Electronically Filed
Supreme Court
SCAD-15-0000495
23-SEP-2015
10:50 AM
SCAD-15-0000495
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
CYNTHIA LOCK SIMS,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NOS. 13-025-9095, 13-030-9100;
13-051-9121; AND 13-057-9127)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Upon de novo review of the Report and Recommendation of
the Disciplinary Board of the Supreme Court of the State of
Hawai'i, the stipulated facts, and the evidence in the record, we
conclude by clear and convincing evidence that Respondent
Cynthia L. Sims, in four separate client matters, engaged in
misconduct warranting discipline.
In Office of Disciplinary Counsel (ODC) Case No. 13
025-9095, Respondent Sims, on May 25, 2012, deposited her
client’s $3,000.00 advanced fee payment into her business account
rather than her client trust account, before performing the
agreed-upon legal services described in their written agreement,
thereby commingling the client’s funds with her own and
misappropriating them for her own use and benefit and engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation,
in violation of Rules 1.15(a)(1), 1.15(c), 1.15(d), and 8.4(c) of
the Hawai'i Rules of Professional Conduct (HRPC) (1994).1 By
depositing the unearned fees into her business account without
first providing the client an accounting of how she had earned
the funds, Respondent Sims also violated HRPC Rule 1.15(f)(3).
By failing to file a motion objecting to the awarding of
attorney’s fees to the opposing party when asked to do so by the
client on August 9, 2012, Respondent Sims violated HRPC Rule 1.3.
By failing to withdraw from the representation until
September 14, 2012, Respondent Sims violated HRPC Rules 1.3 and
3.2. Docket 3:82-83. Finally, Respondent Sims’s failure to
timely provide documents requested by ODC in the subsequent
investigation, necessitating the issuance of a subpoena, violated
HRPC Rules 8.1(b) and 8.4(d).
In ODC Case No. 13–030-9100, when, on May 10, 2013,
Respondent Sims deposited the client’s $750.00 of unearned
advance fees into her business account, before performing the
agreed-upon legal services described in their written fee
agreement, she commingled the client’s funds with her own funds
and misappropriated them for her use and benefit, in violation of
HRPC Rules 1.15(a)(1), 1.15(c), 1.15(d), and 8.4(c). Between
1
All references in this order to the Hawai'i Rules of Professional
Conduct refer to the version in effect from 1994 through 2013.
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May 30 and June 19, 2012, when Respondent Sims did not promptly
respond to the client’s inquiries about the status of his divorce
proceedings, she violated HRPC Rules 1.4(a) and 1.4(b). By
subsequently failing to promptly file with the court the divorce
documents, executed on April 27, 2012, Sims violated HRPC Rules
1.3 and 3.2. Finally, by failing to respond to ODC’s May 24,
2013 request for documents and information regarding this
representation, thereby requiring the issuance on July 24, 2013
of a subpoena and a subpoena duces tecum, Respondent Sims
violated HRPC Rules 8.1(b) and 8.4(d).
In ODC Case No. 13-051-9121, when, on June 26, 2012,
Respondent Sims cashed the client’s $1,250.00 check (representing
half of the agreed-upon fee) and, on November 6, 2012, cashed a
second check, for $1,500.00, $1,250.00 of which represented the
remainder of her advance fee – both times failing to deposit the
funds into her client trust account, and before she had performed
the agreed-upon legal services, including the preparation of the
divorce decree – Respondent Sims misappropriated those funds for
her own use and benefit, in violation of HRPC Rules 1.15(a)(1),
1.15(c), 1.15(d), 1.15(f)(3), and 8.4(c). When Respondent Sims
failed to respond within a reasonable time to the client’s
repeated inquiries regarding the status of her divorce
proceedings (including the date of service on her husband, when a
motion for a default judgment could be entered, and when the
divorce decree would be prepared), Respondent Sims violated HRPC
Rules 1.4(a) and 1.4(b). When, after divorce proceedings were
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initiated in July, 2012, Respondent Sims neglected, over a period
of several months, to diligently and timely obtain evidence the
client’s husband had been successfully served by mail, and failed
to prepare updated asset and debt, and income, statements, or to
prepare a divorce decree, she violated HRPC Rules 1.3 and 3.2.
When, upon termination of the representation on April 8, 2013,
Respondent Sims failed to return the client’s file, account to
the client for unearned client funds, or to refund to the client
any unearned funds, Resondent Sims violated HRPC Rules 1.15(f)(3)
and 1.16(d). Finally, when Respondent Sims failed to respond to
two requests from ODC for information regarding the
representation, causing ODC to serve a subpoena upon her on
August 28, 2013, she violated HRPC Rules 8.1(b) and 8.4(d).
In ODC Case No. 13-057-9127, when, on December 1, 2011,
and on February 29, March 12, and April 13, 2012, Respondent Sims
deposited the client’s unearned client funds into her business
account, rather than her client trust account, at a time when she
had not entered an appearance in the client’s divorce case or
prepared a divorce decree, Respondent Sims thereby commingled
client funds with her own and misappropriated them for her
personal use and benefit, in violation of HRPC Rules 1.15(a)(1),
1.15(c), 1.15(d), and 8.4(c). After the initiation of the
divorce proceedings in December, 2011, Respondent Sims failed to
diligently and timely monitor the status of the case for
approximately eight months, in violation of HRPC Rules 1.3 and
3.2.
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We find, in aggravation, that Respondent Sims engaged
in a pattern of misconduct, had a dishonest or selfish motive in
using unearned client funds for her personal use, committed
multiple offenses, had substantial experience in the practice of
law, and initially failed to cooperate in the investigation,
requiring the use of a subpoena duces tecum. In mitigation, we
find Respondent Sims had a clean disciplinary record prior to
these matters, made a full and free disclosure to the
Disciplinary Board, and exhibited a cooperative attitude toward
the disciplinary proceedings. Therefore, it appearing that
suspension is appropriate,
IT IS HEREBY ORDERED that Respondent Sims is suspended
from the practice of law in this jurisdiction for a period of one
year and one day, effective 30 days after the date of entry of
this order, as provided by Rules 2.3(a)(2) and 2.16(c) of the
Rules of the Supreme Court of the State of Hawai'i (RSCH).
IT IS FURTHER ORDERED that Respondent Sims shall, as a
prerequisite to reinstatement and at her own expense, submit to
an audit of the procedures and practices of her legal practice by
the Practicing Attorneys’ Liability Management Society (PALMS) or
an equivalent organization, and shall submit a report to this
court in this case and to any review board convened pursuant to
RSCH Rule 2.17, setting forth the conclusions of the audit, the
steps taken by her to implement any resulting recommendations,
and the results of a three-month review following implementation
of the recommendations. The audit shall specifically address
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practices and procedures implemented to comply with the financial
and record keeping provisions of the Hawai'i Rules of
Professional Conduct and the Hawai'i Rules Governing Trust
Accounting.
IT IS FURTHER ORDERED that, in addition to any other
requirements for reinstatement imposed by the Rules of the
Supreme Court of the State of Hawai'i, Respondent Sims shall pay
all costs of these proceedings as approved upon the timely
submission of a bill of costs by ODC, as prescribed by RSCH Rule
2.3(c).
IT IS FURTHER ORDERED that Respondent Sims shall,
within ten days after the effective date of her suspension, file
with this court an affidavit she has fully complied with the
duties of a suspended attorney set forth in RSCH Rule 2.16(d).
DATED: Honolulu, Hawai'i, September 23, 2015.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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