Recent rulings suggest foreclosure attorney Dubin faces likely disbarment in federal court – Ian Lind

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Former Honolulu attorney Gary Victor Dubin, who was disbarred by order of the Hawaii Supreme Court late last year after a lengthy legal battle, now appears to be on a fast track towards loss of his license to practice law in federal court as well.
Dubin promoted himself and garnered a national audience by hosting a weekly radio program, The Foreclosure Hour, from 2013 through most of last year. His co-host John Waihee III, served as Hawaii governor from 1986 to 1994. Dubin also successfully argued a number of cases before the Hawaii Supreme Court over the years.
But in four sharp rulings last week, Judge Jill Otake rejected requests made by or on behalf the 82-year old Dubin to deflect or further delay the ongoing disbarment proceedings and avoid dismissal of a related civil lawsuit Dubin filed earlier this year in Honolulu’s US District Court.
In the disbarment proceeding, Dubin has been ordered to “show cause” why he should not be disbarred from practicing law in the federal court following his state disbarment, based on reciprocal discipline agreements between state and federal jurisdictions. Honolulu attorney Keith Kiuchi, who took over a number of Dubin’s pending cases after his state disbarment, entered this case as Dubin’s co-counsel.
The second case is a civil lawsuit filed by Dubin alleging the entire structure of attorney discipline is unconstitutional, and reflects a conspiracy against him because of his success in defending homeowners facing foreclosure. Named as defendants in this case are the Hawaii Supreme Court and its justices, the Office of the Disciplinary Counsel, including the disciplinary board, The Lawyers’ Fund For Client Protection, along with the agency’s members, attorneys, and staff.
Kiuchi is representing Dubin in the lawsuit, while Dubin is representing several hundred of his former clients, who he argues have been damaged by his disbarment.
The state has filed a motion to dismiss, which is scheduled to be heard later this month.
Dubin previously sought to use this lawsuit and its allegations of a wide ranging conspiracy against him, as a defense against the show cause action, but Otake issued an order on April 14 allowing the disbarment proceeding to move forward.
Otake’s most recent rulings reflect the judge’s increasing irritation with Dubin’s delays and failure to follow court rules or heed prior admonitions.
Otake was appointed by Chief Judge Michael Seabright as chair of a three-judge panel to consider the reciprocal discipline case, along with Judge Leslie Kobayashi and Chief Magistrate Judge Kenneth Mansfield.
In the “show cause” case, Dubin had unsuccessfully requested a full-blown evidentiary year in which he hoped to elicit testimony to support his case against disbarment. Otake denied the request, citing the limited scope of reciprocal discipline reviews, and ruled Dubin had no right to open up the case to another round of evidence. However, Otake said that “as a courtesy,” she would allow Dubin to submit a declaration by former Gov. John Waihee, who represented Dubin during hearings held by the disciplinary counsel. Dubin said Waihee would testify to improper behind-the-scenes communication between the Supreme Court and disciplinary counsel which, he argued, prejudiced those proceedings.
Otake set a July 28 deadline to submit the Waihee declaration. But on July 28, the original deadline, Keith Kiuchi filed a motion on behalf of Dubin requesting an extension of the deadline until Monday, August 2, citing Dubin’s “health and medical issues,” and time pressure from other deadlines.
In an order filed the next day, Otake chided Dubin and Kiuchi for waiting until the very last minute before seeking the extend the deadline, which they had known about since July 9.
“Yet he waited until the close of business on 7/28/21 to seek an extension. Notably, he did the same in his related case, requesting an extension of the deadline after it expired,” Otake noted in her order.
“This increasingly dilatory conduct will not be tolerated,” Otake wrote.
Otake’s order also said the motion failed to explain “why he [Dubin] is personally preparing filings — and is the only person who is purportedly able to do so — when he is represented by Mr. Kiuchi.“
If the Waihee declaration is really Dubin’s account of what happened during the disciplinary proceedings, “with former Governor Waihee merely attaching his signature, it is duplicative and unnecessary,” Otake wrote.
Despite these misgivings, Otake allowed a further two day extension, and set a new deadline of noon on Friday, July 30. Kiuchi responded immediately with a Motion for Reconsideration, repeating the request to push the deadline back to August 2.
Otake denied the motion, and again criticizing the last minute request, concluding Dubin and Kiuchi “presented no basis for reconsideration.”
The judge then challenged Kiuchi for contradicting his own statement made the previous day.
Mr. Kiuchi now represents that “[i]t was never intended for Mr. Dubin to write Gov. Waihee’s declaration.”
This directly contradicts his representation in the motion for extension: “[T]he declaration of John D. Waihee III must be drafted by Mr. Dubin because he alone has had communications with Gov. Waihee both during the process before the Office of Disciplinary Counsel and after.”
So he is either backpedaling in response to the EO, or the latter statement was presented — truthful or not — in an effort to obtain an extension.
A similar motion seeking to extend a July 26 deadline in Dubin’s lawsuit against the Supreme Court and others, was not filed until the deadline had already passed. Otake denied the motion, and cautioned Dubin and Kiuchi about their tactics.
Otake’s order said, in part:
Messrs. Kiuchi and Dubin have elected to proceed as co-counsel for Plaintiffs. The Court will not countenance a tag-team effort whereby Mr. Kiuchi claims he cannot effectively complete work on Plaintiffs’ behalf because only Mr. Dubin has the knowledge to prepare an opposition to the joinder. As co-counsel, they are equally responsible for representing Plaintiffs and meeting deadlines. More importantly, as the Court already explained to Messrs. Kiuchi and Dubin in a different case, if Mr. Kiuchi is representing Mr. Dubin, Mr. Dubin may not act on his own behalf.
On July 30, Otake issued an additional order telling Dubin and Kiuchi single combined filings by both attorneys in the civil lawsuit will not be accepted.
The Court has repeatedly informed Messrs. Dubin and Kiuchi that if Mr. Kiuchi is counsel for Mr. Dubin, Mr. Dubin cannot act on his own behalf pursuant to Local Rule 83.5(a). Yet Mr. Kiuchi claims that “parties who are attorneys often appear as co-counsel in a case, but the Court can nevertheless restrict advocacy at hearings and trial to one counsel, which we fully respect. But such a limitation has never been applied to the filing of court papers.”
Local Rule 83.5(a) expressly provides otherwise: “When a party is represented by an attorney, the party may not act on his or her own behalf in the action…. The court may strike any document filed by a party on his or her own behalf when the party is represented by counsel in the action.” Plaintiffs may file joinders to the extent they are permitted by the Local Rules, but the Court will not accept a single filing as a consolidated filing on behalf of all Plaintiffs given that the plaintiff groups have different counsel.
Dubin continues to claim a “heretofore unblemished ethical record” as a lawyer, although the claim is contradicted by the record compiled in the course of the Disciplinary Counsel’s proceeding. It is a claim that will soon be put to the test as the three-judge federal panel evaluates that record and reaches its own conclusion.
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