Opposition Brief — Miyashiro v. Masuoka, 127 S. Ct. 2035 (2007) (No. 06-1072)
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No. 06-1072
In The
Supreme Court of the Gnited States
sf
GEORGE MIYASHIRO,
Petitioner,
vs.
Honorable GEORGE M. MASUOKA, Judge in
the trial court, and the SUPREME COURT
OF THE STATE OF HAWAII,
Respondents.
S
On Petition For Writ Of Certiorari To The
Supreme Court Of The State Of Hawaii
°
BRIEF OF RESPONDENT STANLEY H. ROEHRIG
IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
.
PETER VAN NAME ESSER KEITH K. HIRAOKA, ESQ.
Counsel of Record ROECA, LOUIE & HIRAOKA, LLP
Suite 400, 841 Bishop Street, Suite 900
Seven Waterfront Plaza Honolulu, Hawaii 96813
500 Ala Moana Boulevard (808) 538-7500
Honolulu, Hawaii 96813 BRIAN J. DE LIMA, ESQ.
(808) 538-3636 CRUDELE & DE LIMA
101 Aupuni Street, Suite 133
Hilo, Hawaii 96720
(808) 969-7707
Attorneys for Respondent Stanley H. Roehrig
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED FOR REVIEW
A. IN VIEW OF THE TRIAL COURT’S DISMISSAL OF
THE UNDERLYING MALPRACTICE ACTION BECAUSE
OF PETITIONER’S EMBEZZLEMENT AND BREACH OF
FIDUCIARY DUTY, SHOULD THIS COURT LIKEWISE
DECLINE TO ASSIST PETITIONER, WHO WOULD USE
THE JUDICIAL PROCESS TO BENEFIT FROM HIS
OWN FRAUDULENT CONDUCT?
B. DOES PETITIONER HAVE A CONSTITUTIONAL
RIGHT TO CHOOSE OUT-OF-STATE COUNSEL AS
LEAD TRIAL COUNSEL, DESPITE COUNSEL'S DIS-
QUALIFICATION BY A CALIFORNIA COURT, MULTI-
PLE PRO HAC VICE APPEARANCES, UNAUTHORIZED
PRACTICE OF LAW, DISCOVERY MISCONDUCT, AND
STIPULATION BY PETITIONER THAT HIS PRO HAC
VICE LAWYER BE LIMITED TO A SUPPORTING
ROLE?
C. IS THE HAWAII SUPREME COURT'S ORDER
DENYING MANDAMUS A FINAL JUDGMENT FOR
PURPOSES OF 28 U.S.C. § 1257(A), WHEN JUDGMENT
HAS BEEN ENTERED IN THE UNDERLYING MAL-
PRACTICE ACTION, PETITIONER HAS APPEALED,
AND THE SAME QUESTION REGARDING PRO HAC
VICE COUNSEL HAS BEEN LISTED IN HIS POINTS
ON APPEAL?
ii
LIST OF PARTIES TO THE PROCEEDING
Petitioner GEORGE MIYASHIRO (“Miyashiro”) is
the plaintiff-appellant in Miyashiro v. Roehrig, Roehrig,
Wilson and Hara, Civil No. 04-1-0211, a legal malpractice
action filed on July 19, 2004, against defendant-appellee
and respondent STANLEY H. ROEHRIG (“Roehrig”) in
Hawaui’s Third Circuit Court, and currently on appeal in
the Hawaii Intermediate Court of Appeals, No. 28395.
This State court appeal by Miyashiro follows the entry of a
judgment on all claims in favor of Roehrig by Respondent
GEORGE M. MASUOKA, Hawaii Circuit Court Judge,
after the court granted four motions for summary judg-
ment. Miyashiro filed a statement of points on appeal in
that proceeding which includes the pro hac vice ruling
challenged herein. Miyashiro has also named Respondent
HAWAII SUPREME COURT, based on its November 1,
2006, order denying Miyashiro’s petition for writ of man-
damus asking that court to vacate Judge Masuoka’s pro
hac vice order in Miyashiro.
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW. .............. i
LIST OF PARTIES TO THE PROCEEDING ............ ii
SO IE GFNE CI iis tienictbdintinisaniictniaiimivinbiaiies ili
RRR OE BAF CEI tecttcdircinwceresssenéncnsnoietennens vii
BRIEF OF RESPONDENT STANLEY H. ROEHRIG
IN OPPOSITION TO PETITION FOR WRIT OF
SAE SPR ntdcctunucinedibivebedensacticcuanntmnresscanieondincints 1
‘STATEMENT OF THE CASE ................ssscccssseceeseeees 2
The TO srcdiienccaeteetnceeieisttnneninn 2
hs > IE ichacciictabesnsdtisecindiitalitiabasientcetcnacten 3
1. THE UNDERLYING CASES ................... 3
a. The Jack’s Tours Litigation ................ 3
b. The Roehrig Malpractice Case............ 5
2. THE PRO HAC VICE MOTIONG............. 7
i FR I Oe seaccccticcesinninaticcincncine 7
D. The Second Motsons ....ccccccccsecoceserescesees 13
Ge TF Te BI icnccteccnitincwnntcndectabons 14
3. THE PETITION FOR WRIT OF MAN-
TREPED cibthitadatiuiinssciincupisentaniiniieleacidbaaitinie 16
4. THE STATE COURT APPEAL................. 17
iv
TABLE OF CONTENTS - Continued
Page
A. IN VIEW OF THE TRIAL COURT'S DIS-
MISSAL OF THIS MALPRACTICE ACTION,
BASED ON PETITIONER'S ACKNOWL-
EDGED EMBEZZLEMENT AND BREACH
OF FIDUCIARY DUTY, THIS COURT
SHOULD ALSO REFUSE TO ASSIST HIM
IN HIS ATTEMPTS TO USE JUDICIAL
PROCESS TO BENEFIT FROM HIS OWN
FRAUDULENT CONDUCT. ..........cccsceceeeeeeeees 18
B. PETITIONER DOES NOT HAVE A CON-
STITUTIONAL RIGHT TO CHOOSE OUT-
OF-STATE LEAD TRIAL COUNSEL IN A
CIVIL CASE, ESPECIALLY IN LIGHT OF
COUNSEL'S DISQUALIFICATION BY A
CALIFORNIA COURT, MULTIPLE PRO
HAC VICE APPEARANCES, UNAUTHOR-
IZED PRACTICE OF LAW, DISCOVERY
MISCONDUCT, AND A STIPULATION BY
PETITIONER THAT HIS PRO HAC VICE
LAWYER BE LIMITED TO A SUPPORTING
PE Mivscuiasscienniticnineininnniinaitiaieiibantieiits 20
C. PETITIONER FAILS TO INFORM THIS
COURT THAT JUDGMENT HAS BEEN
ENTERED AGAINST HIM IN THIS MAL-
PRACTICE CASE, PETITIONER HAS AP-
PEALED TO THE HAWAII APPELLATE
COURTS, AND HE HAS LISTED THIS PRO
HAC VICE RULING IN HIS POINTS ON
FE tt inintnhiiiainiaittciinnmmninies 25
SINE Sncnissersiversniansionnet pines semavesinecageiaitenetinn’ 28
TABLE OF CONTENTS - Continued
Page
APPENDICES:
A.
ORDER GRANTING DEFENDANT'S MO-
TION FOR SUMMARY JUDGMENT BASED
ON PLAINTIFF’S ADMITTED EMBEZZLE-
MENT AND BREACH OF FIDUCIARY DUTY
CPZESED COMBE Re LA. DOCU) evsvacasveveversnserenessinesonens App. A-1
ORDER GRANTING DEFENDANT'S MO-
TION FOR SUMMARY JUDGMENT ON
HAWAI'I RULES OF PROFESSIONAL CON-
DUCT (FILED SEPT. 11. 2006) ...cc.ssecssescsseeen App. B-1
OPINION IN CHRONOMETRICS V. SYSGEN,
SCHAEFER AND FATT, 110 CAL.APP.3D
597, 168 CAL.RPTR. 196 (1980) ......esesseeseeee: App. C-1
AMENDED FINAL JUDGMENT (FILED JAN.
FTI icicinricniiiainiiacudd anne App. D-1
ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF'S MOTION TO ALLOW EUGENE J.
