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Office of Disciplinary Counsel v. Cusmano8/1/2000
Cusmano Opinion-Revised Draft
DISCIPLINARY COUNSEL'S PETITION FOR INSTRUCTIONS AND/OR ORDERS
On November 10, 1999, Brian C. Means, Trustee of the files of Respondent Mark Matthew Cusmano [hereinafter, Means or "the trustee"], petitioned this court, pursuant to Rule 2.20 of the Rules of the Supreme Court of the State of Hawaii (RSCSH), for instructions or orders concerning how to comply with a circuit court order that he execute a stipulation for dismissal and secure the signatures of Cusmano's clients on settlement documents. We granted the petition, noted that the issue raised by the petition had not been addressed by a published opinion, that such an opinion would benefit the courts, the bar, and the public, and that an opinion would be filed at a later date. This is that opinion.
We hold that trustees, appointed pursuant to RSCSH Rule 2.20, are not authorized or empowered to intervene in the legal affairs of the clients whose files the trustees are appointed to inventory, unless ordered to do so by this court. See RSCSH Rule 2.20(c)(2)(vi). In addition, we note that when the trustee is the Disciplinary Counsel or an Assistant Disciplinary Counsel, the Trustee is specifically prohibited from engaging in the practice of law other than as Disciplinary Counsel or Assistant Disciplinary Counsel. See RSCSH Rule 2.6(a).
I. BACKGROUND
The events that precipitated the trustee's petition for instructions or orders arose from civil suits filed in the first circuit court. In the suits, James P. Dandar, Esq., represented the defendant Carole Takahashi. Cusmano had filed the personal injury actions on behalf of his clients, plaintiffs Sarah and Troy Pennington (hereinafter, "the Penningtons").
During the course of the Penningtons' lawsuits, Dandar alleged that on or before June 23, 1999, Cusmano had settled the actions. On June 23, 1999, Dandar transmitted settlement documents and two checks to Cusmano, in the total amount of $25,000.00, from State Farm Mutual Automobile Insurance Company (State Farm). Each State Farm check was made jointly payable to the Penningtons and Cusmano. Dandar's June 23, 1999 cover letter to Cusmano stated that:
You are not authorized to negotiate the two enclosed drafts until such a time as you and your clients have executed the enclosed Settlement Agreement without amendments or changes and you have executed both Stipulations for Dismissal without amendments or changes and all three documents have been returned to our office.
Cusmano deposited Takahashi's State Farm settlement checks into his client trust account on July 23, 1999. Sometime thereafter, Cusmano converted the Penningtons' entire settlements to his own use and benefit, abandoned his practice of law, and left the State of Hawaii. We disbarred Cusmano by order filed January 5, 2000.
Prior to Cusmano's disbarrment, on September 2, 1999, we appointed Assistant Disciplinary Counsel Means to serve as trustee to inventory Cusmano's client files. The order directed the trustee to assume all of the duties enumerated in RSCSH Rule 2.20(c) and to perform such other duties as this court might order.
On September 8, 1999, the trustee notified all state and federal judges in Hawaii that Cusmano had abandoned his law practice and had left the State of Hawaii and that Means had been appointed trustee. During the same month, the trustee began a search to locate the Penningtons.
By letter dated September 13, 1999, Dandar's paralegal advised the trustee regarding the settlement agreement and the two State Farm checks. The letter further advised the trustee that Cusmano had cashed the checks.
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