONDENT FROM PRESENTING TESTIMONY FROM 25 CHARACTER WITNESSES and CERTIFICATE OF SERVICE

30. 09/11/17 SDT GEORGE ELERICK

31. 09/11/17 SDT CARMELITA ANDIA

32. 09/11/17 SDT ROBERT KING ANDIA

33. 09/13/17 PETITIONER OFFICE OF DISCIPLINARY COUNSEL’S OBJECTIONS TO RESPONDENT GARY V. DUBIN’S EXHIBIT LIST AND PROPOSEDEXHIBITS; and CERTIFICATE OF SERVICE

34. 09/13/17 PETITIONER OFFICE OF DISCIPLINARY COUNSEL’S OBJECTIONS TO RESPONDENT’S WITNESS LIST FILED ON SEPTEMBER 5, 2017; and CERTIFICATE OF SERVICE

35. 09/14/17 CONFIRMATION OF CONTINUATION OF FORMAL HEARING


36. 09/20/17 NOTICE OF APPEARANCE OF COUNSEL

37. 09/20/17 SECOND PREHEARING CONFERENCE ORDER

38. 11/13/17 RESPONDENT’S OPENING STATEMENT

39. 11/15/17 SUBPOENA DUCES TECUM - GEORGE ELERICK

40. 11/15/17 SUBPOENA DUCES TECUM - RICHARD T. FORRESTER, ESQ.

41. 11/15/17 SUBPOENA DUCES TECUM - ANDREW D. GOFF, ESQ.

42. 11/15/17 SUBPOENA DUCES TECUM - ROBERT KING ANDIA

43. 11/15/17 SUBPOENA DUCES TECUM - CARMELITA ANDIA

44. 11/28/17 TRANSCRIPT OF FORMAL HEARING - 11/13/17 (VOL. I)

45. 11/28/17 TRANSCRIPT OF FORMAL HEARING - 11/14/17 (VOL. II)

46. 11/30/17 TRANSCRIPT OF FORMAL HEARING - 11/20/17 (VOL. III)

47. 11/30/17 TRANSCRIPT OF FORMAL HEARING - 11/30/17 (VOL. IV)

48. 11/30/17 TRANSCRIPT OF FORMAL HEARING - 11/22/17 (VOL. V)

49. 12/20/17 TRANSCRIPT OF FORMAL HEARING - 11/27/17 (VOL. VI)

50. 12/20/17 TRANSCRIPT OF FORMAL HEARING - 11/28/17 (VOL. VII)

51. 12/01/17 ORDER, RE POST-HEARING PROCESS

52. 12/01/17 HEARING OFFICER’S REQUEST TO EXTEND 7-MONTH DEADLINE


53. 12/12/17 ORDER GRANTING HEARING OFFICER’S REQUEST TO EXTEND7-MONTH DEADLINE [RE: DKT. #52]

54. 12/26/17 TRANSMITTAL [RE: DBF 51, 52 & 53]

55. 01/18/18 PETITIONER’S REQUEST FOR EXTENSION TO FILE PROPOSED FINDINGS

56. 01/23/18 HEARING OFFICER GRANTING EXTENSION TO FILE PROPOSED FINDINGS

57. 02/16/18 RESPONDENT’S REQUEST FOR EXTENSION TO FILE PROPOSED FINDINGS

58. 02/21/18 LETTER TO HEARING OFFICER RE OFFICE OF DISCIPLINARY COUNSEL’S OBJECTION TO RESPONDENT’S REQUEST FOR EXTENSION TO FILE PROPOSED FINDINGS

59. 02/22/18 HEARING OFFICER’S GRANTING SECOND EXTENSION TO FILE PROPOSED FINDINGS

60. 02/23/18 HEARING OFFICER’S REQUEST FOR EXTENSION TO FILE HEARING OFFICER’S REPORT

61. 02/23/18 HEARING OFFICER’S CONFIRMATION OF GRANTING SECOND EXTENSION TO FILE PROPOSED FINDINGS [DBF 59]

62. 02/26/18 ORDER GRANTING HEARING OFFICER’S SECOND REQUEST TO EXTEND 7-MONTH DEADLINE [RE: DBF 60]

63. 03/22/18 RESPONDENT’S REQUEST FOR EXTENSION TO FILE PROPOSED FINDINGS OF FACT

64. 03/22/18 HEARING OFFICER’S RESPONSE TO RESPONDENT’S REQUEST FOR EXTENSION TO FILE PROPOSED FINDINGS OF FACT

65. 03/22/18 E-MAIL FROM HEARING OFFICER re DBF 63


66. 03/22/18 PETITIONER’S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DISCIPLINE and CERTIFICATE OF SERVICE

67. 04/05/18 PETITIONER’S MOTION TO STRIKE RESPONDENT’S PROPOSED FINDINGS OF FACT CONCLUSIONS OF LAW AND RECOMMENDATION FOR DISCIPLINE, AND TO ENTER PETITIONER’S FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED DISCIPLINE; and CERTIFICATE OF SERVICE

68. 04/06/18 RESPONDENT’S PROPOED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND RECOMMENDED DISPOSITION TO THE HEARING OFFICER

69. 04/09/18 RESPONDENT’S OBJECTION TO PETITIONER’S MOTION TO STRIKE RESPONDENT’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND RECOMMENDED DISPOSITION, SUBMITTED TO THE HEARING OFFICER

70. 04/10/18 LETTER FROM HEARING OFFICER

71. 04/12/18 HEARING OFFICER’S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED DISCIPLINE


72. 04/20/18 RESPONDENT’S NOTICE TO THE CHAIRPERSON OF THE DISCIPLINARY BOARD OF RESPONDENT’S APPEAL TO THE BOARD OF THE HEARING OFFICER’S CAVALIER ADOPTION VERBATIM OF THE PETITIONER’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND RECOMMENDED DISPOSITION, AND RESPONDENT’S TIMELY DISCIPLINARY BOARD RULE 23(c)REQUEST FOR PERMISSION TO SUBMIT BRIEFS AND TO PRESENT ORAL ARGUMENT TO THE BOARD