ALBERTINI TO APPEAR AS COUNSEL PRO
HAC VICE FILED SEPTEMBER 16, 2004........ App. E-1
ORDER GRANTING IN PART AND DENY-
ING IN PART PLAINTIFF’S MOTION TO
ALLOW EUGENE J. ALBERTINI TO AP-
PEAR AS COUNSEL PRO HAC VICE (FILED
US iia aca App. F-1
ORDER DENYING PLAINTIFF GEORGE
MIYASHIRO’S RENEWED MOTION TO AL-
LOW EUGENE J. ALBERTINI TO APPEAR
AS COUNSEL PRO HAC VICE WITH FULL
STATUS FILED AUGUST 28, 2006 ............... App. G-1
TABLE OF CONTENTS -— Continued
| Page
NOTICE OF APPEAL OF AMENDED FINAL
JUDGMENT FILED JANUARY 11, 2007;
EXHIBIT 1; CERTIFICATE OF SERVICE....App. H-1
PLAINTIFF-APPELLANT’S STATEMENT OF
POINTS ON APPEAL; CERTIFICATE OF
EI sciesnsictaheainaiicanadinsshintiictichiddiebicioraiinieieedenadiiin App. I-1
TABLE OF AUTHORITIES
Page
CASES
Arena Football League v. Roemer, 9 F.Supp.2d 889
EES SUITED sicinisdeicsciinnclisionnetboaitiaiciainaiariuigitiailbdiisiiedhiatpiatininiiaanddasiee 19
Bank of Hawaii v. Kunimoto, 91 Hawai'i 168, 45
Pe aU ITTITI sis tscssisiceieiedcaicinienbdabidsiianiaiiaanibeiniealiaacenagiin 12
Bateman Eichler, Hill Richards v. Berne, 472 U.S.
See USI iisideccccnnsicienaunisiiésciinlnieesipanccaniiedctatiaiiantanioiededs 18
Bondi v. Thornton International, 421 F.Supp.2d 703
Sarees Mie PUD cabaciiclbsnssabecsdcdeniescinigontacnasiiedibenseaanhicommiitien 2,18
Carpenter v. Gomez, 516 U.S. 981 (1995)... eeeseeerees 28
Choquette v. Isacoff, 836 N.E.2d 329 (Mass.App.
| PENIS nant ame ONS U TST NAN EARN NT 19
Chronometrics v. Sysgen, Schaefer and Fatt, 110
Cal.App.3d 597, 168 Cal.Rptr. 196 (1980)....3, 9, 10, 11, 24
Cox Broadcasting Corporation v. Cohen, 420 U.S.
OE deirsicicichacsnsctlnieihcbosidihienterndesiisncinnniaibdadapiimemunnenaiits 26
Evans v. Cameron, 360 N.W.2d 25 (Wis. 1985) ................ 19
Firestone Tire and Rubber v. Risjord, 449 U.S. 368
Creal ckcctseatninncvsihicshebiesionslaacia tical inaiajhaapunidatabapiignaeninsiadetiebiainn 27
Flynt v. Ohio, 451 U.S. 619 (1981)...........cccccccoesseceeeeees 25, 28
Goldstein v. Lustig, 507 N.E.2d 164 (Ill.App. 1987)..... 6, 19
Higgins v. McCrea, 116 U.S. 671 (1886) ........ ce eeeeeeeeeee 19
Johnson v. California, 541 U.S. 428 (2004).............ceceeee. 25
Kaiser Steel v. Mullins, 455 U.S. 72 (1982)..............cceeeees 18
Kema v. Gaddis, 982 P.2d 334 (Hawaii 1999)................... 27
TABLE OF AUTHORITIES — Continued
Page
Kentucky West Virginia Gas Company v. Pennsyl-
vania Public Utility Commission, 837 F.2d 600
(3d Cir.), cert. denied, 488 U.S. 941 (1988)}.............. 21, 23
Knauer v. Jonathon Roberts Fin. Group, 348 F.3d
ae CUE Sa Be reer cesanecevencvncctnsmepiitanstvlomcssiannatiammmaian 19
Leis v. Flynt, 439 U.S. 488 (1979)........cccceeseeeeeeees 20, 21, 22
McMullen v. Hoffman, 174 U.S. 639 (1899) .......... eee 18
Meschi v. Iverson, 805 N.E.2d 72 (Mass.App. 2004)....23, 24
Mettes v. Quinn, 411 N.E.2d 549 (Ill. App. 1980).............. 19
Miyashiro v. Matsuoka, Hawaii Supreme Court No.
BURUND <sscnscerontedciesviesabvinshenisapionmdiaisiaiia isaac 1
Miyashiro v. Roehrig, Third Circuit, State of Ha-
Wah, ChvEk Phe. BG DRAG ecnccsscncsccaveseiooncsaisvenenntnnnns 1, 7, 23
Nisselson v. Lernout, 469 F.3d 143 (1st Cir. 2006)........... 19
North Dakota State Board of Pharmacy v. Snyder’s
Drug Stores, 414 UE. IG6 (1GTS)..coccoserssecesacessesesssceseers 26
Obert v. Republic Western Insurance Company, 190
F.Supp.2d 279 (D.R.1. 2O0B) ..ccsssoceseeseccessveees 21, 22, 23, 24
Pantely v. Garris, Garris & Garris, 447 N.W.2d 864
CRE Maren, TI scence sucscitisivecsinssiientianitspenlangenaneldiiacies 19
Potashnick v. Port City Construction Company, 609
F.2d 1101 (5th Cir.), cert. denied, 449 U.S. 820
€ FIEND ccocevecevevedesnenibiedsniensdankeoenlenipnenenasneninaaaaanaaan 22
Radio Station WOW v. Johnson, 326 U.S. 120
CREP nnseccceseccociscccsontneiuinnioanatebiieneaadieeaaaenasn 26
Robins v. Lasky, 462 N.E.2d 774 (Tll.App. 1984).............. 20
United States v. Collins, 920 F.2d 619 (10th Cir.
QU) vicistvinteriuinmicsciciiiieaae a 22
TABLE OF AUTHORITIES — Continued
Page
United States v. Cuauhtemoc Gonzalez-Lopez, 126
S.Ct. 2557, 165 L.Ed.2d 409 (2006) .........cccesesserervers 21, 22
United States v. McDonald, 435 U.S. 850 (1978)............. 27
UNITED STATES CONSTITUTION
5th Amendment of the U.S. Constitution.................... 16, 22
6th Amendment of the U.S. Constitution.................c:c00008 22
14th Amendment of the U.S. Constitution..................0006 22
STATUTES
United States Code
SINC TT EIEIEID seiedipicanndsiibidegsiedeneenmseseeenetoeonedsnentel passim
COURT RULES
Hawai‘ Rules of Professional Conduct..................eee0e0ee: 2,6
Rules of the Supreme Court of the State of Hawai'i,
IIIs ids iain datinniendediinbeceathiedopnnedscnceiedessteaiabensels 12,17
1
BRIEF OF RESPONDENT STANLEY H. ROEHRIG
IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
This is a Brief in Opposition filed by Respondent
STANLEY H. ROEHRIG (“Roehrig”) to a Petition for Writ
of Certiorari filed by Petitioner GEORGE MIYASHIRO
(“Miyashiro”), which challenges a November 1, 2006, order
filed by Respondent HAWAII SUPREME COURT. See
Petition, Appendix A. This State order denied Miyashiro’s
petition for writ of mandamus in Miyashiro v. Masuoka, S.
C. No. 28193, which in turn, affirmed an order by Respon-
dent GEORGE H. MASUOKA, Hawaii Circuit Court
Judge (“Judge Masuoka”), denying a motion by Miyashiro
to have California lawyer Eugene J. Albertini appear pro
hac vice as his lead trial counsel in Miyashiro v. Roehrig,
Civil No. 04-1-0211, a legal malpractice action now on
appeal in the Hawaii Intermediate Court of Appeals.
Roehrig contends this Court: 1) should decline to
render aid to one who would use the judicial process to
benefit from his own fraudulent conduct, 2) lacks jurisdic-
tion under 28 U.S.C. § 1257(a) because the pro hac vice
ruling challenged in this Petition has been appealed and
the Hawaii Supreme Court has not issued a final ruling,
and 3) has never identified a federal constitutional right to
choose out-of-state lead trial counsel in a civil case.
