Electronically Filed
Supreme Court
SCAD-14-0000775
12-JUN-2014
08:42 AM
SCAD-14-0000775
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
M. CORA AVINANTE,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NOS. 10-069-8903; 12-024-9040; 12-030-9046)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Upon consideration of the Report and Recommendation of
the Disciplinary Board of the Supreme Court of the State of
Hawai#i, submitted to this court on April 18, 2014, for the
imposition of, inter alia, a six month suspension upon Respondent
M. Cora Avinante, and upon review of the stipulated facts and the
evidence in the record, this court finds and concludes the
following by clear and convincing evidence:
In Office of Disciplinary Counsel (ODC) Case No. 10-
069-8903, Respondent Avinante, by depositing the client’s
$1,500.00 directly into her business account, rather than her
client trust account, and applying $1,100.00 in unearned funds to
her own use and benefit, she breached her fiduciary duties to her
client, commingled the client’s funds with her own, and
misappropriated a portion of those funds, in violation of Rules
1.15(a)(1), 1.15(c), and (d) of the Hawai#i Rules of Professional
Conduct (HRPC).1 By failing to re-submit the motion for a
divorce by publication for seven months, Respondent Avinante
violated HPRC Rules 1.3 and 3.2.
In ODC Case No. 12-024-9040, when, on December 7, 2010,
Respondent Avinante deposited directly into her business account
rather than her client trust account the client’s $2,000.00, and
allowed the balance in her business account to fall below the
amount belonging to the client thereafter, Respondent Avinante
breached her fiduciary duties to the client, commingled the
client’s funds with her own, and misappropriated a portion of
those funds, in violation of HRPC Rules 1.15(a)(1), (c) and (d).
When, on February 7, 2011, Respondent Avinante deposited the
client’s payment of $1,000.00 directly into her business account,
she breached her fiduciary duty to her client and commingled the
client’s funds with her own, in violation of HRPC Rules
1.15(a)(1) and (c). When, on April 4, 2011, she deposited the
final $1,000.00 payment from the client directly into her
business account, Respondent Avinante breached her fiduciary duty
1
All references to the HRPC are to the version in effect prior
to January 1, 2014.
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to her client and commingled the client’s funds with hers, in
violation of HRPC Rules 1.15(a)(1) and (c). Finally, by failing
to file an amended CADS statement in the appeal to the
Intermediate Court of Appeals, Respondent Avinante violated HRPC
Rule 1.3.
In ODC Case No. 12-030-9046, when, on July 28, 2009,
Respondent Avinante deposited the client’s initial $2,800.00
payment in the uncontested divorce proceeding directly into her
business account, she breached her fiduciary duty to the client
and commingled funds, in violation of HRPC Rules 1.15(a)(1) and
(c) and, by overdrawing her business account by $740.75 when her
client had a claim to as much as $1,425.00, but a minimum of
$325.00, in the account, she misappropriated the client’s funds,
in violation of HRPC Rules 1.15(c) and (d). By depositing, on
September 4, 2009, a portion of the client’s $5,000.00 payment
for the appeal of his criminal conviction into her personal
savings account and another portion ultimately into her business
account, Respondent Avinante breached her fiduciary duties to the
client, in violation of HRPC Rule 1.15(a)(1) and (c) and, by
allowing the business account to become overdrawn by $784.47 on
September 10, 2009 when, by her own estimation, the client had a
claim to $2,850.00 in the account, Respondent Avinante
misappropriated the client’s funds, in violation of HRPC Rules
1.15(c) and (d). On November 2, 2009, when Respondent Avinante
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deposited the client’s $1,000.00 payment for the contested
divorce representation directly into her business account, she
breached her fiduciary duty to her client and commingled funds,
in violation of HRPC Rules 1.15(a)(1) and (c). By allowing the
balance in the business account to fall to $40.85, when, based on
evidence in the record, the client had a claim to $600.00 in the
account, Respondent Avinante misappropriated the client’s funds,
in violation of HRPC Rules 1.15(c) and (d). When Respondent
Avinante deposited directly into her business account the
client’s $800.00 payment for drafting a memorandum in opposition
to a motion for pre-decree relief in the divorce proceedings, she
breached her fiduciary duty to the client and commingled funds,
in violation of HRPC Rule 1.15(a)(1) and (c). By waiting until
December 1, 2010 to provide the client with an accounting of the
funds, requested on July 14, 2010, Respondent Avinante violated
HRPC Rule 1.15(f)(3).
By certifying on her 2009 and 2010 bar registration
materials that she managed client funds in accordance with Rule
11 of the Rules of the Supreme Court of the State of Hawai#i
(RSCH), when during that period she deposited unearned client
funds directly into her business account, Respondent Avinante
misrepresented the truth to the bar authorities, in violation of
HRPC Rule 8.4(c).
In aggravation, we note Avinante’s substantial
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experience in the practice of law, the pattern of misconduct
involving three separate clients and the multiple violations of
the HRPC. In mitigation, we note Avinante’s clean disciplinary
record after 35 years of practicing law, her refund of the
$5,000.00 criminal appeal fee to the client in ODC Case No. 12-
030-9046, her cooperative attitude to an audit of her practice,
her sincere expressions of remorse, the absence of a dishonest or
selfish motive, her full, cooperative, and free disclosure to ODC
and the Disciplinary Board, her volunteer work, and the letters
attesting to her character. Therefore,
IT IS HEREBY ORDERED that Respondent M. Cora Avinante
is suspended from the practice of law in this jurisdiction for
120 days, effective 30 days from the date of entry of this order,
as provided by RSCH Rules 2.3(a)(2) and 2.16(c). At the
conclusion of the 120-day period of suspension, Respondent
Avinante may apply for reinstatement, as provided by RSCH Rule
2.17(b)(2). Respondent Avinante is reminded she may not resume
the practice of law until reinstated by order of this court,
pursuant to RSCH Rule 2.17.
IT IS FURTHER ORDERED that Respondent Avinante shall
submit an affidavit demonstrating compliance with RSCH Rule
2.16(d) within 10 days after the effective date of her
suspension.
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IT IS FURTHER ORDERED that Respondent Avinante shall
successfully complete, within 365 days after the date of entry of
this order and at her own cost and expense, an audit of her
practice by the Practicing Attorneys Liability Management Society
(PALMS) or an equivalent program, which shall include a review of
her practice in light of the Hawai#i Rules of Professional
Conduct and the Hawai#i Rules Governing Trust Accounting.
Respondent Avinante shall, within that 365-day period, submit
proof of compliance with the resulting recommendations, said
proof established through a subsequent review by the auditors,
conducted three months after issuance of its initial
recommendations. Failure to timely and successfully complete the
audit and implementation of the recommendations may result in the
imposition of an additional period of suspension, based upon a
review of the record and any program reports.
IT IS FURTHER ORDERED that Respondent Avinante shall
pay all costs of the proceedings, as approved upon a timely
submission of a bill of costs, as authorized by RSCH Rule 2.3(c).
DATED: Honolulu, Hawai#i, June 12, 2014.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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