73. 04/23/18 ORDER REGARDING BRIEFING AND ORAL ARGUMENT

74. 06/04/18 RESPONDENT’S LETTER TO JUDGE NAKEA WITH HIS OPENING BRIEF

75. 06/06/18 RESPONDENT’S LETTER TO JUDGE NAKEA RE: EXHIBITS

76. 06/12/18 PETITIONER’S RESPONSE TO DBF 75

77. 06/13/18 LETTER FROM RESPONDENT RE OPENING BRIEF

78. 06/15/18 LETTER TO HON. CLIFFORD L. NAKEA (Ret.) RE: EXHIBITS TO OPENING BRIEF

79. 07/16/18 PETITIONER’S ANSWERING BRIEF; and CERTIFICATE OF SERVICE

80. 07/16/18 LETTER from Gary Victor Dubin to The Honorable Clifford L. Nakea (Ret.) re Opening Brief

81. 07/16/18 RESPONDENT’S OPENING BRIEF [Exhibits 1-82]

82. 07/16/18 LETTER from Bruce B Kim to The Honorable Clifford L. Nakea (Ret.)

83. 07/17/18 LETTER FROM RESPONDENT TO HON. CLIFFORD L. NAKEA (Ret.) RE DBF 82


84. 07/23/18 LETTER FROM RESPONDENT TO HON. CLIFFORD L. NAKEA (Ret.) RE REPLY BRIEF

85. 07/31/18 ORDER REGARDING BRIEFING AND ORAL ARGUMENT; and CERTIFICATE OF SERVICE

86. 08/06/18 LETTER from Bruce B Kim to The Honorable Clifford L Nakea (Ret) re: Rescheduling of DB Review

87. 08/08/18 RESPONDENT’S RESPONSE TO DBF 86

88. 08/09/18 RESPONDENT’S REPLY BRIEF

89. 09/13/18 NOTICE OF SUBSTITUTION OF COUNSEL

90. 10/15/18 RESPONDENT’S REQUEST FOR DATE OF DISCIPLINARY BOARD HEARING

91. 10/17/18 ORDER REGARDING ORAL ARGUMENT BEFORE THE DISCIPLINARY BOARD and CERTIFICATE OF SERVICE

92. 10/23/18 ORDER REGARDING RESCHEDULING OF DISCIPLINARY BOARD HEARING

93. 10/25/18 AMENDED ORDER REGARDING RESCHEDULING OF DISCIPLINARY BOARD HEARING

94. 12/18/18 ORDER REGARDING SUPPLEMENTATION OF RECORD

95. 12/28/18 INTRODUCTORY EXHIBITS 1-3 TO RESPONDENT’S OPENING BRIEF

96. 12/28/18 TRANSCRIPT OF THE PREHEARING CONFERENCE

97A. 12/28/18 ODC’S NOTICE OF SUPPLEMENTED RECORD IN RESPONSE TO DBF NO. 94

97B. 01/02/19 RESPONDENT’S NOTICE OF SUPPLEMENTED RECORD IN RESPONSE TO DBF NO. 94 REQUEST FOR ADDITIONAL DOCUMENTS


98. 01/10/19 TRANSCRIPT OF PROCEEDINGS BEFORE THE DISCIPLINARY BOARD OF THE HAWAII SUPREME COURT

99. 01/30/19 PDF FILE WITH AUDIO FILE ATTACHMENT; 05/15/17 HEARING, PART I

100. 01/30/19 PDF FILE WITH AUDIO FILE ATTACHMENT; 05/15/17 HEARING, PART II

101. 01/30/19 PDF FILE WITH AUDIO FILE ATTACHMENT; 12/13/18 DB HEARING, PART I

102. 01/30/19 PDF FILE WITH AUDIO FILE ATTACHMENT; 12/13/18 DB HEARING, PART II

103. 01/30/19 CERTIFICATE OF SERVICE

104. 02/13/19 DECISION OF THE DISCIPLINARY BOARD and CERTIFICATE OF SERVICE

105. 03/14/19 ODC’S NOTICE OF ITS CONFIDENTIAL INFORMATION IN THE RECORD; CERTIFICATE OF SERVICE

106. 03/25/19 ORDER GRANTING EXTENSION; CERTIFICATE OF SERVICE

107. 04/02/19 RESPONDENT’S REDACTED CONFIDENTIAL INFORMATION

108. 04/02/19 RESPONDENT’S REQUEST THAT DB WITHDRAW ITS RECOMMENDATION

109. 04/02/19 RESPONDENT’S NOTICE OF DISCIPLINARY BOARD CONFLICT


110. 04/03/19 RESPONDENT’S MOTION TO DISQUALIFY THE DISCIPLINARY BOARD AND ITS APPOINTED HEARING EXAMINER, SETTING ASIDE BOTH THE FEBRUARY 13, 2019 “DECISION OF THE DISCIPLINARY BOARD” (DBF-104) AND THE HEARING OFFICER’S APRIL 12, 2018 REPORTED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS (DBF-71), BASED UPON CONFLICTS OF INTEREST AND THE APPEARANCE OF IMPROPRIETY, IN VIOLATION OF RESPONDENT’S RIGHT TO DUE PROCESS OF LAW

111. 04/04/19 MEMORANDUM IN SUPPORT OF RESPONDENT’S MOTION TO DISQUALIFY THE DISCIPLINARY BOARD AND ITS APPOINTED HEARING EXAMINER SETTING ASIDE BOTH THE FEBRUARY 13, 2019 “DECISION OF THE DISCIPLINARY BOARD” (DBF 104) AND THE HEARING CONCLUSIONS, AND RECOMMENDATIONS (DBF 71), BASED UPON CONFLICTS OF INTEREST AND THE APPEARANCE OF IMPROPRIETY, IN VIOLATION OF RESPONDENT’S RIGHT TO DUE PROCESS OF LAW


112. 04/04/19 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF RESPONDENT’S MOTION TO DISQUALIFY THE DISCIPLINARY BOARD AND ITS APPOINTNED HEARING EXAMINER SETTING ASIDE BOTH THE FEBRUARY 13, 2019 “DECISION OF THE DISCIPLINARY BOARD” (DBF 104) AND THE HEARING OFFICER’S APRIL 12, 2018 REPORTED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS (DBF 71), BASED UPON CONFLICTS OF INTEREST AND THE APPEARANCE OF IMPROPRIETY, IN VIOLATION OF RESPONDENT’S RIGHT TO DUE PROCESS OF LAW

