NO. 26781
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
OFFICE
OF DISCIPLINARY COUNSEL, Petitioner
vs.
ROY
M. YOSHINO, Respondent
(ODC 97-230-5424, ODC 98-079-5570,
ODC 99-099-5929, ODC 00-387-6733)
ORDER OF SUSPENSION
(By: Moon, C.J., Levinson, Nakayama, Acoba, JJ., and
Circuit Judge Pollack, in place of Duffy, J., Recused)
Upon consideration of (1) the Disciplinary Board's April 15, 2005
report and
recommendation for the suspension of Respondent Roy M. Yoshino
(Respondent
Yoshino) from the practice of law for a period of one year, (2)
Petitioner Office
of Disciplinary Counsel's (Petitioner ODC) June 2, 2005 opening brief,
(3)
Respondent Yoshino's August 12, 2005 answering brief,
(4) Petitioner ODC's
September 21, 2005 reply brief, and (5) the record, we conclude that,
in four
disciplinary matters, Petitioner ODC proved by clear and convincing
evidence that
Respondent Yoshino violated several of the Hawai`i Rules of
Professional Conduct
(HRPC) while Yoshino was representing various clients. However, we
reject the
Disciplinary Board's recommendation that Respondent Yoshino receive a
suspension
for one year, and, instead, we suspend Respondent Yoshino from the
practice of law
for a period of one year and one day.
In ODC
97-230-5424, Respondent Yoshino settled a client's bodily injury claim
and
underinsured motorist claim when Yoshino did not have the client's
authority to do
so, and, thus, Respondent Yoshino violated
- HRPC Rule 1.2(a) (requiring a lawyer to abide by a client's
decision whether to
accept an offer of settlement of a matter); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino used a client's revoked power of attorney to settle
the
client's bodily injury claim and underinsured motorist claim in
violation of
- HRPC Rule 1.2(a) (requiring a lawyer to abide by a client's
decisions concerning
the objectives of representation);
- HRPC Rule 4.1(a) (prohibiting a lawyer from knowingly making
a false statement
of material fact or law to a third person in the lawyer's course of
representing
a client);
- HRPC Rule 8.4(c) (providing that it is professional
misconduct for an attorney
to engage in conduct involving dishonesty, fraud, deceit or
misrepresentation);
and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
failed to comply with the client's request that Respondent
Yoshino send a copy of the revoked power of attorney to the client,
and, thus,
Respondent Yoshino violated
- HRPC Rule 1.4(a) (requiring a lawyer to keep a client
reasonably informed about
the status of a matter and promptly comply with reasonable requests for
information); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
deposited the client's settlement checks into his general
business account, and, thus, Respondent Yoshino commingled the client's
funds with
Respondent Yoshino's personal funds in violation of
- HRPC Rule 1.15(a)(1) (requiring that a lawyer who receives
or handles client
funds must maintain a client trust account, separate from any business
and
personal accounts, into which all funds entrusted to the lawyer's care
must be
deposited);
- HRPC Rule 1.15(c) (providing that a lawyer in possession of
any funds belonging
to a client, 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
or
misappropriate such funds to his or her own use and benefit);
- HRPC Rule 1.15(c) (requiring that funds belonging in part to
a client and in
part presently or potentially to the lawyer or law firm must be
deposited into
the client trust account);
- HRPC Rule 1.15(d) (requiring that all funds entrusted to a
lawyer must be
deposited intact into a client trust account); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
In ODC
98-079-5570, Respondent Yoshino failed to provide written fee
agreements
for seventeen clients whom Respondent Yoshino represented on a
contingent basis,
and, thus, Respondent Yoshino violated
- HRPC Rule 1.5(c) (requiring that contingent fee agreements shall
be in writing
and shall state the method by which the fee is to be determined,
including the
percentage or percentages that shall accrue to the lawyer in the event
of
settlement, trial or appeal, litigation and other expenses to be
deducted from
the recovery, and whether such expenses are to be deducted before or
after the
contingent fee is calculated); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
failed to provide written settlement statements for at least
three of the settling clients in violation of
- HRPC Rule 1.5(c) (requiring that, upon the conclusion of a
contingent fee
matter, the lawyer shall provide the client with a written statement
stating the
outcome of the matter and, if there is a recovery, showing the
remittance to the
client and the method of its determination); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
deposited the settlement checks for six of his settling clients
into Respondent Yoshino's general business account, and, thus,
Respondent Yoshino
commingled the clients' funds with Respondent Yoshino's personal funds
in violation of
- HRPC Rule 1.15(a)(1) (requiring that a lawyer who receives
or handles client
funds must maintain a client trust account, separate from any business
and
personal accounts, into which all funds entrusted to the lawyer's care
must be
deposited);
- HRPC Rule 1.15(c) (providing that a lawyer in possession of
any funds belonging
