NO.
26113
IN
THE SUPREME COURT OF THE STATE OF HAWAI`I
OFFICE
OF DISCIPLINARY COUNSEL, Petitioner,
vs.
LUNSFORD
DOLE PHILLIPS, Respondent.
(ODC
01-142-6886)
ORDER OF SUSPENSION FOR ONE YEAR
AND ONE DAY
(By: Moon, C.J., Levinson, Nakayama, Acoba, JJ., and
Circuit Judge Cardoza, in place of Duffy, J., recused)
Upon consideration of (1) Respondent Lunsford Dole Phillips (Respondent
Phillips)
and Petitioner Office of Disciplinary Counsel's (Petitioner ODC)
February 3, 2003
stipulation of facts, conclusions of law, and recommendation that
Respondent
Phillips receive a suspension from the practice of law for a period of
one year
and one day, (2) the Disciplinary Board's report and recommendation for
the
suspension of Respondent Phillips from the practice of law for a period
of one
year, (3) Respondent Phillips's December 16, 2003 opening
brief and February 6,
2004 reply brief, (4) Petitioner ODC's January 26, 2004
answering brief, and
(5) the record, we conclude that the record supports the
Disciplinary Board's
acceptance of Respondent Phillips and Petitioner ODC's stipulation of
facts and
conclusions of law, but we reject the Disciplinary Board's
recommendation that
Respondent Phillips receive a suspension from the practice of law for a
period of
one year, and, instead, we adopt Respondent Phillips
and Petitioner ODC's February
3, 2003 stipulated recommendation that Respondent Phillips receive a
suspension
from the practice of law for a period of one year and one day. While
Respondent
Phillips represented plaintiffs in Griffin, Graham, and McConnell v.
Aloha Stadium
Authority and State of Hawai`i, Civil No. 97-00315 SPK, in the
United State
District Court for the District of Hawaii, Respondent Phillips
mishandled
settlement funds that he owed to a third person. Respondent Phillips's
mishandling of the settlement funds violated the following Hawai`i
Rules of
Professional Conduct (HRPC):
- HRPC Rule 1.15(a)(1) (requiring that a lawyer shall maintain
a trust account,
separate from any business and personal accounts, into which all funds
entrusted
to the lawyer's care shall be deposited);
- HRPC Rule 1.15(b) (requiring that a lawyer's business
account shall be
prominently labeled "business account," "office account," or
appropriate
business-type account);
- HRPC Rule 1.15(c) (providing that a lawyer in possession of
any funds or other
property belonging to a third person, where such possession is incident
to the
lawyer's practice of law, is a fiduciary and shall not commingle such
funds with
his or her own);
- HRPC Rule 1.15(c) (providing that a lawyer in possession of
any funds or other
property belonging to a third person, where such possession is incident
to the
lawyer's practice of law, is a fiduciary and shall not misappropriate
such funds
to his or her own use and benefit);
- HRPC Rule 1.15(d) (then providing that all funds entrusted
to a lawyer, except
for "non-refundable retainers" earned upon receipt, shall be deposited
intact
into a trust account); (1)
- HRPC Rule 1.15(f)(1) (requiring that a lawyer shall promptly
notify a third
person of the lawyer's receipt of funds in which the third person has
an
interest);
- HRPC Rule 1.15(f)(4) (requiring that a lawyer shall promptly
pay or deliver to a
third person, as requested by the third person, the funds in the
possession of
the lawyer that the third person is entitled to receive); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the HRPC).
Therefore,
IT IS HEREBY
ORDERED that Respondent Lunsford Dole Phillips (attorney number 4407)
is suspended from the practice of law in this jurisdiction for a period
of one
(1) year and one (1) day, effective thirty (30) days
after entry of this order, as
provided by Rule 2.16(c) of the Rules of the Supreme Court of
Hawai`i (RSCH). Respondent Phillips shall comply with all requirements
of RSCH Rule 2.16, and he
shall not resume the practice law in the State of Hawai`i unless he
successfully
petitions for reinstatement pursuant to RSCH Rule 2.17(c).
DATED: Honolulu,
Hawai`i, April 15, 2004.
1. Effective January 1,
2002, we amended Rule 1.15(d) of the Hawai`i Rules of
Professional Conduct (HRPC) by, among other things, deleting the
reference to
"non-refundable retainers" and providing that "all fee retainers are
refundable
until earned." HRPC Rule 1.15(d) (as amended on October 9,
2001, effective
January 1, 2002).