113. 04/04/19 ORDER

114. 04/11/19 CLERK’S NOTICE OF CORRECTION TO THE DISCIPLINARY BOARD FILE (DBF 110); AND CERTIFICATE OF SERVICE

115. 04/12/19 ODC’S MEMORANDUM IN OPPOSITION TO RESPONDENT’S MOTION TO DISQUALIFY (DBF 110); COS

116. 04/16/19 NOTICE OF DISCIPLINARY BOARD REVIEW AND CERTIFICATE OF SERVICE


117. 04/25/19 HEARING REPLY MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO DISQUALIFY THE DISCIPLINARY BOARD AND ITS APPOINTED HEARING EXAMINER, SETTING ASIDE BOTH THE FEBRUARY 13, 2019 "DECISION OF THE DISCIPLINARY BOARD" (DBF-104) AND THE HEARING OFFICER'S APRIL 12, 2018 REPORTED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS (DBF-71), BASED UPON CONFLICTS OF INTEREST AND THE APPEARANCE OF IMPROPRIETY, IN VIOLATION OF RESPONDENT'S RIGHT TO DUE PROCESS OF LAW

118. 04/29/19 AUDIO FILE

119. 04/29/19 AUDIO FILE

120. 04/29/19 AUDIO FILE

121. 04/29/19 AUDIO FILE

122. 04/29/19 AUDIO FILE

123. 04/30/19 ORDER RE: RESPONDENT'S MOTION TO DISQUALIFY THE DISCIPLINARY BOARD AND ITS APPOINTED HEARING EXAMINER, SETTING ASIDE BOTH THE FEBRUARY 13, 2019 "DECISION OF THE DISCIPLINARY BOARD" (DBF-104) AND THE HEARING OFFICER'S APRIL 12, 2018 REPORTED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS (DBF-71), BASED UPON CONFLTCTS OF INTEREST AND THE APPEARANCE OF IMPROPRIETY, IN VIOLATION OF RESPONDENT'S RIGHT TO DUE PROCESS OF LAW

124. 06/26/19 TRANSCRIPT OF PROCEEDINGS BEFORE THE DISCIPLINARY BOARD OF THE HAWAII SUPREME COURT

B. Petitioner Office of Disciplinary Counsel’s Exhibit (PE) List:

PE Description of Document

A. ODC 16-O-151

ANONYMOUS (JOE SMITH), COMPLAINANT

A1 HSBA Membership Directory for Gary V. Dubin (“Dubin”) printed on August 17, 2017, from Hsba.org website.

A2 Petition for Disciplinary Action Against Mortgage Solicitor’s License and Demand for Disclosure dated November 9, 2010, filed in MBS 2009-14-l.

A2-A Petition for Disciplinary Action Against Mortgage Broker’s License and Demand for Disclosure dated November 9, 2010, filed in MBS 2010-31-l.

A3 Petitioner’s Exhibits and Exhibit List in In the Matter of Dubin Financial, LLC, v. Mortgage Brokers and Solicitors Program, et al., Civil No. 11-1-1415-07, First Circuit Court State of Hawaii, and electronically filed in the Intermediate Court of Appeals, on May 7, 2012, in CAAP-12-0000135 (“ICA appeal”).

A3-1 [Redacted] certified copy of professional and vocational licensing records of respondents and Long Vu.

A3-2 Certified copy of December 4, 2006 Articles of Organization of Dubin Financial, LLC.

A3-3 Certified copy of October 14, 2007 Annual Report of Dubin Financial, LLC.

A3-4 Certified copy of December 31, 2008 Annual Report of Dubin Financial, LLC.

A3-5 [Redacted] certified copy of January 20, 1995 judgment in a criminal case in U.S. v. Dubin, United States District Court for the District of Hawaii, crim. No. 93-01434 MLR 01.

A3-6 [Redacted] certified copy of July 23, 2008 Application for License signed by respondent Gary V. Dubin.


A3-7 Certified copy of April 30, 2007 application for mortgage broker’s license of Dubin Financial, LLC, signed by Long H. Vu, Esq.

A3-8 [Redacted] certified copy of July 18, 2008, application for designated principal mortgage solicitor’s license of Gary V. Dubin.

A4 Certified copy of Order Denying Respondents’ Oral Pre-Hearing Motion to Dismiss filed in MBS-2009-14-L and MBS-2010-31-L in licensing matter, office of administrative hearings, department of commerce and consumer affairs (“OAH, DCCA”).

A5 Certified copy of Hearing Officer’s Findings of Fact, Conclusions of Law and Recommended Order; Exhibit “A”, filed on April 21, 2011, in OAH, DCCA.

A6 Certified copy of Respondents’ Written Exceptions To The Hearing Officer’s (1) Order Denying Respondents’ Oral Pre-Hearing Motion to Dismiss, entered April 14, 2011, and (2) Findings Of Fact, Conclusions Of Law and Recommended Order entered April 21, 2011; Exhibits “A” and “B”; Certificate of Service filed on May 9, 2011, in OAH, DCCA.

A7 Certified copy of Respondents’ Submission of the Official Hearing Transcript in Further Support of their Written Exceptions to the Hearings Officer’s (1) Order Denying Respondents’ Oral Pre-Hearing Motion to Dismiss, Entered April 14, 2011, and (2) Findings Of Fact, Conclusions Of Law and Recommended Order, entered April 21, 2011, filed on May 16, 2011 in OAH, DCCA.

A8 Certified copy of Petitioners’ Statement in Support of Hearing Officer’s Finding of Fact, Conclusions of Law and Recommended Order; Addendum; Certificate of Service filed on May 24, 2011, in OAH, DCCA.

A9 Certified copy of Director’s Final Order filed on June 9, 2011, in OAH, DCCA.

A10 Certified copy of order affirming the director’s final order filed on February 13, 2012, in the matter of the mortgage broker’s license of Dubin Financial, LLC.; in the matter of the mortgage solicitor’s license of Gary V. Dubin (“circuit court appeal).