¢
2
STATEMENT OF THE CASE
A. Introduction
This Petition for Writ of Certiorari is the latest in a
series of legal maneuvers by Petitioner Miyashiro, the
former president and CEO of a Hawaii transportation and
tour company called Jack’s Tours, to recover additional
financial benefits after being expelled from that company
due to embezzlement and breach of fiduciary duty, by
suing his former attorneys. This Petition makes no men-
tion of Miyashiro’s acknowledged fraudulent and illegal
conduct, however, or the dismissal of his malpractice
claims by Respondent Judge Masuoka based “on Plain-
tiff’s admitted embezzlement and breach of fiduciary
duty.” See Appendix A at 2. This Court, like the Hawaii
Judiciary, should likewise decline to “aid a tortfeasor who
invokes the court’s jurisdiction to relieve him of the conse-
quences of fraud.” Bondi v. Thornton International, 421
F.Supp.2d 703, 713 (S.D.N.Y. 2006).
Moreover, while Miyashiro repeats spurious allega-
tions about “multiple violations of the Rules of Profes-
sional Conduct in Hawaii” by Respondent Roehrig, he
makes no mention of Judge Masuoka’s additional and
alternative ruling granting summary judgment on all
claims after finding, as a matter of law, that Miyashiro
offered no evidence whatsoever that his former lawyer
violated any of the Hawai‘t Rules of Professional Conduct.
See Appendix B. He likewise fails to inform this Court that
he filed identical charges with the Hawaii Supreme
Court’s Office of Disciplinary Counsel, and that after a
thorough review, that watchdog agency also found no
substance whatsoever to Miyashiro’s claims.
Moreover, Miyashiro claims Eugene J. Albertini “is an
experienced attorney of good statiding,” and that “there
[was] no mention of any misconduct, conflicts of interest,
unethical behavior or other problems that [made] it
inadvisable” to grant Albertini pro hac vice status. Petition
at 14. In fact, Roehrig presented substantial evidence to
trial judges Ronald Ibarra and George Masuoka regarding
Albertini’s unauthorized practice of law in Hawaii, his
substantial discovery misconduct after his appointment,
and his undisclosed disqualification as counsel by the
California Court of Appeals because of serious violations of
that State’s Code of Responsibility. See Chronometrics v.
Sysgen, Schaefer and Fatt, 110 Cal.App.3d 597, 168
Cal.Rptr. 196 (1980). See Appendix C.
Finally, while Miyashiro contends this Court has
jurisdiction under 28 U.S.C. §1257(a) to review the
Hawaii Supreme Court’s order denying mandamus chal-
lenging the trial court’s pro hac vice rulings, he fails to
inform this Court that after that order was filed, Judge
Masuoka granted summary judgment in the underlying
legal malpractice case, judgment was entered for Roehrig
on all claims, Miyashiro appealed. That appeal is still
pending. He has listed this same pro hac vice ruling in his
statement of points on appeal.
B. Background. _
1. THE UNDERLYING CASES.
a. The Jack’s Tours Litigation
On September 15, 1997, Miyashiro hired Roehrig and
his former law partner, now Hawaii Third Circuit Judge
Glenn S. Hara (“Judge Hara”), to deiend him against a
lawsuit filed by his brother Raymond Miyashiro (“Raymond”),
4
which claimed fraudulent and illegal conduct by Miyashiro
in the operation of their family’s Big Island transportation
and tour company, Jack’s Tours. Raymond claimed that
Miyashiro, as the controlling stockholder and CEO, had
embezzled company funds.
After Roehrig and Judge Hara were retained, Miya-
shiro told them he and Jack’s Tours comptroller Donald
Bowers were participating in an illegal scheme at local
banks. This scheme involved millions of dollars and the
forgery of Miyashiro’s former wife’s name on loan applica-
tions. Concerned, Roehrig researched the issue and deter-
mined that his client was likely engaged in an ongoing
federal felony. Regardless, Roehrig and Judge Hara agreed
to represent Miyashiro against Raymond on condition that
he “go straight” and advise them of any questionable
conduct in the future. Raymond’s case was settled in 1998
when he sold his shares in Jack’s Tours, without any
public disclosure of bank fraud and embezzlement.
On January 2, 1999, after a dispute with his former
wife and son Jeffrey Miyashiro (“Jeffrey”), Miyashiro
surrendered Jack’s Tours to them. When they entered the
premises and spoke with comptroller Donald Bowers, he
told them Miyashiro had been stealing money from the
company for years. Jeffrey and his mother sued Miyashiro,
asserting embezzlement and fraud, and asking that he be
removed from control. On April 21, 1999, after a two-day
evidentiary hearing describing Miyashiro’s improper
conduct, Third Circuit Court Judge Greg K. Nakamura
removed him from control of Jack’s Tours. Jeffrey testified
as follows:
[Comptroller] Bowers informed me that some-
time back in 1990 or 1991, he was instructed by
George to find ways to take as much money out
5
of the company as possible for his benefit and
that although Mr. Bowers had pleaded with
George to do things legally, ... George simply
didn’t care.... In that same conversation, Mr.
Bowers also informed me of ... George Miya-
shiro’s disregard of the law in running the com-
pany|.]
4/21/99 Tr. at 166. Accountant Taryn Schuman also testi-
fied, submitting a lengthy report prepared by her and
Jeffrey showing Miyashiro’s embezzlement of over $1.3
million from Jack’s Tours from 1994 to 1998. Id. at 122-
146. After he was removed from control, Miyashiro quietly
settled the dispute with his family and surrendered his
stock to his former wife. Again, he avoided public exposure
or criminal charges by settling with his family before the
misconduct was aired.
b. The Roehrig Malpractice Case
On January 2, 2003, Hawaii lawyer David Gierlach
filed the first of two complaints on behalf of Miyashiro
against Roehrig and his law firm, Roehrig, Roehrig,
Wilson and Hara, claiming malpractice- because of their
alleged collusion with other family members to remove
him from control of Jack’s Tours and deprive him of its
lucrative benefits. That lawsuit was dismissed for lack of
prosecution.
On July 19, 2004, Gierlach filed a second lawsuit for
Miyashiro, again charging Roehrig and his firm with
malpractice, but adding Judge Hara as an additional
defendant. Roehrig and his firm commenced discovery, and
soon learned that the scope of their former client’s illegal
conduct at Jack’s Tours was more extensive than he
disclosed during their representation. Unknown to his
6
lawyers, between 1994 and 1998 Miyashiro engaged in a
widespread scheme involving fraud, falsification of com-
pany books, cash kickbacks, embezzlement of company
funds, and a complex illegal bar code scam involving
various vendors.
When Roehrig discovered the extent of Miyashiro’s
misconduct while CEO at Jack’s Tours, he filed a motion
for summary judgment alleging unclean hands, asserting
the well-known principle that courts should not be used by
fraudfeasors to benefit them from their illegal misconduct.
“The basis of the Plaintiff’s action in the present case,”
noted one court in a similar lawsuit, “is an attempt to
reduce the economic consequences of his fraudulent
conduct by recovering from his attorney.” Goldstein v.
Lustig, 507 N.E.2d 164, 170 (Ill.App. 1987). “The trial
court did not err in dismissing the complaint with preju-
dice.” Id. On September 11, 2006, Roehrig filed this and
three other motions for summary judgment, two months
before the scheduled trial date. See Appendix A. In addi-
tion to asserting unclean hands, Roehrig also sought
summary judgment based on the Hawai‘ Rules of Profes-
sional Conduct, conspiracy and corporate by-laws. In his
December 21, 2006, oral ruling based on Miyashiro’s
acknowledged embezzlement and breach of fiduciary
duties, Judge Masuoka declared:
The court will grant Defendant’s motion as to the
embezzlement and breach of fiduciary duties.
The court has read the reports of the experts,
even the Plaintiff’s expert, Mr. Ueno, who signed
a report with Ms. Schuman indicating that there
was embezzlement. Also, the other economic ex-
perts, Milks, Mr. Yokoyama and there was one
other, I believe, also agree with them. Under
these circumstances, the court finds that there
7
are no questions of fact and that there was em-
bezzlement.
12/21/06 Tr. at 4.
