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Office of Disciplinary Counsel v. Au6/7/2005
FOR PUBLICATION
MOON, C.J., LEVINSON AND NAKAYAMA, JJ., CIRCUIT JUDGE CRANDALL, IN PLACE OF ACOBA, J., RECUSED, AND CIRCUIT JUDGE WONG, IN PLACE OF DUFFY, J., RECUSED.
The Disciplinary Board (the Board) filed a report and recommendation to suspend Respondent Ronald G. S. Au (Au) from the practice of law for a period of two years. The Board bases its report and recommendation on a hearing committee's findings of fact and conclusions of law.
We accept the hearing committee's findings of fact and conclusions of law. For the reasons set forth below, however, we suspend Au from the practice of law for a period of five years. A separate suspension order is entered with this opinion.
I. BACKGROUND
A. The ODC's Petition for Discipline
On November 14, 2000, Petitioner Office of Disciplinary Counsel (the ODC) petitioned the Board to recommend sanctions against Au based on alleged violations of the Hawaii Rules of Professional Conduct (HRPC) in three separate disciplinary matters.
1. ODC 95-242-4701
The ODC alleged that, in the course of representing a client before the Circuit Court of the First Circuit, State of Hawaii, Au drafted and filed two documents that cited to Sherry v. Ross, 846 F.Supp. 1424 (D. Haw. 1994) (Sherry). Au made the following representations to Circuit Court Judge Daniel G. Heely:
that Sherry was decided on the "attorney-client crime-fraud provisions [of Rule 503 of the Hawaii Rules of Evidence (HRE)] and the Fraudulent Conveyance Act . . . [under] HRS 651 C-4"; that, in Sherry, the debtor conveyed real property to his wife with the help of an attorney who prepared the conveyance; that the United States Court of Appeals for the Ninth Circuit upheld the "Federal Court"; and that the "Court [presumably the Ninth Circuit] found that fraudulent intent was not proven under the fraudulent conveyances provision as under the common law provision." In fact, Au's description of Sherry was not accurate because Sherry addresses neither the attorney-client privilege nor the "crime-fraud" exception to the attorney-client privilege; Sherry does not mention a relationship between an attorney and a client, nor does it mention an attorney or an attorney assisting in a conveyance; Sherry was decided under neither the "Fraudulent Conveyance Act" nor the "Uniform Fraudulent Transfer Act," but rather, Sherry was decided under the common law; in Sherry, a third party (not the debtor) conveyed property to a debtor's wife, and a subsequent creditor challenged the conveyance; and Magistrate Judge Francis I. Yamashita of the United States District Court for the District of Hawaii authored Sherry, and there was no Ninth Circuit opinion. The circuit court judge and opposing counsel complained separately to the ODC about Au's misconduct.
2. ODC 97-213-5407
The ODC alleged that, with respect to several different clients, Au committed the following misconduct: improperly deposited his clients' settlement proceeds into his office account; improperly paid costs from his client trust account; improperly deposited unearned fees into his office account; improperly reimbursed his trust account; failed to withdraw funds from his client trust account; improperly deposited clients' settlement proceeds into his office account; falsely certified in his annual registration statements for the Hawaii State Bar Association (HSBA) that he was maintaining clients' funds and property in compliance with HRPC Rule 1.15; and paid fees to a non-lawyer runner in exchange for the non-lawyer runner's referral of clients for legal services to Au.
3. ODC 98-064-5555
The ODC alleged
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