A11 Certified copy of the Final Judgment filed on February 13, 2012, in the Circuit Court Appeal.


A12 Certified copy of the Notice of Appeal; Certificate of Service filed on March 6, 2012, in Dubin Financial, LLC, et al., in the ICA appeal.

A13 Certified copy of opening brief filed on July 3, 2012, in the ICA appeal.

A14 Certified copy of Appellees Mortgage Brokers and Solicitors Program, Office of Administrative Hearings, Department of Commerce and Consumer Affairs, State of Hawaii’s answering brief filed on August 13, 2012, in the ICA appeal.

A15 Certified copy of Summary Disposition Order filed on June 3, 2015, in the ICA appeal.

A16 Certified copy of Judgment on Appeal filed on July 2, 2015, in the ICA appeal.

A17 Complaint letter dated March 7, 2016, and attachment from Joe Smith.

B. ODC 16-O-147 (ROBERT KING ANDIA, COMPLAINANT)

B1 [Redacted] Complaint form dated March 1, 2016, from Robert King Andia (“Andia”), to the Office of Disciplinary Counsel (“ODC”) received on March 2, 2016.

B2 Letter dated march 18, 2016, to Gary Victor Dubin (“Dubin”) from George Elerick (“Elerick”), ODC investigator.

B3 2012 Legal Services Agreement dated February 17, 2012, signed by Andia.

B4 Email dated December 15, 2015, to Dubin from Andia regarding 2015 Legal Services Agreement.

B5 Transmittal memorandum dated November 3, 2015, from Patricia J. Mchenry, Esq. (“Mchenry”) at Cades Schutte, to Richard T. Forrester, Esq. (“Forrester”) at Dubin Law Offices.

B6 [Redacted] Bank of America (“BOA”) Check No. 0001432390 (back and front) dated October 26, 2015, payable to Robert K. Andia & Carmelita A. Andia, in the amount of $132,000.00.

B7 Letter dated November 7, 2015, to Andia from Dubin.


B7-A Invoice for professional services and costs For the period of February 17, 2012 through November 6, 2015.

B7-B [Redacted] check no. 2072 dated November 7, 2015, Dubin client trust account no. xxxx4404, payable to Robert and Carmelita Andia, in the amount of $62,297.13.

B8 Hawaii state bar directory for Andrew David Goff (“Goff”) printed on August 8, 2017, from hsba.org website.

B9 Hawaii State Bar directory for Forrester printed on August 8, 2017, from hsba.org website.

B10 Email dated November 6, 2015, to Forrester from Andia regarding: update.

B11 Email dated November 6, 2015, to Andia from Forrester regarding: update.

B12 Email dated November 6, 2015, to Andia from Dubin regarding: your case

B13 Email dated November 6, 2015, to Dubin from Andia regarding: your case.

B14 Email dated November 6, 2015, to Andia from Dubin regarding: check

B15 Email dated November 9, 2015, forwarded to Todd Hirai (“Hirai”) from Andia regarding: update.

B16 Email dated November 9, 2015, to Dubin from Andia regarding: check.

B17 Email dated November 17, 2015, to Dubin from Andia regarding: termination of services.

B18 Email dated December 15, 2015, to Dubin from Andia regarding: fee discrepancy.

B19 Email dated December 15, 2015, to Andia from Dubin regarding: fee discrepancy

B20 Email dated December 15, 2015, to Andia from Dubin regarding: e.g., our 2015 retainer agreement.


B21 Email dated December 23, 2015, to Dubin from Andia regarding: your case.

B22 Email dated December 23, 2015, to Andia from Dubin regarding: your case.

B23 Email dated December 23, 2015, to Dubin from Andia regarding: your case.

B24 [Redacted] letter dated April 1, 2016, to Elerick from Dubin (with enclosures).

B25 [Redacted] letter dated May 2, 2016 to Elerick from Dubin (with enclosures).

B26 Letter dated October 7, 2016, to Elerick from Dubin.

B27 Email dated October 18, 2016, to Elerick from Dubin regarding: international travel re: Robert King Andia and Robert Kern

B28 Email dated October 18, 2016, to Elerick from Dubin regarding: Robert King Andia and Robert Kern

B29 Email dated November 1, 2016, to Elerick from Dubin regarding: Robert King Andia

B30 Email dated November 7, 2016, to Elerick from Dubin regarding: Andia and Harkey.

B31 Letter dated November 8, 2016, to Jane S. Preece, Esq. (“Preece”), Assistant Disciplinary Counsel for ODC from Dubin.

B32 Email dated November 16, 2016, to Dubin from Preece regarding: Andia questions.

B33 Hawaii State Judiciary Ho’ohiki print out on August 9, 2017, non-criminal case information, party list, document list, and court minutes list, in the Circuit Court of The First Circuit, State of Hawaii.

B34 Email dated January 12, 2016, from Dubin to Patricia Mchenry, Richard Forrester, and Robert King Andia


B35 Check no. 2072, payable to Robert and Carmelita Andia, from Dubin client trust account, fiduciary account, in the amount of $62,297.13, dated November 7, 2015

B36 Letter from Elerick to Dubin, dated March 18, 2016, transmitting complaint from Robert King Andia (w/enclosure)

C. ODC 16-O-213 ODC (ICA), COMPLAINANT

C1 Printable case view for Ke Kailani Partners, LLC., v. Ke Kailani Development LLC, et al., CAAP-12-0000070 (“CAAP-12-0070").

C2 Notice of appeal to the Hawaii Intermediate Court of Appeals of the State of Hawaii on jurisdictional grounds and for other errors (exhibits “a” through “e”) in CAAP-12-0070.

C3 Civil appeals docketing statement deficiency notice (no civil appeals docketing statement) filed on February 21, 2012, in CAAP-12-0070.

C4 Civil appeals docketing statement (without attachments) filed on March 2, 2012, in CAAP-12-0070.

C5 Notice of entering case on calendar filed on March 23, 2012, in CAAP-12-0070.

C6 Default of statement of jurisdiction & opening brief filed on July 10, 2012, in CAAP-12-0070.