Again, the instant Petition for Writ of Certiorari
conceals Miyashiro’s acknowledged embezzlement and
breach of fiduciary duties. Indeed, it ignores all four
rulings for summary judgment and a final judgment
entered in favor of Roehrig. See Appendix D. This Petition
paints a false picture that trial is imminent and Miyashiro
is deprived of out-of-state pro hac vice lead trial counse] of
his choice. There is no trial pending, only an appeal.
In fact, Miyashiro has been represented by Hawaii
counsel David Gierlach as lead trial counsel since 2003,
and by pro hac vice assistant counsel Albertini since 2002.
When Roehrig filed four motions for summary judgment
on September 11, 2006, Albertini drafted the opposition
memoranda, Gierlach argued for Miyashiro, and Judge
Masuoka granted them in Roehrig’s favor.
2. THE PRO HAC VICE MOTIONS
a. The First Motion.
On September 16, 2004, 18 months after the first
malpractice lawsuit was filed, and two months after the
second, Gierlach filed a motion on behalf of Miyashiro
asking the Third Circuit Court to permit 74-year-old
California attorney Eugene Albertini to assist him as pro
hac vice counsel in Miyashiro v. Roehrig. He did not
request Albertini’s appointment as lead counsel, but rather
sought the court’s approval of his continued assistance of
Miyashiro and Hawaii lawyer Gierlach, which had appar-
ently been going on without court approval since 2002.
8
The motion was heard by Third Circuit Judge Ronald
Ibarra, Administrative Judge of Hawaii’s Third Circuit
Court, which includes Judges Ibarra, Nakamura, and
Hara. Judges Nakamura and Hara sit in Hilo, and Judge
Ibarra sits in Kona, on the other side of the Big Island.
Judge Hara could not hear this case for obvious reasons.
Judge Nakamura recused himself without comment,
presumably because his brother Hilo judge was a party in
the case. After Judge Ibarra ruled on the first pro hac vice
motion, he also recused himself, without comment, no
doubt for the same reasons as Judge Nakamura. According
to Miyashiro, the recusal of these judges “is testament to
the pervasive contacts of Roehrig.” Petition at 4. There is
no evidence to support this specious claim, since Roehrig
has appeared countless times before Judges Nakamura
and Ibarra since their appointment to the Big Island
bench.
On October 11, 2004, the parties argued the pro hac
vice motion before Judge Ibarra. The court heard extensive
argument from Gierlach and Albertini, who acknowledged
that Miyashiro had consulted extensively with Albertini
since 2002, both before and after Gierlach entered the
case. 10/11/04 Tr. at 8-9, 28. Albertini filed an affidavit
claiming he was “ready to go to trial,” which caught Judge
Ibarra by surprise because this was Albertini’s first re-
quest for pro hac vice approval. Id. at 27. Further, Alber-
tini acknowledged, when confronted by defense counsel,
that he had served as pro hac vice counsel at least four
other times in Hawaii, and still had no plans to take the
Hawaii Bar. Id. at 15, 25. He also acknowledged appearing
pro hac vice in three other states, including Alabama,
Nevada and Florida. Id. at 22. Gierlach acknowledged that
he had never heard of another lawyer appearing more
than twice as pro hac vice in Hawaii’s courts. Id. at 32.
Judge Ibarra expressed concern about Albertini’s
extensive representation of Miyashiro before requesting or
obtaining permission from the court, or even meeting
Gierlach, and his frequent pro hac vice appearances in
Hawaii:
The impression that I had from reading these
pleadings is that Mr. Albertini has practiced law
in Hawaii before. And in this case Mr. Albertini
has basically done work before associating or get-
ting permission or before doing work under the
supervision of local counsel, as a consultant, in
essence, practicing law even before getting pro
hac vice approval.
10/11/04 Tr. at 10. “It seems like he had done work coming
into the state of Hawaii without retaining local counsel,”
the court observed, “it seems like [Miyashiro] met with
Albertini before he had any other representation.” Id. “The
court would not be concerned if Mr. Albertini’s first appli-
cation was in this case.” Id. at 8, 9, 35. “Is there any
reason why he doesn’t sit for the bar exam?” Id. at 14.
Although Albertini assured Judge Ibarra he had never
been disciplined in California, when defense counsel
searched court records he found a 1980 case disqualifying
Albertini for breach of California’s Code of Professional
Conduct. Id. at 30, citing, Chronometrics v. Sysgen, Schae-
fer and Fatt, 110 Cal.App.3d 597, 168 Cal. Rptr. 196 (1980).
Albertini had engaged in numerous ex parte communica-
tions with an opposing party without his lawyer’s know}-
edge. Albertini denied to Judge Ibarra that he was
sanctioned in Chronometrics or that he had acted in an
10
unprofessional manner. Id. at 36. “We’re the ones that took
it up on appeal,” he said. Id. at 36. After the trial judge
disqualified his firm because of Albertini’s contacts with
an opposing party, “I took it up on appeal and J reversed
him.” [emphasis added] Id. at 37. “That became big law
cited many times in the state of California,” said Albertini,
“nothing about that case in any way do I feel any detri-
ment coming in my direction.” Id. “I’m proud of that case.”
Id.
Defense counsel disagreed. Id. at 39. “I urge the court
to read it,” he said, “because it does criticize his conduct.”
Id. The truth of the matter is Albertini never “reversed”
the trial court. The California appellate court affirmed
Albertini’s personal disqualification because his conduct
“violated Rule 7-1203 of the Rules of Professional Con-
duct.” 168 Cal.Rptr. at 200. The court held:
It is undisputed in the opposing declarations that
Albertini did communicate with Fatt without the
consent of his attorney of record in the litigation,
the only matter controverted being whether the
communication was “upon a subject of contro-
versy.” The trial court resolved this conflict
against [Albertini].
168 Cal.Rptr. at 199. “We must take as true the fact that
Albertini communicated with Fatt respecting a subject of
controversy,” the California court said, “and thus violated
Rule 1-103 of the Rules of Professional Conduct.” Id. “If
the status or misconduct which is urged as a ground for
disqualification will have a continuing effect on the judi-
cial proceedings before the court, it is justified in refusing
to permit the lawyer to participate in such proceedings.”
Id. at 202. “It was not an abuse of discretion to refuse to
permit the wrongfully obtained information to be used by
11
Albertini directly in the proceedings before the court.” Id.
at 203 (emphasis added).
As such, the California trial judge’s order disqualify-
- ing Albertini was not “reversed,” and his disqualification
because of rule violations in a decision that “became big
law cited many times” was hardly a ruling of which Alber-
tini should “be proud.” Further, his false characterization
of the Chronometrics case at the pro hac vice hearing
clearly misled Judge Ibarra. 10/11/04 Tr. at 37. This
California case, and the misrepresentations made to the
court about its significance, were grounds alone to deny
Albertini any pro hac vice role in Miyashiro’s case.
Judge Ibarra also questioned Gierlach about the
necessity of pro hac vice counsel when so many licensed
lawyers were available in Hawaii to assist him. Id. at 7-8,
33-35. Gierlach claimed it was difficult to find local coun-
se] because of Roehrig’s reputation and political connec-
tions. Id. at 34. Miyashiro wrote letters to 12 Big Island
lawyers, he said, and they did not respond. Id. at 8. Judge
Ibarra noted that Hawaii has 5000 licensed lawyers. Id. at
34. Most, like Gierlach, have offices in Honolulu, and have
never met or worked with Roehrig, who has lived and
worked in Hilo since he passed the Hawaii bar exam in
1965. Id. Roehrig offered a list of 25 Hawaii lawyers that
specialize in legal malpractice, three of which practice on
the Big Island, and none of which were contacted by
Miyashiro. Id. at 26.
Finally, while Miyashiro now complains that Alber-
tini’s role was improperly limited to associate status in his
case, Gierlach told Judge Ibarra in October 2004 that he
would gladly remain lead counsel, with Albertini “drafting
pleadings that I can review and approve.” Id. at 13-14. “If I
12
can have the assistance of Mr. Albertini,” said Gierlach, “I
[will] be present as lead counsel at all hearings.” Id. at 14.
Albertini also agreed to this limited status he presently
enjoys in Miyashiro’s case, and promised to serve in a
supporting role. Id. at 28.
