by Andrew Walden
For a lawyer facing disbarment proceedings, Honolulu attorney Gary V Dubin is one happy boy.
The Hawaii Supreme Court today rejected a “Petition for Interim Suspension” from the Office of Disciplinary Counsel which would have immediately stripped Dubin of his law license.
The Supreme Court decision does not affect the underlying disbarment proceedings which remain sealed. According to ODC Chief Gary Kim, the Board of Disciplinary Counsel will next be presenting the case to the Disciplinary Board of the Hawaii Supreme Court for review. Dubin says the next hearing is likely to be held “mid-November.”
Dubin says he has faced complaints filed with the ODC “… for several years.…” The ODC’s Memorandum makes reference to four sealed cases against Dubin, all apparently initiated in 2016: ODC # 16-0-147, 151, 213, and 326.
How has Dubin forestalled the process?
In his ‘Declaration’ filed June 26, 2018 in opposition to the petition for Interim Suspension, Dubin explains: ”At the ODC hearing … I was represented by John Waihee, the co-host on The Foreclosure Hour who, by the way, is paid nothing for his similar pro-bono service on the air, who also was co-counsel with me at the ODC hearing….”
Now we know how Waihee isn’t getting paid.
While the ODC’s original petition for Interim Suspension is sealed, as are the disbarment proceedings, the ODC’s July 20, 2018, Memorandum in Support of the now-denied Petition provides insight into the case against Dubin.
Gary Victor Dubin (“Respondent”) should be immediately suspended from the practice of law because (1) he has been recommended for disbarment pursuant to seven violations of the HRPC, including misappropriating $3,350 of client funds and engaging in dishonest and deceitful conduct with clients regarding his billable rate; and (2) he poses a substantial threat of serious harm to the public, as Respondent is actively soliciting clients and is likely engaging in the same conduct that was found to warrant his disbarment.
A. A Hearing Officer Recommended Respondent For Disbarment Because Of Respondent’s Numerous Violations Of The Hawai'i Rules of Professional Conduct
On April 12, 2018, following a five day hearing, the Hearing Officer in ODC v. Dubin (“Dubin I”), found that the Respondent engaged in a pattern of serious ethical misconduct, which included, among other things, signing his clients’ signatures on a settlement check without their consent, depositing that settlement check into his trust account without their knowledge, and attempting to hold the proceeds hostage while re-negotiating the terms of their retainer agreement. The Hearing Officer also found in Dubin I that Respondent had engaged in misappropriation, refusal or failure to account for client funds, and “bad faith obstruction” of ODC’s investigation.
Respondent’s pattern of knowing and intentional violations of the HRPC in Dubin I earned him a recommendation for disbarment by the Hearing Officer. Respondent was found culpable for failing to preserve client property, behaving with a lack of candor, engaging in abuse of process, and showing a lack of diligence and competence. The Hearing Officer described Respondent’s violations of the HRPC as “severe and extensive,” and recommended Respondent be disbarred from the practice of law.
Respondent’s past disciplinary history, dishonest motives, pattern of misconduct, multiple offenses, bad faith obstruction, substantial legal experience, and refusal to acknowledge the nature of his wrongful conduct were all found to be aggravating factors.
The Hearing Officer found no mitigating factors.
B. Respondent Represents A Substantial Threat Of Serious Harm To The Public Because He Continues To Engage In A Pattern Of Ethical Misconduct
This Court should immediately suspend Respondent from the practice of law because he represents a substantial threat of serious harm to the public. Respondent’s pattern of misconduct can be conceptualized into three distinct steps: (1) mass solicitation of clients; (2) taking clients’ money but later refusing to account for it; which leads to (3) the many sundry complaints against Respondent involving similar fact patterns.
1. Step One: Mass Solicitation
Respondent’s first step is mass solicitation of clients. Respondent has a history of soliciting new clients through television commercials, however, more recently Respondent has begun soliciting clients through his weekly podcast-cum-AM-radio-show, “The Foreclosure Hour.” Using his show, which has been airing since late 2013, Respondent makes promises ranging from innocuous puffery – “Our upcoming guests will help you save your home” – to outright guaranteeing outcomes – “We should go on television and ask anybody who wants to bring their loan package, we will guarantee them we can defeat summary judgment.” Regardless of means, the goal is clear: generation of new business by promoting himself.