C7 Motion for leave to file late jurisdictional statement and for extension of time to file opening brief, and order (without exhibits attached), filed on July 19, 2012, in CAAP- 12-0070.

C8 Jurisdictional statement (without exhibits attached) filed on July 19, 2012, in CAAP- 12-0070.

C9 Order (1) granting motion for leave to file late jurisdictional statement; (2) denying without prejudice motion for extension to file opening brief; and (3) Order to Show Cause, filed on July 23, 2012, in CAAP-12- 0070.

C10 Order for Sanction filed on August 30, 2012, CAAP-12-0700.


C11 Motion to consolidate four related cases and to reset the briefing schedule (cases CAAP- 12-0153, CAAP-12-0758, and CAAP-12-0759), filed on September 4, 2012, in CAAP-12-0070.

C12 Order re: defendants-appellants’ September 4, 2012 motion to consolidate four related cases and to reset the briefing schedule filed on October 5, 2012, in CAAP-12-0070.

C13 Printable case view for Ke Kailani Partners, LLC, vs. Ke Kailani Development, LLC, et al., appeal filed in Intermediate Court of Appeals, CAAP-12-0000758 (“CAAP-12-0758").

C14 Notice of Electronic Filing on December 3, 2012-clerk’s extension, phone Bessie (Gary Dubin) - 30-day extension to file OB from 12/4/2012 to 1/3/2013, in CAAP-12-0758.

C15 Motion for Four-Week Extension of Time for Filing Opening Brief; Order filed on January 13, 2013, in CAAP-12-0070.

C16 Order (1) Granting in Part and Denying in Part Plaintiff-Appellee Ke Kailani Partners, LLC’s Motion for Reconsideration filed on January 15, 2013; (2) order to show cause; and (3) the motion is denied in all respects filed on January 13, 2013, in CAAP-12-0070, and in CAAP-12-0758.

C17 Opening Brief filed on January 23, 2013, in CAAP-12-0758.

C18 Plaintiff-appellee Ke Kailani Partners LLC’S motion to dismiss appeal or, in the alternative, to strike opening brief; memorandum in support; certificate of service, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-12-0000758, filed on march 1, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C19 Order Re Plaintiff-Appellee Ke Kailani Partners LLC’s Motion to Dismiss Appeal or, in Alternative, to Strike Opening Brief filed March 1, 2013, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-12- 0000070 and Caap-120000758, filed on march 27, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C20 Amended Opening Brief, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-12-0000758, filed on April 8, 2013, in the Intermediate Court of Appeals, State of Hawaii.


C21 Order, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-12-0000070 and CAAP-12-0000758, filed on April 29, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C22 Printable case view for Ke Kailani Partners, LLC., v. Ke Kailani Development LLC, et al., CAAP-12-0004290 (“CAAP-13-4290").

C23 Notice of Jurisdictional Appeal to the Hawaii Intermediate Court of Appeals of the State of Hawaii on Due Process Grounds and for Other Errors, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-13-4290, filed on October 21, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C23-A Ke Kailani Development LLC and Michael J. Fuchs’ Motion for HRCP rule 4(a)(4)(b) Extension of Time in Which to File Notice of Appeal; Declaration of Gary Victor Dubin; Notice of Hearing of Motion; Certificate of Service, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-13-4290, filed on October 21, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C23-B Ke Kailani Development LLC and Michael J. Fuchs’ Ex Parte Motion to Shorten Time for The Hearing of Their Motion for HRCP Rule 4(a)(4)(b) Extension of Time in Which to File Notice Of Appeal, or in the Alternative to Decide the Motion Forthwith Without Oral Argument Pursuant to HRCC Rule 8; Declaration of Gary Victor Dubin; Order; Certificate Of Service, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-13-4290, filed on October 21, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C23-C Order granting Ke Kailani Development LLC and Michael J. Fuchs’ Motion for HRCP Rule 4(a)(4)(b) Extension of Time in which to file Notice Of Appeal, in Ke Kailani Partners v. Ke Kailani Development, et al, CAAP-13-4290, filed on October 21, 2013, in the Intermediate Court of Appeals, State of Hawaii.

C24 Civil Appeals docketing Statement Deficiency Notice (no civil appeals docketing statement), filed on November 13, 2013, in CAAP-13-4290.


C25 Civil Appeal docketing statement, filed on November 24, 2013, in CAAP-13-4290.

C26 Notice of Electronic Filing For - Clerk’s Extension, Phone-Bessie (Gary Dubin) - 30d ext. to file OB from 1/6/2014 to 2/5/2014, filed on in January 6, 2014, in CAAP-13- 4290.

C27 Motion for Extension of Time to File Opening Brief, submitted with the Agreement of Appellees’ Counsel; Order, filed on February 10, 2014, in CAAP-13-4290.

C28 Motion for Additional Three-Week Extension of Time to File Opening Brief; Order, filed on March 7, 2014, in in CAAP-13-4290.

C29 Order, filed on May 1, 2014, in CAAP-13- 4290.

C30 Motion for Additional One-Week Extension of Time to File Opening Brief; Order, filed on May 14, 2014, in CAAP-13-4290.

C31 Default of Opening Brief (2nd), filed on May 30, 2014, CAAP-13-4290.

C32 Motion for Leave to File Late Opening Brief Forthwith; Order, filed on June 8, 2014, CAAP-13-4290.

C33 Order (1) Granting in Part the June 8, 2014 Motion for Leave to File the Opening Brief Forthwith; and (2) Order to Show Cause, filed on June 17, 2014, in CAAP-13-4290.

C34 Opening Brief, filed on May 30, 2014, in CAAP-13-4290.

C35 Order for Sanction, filed on May 30, 2014, in CAAP-13-4290.

C36 Printable case view for Miller v. Bank of New York Mellon fka Bank Of New York As Trustee for The Certificate Holders Of CWMBS, Inc., et al., Appeal filed in no. 30698, Intermediate Court of Appeals (“ICA- 30698").

C37 Default of Opening Brief filed on April 15, 2011, in ICA 30698.

C38 Order (1) Granting Plaintiff-Appellant’s Motion for Extension of Time to File Late Opening Brief and Order to Show Cause filed on May 12, 2011, in ICA 30698.