Judge Ibarra ruled as follows:
[U]nder Rule 1.9 of the Hawaii Supreme Court, it
gives the discretion of the presiding judge to al-
low the pro hac vice. In the [Bank of Hawaii v.
Kunimoto, 91 Hawai‘i 168, 45 P.3d 368 (2002)],
there is no right or entitlement to apply for or be
granted pro hac vice status before any state
court. In this particular case the court is con-
cerned, number one, that Mr. Albertini has been
admitted pro hac vice status in Hawaii four other
times[.] Secondly, Mr. Albertini can still be re-
tained as consultant or paralegal, as Mr. Gier-
lach stated at the outset. In fact, Mr. Albertini
has worked on this case with Mr. Gierlach.
Third, Mr. Gierlach, as this court is familiar
with, is very competent to handle trial in com-
plex cases. Fourth, the court is not satisfied that
there has been sufficient showing to show that of
the total bar population, that Mr. Miyashiro
would not be able to retain any other lawyer to
assist Mr. Gierlach in the handling of the legal
malpractice case. So the motion is denied.
10/11/04 Tr. at 39. Miyashiro’s first motion for appoint-
ment of Albertini as pro hac vice counsel was denied
“without prejudice.” See Appendix E.
13
b. The Second Motion.
Albertini continued his work with Gierlach as a
“paralegal.” After Judge Ibarra’s recusal in December
2004, Respondent Fifth Circuit Court Judge GEORGE M.
MASUOKA was assigned to hear Miyashiro’s case. On
November 22, 2004, Miyashiro renewed his motion for
appointment of Albertini as a pro hac vice assistant
counsel with Gierlach in his case. Roehrig and his co-
defendants filed similar objections to the motion, noting
the number of qualified local lawyers available to take the
case, Albertini’s multiple pro hac vice appointments, his
unauthorized practice of law working for Miyashiro
without court approval, his disqualification for profes-
sional misconduct in the 1980 California appeal, and his
misrepresentations to Judge Ibarra about the nature of
that appeal.
On April 6, 2005, the parties appeared before Judge
Masuoka to argue the second pro hac vice motion. During
a recess the parties agreed that Albertini would be permit-
ted to assist Gerlach as pro hac vice counsel, but only in
non-court discovery matters and the drafting of pleadings.
Although Miyashiro suggests otherwise in his Petition, the
parties never agreed to Albertini’s full pro hac vice lead
trial counsel status:
Mr. Albertini will be allowed to participate in
non-court matters. At hearings Mr. Gierlach will
do the appearances, and the issue of whether or
not Mr. Albertini may participate in the trial is
reserved.
4/6/05 Tr. at 3. Judge Masuoka agreed with the stipula-
tion, but with the proviso that “anytime if the court feels
Mr. Albertini is not conducting himself to the standards
——— ee
14
that this court wants him to and in accordance with what
the Court feels that the Hawaii Bar [and] the level of
professionalism [require], this court will prohibit him from
practicing at all.” Id. at 13-14. “So if at any time he inter-
rupts me or tries to speak out of turn or interrupts the
proceeding, the court may take action immediately,’ the
court told Gierlach, “you understand?” Id. at 14. Obviously
Judge Masuoka’s prior experience with Albertini - in
addition to his review of Roehrig’s opposition papers — led
him to express this unusual warning to Gierlach about
Albertini’s future conduct in this case. Id. On September 1,
2005, Judge Masuoka filed an order permitting Albertini
“to attend hearings and other court proceedings with
David J. Gierlach, but Mr. Albertini is not allowed to argue
or address the court[.]” See Appendix F at 3.
ec. The Third Motion.
On August 28, 2006, only two months before trial,
Miyashiro filed a third and final motion regarding Alber-
tini’s pro hac vice status, this time insisting that the court
expand his role to lead counsel in this malpractice case.
Roehrig, the only remaining defendant, reiterated his
prior objections to Albertini’s pro hac vice appearance, and
questioned the need to change the limited pro hac vice
arrangement agreed to by the parties in April 2005.
Moreover, during the 16 months between the April
2005 hearing commencing Albertini’s limited pro hac vice
status, and this third pro hac vice motion, Roehrig and his
lawyers were able to observe his conduct during pre-trial
discovery, and they did not like what they saw. First,
Albertini utilized sealed documents from the Jack’s Tours
litigation to prepare his case, without telling opposing
15
counsel or obtaining the court’s permission. Second, he
made misstatements to the discovery master (a retired
judge) about the scope of materials turned over to oppos-
ing counsel. Third, he caused substantial delays in discov-
ery by filing late answers to interrogatories and requests
for admission. Fourth, he improperly signaled his client
during a deposition by kicking him under the table. Fifth,
he refused to stipulate to the authenticity of depositions
from the Jack’s Tours litigation where Miyashiro had
admitted to fraud and embezzlement in the family busi-
ness, forcing Roehrig’s lawyers to call reporters to authen-
ticate the obviously authentic documents.
At the hearing on Miyashiro’s third pro hac vice
motion, Gierlach again argued that Albertini had spent
more time working on the case than he had, and that he
was too busy to proceed with trial as lead counsel. 9/19/06
Tr. at 18. “It is frankly, going to be a real hardship on
myself and on Mr. Miyashiro if that knowledge cannot be
used at trial.” Id. Judge Masuoka pointed out that Gier-
lach filed the original complaint in 2003, served as lead
counsel for three years, and that Miyashiro expressly
agreed with Roehrig in 2005 that Gierlach would retain
his role as lead counsel in this case. Id. at 22. The court
ruled:
This court also cautioned you, Mr. Gierlach, that
in the event that Mr. Albertini didn’t meet the
court’s professional standards, this court would
revoke pro hac vice status and you would have to
continue with the case. Likewise, this court also
said that the court always considers local counsel
as lead counsel but because of the agreement be-
tween yourself, Mr. Gierlach, and the opposing
counsel saying you would agree to permit him to
participate in the preparation of the case but not
16
make any presentation to the court, this court,
notwithstanding its better judgment, permitted
him to come in pro hac vice on a limited basis.
This court cannot see changing that. If this court
were to change, I would go back to its original in-
tention and say, “No, Mr. Gierlach. You originally
took the case. You do the case.” If you were too
busy ... you should not because you had the case
once, so you had an idea of what it was, that it
was dismissed without prejudice, and it was filed
again. So you knew to a certain extent what the
case was about because the rules required you to
investigate prior to filing any complaint on be-
half of any client. So under the circumstances,
since this court has already permitted Mr. Alber-
tini on a limited basis to appear pro hac vice and
this was the agreement of the other counsel, this
court is not going to revo’.e that order. But nor is
it going to permit any expanded participation by
Mr. Albertini.
9/19/06 Tr. at 22.
On November 13, 2006, Judge Masuoka filed an order
denying Miyashiro’s motion to appoint Albertini lead trial
counsel. See Appendix G.
3. THE PETITION FOR WRIT OF MANE “US
On October 5, 2006, Miyashiro filed a petition for writ
of mandamus in the Hawaii Supreme Court, asking that
court to find that Judge Masuoka committed a “flagrant
abuse of discretion” in refusing to appoint a California
attorney as his lead trial counsel. See Petition, Appendix
B. “Miyashiro has a constitutional right, grounded in the
Fifth Amendment of the United States Constitution, to
counsel of his choice in a civil case.” Id. at 10. “He is
17
denied his counsel in the face of only specious reasoning.”
Id. “Neither Judge Ibarra nor Judge Masuoka have given
reasonable explanations as to why pro hac vice status for
trial has been denied.” Id. at 13. On November 1, 2006, the
Hawaii Supreme Court denied this petition:
Granting Eugene Albertini full pro hac vice
status in Civil No. 04-1-0211 was within the dis-
cretion of the circuit judge, see RSCSH 1.9, and
the refusal to do so for the reasons for which pro
hac vice, appearance was initially denied was not
a flagrant and manifest abuse of discretion.
Petition, Appendix A at 1.
4. THE STATE COURT APPEAL
On January 11, 2007, Judge Masuoka filed an
Amended Final Judgment dismissing all claims against
Roehrig. See Appendix F. On January 22, 2007, Miyashiro
appealed. See Appendix H. On January 29, 2007, he filed a
statement of points on appeal including “whether the trial
court erroneously failed to grant full pro hac vice status to
Eugene J. Albertini.” See Appendix I at 2.
