SCAD-15-0000495
IN THE SUPREME COURT OF
THE STATE OF HAWAI’I
OFFICE OF DISCIPLINARY
COUNSEL, Petitioner,
vs.
CYNTHIA LOCK SIMS,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NOS. 13-025-
9095, 13-030-9100;13-051-9121;
AND 13-057-9127)
Upon de novo review of the Report and Recommendation of the
Disciplinary Board of the Supreme Court of the State of Hawai’i,
the stipulated facts, and the evidence in the record, we conclude
by clear and convincing evidence that Respondent Cynthia L.
Sims, in four separate client matters, engaged in misconduct warranting
discipline. In Office of Disciplinary Counsel (ODC) Case No.
13-025-9095, Respondent Sims, on May 25, 2012, deposited her
client’s $3,000.00 advanced fee payment into her business account
rather than her client trust account, before performing the
agreed-upon legal services described in their written agreement,
thereby commingling the client’s funds with her own and misappropriating
them for her own use and benefit and engaging in
conduct involving dishonesty, fraud, deceit or misrepresentation,in
violation of Rules 1.15(a)(1), 1.15(c), 1.15(d), and 8.4(c) of the
Hawai’i Rules of Professional Conduct (HRPC) (1994). By
depositing the unearned fees into her business account without
first providing the client an accounting of how she had earned the
funds, Respondent Sims also violated HRPC Rule 1.15(f)(3). By
failing to file a motion objecting to the awarding of attorney’s fees
to the opposing party when asked to do so by the client on August
9, 2012, Respondent Sims violated HRPC Rule 1.3. By failing to
withdraw from the representation until September 14, 2012, Respondent
Sims violated HRPC Rules 1.3 and 3.2. Docket 3:82-83.
Finally, Respondent Sims’s failure to timely provide documents requested
by ODC in the subsequent investigation, necessitating the
issuance of a subpoena, violated HRPC Rules 8.1(b) and 8.4(d).In
ODC Case No. 13–030-9100, when, on May 10, 2013,Respondent
Sims deposited the client’s $750.00 of unearned advance fees
into her business account, before performing the agreed-upon
legal services described in their written fee agreement, she
commingled the client’s funds with her own funds and misappropriated
them for her use and benefit, in violation of HRPC Rules
1.15(a)(1), 1.15(c), 1.15(d), and 8.4(c). Between May 30 and June
19, 2012, when Respondent Sims did not promptly respond to the
client’s inquiries about the status of his divorce proceedings, she
violated HRPC Rules 1.4(a) and 1.4(b). By subsequently failing to
promptly file with the court the divorce documents, executed on
April 27, 2012, Sims violated HRPC Rules 1.3 and 3.2. Finally, by
failing to respond to ODC’s May 24,2013 request for documents
and information regarding this representation, thereby requiring
the issuance on July 24, 2013 of a subpoena and a subpoena
duces tecum, Respondent Sims violated HRPC Rules 8.1(b)
and 8.4(d).In ODC Case No. 13-051-9121, when, on June 26,
2012,Respondent Sims cashed the client’s $1,250.00 check (representing
half of the agreed-upon fee) and, on November 6, 2012,
cashed a second check, for $1,500.00, $1,250.00 of which represented
the remainder of her advance fee – both times failing to
deposit the funds into her client trust account, and before she had
performed the agreed-upon legal services, including the preparation
of the divorce decree – Respondent Sims misappropriated
those funds for her own use and benefit, in violation of HRPC
Rules 1.15(a)(1),1.15(c), 1.15(d), 1.15(f)(3), and 8.4(c). When
Respondent Sims failed to respond within a reasonable time to
the client’s repeated inquiries regarding the status of her divorce
proceedings (including the date of service on her husband, when
a motion for a default judgment could be entered, and when the
divorce decree would be prepared), Respondent Sims violated
HRPC Rules 1.4(a) and 1.4(b). When, after divorce proceedings
were initiated in July, 2012, Respondent Sims neglected, over a
period of several months, to diligently and timely obtain evidence
the client’s husband had been successfully served by mail, and
failed to prepare updated asset and debt, and income, statements,
or to prepare a divorce decree, she violated HRPC Rules
1.3 and 3.2. When, upon termination of the representation on April
8, 2013,Respondent Sims failed to return the client’s file, account
to the client for unearned client funds, or to refund to the client
any unearned funds, Resondent Sims violated HRPC Rules 1.15(f)
(3)and 1.16(d). Finally, when Respondent Sims failed to respond
to two requests from ODC for information regarding the representation,
causing ODC to serve a subpoena upon her on August
28, 2013, she violated HRPC Rules 8.1(b) and 8.4(d).In ODC Case
No. 13-057-9127, when, on December 1, 2011,and on February
29, March 12, and April 13, 2012, Respondent Sims deposited the
client’s unearned client funds into her business account, rather
than her client trust account, at a time when she had not entered
an appearance in the client’s divorce case or prepared a divorce
decree, Respondent Sims thereby commingled client funds with
her own and misappropriated them for her personal use and
benefit, in violation of HRPC Rules 1.15(a)(1),1.15(c), 1.15(d),
and 8.4(c). After the initiation of the divorce proceedings in
December, 2011, Respondent Sims failed to diligently and timely
monitor the status of the case for approximately eight months,
in violation of HRPC Rules 1.3 and 3.2. We find, in aggravation,
that Respondent Sims engaged in a pattern of misconduct, had
a dishonest or selfish motive in using unearned client funds for
her personal use, committed multiple offenses, had substantial
experience in the practice of law, and initially failed to cooperate
in the investigation,requiring the use of a subpoena duces tecum.
In mitigation, we find Respondent Sims had a clean disciplinary
record prior to these matters, made a full and free disclosure
to the Disciplinary Board, and exhibited a cooperative attitude
toward the disciplinary proceedings. Therefore, it appearing that
suspension is appropriate,IT IS HEREBY ORDERED that Respondent
Sims is suspended from the practice of law in this jurisdiction
for a period of one year and one day, effective 30 days after
the date of entry 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 Sims shall, as a
prerequisite to reinstatement and at her own expense, submit to
an audit of the procedures and practices of her legal practice by
the Practicing Attorneys’ Liability Management Society (PALMS) or
an equivalent organization, and shall submit a report to this court
in this case and to any review board convened pursuant to RSCH
Rule 2.17, setting forth the conclusions of the audit, the steps
taken by her to implement any resulting recommendations,and
the results of a three-month review following implementation of
the recommendations. The audit shall specifically address practices
and procedures implemented to comply with the financial
and record keeping provisions of the Hawai’i Rules of Professional
Conduct and the Hawai’i Rules Governing Trust Accounting. 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 Sims shall pay all costs of these
proceedings as approved upon the timely submission of a bill of
costs by ODC, as prescribed by RSCH Rule 2.3(c).IT IS FURTHER
ORDERED that Respondent Sims shall,within ten days after the
effective date of her suspension, file with this court an affidavit
she has fully complied with the duties of a suspended attorney
set forth in RSCH Rule 2.16(d).
DATED: Honolulu, Hawai’i, September 23, 2015.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson~