Office of Disciplinary Counsel v. Tagupa ( 2016 )

Electronically Filed
Supreme Court
26762
24-MAR-2016
01:54 PM
NO. 26762
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
WILLIAM TAGUPA,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NO. 14-020-9163)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Upon review of the report and recommendation submitted
by the Disciplinary Board of the Supreme Court of the State of
Hawai'i on July 29, 2015 in this matter, we find and conclude,
based upon clear and convincing evidence, that this court’s
March 3, 2005 order of suspension, enjoining Respondent
William Tagupa from the practice of law, remains valid and
continues to prohibit Respondent Tagupa from practicing law in
this jurisdiction, and further find and conclude, in the first
matter before the court, that in August, 2010 Respondent Tagupa
formed an attorney-client relationship with Mr. K, a distant
relative, and thereafter assisted Mr. K, through January, 2014,
with a civil rights proceeding and subsequent litigation
regarding a wrongful discharge claim, by discussing the legal
aspects of the claim, including interpreting relevant statutes
and case law, performing legal analysis and developing legal
strategies, including, inter alia, arguments based upon statutes
of limitation, the doctrine of preemption, rational
relationships, and disparate impact, advising Mr. K on deposition
and discovery strategies, providing legal arguments for
responding to a motion for summary judgment, drafting legal
memoranda for use in the litigation, discussing settlement
strategy and the characteristics of a valid settlement agreement,
drafting a legal memorandum for Mr. K to use in a settlement
conference in the federal litigation, advising Mr. K on an appeal
to the United States Court of Appeals for the Ninth Circuit,
drafting an opening brief for use by Mr. K and his formal
counsel, and drafting a reply brief which Mr. K submitted to the
Ninth Circuit under his own name on January 14, 2014.
We decline to address the second matter in the Board’s
report, involving an application for a writ of certiorari to this
court, as the matter was not alleged in the original petition.
Upon review of the above conduct, we conclude
Respondent Tagupa engaged in the practice of law, in violation of
this court’s injunction. See ODC v. Gould, 119 Hawai'i 265, 270,
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195 P.3d 1197, 1202 (2008) and Fought & Co., Inc. v. Steel
Engineering and Erection, Inc., 87 Hawai'i 37, 45, 951 P.2d 487,
495 (1998); see also Gould, 119 Hawai'i at 271, 195 P.3d at 1203;
Attorney Grievance Comm’n of Maryland v. Brisbon, 31 A.3d 110,
118 (Md. 2011); In re Chavez, 1 P.3d 417, 424 (N.M. 2000);
Disciplinary Counsel v. Coleman, 724 N.E.2d 402, 404 (Ohio 2000);
In re Conduct of Devers, 974 P.2d 191, 196 (Or. 1999); Kansas v.
Schumacher, 519 P.2d 1116, 1121 (Kan. 1974); Edwards, Inc. v.
Hert, 504 P.2d 407, 416 (Okla. 1972); Cf. Matter of Discipline of
Jorissen, 391 N.W.2d 822, 825 (Minn. 1986). A suspended attorney
is, indeed, under greater strictures than a layperson with
regards to conduct that may constitute the practice of law. See
Gould, 119 Hawai'i at 268-69, 195 P.3d at 1200-01; see also In re
Martin, 400 F.3d 836, 843 (10th
Cir.2005); In re Disciplinary
Action Against Larson, 485 N.W.2d 345, 349 (N.D. 1992); State of
Nebraska ex rel. Nebraska State Bar Ass’n v. Butterfield, 111
N.W.2d 543, 546-47 (Neb. 1961); Schumacher, 519 P.2d at 1122,
1125. This is because, in contrast to a lay person, a suspended
attorney applying legal skills to a matter gives the appearance
of, and equates to, engagement in the practice of law. See Comm.
on Prof’l Ethics & Conduct of Iowa State Bar Ass’n v. Gartin, 272
N.W.2d 485, 491-92 (Iowa 1978)).
Finally, we concur with the Hearing Officer’s
characterization of Respondent Tagupa as “intelligent and
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competent” with “legal research skills and analysis [which] are
certainly quite good, if not superior,” and, hence, concur
Respondent Tagupa was “certainly quite capable of accurately
researching the existing case law about what constitutes the
practice of law . . . in Hawai'i and in other jurisdictions, as
well as any attorney,” but, nevertheless, despite that ability,
and the Gould holding provided him by the Hawai'i Civil Rights
Commission, Tagupa never sought advice of counsel from ODC or any
other party concerning whether his activities were permitted as a
suspended attorney.
We conclude Respondent Tagupa’s conduct violated Rules
3.4(e) and 5.5(a) of the Hawai'i Rules of Professional Conduct by
violating RSCH Rules 2.16(c) and 2.17(a) and the standing
injunction against him imposed by this court on March 3, 2005,
though we also note Respondent Tagupa did not gain financially
from any of the assistance provided to his distant relative.
Therefore,
IT IS HEREBY ORDERED that Respondent William Tagupa is
suspended from the practice of law for a further two years. In
light of Respondent Tagupa’s long-standing suspension, the
instant suspension is effective upon entry of this order.
Respondent Tagupa, therefore, may not apply for reinstatement
until the passage of at least one year from the entry date of
this order, pursuant to RSCH Rule 2.17(b)(3).
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IT IS FURTHER ORDERED that Respondent Tagupa shall bear
the costs of the disciplinary proceedings, upon the timely
submission of a verified bill of costs by the Office of
Disciplinary Counsel, pursuant to RSCH Rule 2.3(c).
IT IS FINALLY ORDERED that Respondent Tagupa is hereby
notified that any further misconduct that can be established as
the unauthorized practice of law under either the Hawai'i or
foreign case law cited above may be grounds for a criminal
contempt proceeding against him, pursuant to HRS §§ 710­
1077(1)(c), 710-1077(1)(g), and 710-1077(3)(b) (Supp. 2008), as a
knowing violation of a valid order of this court enjoining him
from the practice of law.
DATED: Honolulu, Hawai'i, March 24, 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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