As such, there has been no final ruling by the Hawaii
Supreme Court on Albertini’s pro hac vice status or Miya-
shiro’s claim that he has a constitutional right to choose
out-of-state counsel in a civil case. Moreover, the issue was
not finally decided in the State mandamus proceeding,
since the standard of review for an extraordinary writ is
far higher than that of an ordinary appeal.
+
18
ARGUMENT
A. IN VIEW OF THE TRIAL COURT’S DISMISSAL
OF THIS MALPRACTICE ACTION, BASED
ON PETITIONER’S ACKNOWLEDGED EMBEZ-
ZLEMENT AND BREACH OF FIDUCIARY DUTY,
THIS COURT SHOULD ALSO REFUSE TO AS-
SIST HIM IN HIS ATTEMPTS TO USE JUDICIAL
PROCESS TO BENEFIT FROM HIS OWN
FRAUDULENT CONDUCT.
On January 11, 2007, Judge Masuoka filed an
Amended Judgment dismissing all Miyashiro’s malprac-
tice claims, based, in part, “on Plaintiff’s admitted embez-
zlement and breach of fiduciary duty.” See Appendix D. In
his 2004 lawsuit, Miyashiro claimed that Roehrig, Judge
Hara and their law firm breached an attorney/client
agreement with him when they refused to aid his illegal
and immoral conduct and improperly disclosed his embez-
zlement from Jack’s Tours, which resulted in his expulsion
from his family’s successful transportation and tour
company, and substantial loss of income. Judge Masuoka
thereby refused to “aid a tortfeasor who invokes the court’s
jurisdiction to relieve it of the consequences of fraud.”
Bondi v. Thornton International, 421 F.Supp.2d 703, 713
(S.D.N.Y. 2006). This Court should do the same.
“The authorities from the earliest time to the present
unanimously hold that no court will lend its assistance in
any way towards carrying out the terms of an illegal
contract.” Kaiser Steel v. Mullins, 455 U.S. 72, 77 (1982).
“Denying judicial relief from an admitted wrongdoer is an
effective means of deterring illegality.” Bateman Eichler,
Hill Richards v. Berner, 472 U.S, 299, 306 (1985); see also,
McMullen v. Hoffman, 174 U.S. 639, 669 (1899) (“in that
way the public secures the benefit of a rigid adherence to
19
the law”); Higgins v. McCrea, 116 U.S. 671, 685 (1886) (“he
who comes here for relief must draw his justice from pure
fountains”); Nisselson v. Lernout, 469 F.3d 143, 152 (1st
Cir. 2006) (“a basis for dismissing suits whenever a plain-
tiff has played any role in the harm producing activity”);
Knauer v. Jonathon Roberts Fin. Group, 348 F.3d 230, 235
(7th Cir. 2003) (“the wrongdoer must not be allowed to
profit from his wrong”); Arena Football League v. Roemer,
9 FSupp.2d 889, 898 (D.Ill. 1998) (“courts will not aid a
fraudfeasor who invokes the court’s jurisdiction to relieve
him of the consequences of his fraud”); Choquette v. Isacoff,
836 N.E.2d 329, 332 (Mass.App. 2005) (“courts will not
lend aid to parties who base their cause of action on their
own immoral or illegal acts”); Mettes v. Quinn, 411 N.E.2d
549, 551 (Ill.App. 1980) (“this refusal to aid derives not
from the consideration of the defendant, but from a desire
to see that those who transgress the moral or criminal
code shall not receive aid from the judicial branch of
government.”)
This doctrine has also been applied to legal malprac-
tice claims, where courts have uniformly refused to award
damages to clients who have committed fraud. “Since the
basis of the plaintiff’s action in the present case is an
attempt to reduce the economic consequences of his
fraudulent conduct by recovering from his attorney, we
hold that the trial court did not err in dismissing the
complaint with prejudice.” Goldstein v. Lustig, 507 N.E.2d
164, 170 (Ill.App. 1987); see also, Pantely v. Garris, Garris
& Garris, 447 N.W.2d 864, 869 (Mich.App. 1989) (“the
proximate cause of Pantely’s claimed injuries was her act
of knowingly committing perjury”); Evans v. Cameron, 360
N.W.2d 25 (Wis. 1985) (“although the public interest is
served by discouraging attorney misconduct, it would be
20
inappropriate to promote that interest by removing the
damage to those who deliberately and willfully lie under
oath in bankruptcy proceedings”); Robins v. Lasky, 462
N.E.2d 774, 779 (Ill.App. 1984) (“we pass no judgment on
the advice given by the defendants, as our refusal to aid
the plaintiff is a decision based upon his admitted attempt
to evade the law.”)
B. PETITIONER DOES NOT HAVE A CONSTITU-
TIONAL RIGHT TO CHOOSE OUT-OF-STATE
LEAD TRIAL COUNSEL IN A CIVIL CASE, ES-
PECIALLY IN LIGHT OF COUNSEL’S DIS-
QUALIFICATION BY A CALIFORNIA COURT,
MULTIPLE PRO HAC VICE APPEARANCES,
UNAUTHORIZED PRACTICE OF LAW, DIS-
COVERY MISCONDUCT, AND A STIPULATION
BY PETITIONER THAT HIS PRO HAC VICE
LAWYER BE LIMITED TO A SUPPORTING
ROLE.
“Since the founding of the Republic,” this Court
declared in 1979, “the licensing and regulation of lawyers
has been left exclusively to the States and the District of
Columbia within their respective jurisdictions.” Leis uv.
Flynt, 439 U.S. 438, 442 (1979). “The States prescribe the
qualifications for admission to practice and the standards
of professional conduct.” Id. “The Constitution does not
require that because a lawyer has been admitted to the
bar of one State, he or she must be allowed to practice in
another.” Id. at 443. While “the practice of courts in most
States is to allow an out-of-state lawyer the privilege of
appearing upon motion,” the Court declared, “it is not a
right granted either by statute or the Constitution.” Id. at
441-442. “There is no right of federal origin that permits
21
such lawyers to appear in state courts without meeting
that State’s bar admission requirements.” Id. at 443.
Although the Leis Court held that out-of-state lawyers
have no constitutional right to appear pro hac vice in a
civil case, it “did not reach the issue of whether the consti-
tutional rights of [the parties] had also been violated.” Id.
at 442 n.4. To date, this Court has not expressly ruled on
whether civil litigants have such a right, although the
holding in Leis clearly suggested (as the dissent itself
noted) “that a client’s interest in having out-of-state
counsel is implicated by this decision.” Id. Indeed, how
could State and federal courts enforce the hoiding in Leis if
out-of-state counsel can avoid its mandate by merely
having his client appeal the denial of his pro hac vice
status, such as occurred here? See Kentucky West Virginia
Gas Company v. Pennsylvania Public Utility Commission,
837 F.2d 600, 618 (3d Cir.), cert. denied, 488 U.S. 941
(1988) (“[t]he Supreme Court has not recognized a consti-
tutional right to counsel in a civil case”); Obert v. Republic
Western Insurance Company, 190 F.Supp.2d 279, 298
(D.R.I. 2002) ““Republic Western has no constitutional
right to counse! of its choice.”)
Miyashiro makes much of this Court’s recent ruling
in United Stoves v. Cuauhtemoc Gonzalez-Lopez, 126 S.Ct.
2557, 165 L.Ed.2d 409 (2006), where it addressed the
question of a defendant’s right to choose out-of-state
counsel in a criminal case. The Gonzalez-Lopez Court was
not asked to decide whether the 6th Amendment right to
choice of counsel in a criminal prosecution includes out-of-
state lawyers, since that issue was abandoned by the
Government before the case reached the Supreme Court.
See 126 S.Ct. at 2561 (“the government does not dispute
the 8th Circuit’s conclusion in this case that the District
22
Court erroneously deprived respondent of his counsel of
choice.”) Regardless, the Court did not dispute the 8th
Circuit’s finding that Gonzalez-Lopez had a 6th Amend-
ment right to choose a California lawyer to represent him
in a Missouri prosecution. Id.
Neither Gonzales-Lopez nor the 6th Amendment,
however, mentions civil litigants. The right to counsel in a
civil case — to the extent it exists — has been found in the
due process clauses of the 5th and 14th Amendments, not
the 6th. See Obert, supra, 190 F.Supp.2d at 298. According
to the Obert court:
The right to practice pro hac vice before a court is
not granted by statute or by the Constitution.
