NO. 26681
IN
THE SUPREME COURT OF THE STATE OF HAWAI`I
OFFICE
OF DISCIPLINARY COUNSEL, Petitioner,
vs.
PAUL
J. DURBIN, Respondent.
(ODC 04-012-7992)
ORDER
GRANTING IN PART AND DENYING IN PART
PETITIONER'S MOTION TO TRANSFER RESPONDENT PAUL
J. DURBIN TO INACTIVE STATUS
DUE TO INCAPACITY
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of (1) Petitioner Office of Disciplinary
Counsel's (Petitioner
ODC) July 12, 2004 motion to transfer Respondent Paul J. Durbin
(Respondent
Durbin) to inactive status due to incapacity pursuant to Rule 2.19
of the Rules of
the Supreme Court of Hawai`i (RSCH), (2) Respondent Durbin's lack
of response
thereto, and (3) the record, it appears that Petitioner ODC
contends that
Respondent Durbin is incapacitated from continuing the practice of law
by reason
of physical infirmity, mental infirmity, or illness, and Petitioner ODC
requests
the supreme court to either (A) immediately transfer Respondent Durbin
to inactive
status pursuant to RSCH Rule 2.19(a) or (B) take or
direct such action as
necessary or proper to determine whether Mr. Durbin is incapacitated
pursuant to
RSCH Rule 2.19(b). However, Petitioner ODC has not submitted
sufficiently
trustworthy evidence to show that a court either expressly declared
Respondent
Durbin incompetent or involuntarily committed Respondent Durbin on the
grounds of
incompetency or disability, as RSCH Rule 2.19(a) requires.
Although Petitioner
ODC submitted several exhibits in support of its motion, none of the
exhibits
indicate that a medical doctor has examined Respondent Durbin in person and
determined that Respondent Durbin is incapacitated from continuing the
practice of
law by reason of physical or mental infirmity or illness or because of
the use of
drugs or intoxicants, as RSCH Rule 2.19(b) requires.
Furthermore, although
Petitioner ODC submitted medical records and a physician's letter
regarding
Respondent Durbin, the medical records and the physician's letter are
not properly
authenticated. See Pioneer Mill Co., Ltd. V. Dow,
90 Hawai`i 289, 297, 978 P.2d
727, 735 (1999) ("[U]nless counsel wishes to relinquish his or her role
as
advocate and become a witness in the case, an affidavit of counsel
swearing to the
truth and accuracy of exhibits does not authenticate exhibits not sworn
to or
uncertified by the preparer or custodian of those exhibits.").
Therefore,
IT IS HEREBY
ORDERED that Petitioner ODC's July 12, 2004 motion is granted in part
and denied in part as follows. Within ninety (90) days after the date
of this
order, Petitioner ODC shall either
1.
submit to the supreme court properly authenticated
evidence that a court has
expressly declared Respondent
Durbin incompetent or
involuntarily committed
Respondent Durbin on the grounds of incompetency or disability,
as
RSCH Rule 2.19(a) requires,
2.
submit to the supreme court a properly authenticated
statement by a physician
that indicates the physician has
examined Respondent Durbin in person and
determined that Respondent Durbin is incapacitated from continuing
the practice of
law by reason of physical or mental infirmity or illness or because of
the use of
drugs or intoxicants,
as RSCH Rule 2.19(b)
requires, or
3.
nominate a medical doctor to examine Respondent
Durbin in person and
determine
whether Respondent Durbin
is incapacitated from continuing
the practice of law by
reason of physical infirmity, mental infirmity, illness, or the use
of drugs or
intoxicants, as RSCH Rule 2.19(b) requires.
Upon Petitioner
ODC's compliance with this order, we will further review whether
we should transfer Respondent Durbin to inactive status pursuant to
RSCH Rule
2.19(a) or RSCH Rule 2.19(b).
IT IS FURTHER
ORDERED that Petitioner ODC shall serve a copy of this order on
Respondent Durbin in accordance with RSCH Rule 2.19(a),
RSCH Rule 2.19(b), and
RSCH Rule 2.11(a).
DATED: Honolulu,
Hawai`i, August 31, 2004.