                                                      Electronically Filed
                                                      Supreme Court
                                                      SCAD-15-0000495
                                                      23-SEP-2015
                                                      10:50 AM
                          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)



                         ORDER OF SUSPENSION


(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
 


           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).1             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



       1


         All references in this order to the Hawai'i Rules of Professional
Conduct refer to the version in effect from 1994 through 2013.

                                      2


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
 


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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.



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          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



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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




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