Office of Disciplinary Counsel v. Wooten ( 2015 )

Electronically Filed
Supreme Court
SCAD-14-0001333
11-DEC-2015
08:28 AM
SCAD-14-0001333
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
ANDRÉ S. WOOTEN,
Respondent.
ORIGINAL PROCEEDING
(ODC 11-025-8949, 11-065-8990, 12-041-9057)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, and McKenna, JJ.,
Circuit Judge To#oto#o, in place of Pollack, J., recused,
and Circuit Judge Nakasone, in place of Wilson, J., recused)
Upon consideration of the December 2, 2014 report
submitted by the Disciplinary Board of the Hawai#i Supreme Court,
the exhibits appended thereto, the briefs submitted to this
court, the allegations made by the Office of Disciplinary Counsel
in its Summons and Petition, and the record in this matter, we
make the following Findings of Fact and Conclusions of Law based
upon clear and convincing evidence.
In ODC Case No. 11-025-8949, Respondent Wooten charged
a non-refundable retainer fee, in violation of Rule 1.15(d) of
the Hawai#i Rules of Professional Conduct (HRPC) (1994).1
Respondent Wooten did not communicate in a reasonable and timely
manner with his client regarding her request to amend the initial
complaint filed in her lawsuit, and did not inform her he had
decided to postpone further work on her case until further
payment of his retainer was received, in violation of HRPC Rules
1.4(a) and 1.4(b). Respondent Wooten did not amend the complaint
until after both the expiration of the October 27, 2005 deadline
imposed by the Equal Employment Opportunity Commission on
litigating the underlying claims, or the November, 2005 running
of the two-year statute of limitations of his client’s assertion
of her defamation and slander claims, and the United States
District Court for the District of Hawai#i relied in part, when
dismissing his client’s suit, on the fact the claims against two
of the defendants were time-barred due to the late filing of the
amended complaint, grounds which were affirmed by the United
States Court of Appeals for the Ninth Circuit, conduct which
violated HRPC Rule 1.3. We note Respondent Wooten’s client, in
her initial complaint to the Office of Disciplinary Counsel
(ODC), complained of Wooten’s failure to offer to refund her fees
for what she deemed sub-standard services, but that the record
does not contain any evidence she requested from Wooten an
1
All citations to the HRPC in this order are to the 1994 version of
the Rules.
2
accounting of the fees earned by him over the course of the
representation, nor did ODC allege the fees charged were
unreasonable, and further note the record does contain reasonable
assertions by Wooten the fees were fully earned, and therefore
decline to find a violation of HRPC Rule 1.15(f)(3). See ODC v.
Manuia, SCAD-13-136 Docket 13:4.
In ODC Case No. 11-065-8990, Respondent Wooten
inadvertently overpaid a client an award in a settlement of an
insurance claim, thereby overdrawing his client trust account, in
violation of HRPC Rule 1.15(d), though we further find the
incident was due to negligence or inattention and not based upon
a selfish or dishonest motive. Respondent Wooten also did not
maintain a subsidiary ledger of the client’s funds, in violation
of HRPC Rule 1.15(g)(2). The record, however, does not support
the conclusion that Respondent Wooten violated HRPC Rule 1.15(c)
by allegedly failing to promptly remove his contingency fee from
the client trust account but, rather, that he promptly removed
the funds but erroneously provided his client with a portion of
them.
In ODC Case No. 12-041-9057, Wooten, in responding to
an order to show cause from the Intermediate Court of Appeals
(ICA) arising from his failure to file an opening brief in a
timely manner, failed to obey a directive of the ICA, in
violation of HRPC Rule 3.4(e), by filing his response to the
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court’s order as an unsigned “memorandum of explanation,” rather
than as an affidavit or a declaration, as expressly required by
the order.
In aggravation, we find multiple violations in the
present matter and two prior disciplines by this court,
reflecting a pattern of conduct that failed to meet the
professional standards of organization, efficiency, diligence,
and promptness required of an attorney, despite Respondent
Wooten’s substantial number of years in practice.
In mitigation, we note Respondent Wooten’s misconduct
does not arise from a selfish or dishonest motive, and note his
role as an advocate for the underserved members of the community,
and his cooperative attitude during the disciplinary
investigation and proceedings.
Finally, we conclude there was nothing improper about
the timing of this disciplinary proceeding in relation to the
earlier disciplinary proceedings concluded against Respondent
Wooten on February 15, 2013 (hereinafter, “the 2010
proceedings”). The complaint for the earliest of the three
instant matters, in ODC Case No. 11-028-8949, was not received by
ODC until December 9, 2010, more than three months after the 2010
proceedings had commenced with the August 26, 2010 issuance of
the summons and petition in that matter. ODC was notified of the
second of the three instant matters, ODC Case No. 11-065-8990, on
4
May 3, 2011, while the 2010 proceedings were engaged in hearings.
The most recent of the three instant matters, ODC Case No. 12-
041-9057, was received from the ICA on August 20, 2012, after the
2010 proceedings had concluded hearings and the matter had been
submitted to this court for disposition. ODC cannot be faulted
for pursuing the earlier disciplinary proceedings even as new
complaints of misconduct against Respondent Wooten were brought
to ODC’s attention.
In sum, upon review of the record and the pattern of
misconduct evidenced by it, we conclude a substantial period of
suspension is necessitated to protect the public. See Akinaka v.
Disciplinary Bd. of the Hawai#i Supreme Court, 91 Hawai#i 51, 55,
57-58, 979 P.2d 1077, 1081, 1083-84 (1999). Therefore,
IT IS HEREBY ORDERED that Respondent André S. Wooten is
suspended from the practice of law in this jurisdiction for six
months, 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 HEREBY 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 Wooten shall
pay all costs of these proceedings as approved upon timely
submission of a bill of costs, as authorized by RSCH Rule 2.3(c).
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IT IS FURTHER ORDERED that Respondent Wooten shall,
within 10 days after the effective date of his suspension, file
with this court an affidavit in full compliance with RSCH Rule
2.16(d).
IT IS FINALLY ORDERED that, in light of the pattern and
nature of the misconduct underlying Respondent Wooten’s
suspension, proof of completion of the audit of his practice by
the Practicing Attorneys Liability Management Society (PALMS) and
of adoption of its recommendations must accompany any affidavit
submitted by Respondent Wooten, pursuant to RSCH Rule 2.17(b)(2),
to obtain reinstatement.
DATED: Honolulu, Hawai#i, December 11, 2015.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Fa#auuga To#oto#o
/s/ Karen T. Nakasone
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