C39 Declaration of Gary Victor Dubin in Response to Order to Show Cause Regarding Late Opening Brief; Certificate of Service filed on May 23, 2011, in ICA 30698.

C40 Order for Sanction filed on June 20, 2011, in ICA 30698.

C41 Order for Sanction filed on June 18, 2008, in ICA 27087, 27543, and 27522.

C42 Order for Sanction filed on March 25, 2010, in ICA 28770.

C43 Sanction Order filed on March 9, 2012, in ICA CAAP-11-0000485.

C44 Order Granting Motion to File Opening Brief Forthwith, in ICA 29305.

D. ODC 16-O-326 ROBERT KERN, COMPLAINANT

D1 2015 Legal Services Agreement dated December 23, 2015, signed by Michael E. Harkey (“Harkey”).

D2 2016 Legal Services Agreement dated January 3, 2016, signed by Harkey and Dubin.

D3 Declaration of Michael Eugene Harkey requesting a further extension of time to file and serve second amended complaint regarding jurisdiction, in Michael Harkey v. Northwest Trustees Services, et al (Harkey v. Northwest Trustees Services, et al”), adv. Case 15-1355-MLB, bankruptcy 09-10180- MLB, filed on January 15, 2016, in the united states bankruptcy court, Western District of Washington at Seattle.

D4 Order of Dismissal, in Harkey v. Northwest Trustees Services, et al, adv. Case 15- 01355-MLB, Bankruptcy 09-10180-MLB, filed on January 22, 2016, in the United States Bankruptcy Court, Western District of Washington At Seattle.

D5 Text message sent on January 23, 2016, from Gary Victor Dubin (“Dubin”) to Harkey stating: “the bankruptcy judge dismissed our adversary proceeding saying that he gave you enough time.”


D6 Text message sent on January 25, 2016, from Harkey to Dubin stating: “wire transfer done.”

D7 Client trust log from Dubin showing two wire transfers received on January 25, 2016, in the amount of $20,000.00, and on April 1, 2016, in the amount of $25,000.00, from Harkey.

D8 2016 Legal Services Agreement dated April 9, 2016, signed by Dubin (Michael Eugene Harkey - Nevada USDC case).

D9 Verified petition for permission to practice in this case only by attorney not admitted to the bar of this court and designation of local counsel, as to Dubin, in Michael Harkey v. IS Bank, N.A., et al., case 2:14- cv-00177-RFB-GWF, filed on April 21, 2016, in the United States District Court, District of Nevada.

D10 Verified petition for permission to practice in this case only by attorney not admitted to the bar of this court and designation of local counsel, as to Dubin’s associate, Frederick John Arensmeyer (“Arensmeyer”), in Michael Harkey v. IS Bank, N.A., et al., case 2:14-cv-00177-RFB-GWF, filed on April 21, 2016, in the United States District Court, District Of Nevada.

D11 Motion to Withdraw Petitions for Pro Hac Vice, in Michael Harkey v. IS Bank, N.A., et al., case 2:14-cv-00177-RFB-GWF, filed byRichard Segerblom (“Sergerblom”), dated April 27, 2016, in theUnited States District Court, District of Nevada.

D12 Civil Docket Case, in Michael Harkey v. IS bank, N.A., et al., case 2:14-cv-00177-RFB- GWF, printed on August 7, 2017, in the United States District Court, District of Nevada.

D13 Email dated May 31, 2016, from Robert Kern, Esq. (“Kern”), Harkey’s new attorney, regarding Harkey operating trust, to Dubin stating: “I wanted to ask you for your accounting of the authorized work you’ve performed, and return of the remaining funds.”


D14 Email dated June 6, 2016, regarding Harkey operating trust, to kern from Dubin stating: “as soon as my billing clerk returns from vacation this week I will be sure she gives our request priority,”

D15 Email dated June 23, 2016, regarding Harkey operating trust, to Dubin from Kern stating: “it’s been 2 ½ weeks since we last spoke and I haven’t received anything. Can you get me your billing on the case?”

D16 Email dated June 30, 2016, to Dubin from Kern stating: “I’m concerned that in 3 weeks you haven’t been able to get me an accounting of funds on something you were only authorized to prepare a Pro Hac Vice application for.”

D17 Email dated June 30, 2016, to Kern from Dubin stating: “I’m preparing for trial on Maui on Tuesday. Today is the deadline for trial memos and exhibits. Just cannot do it right now.”

D18 Email dated June 30, 2016, to Dubin from Kern - “tomorrow?”; Dubin replied to kern, “this weekend. Gary.”

D19 Email dated July 6, 2016, to Dubin from Kern stating: “please send me over the accounting for the Harkey case so that we can wrap this up.”; Dubin replied to kern, “my trial on Maui is winding up.”

D20 Email dated August 9, 2016, to Dubin from Kern stating: “it has been more than 2 months since I asked for a simple accounting [...]” And “it has been over a month since you said you’d have it in a few days. This is your last opportunity.”

D21 Email dated August 9, 2016, to Kern from Dubin stating: “still battling court deadlines. You know how it is. Will have it for you on Monday. A weekend event.”

D22 Email dated August 16, 2016, to Kern from Dubin stating: “I have completed my invoicing. All I need now is [...] Fred Arensmeyer’s hours and costs.”


D23 Email dated August 23, 2016, to Dubin from Kern stating: “it has now been four months since your withdrawal. That should be more than sufficient time to gather your accounting from Mr. Arensmeyer.”

D24 Email dated August 23, 2016, to Kern from Dubin stating: “I will therefore no longer wait for Mr. Arensmeyer if he is not finished today.” “you will at the very least have my full detailed accounting tomorrow.”

D25 Email dated August 23, 2016, to Kern from Dubin stating: “in order to keep you fully informed: as promised, you will have my detailed accounting tomorrow Wednesday.”

D26 Email dated August 25, 2016, to Kern from Dubin stating: “I finally received Fred’s hours and costs late this afternoon and now will be able to email you a complete accounting tomorrow.”

