                                                     Electronically Filed
                                                     Supreme Court
                                                     SCAD-12-0000376
                                                     14-FEB-2013
                                                     08:18 AM



                       NO. SCAD-12-0000376

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


           OFFICE OF DISCIPLINARY COUNSEL, Petitioner,

                               vs.

                 FRANK M. FERNANDEZ, Respondent.


                       ORIGINAL PROCEEDING
    (ODC 07-172-8632, 08-004-8647, 09-016-8739, 09-017-8740,
09-085-8808, 09-087-8810, 09-088-8811, 09-089-8812, 09-090-8813)

                       ORDER OF DISBARMENT
   (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.,
   and Intermediate Court of Appeals Associate Judge Fujise,
                in place of Pollack, J., recused)

          Upon consideration of the Disciplinary Board’s report
and recommendation to disbar Respondent Frank M. Fernandez, the
briefs filed by Respondent Fernandez and the Office of
Disciplinary Counsel (ODC), and upon full consideration of all
the evidence in the record, this court reaches the following
findings and conclusions by clear and convincing evidence;
specifically, that
          Respondent Fernandez was aware Rule 1.15(d) of the
Hawai#i Rules of Professional Conduct (HRPC) states all fees are
refundable until earned and was further aware legal fees are
earned through the provision of legal services.
          In ODC Case No. 09-088-8811, Fernandez did not contact
Ginger Davids for documents necessary for the filing of a
lawsuit, despite the fact he was in contact with her sister, and
despite the fact the Davids’ contact information did not change
during the period of representation. Fernandez did not keep the
Davids apprised of the status of the case, allowed the statute of
limitations to expire, and never in fact filed a lawsuit.    In
doing so, he violated HRPC Rule 1.2(a) (“[a] lawyer shall abide
by a client’s decisions concerning the objectives of
representation, . . . and shall consult with the client as to the
means by which the objectives are to be pursued”), Rule 1.3 (“A
lawyer shall act with reasonable diligence and promptness in
representing a client”), Rule 1.4(a) (“a lawyer shall keep a
client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information”) and
Rule 1.4(b) (“[a] lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation”).   By failing to provide
the Davids with a satisfactory accounting of the $1,500.00 in
client funds, failing to inform the Davids of the termination of
the representation, to return files, or to provide a refund of
the $120.00 filing fee until the instigation of the disciplinary
proceedings, Fernandez violated HRPC Rule 1.15(f)(3) (providing a
right to an accounting of funds earned) and Rule 1.16(d)
(requiring the attorney to terminate representation with the
client’s interests in mind, including refunding unearned fees and
returning client files).
          In ODC Case No. 09-089-8812, by arranging to serve as
both attorney and bail bondsman to Jennifer Garcia, Fernandez
instigated a non-waivable conflict of interest that violated HRPC
Rule 1.7(b) (“[a] lawyer shall not represent a client if the
representation of that client may be materially limited . . . by
the lawyer's own interests”) and engaged in a business
transaction with a client related to the representation, in

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violation of HRPC Rule 1.8(a).
          By attempting to secure Bruce Toyoshiba’s waiver of his
right to an accounting and to a refund of unearned fees,
Fernandez violated HRPC Rules 1.15(d) (“[a]ll fee retainers are
refundable until earned), Rule 1.15(f)(3) and Rule 8.4(c) (“It is
professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty . . . deceit or misrepresentation”).
          In ODC Case No. 09-090-8813, by serving as both Larry
Souza’s attorney and bail bondsman, and by failing to inform
Souza of the conflict of interest inherent in that practice,
Fernandez violated HRPC Rules 1.4(b), 1.7(b), and 1.8(a).      By
attempting to secure from Souza a waiver of Souza’s right to an
accounting and a refund of unearned fees, Fernandez violated HRPC
Rules 1.15(d), 1.15(f)(3), and 8.4(c).      By failing to respond to
Souza’s inquiries, failing to seek Souza’s prior consent to a
substitution of attorneys at the hearings, and for securing
continuances without consulting with Souza, Fernandez violated
HRPC Rules 1.2(a), 1.3, 1.4(a) and 1.4(b).
          In ODC Case No. 09-087-8810, by attempting to secure
from Charles Martin a waiver of Martin’s right to an accounting
and a refund of unearned fees, Fernandez violated HRPC Rules
1.15(d), 1.15(f)(3), and 8.4(c).       By failing to inform Martin of
the status of his cases, Fernandez violated HRPC Rule 1.4(a).         By
misrepresenting in written communications with ODC the hearings
Fernandez attended on Martin’s behalf, Fernandez violated HRPC
Rule 8.1(a) (“a lawyer in connection with . . . a disciplinary
matter, shall not . . . knowingly make a false statement of
material fact”).   By failing to maintain any financial records
regarding the monies received from Martin and how they were
disbursed, Fernandez violated HRPC Rule 1.15(f)(3).
          In ODC Case No. 07-172-8632, Fernandez never filed a
proper motion for supervised release or reduced bail, but rather
filed a single ex parte motion that was summarily denied.       His