[Citing Leis.) In criminal cases, courts must com-
ply with the Sixth Amendment requirements of a
defendant’s right to counsel! of his choice. This
right, however, is not absolute and may give way
to the court’s need to control the orderly conduct
of justice. See, United States v. Collins, 920 F.2d
619, 624-26 (10th Cir. 1990). The instant case, of
course, is a civil action, and Republic Western has
no constitutional right to counsel of his choice.
Obert, supra, 190 F.Supp.2d at 298 (emphasis added). “We
note at the outset that certain distinctions can be made
between the rights of civil litigants and those of criminal
defendants,” observed another court. Potashnick v. Port
City Construction Company, 609 F.2d 1101, 1118 (5th Cir.),
cert. denied, 449 U.S. 820 (1980). “A criminal defendant
faced with a potential loss of personal liberty has much
more at stake than a civil litigant asserting or contesting a
claim for damages,” the Potashnick court noted, “and for
this reason the law affords greater protection to the crimi-
nal defendant's rights.” Id. (emphasis added). Again, “[t]he
23
Supreme Court has not recognized a constitutional right to
counsel in a civil case.” Kentucky West Virginia Gas Com-
pany, supra, 837 F.2d at 618. Nor has this Court ever
ruled, as Miyashiro contends it has, that a plaintiff in a
legal malpractice action has a constitutional or federal
statutory right to have the trial court appoint a pro hac
vice lawyer as lead trial counsel.
According to Miyashiro, he has a constitutional right
to have the Hawaii courts permit him to use an out-of-
state lawyer as lead counsel in a civil case. Unless a
Hawaii court finds Albertini “unfit,” insists Miyashiro, it
must allow this California lawyer unlimited access to its
courts.
Miyashiro is mistaken.
First, neither this Court nor any lower federal court
has ever ruled that civil litigants have a constitutional
right to choose out-of-state lawyers as their lead counsel
under the pro hac vice rules. Judge Masuoka allowed
Albertini to serve as Miyashiro’s second lawyer, and he is
already represented by Gierlach, an able and experienced
Hawaii counsel of his choice. See, e.g., Meschi v. Iverson,
805 N.E.2d 72, 74 (Mass.App. 2004) (“Mr. Ryan’s col-
leagues, as members of the Massachusetts bar, were and
are available to represent the plaintiffs [and may] enjoy
the benefit of Mr. Ryan’s consultation and advice in that
exercise.”)
Second, “pro hac vice” means “for this one occasion.”
Obert, supra, 190 F.Supp.2d at 297. As noted, Albertini has
already been granted pro hac vice status four times in
Hawaii’s courts, and his repeated appearances in that
regard suggest he is utilizing that status to circumvent
the licensing requirements complied with by every other
24
lawyer practicing in the State. This alone is grounds for
Hawaii’s judges to limit Albertini’s participation in this
case.
Third, contrary to Miyashiro’s claims in the Petition,
Roehrig introduced substantial evidence of misconduct,
unethical behavior, and other problems that made it
inadvisable to appoint Albertini lead counsel, including the
unauthorized practice of law before being granted limited
pro hac vice status, and extensive discovery violations. See
Obert, supra, 190 F.Supp.2d at 298 (“this right, however, is
not absolute and may give way to the court’s need to
control the orderly conduct of justice.”)
Fourth, Albertini was criticized in a 1980 California
decision cited over 170 times since its publication as a
classic example of attorney disqualification based on
improper contact with opposing parties. See Chronomet-
rics, supra. Clearly that case, which was misrepresented
by Albertini during Judge Ibarra’s October 11, 2004,
hearing and omitted from the Petition before this Court, is
grounds alone to limit his pro hac vice participation to a
supporting role in this case. See, e.g., Meschi, supra, 805
N.E.2nd at 74, n.9 (“his decision to address [the opposing
party] raises serious questions bearing adversely on
whether to extend to him permission to act as Massachu-
setts [pro hac vice] counsel in the instant matter.”)
25
C. PETITIONER FAILS TO INFORM THIS COURT
THAT JUDGMENT HAS BEEN ENTERED
AGAINST HIM IN THIS MALPRACTICE CASE,
PETITIONER HAS APPEALED TO THE HAWAII
APPELLATE COURTS, AND HE HAS LISTED
THIS PRO HAC VICE RULING IN HIS POINTS
ON APPEAL.
This Petition for Writ of Certiorari is misleading on
the subject of finality. Miyashiro suggests a trial is pend-
ing in State court, and that absent this Court’s immediate
intervention, he will be denied his right to out-of-state
lead trial counsel of his choice. In fact, before this Petition
was filed, Judge George Masuoka granted four separate
summary judgment motions (opposed in pleadings drafted
by iawyer Albertini) and filed a judgment in Roehrig’s
favor on all claims. Miyashiro has noticed an appeal to the
Hawaii Intermediate Court of Appeals, and filed a declara-
tion listing the three pro hac vice trial orders challenged
here as one of his grounds for reversal on appeal. As such,
Hawaii’s appellate courts have yet to finally rule on the
issue before this Court.
“Under 28 U.S.C. § 1257(a) this Court’s jurisdiction is
limited to review of ‘final judgments or decrees rendered
by the highest court of a State in which the decision could
be had.’” Johnson v. California, 541 U.S. 428, 429 (2004).
“Compliance with the provisions of Section 1257 is an
essential prerequisite to our deciding the merits of a case
brought here under that section.” Id. at 431; see also, Flynt
v. Ohio, 451 U.S. 619, 620 (1981) (“[i]n general, the final
judgment rule has been interpreted to preclude reviewabil-
ity where anything further remains to be determined by a
State court[.]”) “The finality requirement,” this Court has
said:
26
serves several ends: (1) it avoids piecemeal re-
view of State court decisions; (2) it avoids giving
advisory opinions in cases where there may be no
real “case” or “controversy,” [and] (3) it limits re-
view of State court determinations of federal con-
stitutional issues to leave at a minimum federal
intrusion into State affairs.
North Dakota State Board of Pharmacy v. Snyder’s Drug
Stores, 414 U.S. 156, 159 (1973). “This requirement is not
one of those technicalities to be easily scorned,” the Court
declared, “[i]t is an important factor in the smooth work-
ing of our federal system.” Id., quoting Radio Station
WOW v. Johnson, 326 U.S. 120, 124 (1945).
There are exceptions to this rule. “Only in very few
situations, where intermediate rulings may carry serious
public consequences, has there been a departure from this
requirement of finality for federal appellate jurisdiction.”
Id. “In Cox Broadcasting Corporation v. Cohen, 420 U.S.
469, 482 (1975), we described four exceptional categories
to be regarded as ‘final’ on the federal issue despite the
ordering of further proceedings in the lower State courts.”
Johnson, supra, 541 U.S. at 429-430. These categories
include: (1) cases where the ruling renders further State
proceedings preordained; (2) cases where the issue will
survive and require decision regardless of further Stat»
proceedings; (3) cases where further State proceedings will
bar review of an important federal issue; and (4) cases
where resolution of the federal issue would be preclusive of
any further State proceedings. Cox Broadcasting, 420 U.S.
at 482. None of these exceptions apply here.
First, as noted, judgment has been entered in this case
and Miyashiro has noticed an appeal in Hawaii's appellate
courts. See Appendix E. He has filed a declaration of points
27
on appeal including the three pro hac vice rulings entered
by the trial court which he would have this Court review
by certiorari. See Appendix F.
Second, these pro hac vice trial rulings will be re-
viewed by the Hawaii Intermediate Court of Appeals, and
if necessary, the Hawaii Supreme Court, for abuse of
discretion. A different standard of review attaches to a
petition for writ of mandamus. “A writ of mandamus,” the
Hawaii Supreme Court noted in its order, “will not issue
unless the petition demonstrates a clear and indisputable
right to relief and a lack of alternative means to redress
adequately the alleged wrong or obtain the requested
relief.” See Petition, Appendix A at 1, citing Kema uv.
