Office of Disciplinary Counsel v. Mujtabaa ( 2014 )

Electronically Filed
Supreme Court
SCAD-14-0000799
24-JUN-2014
12:13 PM
SCAD-14-0000799
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
KHALED S. MUJTABAA,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NOS. 12-042-9058, 13-036-9106)
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 May 2, 2014, for the
imposition of, inter alia, a 45-day suspension upon Respondent
Khaled S. Mujtabaa, and upon a de novo review of the stipulated
facts and the evidence in the record, see ODC v. Au, 107 Hawai'i
327, 336, 113 P.3d 203, 212 (2005); ODC v. Lau, 85 Hawai'i 212,
214, 941 P.2d 295, 297 (1997), this court finds and concludes the
following by clear and convincing evidence:
In Office of Disciplinary Counsel (ODC) Case No. 12­
042-9058, Respondent Mujtabaa, by failing to file the client’s
settlement motion for 14 months or to resolve the client’s
foreclosure issues, while leading the client to believe he would
promptly file appropriate documents and address the foreclosure
litigation, resulting in the acceleration of the mortgage and,
ultimately, the loss of the client’s house, violated Rules 1.3
and 3.2 of the Hawai'i Rules of Professional Conduct (HRPC).1 By
failing to secure a copy of the readily-obtainable fully executed
settlement agreement documents for 10 months, relying on the lack
of the document as a justification for not pursuing the matter,
and prevaricating concerning the filing of the settlement motion
for 15 months, Respondent Mujtabaa violated HRPC Rule 1.1. By
failing to promptly respond to the client’s reasonable requests
about the case or to keep the client reasonably informed about
its status, thereby preventing the client from making informed
decisions regarding the mortgage litigation, Respondent Mujtabaa
violated HRPC Rules 1.4(a) and (b). By withdrawing $400.00 from
his client trust account on May 17, 2012 for costs associated
with the client, when the client did not have a claim to any
funds in the account, Respondent Mujtabaa misappropriated and
withdrew unearned client funds from other clients, in violation
of HRCP Rules 1.15(c) and (d). By withdrawing the client’s funds
1
All HRPC Rules cited herein are those in effect at the time of the
conduct underpinning the violation.
2
on September 23, 2011, January 26 and February 3, February 6, and
February 17, 2012, without explaining to the client the basis or
rate for earning the fee short of completing the representation
and without providing an accounting, Respondent Mujtabaa violated
HRPC Rule 1.5(b) and 1.15(f)(3).
In ODC Case No. 13-036-9106, by withdrawing funds from
his client trust account for other matters, bringing the balance
of the account below the level of funds to which the client in
question had a rightful claim, specifically creating a $520.97
shortfall on May 7, 2008, a $1,825.80 shortfall on September 19,
2008, and a $2,213.84 shortfall on December 31, 2009, Mujtabaa
misappropriated the client’s funds and withdrew them before they
were earned, in violation of HRCP Rules 1.15(c) and (d). By
failing to file the client’s litigation for almost five years,
and prevaricating concerning the delays, Respondent Mujtabaa
violated HRPC Rules 1.3 and 3.2. By withdrawing the client’s
funds from his client trust account on March 10 and March 20,
2008, December 17, 2009, October 29, 2010, and June 10, 2011,
without explaining to the client the basis or rate for earning
the fee without completing the representation, and without
providing an accounting, Respondent Mujtabaa violated HRPC Rules
1.5(b) and 1.15(f)(3).
In aggravation, we note Mujtabaa’s substantial
experience in the practice of law and a pattern of similar
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misconduct between the two disciplinary matters. In mitigation,
we note Respondent Mujtabaa’s remorse, his cooperative attitude
toward the proceedings, the absence of a dishonest or selfish
motive, and his efforts to address the shortcomings in his
practice through the completion of Continuing Legal Education
training. Nevertheless, a period of suspension is appropriate.
See ODC v. Manuia, SCAD-13-136 (May 20, 2013); ODC v. Barrad, No.
27247 (May 16, 2005); ODC v. Ching, No. 25697 (May 2, 2003); ODC
v. Wessel, No. 21817 (August 14, 2000); ODC v. Sahara, No. 20535
(December 10, 1997). Therefore,
IT IS HEREBY ORDERED that Respondent Khaled S. Mujtabaa
is suspended from the practice of law in this jurisdiction for
180 days, effective 30 days after the entry date 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 Mujtabaa shall
complete an audit of his practice by the Practicing Attorneys
Liability Management Society or equivalent program and submit
proof of completion of the audit and adoption of its
recommendations within 375 days of the date of entry of this
order, or good cause for an extension. Respondent Mujtabaa is
hereby notified that failure to timely complete the audit and
submit the subsequent report may result in an additional period
of suspension, upon review of the record.
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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 Mujtabaa 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 Mujtabaa 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, June 24, 2014.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael W. Wilson
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