Office of Disciplinary Counsel v. Jervis ( 2015 )

Electronically Filed
Supreme Court
SCAD-14-0000899
12-OCT-2015
12:19 PM
SCAD-14-0000899
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
GERARD A. JERVIS,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NOS. 10-060-8894, 10-034-8868)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, Pollack, and Wilson, JJ.
and Intermediate Court of Appeals Associate Judge Leonard,
in place of McKenna, J., recused)
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 June 23, 2014, for the
imposition of a six-month suspension upon Respondent Gerard A.
Jervis, and upon a de novo review of the record, this court finds
and concludes the following by clear and convincing evidence.
A review of the record supports the Hearing Officer’s
Findings of Fact and Conclusions of Law, as amended by the
Disciplinary Board, except for Conclusions 9 and 12, which we
decline to adopt, for the reasons set forth below.
With particularity, in Office of Disciplinary Counsel
(ODC) Case No. 10-060-8894, the record supports Finding of
Fact 6, that the retainer agreement between the client and
Respondent Jervis did not contain the handwritten additions at
the time it was signed by the client but was completed at a later
time, and not by the client, insofar as the agreement bears the
date of February 28, 2008, while the record contains a disclosure
authorization form from the client dated February 1, 2008 and
correspondence from Respondent Jervis’s office concerning the
workers’ compensation claim began by at least February 12, 2008;
the agreement bears a handwritten constructive discharge date of
September 30, 2007, in handwriting which Respondent Jervis
admitted was his, while the actual constructive discharge date of
September 28, 2007 was known by the client and recorded
previously in the client’s claim, filed by the client, with the
Hawai#i Civil Rights Commission. Based upon that Finding and a
review of the record, including the extensive correspondence
amongst the client, Respondent Jervis’s office, the Hawai#i
Employers’ Mutual Insurance Company, Inc. and the Department of
Labor & Industrial Relations, often either clearly addressed to
Respondent Jervis or otherwise designating Respondent Jervis as
the client’s attorney, to which Respondent Jervis offered no
objection, and, in particular, the June 3 and 4, 2009 email
exchange between the client and Respondent Jervis, we conclude
the client reasonably concluded Respondent Jervis was
representing him in his workers’ compensation claim. See Otaka,
Inc. v. Klein, 71 Haw. 376, 383, 791 P.2d 713, 717 (1990);
Geoffrey C. Hazard, W. William Hodes, and Peter R. Jarvis, The
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Law of Lawyering § 2.05 at 2-7 through 2-8 (4th ed. 2015);
Restatement (Third) of the Law Governing Lawyers § 14 (1998).
Insofar as the record supports the conclusion an attorney-client
relationship existed between the client and Respondent Jervis in
the workers’ compensation claim, it also supports the conclusion
Respondent Jervis violated Rules 1.3, 1.4(a) and 1.4(b) of the
Hawai#i Rules of Professional Conduct (HRPC) (1994)1 in that
representation, by failing to transmit the settlement offer to
his client or otherwise act upon it, and by failing to attend the
September 24, 2009 hearing on the claim.
Also in ODC Case No. 10-060-8894, the record supports
the conclusion Respondent Jervis was derelict in his
representation of his client in the Civil Rights discrimination
claim, and failed to communicate with the client regarding the
matter, including regarding important information needed to make
strategic decisions concerning the claim, including efforts by
the Hawai#i Civil Rights Commission to interview his client. His
conduct in that representation violated HRPC Rules 1.3, 1.4(a),
and 1.4(b).
In ODC Case No. 10-034-8868, we conclude both the loan
and the amendment to the fee agreement, which modified the loan,
are subject to HRPC Rule 1.8(a). See In re Curry, 16 So.3d 1139,
1153-54 (La. 2009); In re Hefron, 771 N.E.2d 1157, 1158 (Ind.
2002); Naiman v. New York Univ. Hosps. Ctr., 351 F.Supp.2d 257,
1
Unless otherwise indicated, all HRPC Rules cited herein are to
HRPC (1994), the Rules in effect at the time of the conduct
underpinning the alleged violations.
