Trask, In re, 5221

• Decision Date: 28 September 1971
• Docket Number: No. 5221,5221
• Citation: 488 P.2d 1167,53 Haw. 165
• Parties: In the Matter of Bernard K. TRASK, Attorney at Law.
• Court: Hawaii Supreme Court

Page 1167

488 P.2d 1167

53 Haw. 165

In the Matter of Bernard K. TRASK, Attorney at Law.

No. 5221.

Supreme Court of Hawai'i.

Sept. 28, 1971.

Harold W. Nickelsen, for the Commissioners.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

PER CURIAM.

Disciplinary proceedings against Bernard K. Trask hereinafter referred to as respondent, were initiated with the filing of charges with the Commission on Unprofessional Conduct and Unauthorized Practice of Law by three individual complainants: Mrs. Susanna Gluckler (Case No. 33), Mr. Fortunato Cansana (Case No. 36) and Mr. Manuel Marques (Case No. 37). Pursuant to Rule 16(c)(4) of the Rules of the Supreme Court, the chairman of the Commission appointed a Committee on Inquiry to conduct investigations into the charges of unethical conduct by respondent. On September 8, 1968, the Committee on Inquiry filed reports on cases 36 and 37 with the Commission, recommending that hearings be held. On October 21, 1968, the Committee on Inquiry filed a report on case 33, also recommending that hearings be held. Pursuant to these reports filed by the Committee on Inquiry, complaints for cases 33, 36 and 37 were issued and duly served upon respondent. Hearings were held on February 12, 1969, on Case No. 33 and on November 12, 1969, for Cases No. 36 and 37.

Subsequent to these hearings, the Commission filed with the Supreme Court on April 14, 1971, reports containing findings of fact, conclusions and recommendations concerning respondent's conduct. A certified copy of the Report of the Commission was served on the respondent personally on April 14, 1971. The respondent did not file within twenty days from the date of service any exceptions to the Report which he was entitled to make, pursuant to paragraph 16 of Rule 16 of the Rules of this court.

The material facts in Case No. 33 are undisputed. Respondent, a member of the bar of the State of Hawaii, admitted to practice before all the courts in the state, was retained by Mrs. Gluckler on or about April 22, 1968, to obtain an annulment of marriage for complainant. The following day, Mrs. Gluckler tendered to respondent a diamond ring valued at $500 as full payment for court costs, service fees and respondent's professional services. Respondent informed the complainant that he would call her as soon as he was ready. When respondent failed to contact the complainant, the latter, eight to fourteen days later, attempted to speak with respondent. During the period between April 22 and June 28, complainant made numerous telephone calls to respondent, leaving messages for him to return her calls as respondent was never in his office. None of the messages was answered by respondent.

On two occasions, Mrs. Gluckler found respondent in areas outside his office. On each occasion respondent arranged appointments to meet with complainant at his office at a specified date and hour. Complainant went to respondent's office at each appointed time, but in both instances respondent failed to show up for the meetings. On one of these instances at some unspecified time between April 25 and June 15, complainant waited for respondent about two hours after the specified hour of the appointment.

On July 1, 1968, Mrs. Gluckler sent to respondent a letter by certified mail. The letter was never picked up by respondent and was returned to complainant on or about July 29, 1968.

Mrs. Gluckler's complaint for annulment was never filed by respondent because the latter did not prepare the requisite motion, affidavit and order for service of summons by registered mail or by publication on Mr. Gluckler who was not a resident of the State of Hawaii. Despite his failure to perfect the initial pleading so that it could be filed in court, respondent did not return any part of the fee represented by the diamond ring tendered by complainant to respondent and sold by respondent at its appraised value of $500.

The Commission concluded that respondent violated Canons 21 and 29 for failure without good reason to render professional services with reasonable diligence and promptness after accepting payment in full for such professional services, and for failure to refund promptly the unearned portion of the fee and unused court costs and service fees to the client when termination of the employment prior to completion of the services became inevitable.

