Electronically Filed
Supreme Court
SCAD-15-0000930
30-MAR-2016
09:36 AM
SCAD-15-0000930
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
ROBIN HORNER,
Respondent.
ORIGINAL PROCEEDING
(ODC Case Nos. 13-054-9124, 13-055-9125, 13-058-9128,
13-059-9129, 13-060-9130, 13-061-9131, and 14-038-9181)
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 December 10, 2015, for the
imposition of, inter alia, a six-month suspension upon Respondent
Robin Horner, and upon a review of the record, this court adopts
the Findings of Fact as articulated by the Hearing Officer and
amended by the Board in its report to this court. Furthermore,
upon a review of the record, including the exhibits submitted by
the Disciplinary Board, we find and conclude the following by
clear and convincing evidence:
In Office of Disciplinary Counsel (ODC) Case No. 13-
054-9124, Respondent Horner charged a $2,400.00 non-refundable
fee and deposited at least $1,000.00 of those received funds
directly into his business account, in violation of Rule 1.15(d)
of the Hawai#i Rules of Professional Conduct (HRPC) (1994).1
Respondent Horner also failed to maintain a subsidiary ledger for
the those funds, in violation of HRPC Rules 1.15(f)(3) and
1.15(g), and did not timely respond to ODC’s requests for
information regarding the representation, or provide ODC with all
of the financial records requested, in violation of HRPC Rules
8.1(b) and 8.4(d).
In ODC Case No. 13-055-9125, Respondent Horner charged
the client a non-refundable fee and deposited the resulting
$2,400.00 payment directly into his business account, in
violation of HRPC Rule 1.15(d), did not maintain a subsidiary
ledger for the client’s funds, in violation of HRPC Rule
1.15(f)(3) and 1.15(g), and did not timely respond to ODC’s
requests for information regarding the representation, or provide
ODC with all of the financial records requested, in violation of
HRPC Rules 8.1(b) and 8.4(d).
In ODC Case No. 13-058-9128, Respondent Horner charged
1
All references to the HRPC are to the version in effect prior
to January 1, 2014.
2
the client a non-refundable fee and deposited the client’s
payment of $1,000.00 toward that fee directly into his business
account, in violation of HRPC Rule 1.15(d), failed to maintain
the required financial records regarding those funds, in
violation of HRPC Rules 1.15(f)(3) and 1.15(g), and failed to
timely respond to inquiries from ODC regarding the
representation, or to provide the financial information contained
therein, in violation of HRPC Rules 8.1(b) and 8.4(d).
In ODC Case Nos. 13-059-9129 and 13-060-9130, in the
appeal to the Intermediate Court of Appeals (ICA), Respondent
Horner failed to obey the requirements of Rule 32.1 of the
Hawai#i Rules of Appellate Procedure (HRAP) by providing paper
copies of the opening brief within one business day of filing it,
thereby violating HRPC Rules 3.2 and 3.4(e). Respondent Horner
also failed to respond to the ICA’s July 12, 2013 order to show
cause as to why he should not be sanctioned for that failure and
also failed to timely pay a $100.00 sanction imposed on
September 12, 2013, representing two additional violations of
HRPC Rule 3.4(e).
In ODC Case No. 13-061-9131, Respondent Horner failed
to provide the court with paper copies of the opening brief
within one day of filing it, as required by HRAP Rule 32.1, and
failed again to provide the copies when ordered to do so by the
ICA on May 23, 2013, representing two separate violations of both
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HRPC Rules 3.2 and 3.4(e);
In ODC Case No. 14-038-9181, Respondent Horner failed
to provide the court with paper copies of the opening brief
within one day of filing it, as required by HRAP Rule 32.1,
thereby violating HRPC Rules 3.2 and 3.4(e), and then failed to
respond to the ICA’s May 12, 2014 order to show cause, failed to
timely pay the $100.00 sanction imposed on June 9, 2014, and
failed to timely pay the additional $150.00 sanction imposed on
June 27, 2014, representing three additional violations of HRPC
Rule 3.4(e).
In aggravation, we find Respondent Horner has
substantial experience in the practice of law, has in his record
one prior discipline, a public reprimand delivered in 2013,
multiple violations in the present matter, and a pattern of
misconduct, both in charging purportedly non-refundable fees and
in repeatedly failing to conform to court rules and to obey court
orders. We find no mitigating factors present. Therefore, in
light of the above misconduct, and a review of past disciplinary
precedent (see, e.g., ODC v. Wooten, SCAD-14-1333 (December 11,
2015); ODC v. Baker, No. 26392 (July 24, 2006); ODC v. Wessel, No
23417 (May 23, 2000); ODC v. Dryer, No. 22244, (February 16,
2000)), we conclude that a period of suspension is warranted.
Therefore,
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IT IS HEREBY ORDERED that Respondent Robin Horner is
suspended from the practice of law in this jurisdiction for 180
days, effective 30 days from 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). At the conclusion
of the 180-day period of suspension, Respondent Horner may apply
for reinstatement, as provided by RSCH Rule 2.17(b)(2).
Respondent Horner is reminded he 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 Horner shall
submit an affidavit demonstrating compliance with RSCH Rule
2.16(d) within 10 days after the effective date of his
suspension.
IT IS FURTHER ORDERED that Respondent Horner shall
successfully complete, within 365 days after the date of entry of
this order and at his own cost and expense, an audit of his
practice by the Practicing Attorneys Liability Management Society
(PALMS) or an equivalent program, which shall evaluate, audit,
and educate Respondent Horner regarding his practice,
particularly as to properly submitting and monitoring court
filings and as to the proper receipt, maintenance, and
disbursement of client funds under the Hawai#i Rules of
Professional Conduct and the Hawai#i Rules Governing Trust
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Accounting. Respondent Horner shall, within that 365-day period,
submit to this court proof of completion of the audit, and of
compliance with the audit’s resulting recommendations, or good
cause for an extension.
IT IS FURTHER ORDERED that Respondent Horner shall,
within the same 365-day period after the entry date of this
order, obtain a passing score on the M.P.R.E. satisfactory to the
Hawai#i Board of Bar Examiners for new admittees, or good cause
for an extension.
IT IS FURTHER ORDERED that Respondent Horner is hereby
notified that failure to timely and successfully complete the
audit and implementation of its recommendations or to obtain a
passing score on the M.P.R.E. 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 Horner 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, March 30, 2016.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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