2. Step Two: Taking Money And Refusing To Account For It
First there were the Andias. In early 2012, Respondent was retained by Robert and Carmelita Andia to handle a threatened foreclosure on their home. They paid Respondent a retainer of $16,500.00.
In October 2015, following prolonged negotiations, the lender agreed to pay the Andias $132,000 to settle the Andias’ claims against the lender. According to a written settlement agreement in the case, any settlement proceeds from the case were to be paid directly to the Andias - and not the Respondent.
However, when the settlement check arrived at Respondent’s office a few weeks later, instead of notifying the Andias, Respondent signed his clients’ names on the back and deposited the check into his own client trust account – entirely without the Andias’ prior knowledge or consent.
Additionally, in his written retainer agreement with the Andias, Respondent agreed to bill the Andias at the rate of $150-$250 per hour for his associate attorneys’ time. However, Respondent violated that agreement by charging the Andias $385.00 per hour for his associates’ time - including time attributable to one associate who had not even been admitted to the bar. To that end, Respondent overbilled the Andias nearly $20,000.00 over the course of his representation. Respondent then kept the overbilled fees over the objection of the Andias.
Respondent never warned the Andias that he was increasing his billing rates, nor did the Andias ever consent to such an increase. Respondent also failed to provide the Andias an invoice until he negotiated their settlement – three and a half years into his representation of them - so the Andias did not know how much they supposedly owed Respondent until it was too late. Moreover, not only did Respondent claim that the Andias’ original retainer was exhausted, he claimed that they owed him significant additional monies and he intended to take that money out of their settlement whether they agreed or not.
When Mr. Andia attempted to confront Respondent about this, Respondent told him to “stop making an ass of yourself,” and that Respondent was “very generous” for overbilling Mr. Andia by only $20,000.00. Respondent then threatened to add additional charges to Mr. Andia’s invoice. Further, Respondent tried to intimidate the Andias into staying quiet about his ethical misconduct. Just before Mr. Andia was set to testify at Dubin’s ODC hearing, Respondent’s counsel warned Andia that Respondent would be suing the Andias for defamation, and that Andia’s testimony would be used as evidence against him. Respondent never cited any legal grounds for such a suit, however, the timing of the threat, just before the start of Andia’s testimony, was more than suspicious.
(Editor's Note: Dubin states that his counsel at the hearing was John Waihee.)
The Hearing Officer found that Respondent’s misconduct in Andia constituted a lack of diligence, lack of candor, a failure to maintain integrity, and a violation of duties owed as a professional – and ultimately recommended that Respondent be disbarred. He also recommended that Respondent pay restitution to the Andias in the sum of $19,885.00, for overbilling them for his associates’ time.
In Kern, Respondent accepted $45,000 in retainer payments from his client, Michael Harkey and, again, failed to account, despite multiple demands by Harkey – and the attorney Harkey hired to obtain an accounting from Respondent. The investigation into Respondent’s behavior revealed that he had good reason to avoid accounting to Harkey and his attorney – Respondent had misappropriated at least $3,350.00 of Harkey’s funds during the time he represented him. A Hearing Officer found that Respondent’s misconduct in Kern constituted a failure to preserve client property, lack of diligence, and abuse of the legal process.
The Hearing Officer recommended disbarment for those violations.
3. Step Three: The Numerous Complaints Against Respondent
C. The Cycle Continues And Must Be Stopped
Respondent continues to broadcast “The Foreclosure Hour”, continues to run television commercials, and continues to amass clients – even though he is facing disbarment.
In response to questions from Hawai’i Free Press, Dubin, responding “from court in Kona” claims “I … have never been found to have committed any ethical wrongdoing involving any client of mine by anyone anywhere.”
Dubin says he has spent $500,000 keeping The Foreclosure Hour on the air for seven years and “an interim suspension will put me out of business, along with my 20 employees and disrupt hundreds of my clients cases….”
The unanimous Supreme Court Order denies the interim suspension petition, “without prejudice to the Office of Disciplinary Counsel submitting to this court further information regarding current, or new, allegations of misconduct engaged in by Respondent Dubin….”