D27 Email dated August 30, 2016, to Kern from Dubin stating: “I again have to apologize for the extraordinary events that continue to unexpectedly delay my getting the completed Harkey invoice to you.”

D28 Complaint dated August 31, 2016, to the Office of Disciplinary Counsel (“ODC”), from Kern.

D29 [Redacted] letter dated September 23, 2016, to George Elerick (“Elerick”), investigator at ODC (with enclosures).

D30 Letter dated October 3, 2016, to Dubin from Elerick requesting a response to the complaint and documentation.

D31 Letter dated October 7, 2016, to Elerick from Dubin confirming extension of time to submit response.

D32 Objection to plaintiff’s request for further extension of time, in Harkey v. Northwest Trustees Services, et al, adv. Case 15- 01355-mlb, Bankruptcy 09-10180-ttg, filed on January 20, 2016, in the United States Bankruptcy Court, Western District of Washington at Seattle.


E. PRIOR DISCIPLINE

E1 Stipulation re facts, conclusions of law and disposition and order approving reproval, in State Bar of California v. Gary Victor Dubin, case number 94-c-17515-cev, filed on December 15, 1999, in the state bar court of the state bar of California [Los Angeles].

E2 Letter of informal admonition dated May 7, 2004, to Gary Victor Dubin from Alvin t. Ito, Special Assistant Disciplinary Counsel for ODC, received on May 10, 2004 (ODC 7031, Myron W. Serbay, Jr., complainant).

E3 Letter dated September 8, 2016, from Elerick to Dubin regarding complaint filed by Robert Kern, Esq. against Dubin (w/ enclosure)

E4 Letter dated December 12, 2016, from Jane S. Preece to Dubin regarding proposed petition and procedure for Voluntary Settlement Conference

C. Respondent Gary V. Dubin’s Exhibit (RE) List:

RE Description of Document

Andia 0 Andia Documented Statement of Facts (ADSF)

Andia 1 ADSF Exhibit 1

















Andia 34 Constitutional Obligation of Contracts Clause

Andia 35 Bar Fee Dispute Program Offered to Andia

Andia 36 Invoice for Professional Services and Costs

Andia 37 Resume of Gary Victor Dubin

Andia 38 Dubin Law Office Client Testimonials

Andia 39 REDACTED - Gary Victor Dubin Confidential IRS Returns

HE 1 Invoice for Professional Services and Costs


HE 2 9/23/16 Letter Dubin to Elerick

HE 3 Harkey 2015 Legal Services Agreement

HE 4 Harkey 2016 Legal Services Agreement

HE 5 Expense Receipts

HE 6 Harkey's Felony Cases

HE 7 Harkey Nevada USDC Docket Sheet

HE 8 Text Messages Between Dubin and Harkey

HE 9 Emails Between Dubin, Nora, and Harkey

HE 10 Nora's Past History of Disciplinary Actions

HE 11 USDC Sanctions Motion Against Harkey

HE 12 Nora Declaration Opposing USDC Sanctions

HE 13 Harkey Declaration Opposing Sanctions

HE 14 Order on Motion for Sanctions by USDC

HE 15 Harkey Operating Trust Nevada Chapter 11

HE 16 Harkey Operating Trust Minn. Chapter 11

HE 17 Wisconsin OLR Suspends Attorney Nora

HE 18.1 pt 1 Complete Email History Between the Parties, PART A


HE 18.1 pt 2 Complete Email History Between the Parties, PART B

HE 18.2 Complete Email History Between the Parties, PART C

HE 18.3 Complete Email History Between the Parties, PART D

HE 18.4 Complete Email History Between the Parties, PART E

HE 18.5 Complete Email History Between the Parties, PART F

HE 18.6 Complete Email History Between the Parties, PART G

ICA1a PWM Fuchs v ICA, SCPW-17-0000635 Petition for Writ of Mandamus

ICA1a A Exhibit A to ICA1a PWM

ICA1a B Exhibit B to ICA1a PWM

ICA1a C Exhibit C to ICA1a PWM

ICA1a D Exhibit D to ICA1a PWM

ICA1b E Exhibit E to ICA1a PWM

ICA1b F Exhibit F to ICA1a PWM

ICA1b G Exhibit G to ICA1a PWM

ICA1b H Exhibit H to ICA1a PWM

ICA1b I Exhibit I to ICA1a PWM

ICA1b J Exhibit J to ICA1a PWM


ICA1b K Exhibit K to ICA1a PWM

ICA1b L Exhibit L to ICA1a PWM

ICA1b M Exhibit M to ICA1a PWM

ICA1b N Exhibit N to ICA1a PWM

ICA1b O Exhibit O to ICA1a PWM

ICA1b P Exhibit P to ICA1a PWM

ICA1b Q Exhibit Q to ICA1a PWM

ICA1b R Exhibit R to ICA1a PWM

ICA1b S Exhibit S to ICA1a PWM

ICA1b T Exhibit T to ICA1a PWM

ICA1b U Exhibit U to ICA1a PWM

ICA1b V Exhibit V to ICA1a PWM

ICA1b W Exhibit W to ICA1a PWM

ICA1b X Exhibit X to ICA1a PWM

ICA2 1 Decision in US Bank v Mattos, SCWC-14-1134

ICA2 2 Decision in AOAO v Young, SCWC-14-431

ICA2 3 Decision in JP Morgan v Benner, CAAP-15-637


ICA2 4 Decision in BANA v Miyake, CAAP-15-944

ICA2 5 Decision in JP Morgan v Unga, CAAP-14-1161

ICA2 6 Decision in BANA v Yeh, CAAP-16-128

ICA2 7 Decision in Deutsche B v Garcia, CAAP-14-909

ICA2 10 Decision in Takushi v BAC, 135 S.Ct. 1152

ICA2 11 Decision in Lee v. MERS, 555 Fed. Appx. 661

ICA2 12 Decision in AOAO Century Center v Young, SCWC-14-431

ICA2 13 Decision in Mount v. Apao SCWC-13-2977, 13-261, 14-556

ICA2 14 Decision in Santiago v. Tanaka, SCWC 11-697

ICA2 15 Decision in Krog v. Koahou, SCWC-12-315

ICA2 16 Decision in BOH v Shin, 120 Haw 1 (2008)