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actions violated his duties under HRPC Rule 1.3 to diligently
pursue the purpose of the representation.    By misrepresenting to
Michael Respicio over the course of two months the cause for the
delay in Respicio’s case, Fernandez violated HRPC Rules 1.4(a),
1.4(b) and 8.4(c).   By failing to maintain records regarding the
payments made by Respicio and the disbursement of those funds,
Fernandez violated HRPC Rule 1.15(f)(3).    By attempting to secure
a waiver of Respicio’s right to a refund of unearned fees,
Fernandez violated HRPC Rules 1.15(d) and 8.4(c).
          In ODC Case No. 08-004-8647, Fernandez, by
misrepresenting to Patience Nwanna that Bruce DeLeon, a paralegal
in his office was, in fact, an attorney, or that he had co-
counseled with attorney Michael Nauyokas on federal employment
matters, violated HRPC Rule 8.4(c).    By accepting the full flat
fee from Nwanna for his personal use and benefit, failing to
accomplish the objective of the representation – the filing of a
lawsuit for defamation against her employers –    and failing to
subsequently refund any of the flat fee, Fernandez violated HRPC
Rules 1.15(c) (“[a] lawyer in possession of any funds . . .
belonging to a client . . . , where such possession is incident
to the lawyer's practice of law, is a fiduciary and shall not
commingle such funds . . . with his . . . own or misappropriate
such funds . . . to his . . . own use and benefit”), 1.15(d), and
1.16(d) (“[u]pon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect a
client’s interests, such as . . . refunding any advance payment
of fee that has not been earned”).    By attempting to secure a
waiver from Nwanna of her right to an accounting and a refund of
unearned fees, and by providing a deficient accounting, Fernandez
violated HRPC Rules 1.15(d), 1.15(f)(3) and 8.4(c).
          By representing to Nwanna he was familiar with federal
employment litigation when the record demonstrates he was not and
by subsequently failing to educate himself on the required

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knowledge, Fernandez violated HRPC Rules 1.1 (competence) and
8.4(c).   By failing to heed Nwanna’s instructions as to the
purpose of the litigation and instead pursuing a discrimination
claim after Nwanna informed him she had waived her right to such
a claim, by failing to communicate with her during his pursuit of
that strategy, and by ultimately drafting a one-sentence
defamation claim for state district court, Fernandez violated
HRPC Rules 1.1, 1.2(a), 1.4(a), and 1.4(b).
           In ODC Case No. 09-016-8739, we note that, in response
to ODC inquiries seeking justification of the $10,000.00 in fees
he had received, Fernandez informed ODC he represented R.J. at
several hearings, including hearings held on May 15, June 19,
June 26, and June 30, 2008 which he, in fact, did not attend.    By
misrepresenting facts to ODC in the course of its investigation,
Fernandez violated HRPC Rule 8.1(a).   By improperly attempting to
secure from the Hams a waiver of their right to a refund of
unearned fees, Fernandez violated HRPC Rules 1.15(d) and 8.4(c).
By relying on a unilaterally imposed rate of $250.00 an hour to
justify his $10,000.00 fee, imposed without consultation with the
Hams and announced only after a dispute arose concerning the fee,
Fernandez violated HRPC Rule 1.5(b) (“When the lawyer has not
regularly represented the client, the basis or rate of the fee
shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the
representation”).   Furthermore, by failing to safeguard the funds
in the client trust account once a dispute arose concerning the
fee, but instead employing them for his own use and benefit,
Fernandez violated HRPC Rule 1.15(c) (“[if] the right of the
lawyer . . . to receive the funds is disputed by the client, . .
. the disputed portion shall not be withdrawn until the dispute
is finally resolved”).   By failing to maintain records sufficient
to provide an accurate accounting of the nature and duration of
the work performed, Fernandez violated HRPC Rule 1.15(f)(3).    For