to a client, 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
or
misappropriate such funds to his or her own use and benefit);
- HRPC Rule 1.15(c) (requiring that funds belonging in part to
a client and in
part presently or potentially to the lawyer or law firm must be
deposited into
the client trust account);
- HRPC Rule 1.15(d) (requiring that all funds entrusted to a
lawyer must be
deposited intact into a client trust account); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
In ODC
99-099-5929, Respondent Yoshino failed to notify two clients of
Respondent
Yoshino's withdrawal as their attorney, and Respondent Yoshino failed
to send the
clients their records in violation of
- HRPC Rule 1.4(a) (requiring that a lawyer shall keep a client
reasonably
informed about the status of a matter and promptly comply with
reasonably
requests for information);
- HRPC Rule 1.16(d) (requiring that, upon termination of
representation, a lawyer
shall take steps to the extent reasonably practicable to protect a
client's
interests, such as giving reasonable notice to the client, allowing
time for
employment of other counsel, surrendering papers and property to which
the
client is entitled and refunding any advance payment of fee that has
not been
earned); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
In ODC
00-387-6733, Respondent Yoshino deposited the settlement funds for
seven
settling clients into Respondent Yoshino's general business account,
and, thus,
Respondent Yoshino commingled the clients' funds with Respondent
Yoshino's
personal funds in violation of
- HRPC Rule 1.15(a)(1) (requiring that a lawyer who receives
or handles client
funds must maintain a client trust account, separate from any business
and
personal accounts, into which all funds entrusted to the lawyer's care
must be
deposited);
- HRPC Rule 1.15(c) (providing that a lawyer in possession of
any funds belonging
to a client, 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
or
misappropriate such funds to his or her own use and benefit);
- HRPC Rule 1.15(c) (requiring that funds belonging in part to
a client and in
part presently or potentially to the lawyer or law firm must be
deposited into
the client trust account);
- HRPC Rule 1.15(d) (requiring that all funds entrusted to a
lawyer must be
deposited intact into a client trust account); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
failed to provide written agreements for five clients whom
Respondent Yoshino represented on a contingent fee basis, and, thus,
Respondent
Yoshino violated
- HRPC Rule 1.5(c) (requiring that contingent fee agreements shall
be in writing
and shall state the method by which the fee is to be determined,
including the
percentage or percentages that shall accrue to the lawyer in the event
of
settlement, trial or appeal, litigation and other expenses to be
deducted from
the recovery, and whether such expenses are to be deducted before or
after the
contingent fee is calculated); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
failed to provide written settlement statements for four of his
settling clients in violation of
- HRPC Rule 1.5(c) (requiring that, upon the conclusion of a
contingent fee
matter, the lawyer shall provide the client with a written statement
stating the
outcome of the matter and, if there is a recovery, showing the
remittance to the
client and the method of its determination); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
failed to properly identify his general business account in
violation of
- HRPC Rule 1.15(b) (requiring a lawyer to prominently label each
client trust
account, as well as deposit slips and checks drawn thereon, as a
"client trust
account," and requiring a lawyer to prominently label each business
account as a
"business account," "office account," or appropriate business-type
account); and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Respondent Yoshino
falsely certified on his annual attorney registration
statements that he maintained his clients' funds, property, books and
records in
accordance with HRPC Rule 1.15 and Rule 11 of the Rules of the Supreme
Court of
the State of Hawai`i (RSCH), and, thus, Respondent Yoshino violated
- HRPC Rule 8.4(c) (providing that it is professional
misconduct for an attorney
to engage in conduct involving dishonesty, fraud, deceit or
misrepresentation);
and
- HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to
violate the rules of professional conduct, knowingly assist or induce
another to
do so, or do so through the acts of another).
Therefore,
IT IS HEREBY
ORDERED that Respondent Roy M. Yoshino (attorney number 1419) is
suspended from the practice of law in Hawai`i for a period of one (1)
year and one
(1) day, effective thirty (30) days after entry of this order, as
RSCH Rule
2.16(c) provides. Respondent Yoshino shall comply with all requirements
of
RSCH Rule 2.16, and Respondent Yoshino 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).
IT IS FURTHER
ORDERED that Respondent Roy M. Yoshino (attorney number 1419) shall
successfully complete, at his own expense, the mandatory Hawai`i
Professionalism
course (that is conducted under the joint sponsorship of the Hawai`i
State Bar and
the Supreme Court of Hawai`i pursuant to RSCH Rule 1.14) before
Respondent Yoshino
petitions for reinstatement.
DATED: Honolulu,
Hawai`i, November 29, 2005.