Respondent's conduct in Case No. 36 is similar to that in Case No. 33. Fortunato Cansana was incarcerated serving out a term of six months in April 1968 when the Board of Parole and Pardons submitted to the Governor a recommendation to commute the sentence.

In early May, 1968, Mr. Cansana retained respondent to help expedite the signing of the commutation papers. After accepting the assignment, respondent indicated that he should have the papers signed within two or three weeks. Complainant then paid respondent $110 or $115 by check as partial payment of a fee of 'about $300.00.' Subsequently, Mr. Cansana paid respondent $50 in cash. While incarcerated, Mr. Cansana frequently telephoned respondent but was unable to contact him; and respondent failed to return the telephone calls.

Respondent admitted that he had agreed to represent Mr. Cansana to expedite signing of the commutation papers and that he had received such payments to render professional services. He claims, however, that he satisfied his duty to complainant as he made three visits to Oahu Prison, where Mr. Cansana was incarcerated, to review complainant's record and to confer on the Cansana case with Mr. Arthur Hoke, Secretary of the Board of Parole and Pardons. However, a letter dated January 16, 1970, from the Acting Parole and Pardons Administrator indicated that the records of the Board 'does not show that he (respondent) exerted any influence or consulted with any member of the Board or its staff on this matter.' A latter dated January 19, 1970, from Mr. Ed Rohrbough, administrative assistant to the Governor, states there was no correspondence between the Governor's office and respondent on the Cansana matter. In addition, there is no appointment with respondent noted on the Governor's calendar for the months of May, June and July, 1968.

Respondent has not returned any part of the fee paid by complainant.

The Commission concluded that the respondent violated Canons, 12, 21 and 29 for failing to petition the Governor to commute the sentence of the complainant and for failure to return to complainant the money paid to respondent as fees for such services.

On or about May 4, 1968, the respondent agreed to represent complainant Manuel Marques to take an appeal on behalf of complainant from a judgment of conviction rendered by a district magistrate of the District Court of Honolulu. Complainant paid respondent $50 on May 4, 1968, and an additional sum of $200 on May 6, 1968, for court costs, service fee and professional services.

Respondent negligently failed to take all requisite steps to perfect and take the appeal on behalf of the complainant. Consequently, the district court's judgment of conviction became final. In addition, respondent failed to inform Mr. Marques that the appeal had no been perfected and taken and failed to reimburse complainant the money paid for the purpose of taking the appeal.

Mr. Marques was unable to contract respondent after May 6, 1968. He went to respondent's office in person on at least four different occasions and was told each time that respondent was in court. Complainant telephoned respondent's office at least twenty times but was unable to contact respondent. Respondent did not return any telephone calls.

The Commission concluded that respondent's conduct in Case No. 37 constituted violation of Canons 12, 21 and 29.

Discernible throughout these three cases are two distinct patterns of respondent's conduct which we find to be in violation of the Canons of Professional Ethics: (A) Respondent's acceptance of employment, receipt of payment in full or in part for professional services, and subsequent failure to perform his duties under the agreement and failure to reimburse his clients for non-performance of such duties; (B) respondent's procrastination and delay in disposing of his client's causes of his client's detriment, failure to communicate with his clients and refusal to respond to their inquires.

A.

We find highly reprehensible respondent's practice of agreeing to render professional services, receiving payment for such services, then reneging in performance of his obligations under such agreements and failing to reimburse his clients for non-performance.

Although there is no provision in the Canons of Professional Ethics which specifically provides that an attorney is duty-bound to refund to his clients portions of unearned fees in the event of default by the attorney, there is no question that such conduct violates the Canons of Professional Ethics. The absence of aprovision of this nature clearly does not indicate that the subject conduct of the respondent is permissible. The absence of such a provision is explained by the preamble to the Canons of Professional Ethics which states:

No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life. The following canons of ethics are adopted as a general guide, but the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned. (Emphasis added.)

The same construction of the Canons of Ethics was made by this court in In re Trask, 46 Haw. 404, 411, 380 P.2d 751, 756 (1963) where this court stated that 'to hold an attorney answerable for unprofessional conduct, it is not necessary that his offense be...