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failing to research court records to determine what other
convictions, pending charges or probationer status might affect
his efforts to reduce his client’s $1,000,000.00 bail, and for
denying it was his duty to do so, Fernandez violated HRPC Rules
1.1, 1.2(a), and 1.3.   By failing to reasonably communicate with
his client during his client’s incarceration, Fernandez violated
HRPC Rule 1.4(a).
          In ODC Case No. 09-017-8740, for agreeing to a
contingency fee arrangement but failing to reduce the agreement
to writing, Fernandez violated HRPC Rule 1.5(c).   For failing to
keep Phillip apprised of Fernandez’s purported efforts to
overturn Phillip’s previous convictions, Fernandez’s appeals of
the subsequent denials, and Fernandez’s purported appeal to the
Governor of the State of Hawai#i for clemency, Fernandez violated
HRPC Rules 1.4(a) and (b). By improperly attempting to secure
from Phillip’s wife a waiver of her right to an refund, Fernandez
violated HRPC Rule 1.15(d) and 8.4(c).   By failing to maintain
financial records or to provide an accurate accounting of work
done in his representation of Phillip sufficient to justify the
$8,000.00 in fees, Fernandez violated HRPC Rule 1.15(f)(3).
          In ODC 09-085-8808, by agreeing to the representation
of Durant Sirom without informing Sirom or his father of the
clear conflict of interest of his existing representation of
Sirom’s cousin, Fernandez violated HRPC Rule 1.4(b).   By
improperly attempting to compel Sirom’s father to waive his right
to a refund, Fernandez violated HRPC Rules 1.15(d) and 8.4(c).
By failing to provide a detailed accounting of the hours spent on
the Sirom matter sufficient to justify an asserted total billing
of $10,000.00, Fernandez violated HRPC Rule 1.15(f)(3).     For
later asserting a unilaterally imposed rate of $250.00 an hour to
justify his fee, without first consulting with his client,
Fernandez violated HRPC Rule 1.5(b).
          In aggravation, we find Fernandez had two previous

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informal reprimands imposed upon him, a dishonest and selfish
motive, a pattern of misconduct extending over at least nine
different client matters, multiple offenses in all cases before
the court, a refusal to acknowledge the wrongful nature of his
conduct toward his clients and their funds, substantial
experience in the practice of law, and an indifference to making
restitution.   In mitigation, we note the delay in convening
disciplinary proceedings, but also note that the lack of records
maintained by Respondent Fernandez equally contributed to
evidentiary challenges present in the matters at hand.
Therefore, disbarment being an appropriate sanction,
          IT IS HEREBY ORDERED that Respondent Frank M. Fernandez
is disbarred from the practice of law in the State of Hawai#i
effective thirty days after the entry of this order.
          IT IS FURTHER ORDERED that Respondent Fernandez shall,
in accordance with Rule 2.16(d) of the Rules of the Supreme Court
of the State of Hawai#i (RSCH), file with this court within 10
days after the effective date of his disbarment, an affidavit
showing compliance with RSCH Rule 2.16(d) and this order.
          IT IS FURTHER ORDERED that, as a condition of
reinstatement, in addition to any requirements imposed pursuant
to RSCH Rules 2.3, 2.16, and 2.17, Respondent Fernandez shall pay
all costs of these proceedings as approved upon the timely
submission of a bill of costs and an opportunity to respond
thereto, as prescribed by RSCH Rule 2.3(c).
          DATED:   Honolulu, Hawai#i, February 14, 2013.
                               /s/ Mark E. Recktenwald

                               /s/ Paula A. Nakayama

                               /s/ Simeon R. Acoba, Jr.

                               /s/ Sabrina S. McKenna

                               /s/ Alexa D.M. Fujise


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