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264 (S.D.N.Y. 2005); The Law of Lawyering, § 9.14 at 9-50 through
9-53 (2015). However, we also conclude, upon review of In re
Trewin, 684 N.W.2d 121 (Wis. 2004), Wisconsin’s SCR 20:1.7(b) and
1.8(a) cited in that case, HRPC Rules 1.7(b) and 1.8(a), as well
as HRPC Rules 1.7(b) and 1.8(a) (2014), that, at the time of the
events here, neither HRPC Rule 1.7(b) nor 1.8(a) required the
attorney to obtain a written conflict waiver from a client in
these circumstances.2
However, with regard to the $100,000.00 loan from the
Trust to Respondent Jervis, we also conclude Respondent Jervis
did not provide the trustee-client with a clear written
explanation of the differing interests involved in the
transaction, in violation of HRPC Rule 1.8(a), and that the terms
of the loan were not fair and reasonable to the Trust, again in
violation of HRPC Rule 1.8(a), in light of both the insufficient
security for the loan and its vague and unclear terms of
repayment of the indebtedness. See In the Matter of Hultman, 3
Cal. State Bar C. Rptr. 297 (Cal. Bar Ct. 1995); Hunniecutt v.
2
In 2014, the Hawai#i Rules of Professional Conduct were amended
to require a written waiver in these circumstances:
Rule 1.8. Conflict of Interest: Prohibited transactions.
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an ownership,
possessory, security or other pecuniary interest adverse to
a client unless:
. . .
(3) the client consents in writing to the essential
terms of the transaction and the lawyer’s role in the
transaction, including whether the lawyer is representing
the client in the transaction.
4
State Bar of California, 748 P.2d 1161, 1167 (Cal. 1988); In re
Discipline of Singer, 865 P.2d 315, 316-17 (Nev. 1993); GMAC v.
Everett Chevrolet, Inc. 317 P.3d 1074, 1078-79 (Wash. Ct. App.
2014); In re Disciplinary Proceedings Against Miller, 66 P.3d
1069, 1076 (Wash. 2003); In re McGlothen, 663 P.2d 1330, 1336,
1337 (Wash. 1983); Restatement (Third) of the Law Governing
Lawyers § 126, at 323 (2000).
With regard to the amendment of the fee agreement, we
conclude Respondent Jervis failed to provide the Trust with a
clear explanation of the differing interests involved in amending
the contingency fee agreement and extinguishing the $100,000.00
loan obligation he alone owed the Trust. Respondent Jervis’s
conduct again violated HRPC Rule 1.8(a).
The record supports the aggravating factors found by
the Hearing Officer and the Board: substantial experience in the
practice of law, one prior discipline, offering false statements
in a disciplinary investigation (concerning his purported lack of
previous workers’ compensation work), and a refusal to
acknowledge the wrongful nature of his conduct in ODC Case No.
10-034-8868.
In mitigation, we note Respondent Jervis’s pro
bono work, particularly on behalf of the Native Hawaiian
community.
In light of previous-settled litigation between
Respondent Jervis and the successor trustees of the Trust, in
which the successor trustees settled claims in part related to
Respondent Jervis’s representation of this Trust, we decline to
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order reimbursement.
Nevertheless, in light of Respondent Jervis’s conduct
regarding the Trust and the injury inflicted on the Trust, a
substantial period of suspension is appropriate. See ODC v.
Bertelmann, SCAD-12-950 (February 15, 2013); ODC v. Ching, No.
25697 (May 2, 2003); ODC v, Chatburn, No. 24777 (May 30, 2002);
ODC v. Arnobit, Jr., No. 16932 (July 19, 1993). Therefore,
IT IS HEREBY ORDERED that Respondent Jervis is
suspended from the practice of law in this jurisdiction for six
months, effective thirty days after the entry date of this order,
as provided by Rules 2.3(a)(2) and Rule 2.16(c) of the Rules of
the Supreme Court of the State of Hawai#i (RSCH).
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 Jervis shall
pay all costs of these proceedings as approved upon the timely
submission of a bill of costs, as prescribed by RSCH Rule 2.3(c).
IT IS FINALLY ORDERED that Respondent Jervis shall,
within 10 days after the effective date of his suspension, file
with this court an affidavit that he is in full compliance with
RSCH Rule 2.16(d).
DATED: Honolulu, Hawai#i, October 12, 2015.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Richard W. Pollack
/s/ Michael D. Wilson
/s/ Katherine G. Leonard
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