ICA2 17 Decision in Moyle v Y&Y Hyup Shin Corp, 118 Haw. 385

ICA2 G Summary of various decisions

ICA3 18 Decision in 808 Dev LLC v Murakami, 111 Haw. 349

ICA3 19 Decision in KNG Corp v Kim, 107 Haw 73

ICA3 20 Decision in Hawaiʻi Cmty Fed CU v Keka, 94 Haw 213

ICA3 21 Decision in Assoc Fin Serve Co v Mijo, 87 Haw 19


ICA3 22 Decision in Lewis v Lewis, 69 Haw 497

ICA3 23 Decision in Fed. Home Loan Mort Corp v Moore, CAAP 14-1284

ICA3 24 Decision in First Horiz Home Loans v Galiza, 138 Haw. 142

ICA3 25 Decision in AOAO v Nomura, CAAP 15-361

ICA3 26 Decision in AOAO Century Ctr v Thai Haw Massage Inc, 138 Hw 140

ICA3 27 Decision in BONY v Lizarraga, CAAP 12-796

ICA3 28 Decision in AOAO Centry Ctr v Nomura, CAAP 15-119

ICA3 29 Decision in JP Morgan v Benner, CAAP 13-2164

ICA3 30 Decision in AOAO Centruy Ctr v Young, CAAP 14-431

ICA3 31 Decision in US Bank v Smith, 137 Haw. 53

ICA3 32 Decision in Mount v Apao, CAAP 14-922

ICA3 33 Decision in Haw Natl Bank v Chirayunon, CAAP 14-994

ICA3 34 Decision in Pappas v Duran, CAAP 12-117

ICA3 35 Decision in Tanaka v Santiago, CAAP 13-14

ICA3 36 Decision in ASB v Riddel, CAAP 11-559

ICA3 37 Decision in Fannie Mae v Brown, CAAP 11-572

ICA3 38 Decision in Scroggin v Mandarin Oriental Mgmt 129 Haw. 106


ICA3 39 Decision in Karpeles v Duarte, 129 Haw. 90

ICA3 40 Decision in WFB v Markley, CAAP 10-22

ICA3 41 Decision in Low v Minichino, 126 Haw 99

ICA4 42 Decision in US Bank NA v Salvacion, 2011 Haw App LEXIS 387

ICA4 43 Decision in Doe v Doe, 120 Haw. 149

ICA4 44 Decision in Western Fin Bank v Raras, 2008 Haw App Lexis 313

ICA4 45 Decision in Dunster v Dunster, 2003 Haw App LEXIS 46

ICA4 46 Decision in Mellon Mortg Co v Bumanglag, 2002 Haw App LEXIS 21

ICA4 47 Decision in Assoc Fin serv v Richardson, 99 Haw 446

ICA4 48 Decision in Norwest Mortg v De Rego, 2002 Haw. App. LEXIS 9

ICA4 49 Decision in GE Capital Haw v Yonenaka, 96 Haw 32

ICA4 50 Decision in GE Capital v Barlan, 2000 Haw App LEXIS 113

ICA4 51 Decision in GE Capital v Miguel, 92 Haw 236

ICA4 52 Decision in Rapp v Dubin, HSC #15359

ICA4 53 Decision in Wong v Frank, 9 Haw App 249

ICA4 54 Decision in Doe v Doe, 120 Haw 149

ICA4 55 Decision in BOH v Mostoufi, 138 Haw 141


ICA4 56 Decision in Wong v Frank, 9 Haw App 249

ICA4 57 Order in Ke Kailani Partners v Ke Kailani Dev, CAAP 12-758

ICA4 58 Exhibit Table of Contents

ICA4 59 Statement of the Case

JSmith 1 Opening Brief CAAP-12-0000135

JSmith 2 Declaration of Long H. Vu

JSmith 3 King v. Contractors License Board

JSmith 4 Small v. Badenhop

JSmith 5 Resume of Gary Victor Dubin

JSmith 6 2003 IRS Audit of Gary Victor Dubin

JSmith 7 Placement of ABA Journal Full Page Ad

JSmith 8 ABA Journal "Real Trouble" Article

JSmith 9 Draft Full Page Ad in Star Bulletin

JSmith 10 Published Full Page Ad in Star Bulletin

JSmith 11 Documented Summary of Events Re: IRS

END OF INDEX TO THE RECORD

SCAD

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

OFFICE OF DISCPLINARY COUNSEL, Petitioner

vs.

GARY V. DUBIN, Responden t

ORIGINALPROCEEDING(ODC Case Nos. 16-0-147, 16-0-151, 16-o-213, and 16-0-326)

BOARD CERTIFICATION OF RECORDCERTIFICATE OFSERVICE

I, FAYE F. HEE, Disciplinary Board Administrative Director, certiff

that the documents, papers, and items listed in the foregoing Index to the Record is

an accurate index ofthe exhibits filed and entered on the entire record in the above-

captioned proceeding and that they are made a part hereof.

I further certiff that all of the above-referenced documents were

served this date upon the below listed parties by electronic filing with the Hawai'i

Supreme Court'sJudiciary Electronic Filing System (}EFS), accompanied vrith

their respective Notice(s) of Electronic Filing.

I

DATED: Honolulu, Hawai'i, August 8r20l9.

,t/UzflM,<-FAYE F. HEEDISCIPLINARYBOARDADMINISTRATIVE DIRECTOR

SERVICELIST:

1)JDFS 2)bJu.smail

3)handdeliuery

GARYV.DUBIN 1864

JOHN D. WAIHEE,III 3181

55 Merchant Street, Suite 3100

Honolulu, Hawaii 96813

Respondent and Attorney for Respondent

a tr

BRADLEYR.TAMM 7841

Chief CounselREBECCAM. SALWIN 10699

Deputy Chief Disciplinary CounselCHARLENEM. NORRIS 2406Special Assistant CounselOffi ce of Disciplinary Counsel201 Merchant Street, Suite 1600

Honolulu, Hawai(i 96813

Attorneys for Petitioner

tr tr

2

electronically filed supreme court scad-19-0000561 08-aug ... /2019/dubin-odc recommendation...

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