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Sunday, May 05, 2019
Conflict of Interest? Judge Hiraoka’s Adventures in Dubinland
By Andrew Walden @ 8:22 PM :: 3286 Views :: Hawaii County , Ethics, Judiciary

by Andrew Walden

Considering First Circuit Court Judge Keith Hiraoka’s nomination to the Intermediate Court of Appeals last October, the state House held an “unprecedented … discussion about judicial experience and temperament, judicial philosophy, and separation of powers.”  Native Hawaiian Legal Corp attorney David Frankel complained about “an appearance of impropriety.”   Ige’s Republican opponents questioned Hiraoka’s previous role as Governor Ige’s reelection campaign manager.  According to the Star-Advertiser, “State Sens. Laura Thielen and Donna Kim concerns rested … with how quickly he was jumping from his position as a 1st Circuit judge, a position he has served in for only 19 months after being nominated by Ige….” But the Senate, October 25, 2019, voted to confirm Hiraoka’s ICA nomination 20-0, Thielen and Kim ‘with reservations.’

They missed something.

A complaint against Hiraoka filed with the Commission on Judicial Conduct, April 8, 2019, by Big Island mortgage broker Dean Gilpin, alleges “improprieties and unethical actions we believe he committed as an attorney prior to him having removed himself from our Ho'omau I Mua LLC vs Mark Van Pernis et al (3CC10100439K) civil action to take the position as Judge of the First Circuit on or around April of 2017.”

The complaint also names Hiraoka’s former law partners, including former Attorney General David Louie.

Gilpin, April 8, also lodged complaints with DCCA Insurance Division against ALPS Insurance and with the Office of Disciplinary Conduct against Honolulu attorney Gary V. Dubin. 

Dubin is facing separate disbarment proceedings before the Hawaii Supreme Court. 

“Curiouser and curiouser!”

For three and a half years, Gilpin alleges, Hiraoka was simultaneously fighting to save Gary Dubin’s law license in one court while opposing Dubin in another, creating a conflict of interest.  The complaints derive from three cases:

Dubin represented Dean Gilpin’s Hoomau I Mua suit against Mark Van Pernis, over a South Kona land deal gone bad, starting in the First Circuit May, 2010, and continuing in the Third Circuit until November 7, 2018 when Gilpin dumped Dubin and substituted new counsel.

In Dias v Dubin, a legal malpractice claim, Dubin was represented by Keith Hiraoka until Dubin demanded a change of counsel, a move registered on the Court docket, November 15, 2010  -- because Hiraoka had begun representing Van Pernis.

Then, in Schmidt v Dubin, another legal malpractice case, Hiraoka is accepted by Dubin as his defense attorney beginning May, 2015. 

“We’re all mad here. I’m mad. You’re mad.”

If you lie down with fleas, you wake up with dogs.

When it comes to clients, Gary V Dubin usually knows how to pick them.  Last July he told Hawai’i Free Press, “I have had to battle the establishment here while drawing clients from the general public, and unfortunately some members of the general public are less than intelligent and some frankly dishonest.” 

Both Dias and Schmidt lost—but it was always going to be that way.

Dias sued Dubin in 2008 for legal malpractice after Dubin failed to save Dias from cancellation of a rent-to-own agreement which the Court found Dias had stopped making payments on after only three months.

Schmidt, who sued Dubin after the dismissal of a case known as Schmidt v Ruthruff, had previously been declared by the Court to be a ‘vexatious litigant’.  This, combined with Schmidt’s ability to pay a substantial retainer, made him the ideal Dubin client. 

In a cross complaint filed May 20, 2015, Hiraoka, representing Dubin, attempted to blame Schmidt’s loss on another lawyer, John Carroll.  Carroll, who would himself soon be disbarred over his conduct in other cases, responded:

Court records confirm that Mr Dubin entered his appearance of counsel for Plaintiff in the (Schmidt v Ruthruff) case on April 6, 2004.  Court records further confirm that over the next 9 to 10 years, Mr Dubin did nothing affirmatively to prosecute the Ruthruff case, other than filing a pretrial statement. … Plaintiff Schmidt (only) sought my assistance (after a November 28, 2013 Court Order of Dismissal)….   

Hiraoka then withdrew his motion to name Carroll as a third-party defendant.

“Everything’s got a moral, if only you can find it.”

Hawai’i Free Press asked Judge Hiraoka two questions:

  • Why would you agree to represent Gary V Dubin in Schmidt v Dubin after being removed from representing Dubin in Dias v Dubin due to you becoming opposing counsel to Dubin in Hoomau Imua v Van Pernis?
  • Did you inform the JSC and/or Governor Ige about these cases prior to accepting nomination to the First Circuit Court and/or the ICA?

The response came from Hawaii Judiciary Communications Director Jan Kagehiro: 

“Judge Hiraoka has not been notified by any of those entities that he is the subject of a pending matter.”

Gary V. Dubin was a little more voluble:

This is just more of your sloppy, slanderous, and frivolous witch hunt reporting and no one should take your constant accusatory and ignorant summarizations of unfounded complaints seriously….

(A)nticipating that you intend to repeat your irresponsible new attempt to libel me over some unfounded grievance involving Judge Hiraoka which I have not even seen, I am specifically calling the following facts to your attention:

The Dias and Schmidt lawsuits against me filed by the same well-known ambulance chaser were both dismissed with prejudice and in the case of Mr. Schmidt whose reputation is well known I was awarded my fees and costs. 

In the 56 years that I have practiced law never has any court found me liable for legal malpractice. 

Also, for your information, Mr. Gilpin who I assume filed the grievances to which you refer, recanted his accusations last year, apologizing in writing in late 2018 for being “wrong” as shown in the attached email of his, specifically apologizing to Mr. Shin, Judge Hiraoka’s law partner during the alleged past events, to whom Mr. Gilpin had also sent his accusations to.

Dubin's email from Gilpin was sent to Dubin while Gilpin was still being represented by Dubin.  Is this a breach of Dubin’s “duty of confidentiality” to his client?

Rule 1.6(b)(4) of the Hawai'i Rules of Professional Conduct allows attorneys to break confidentiality “to respond to allegations in any proceeding concerning the lawyer's representation of the client….”

Do the Rules allow attorneys to violate their duty of confidentiality to answer a reporter’s question – or only “to respond…in any proceeding”?

Dubin admits he has not seen the complaint and says he “assumes” the complaint comes from Gilpin. 

The State Supreme Court has yet to set a date to consider Dubin’s disbarment.  If he is not disbarred, these questions could become fodder for his next disbarment hearing.

---30---

PDF:  Complaints filed by Gilpin 

Hiraoka:

Dubin:

John Carroll Disbarment: (2015-2017)

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