Gaddis, 982 P.2d 334, 338 (Hawaii 1999). “Where a court
has discretion to act, mandamus will not lie to interfere
with or control the exercise of that discretion, even when
the judge has acted erroneously, unless the judge has
exceeded his or her jurisdiction, has committed a flagrant
and manifest abuse of discretion, or has refused to act on a
subject properly before the court|.)” Id. A ruling based on
this limited standard of review is therefore not binding in
Miyashiro’s pending State court appeal.
While this Court has permitted interlocutory review of
collateral orders during civil litigation, it has limited such
review to orders “effectively unreviewable on appeal from
a final judgment.” Firestone Tire and Rubber v. Risjord,
449 U.S. 368, 374 (1981); see also, United States uv.
McDonald, 435 U.S. 850, 860 (1978) (“the legal and practi-
cal value of which would be destroyed if it were not vindi-
cated before trial.”) In this case, the trial court’s pro hac
vice rulings are clearly “reviewable,” and will be reviewed
in Miyashiro’s State court appeal. “The resolution of this
question can await final judgment without any adverse
28
effect upon important federal interests.” Flynt v. Ohio, 451
U.S. 619, 622 (1981); see also, Carpenter v. Gomez, 516
U.S. 981 (1995) (“the issue would remain open for further
review when it acts on the direct appeal from petitioner’s
conviction.”)
+
CONCLUSION
Respondent STANLEY H. ROEHRIG respectfully
requests that this Court deny the Petition for Writ of
Certiorari.
March 1, 2007 Respectfully submitted,
PETER VAN NAME ESSER
Counsel of Record
KEITH K. HIRAOKA, Esq.
BRIAN J. DE LIMA, Esq.
Attorneys for Respondent
Stanley H. Roehrig
Appendix A-1
Of Counsel:
RoEcA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
KEITH K. HIRAOKA 3423-0
khiraoka@rihlaw.com
RHONDA L. CHING 8140-0
rching@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai‘i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
CRUDELE & DE LIMA
Attorneys at Law, A Law Partnership
BRIAN J.DE LIMA 3407-0
delima@bigislandlawyers.com
101 Aupuni St., Suite 133
Hilo, Hawai‘i 96720
Telephone: (808) 969-7707
Attorneys for Defendant
STANLEY H. ROEHRIG, AAL, ALC
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
GEORGE MIYASHIRO, ) CIVIL NO.
Plaintiff ) 04-1-0211 (Hilo)
re ! ORDER GRANTING DE-
FENDANT'’S MOTION FOR
ROEHRIG, ROEHRIG, ) SUMMARY JUDGMENT
WILSON & HARA; ) BASED ON PLAINTIFF'S
STANLEY H. ROEHRIG, ) apMITTED EMBEZZLE-
AAL, ALC; GLENN S. ) MENT AND BREACH OF
HARA, AAL; CAROL MIYA- ) FIDUCIARY DUTY (FILED
SHIRO; JEFF MIYASHIRO; ) sEpr- 41. 2006)
) ?
TITLE GUARANTY CO.
Appendix A-2
and DOE DEFENDANTS __ )Date: October 16, 2006
1-100, )Time: 1:00 p.m.
Defendants. ) Judge: George M. Masuoka
(Filed Dec. 28, 2006)
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT BASED ON
PLAINTIFF'S ADMITTED EMBEZZLEMENT AND
BREACH OF FIDUCIARY DUTY (FILED SEPT. 11, 2006)
Defendant’s Motion for Summary Judgment Based on
Plaintiff's Admitted Embezzlement and Breach of Fiduci-
ary Duty (Filed Sept. 11, 2006) was heard by the Honor-
able George M. Masuoka at 1:00 p.m. on October 16, 2006.
David J. Gierlach represented Plaintiff. Brian J. De Lima
and Keith K. Hiraoka represented Defendant Stanley H.
Roehrig, AAL, ALC. The Court, having considered the
written and oral submissions of the parties and being fully
advised, orders as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED that Defendant’s motion be and is hereby
GRANTED.
Dated: Lihu‘e, Hawai‘i, Dec. 28, 2006.
/s/ George M. Masuoka [SEAL]
Judge of the Above-Entitled Court
Appendix B-1
Of Counsel:
ROEcA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
KEITH K. HIRAOKA 3423-0
khiraoka@rlhlaw.com
RHONDA L. CHING 8140-0
rching@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai‘i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
CRUDELE & DE LIMA
Attorneys at Law, A Law Partnership
BRIAN J. DE LIMA 3407-0
delima@bigislandlawyers.com
101 Aupuni St., Suite 133
Hilo, Hawai‘i 96720
Telephone: (808) 969-7707
Attorneys for Defendant
STANLEY H. ROEHRIG, AAL, ALC
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
GEORGE MIYASHIRO, ) CIVIL NO.
Plaintiff ) 04-1-0211 (Hilo)
os ORDER GRANTING
DEFENDANT'S MOTION
ROEHRIG, ROEHRIG, ) FOR SUMMARY
WILSON & HARA: ) ON HAWAII RULES OF
STANLEY H.ROEHRIG, ? PROFESSIONAL CON-
AAL, ALC: GLENN S. ) DUCT (FILED SEPT. 11,
HARA, AAL; CAROL MIYA- } 2006)
oa reefllcent ena )Date: October 16, 2006
Appendix B-2
and DOE DEFENDANTS )Time: 1:00 p.m.
1-100, ) Judge: George M. Masuoka
Defendants. ) (Filed Dec. 28, 2006)
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT ON HAWAI'I RULES
OF PROFESSIONAL CONDUCT (FILED SEPT. 11, 2006)
Defendant’s Motion for Summary Judgment on
Hawai'i Rules of Professional Conduct (Filed Sept. 11,
2006) was heard by the Honorable George M. Masuoka at
1:00 p.m. on October 16, 2006. David J. Gierlach repre-
sented Plaintiff. Brian J. De Lima and Keith K. Hiraoka
represented defendant Stanley H. Roehrig, AAL, ALC. The
Court, having considered the written and oral submissions
of the parties and being fully advised, orders as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED that Defendant’s motion be and is hereby
GRANTED.
Dated: Lihu‘e, Hawai‘i, Dec. 28, 2006.
/s/ George M. Masuoka [SEAL]
Judge of the Above-Entitled Court
Appendix C-1
168 Cal.Rptr. 196
Court of Appeal, Second District, Division 5,
California.
CHRONOMETRICS, INC., a California Corporation,
and Facit-Chronometrics, Inc., a California Corporation,
Cross-Complainants and Appellants,
v.
SYSGEN, INC., Robert J. Schaefer and Harold J. Fatt,
Cross-Defendants and Respondents.
Civ. 55128.
Sept. 25, 1980.
Sackin & Middleton, by Louis A. Sackin, Los Angeles,
for cross-complainants and appellants.
McKenna & Fitting, Aaron M. Peck, I. Bruce Speiser,
and Edmond M. Connor, Los Angeles, for cross-defendants
and respondents.
DOWDS,* Associate Justice.
Defendants and cross-complainants in this civil action
appeal from an order of court that their attorneys, the firm
of Albertini & Gill (“the law firm”) be disqualified and
prohibited from acting as attorneys of record for or other-
wise serving or assisting as counsel to them in such
action.’ This order was issued after a hearing pursuant to
an order to show cause which had been issued after notice
to Eugene J. Albertini, a member of the law firm. The
* Assigned by the Chairperson of the Judicial] Council.
' This order is appeaiable either as a final order upon a collateral
matter under Code of Civil Procedure section 904.1, subdivision (a), or
as an order granting an injunction under subdivision (f) of the same
statute. (See Meehan v. Hopps (1955) 45 Cal.2d 213, 288 P.2d 267;
Kraus v. Davis (1970) 6 Cal.App.3d 484, 487, 85 Cal.Rptr. 846.)
Appendix C-2
application for the order to show cause was supported by
declarations of Harold Fatt, Morton Stein, and I. Bruce
Speiser.
Fatt’s declaration stated that he is a defendant in
Marshall, etc. v. Schaefer, et al., L.A.S.C. No. WEC 42370
and a cross-defendant in Chronometrics, Inc., et al. v.
Sysgen, Inc., et al., L.A.S.C. No. WEC 39344 (“the litiga-
tion”) and that at all times since the inception of the
litigation the law firm has been counsel of record for
parties adverse to him. He further stated that on or about
July 14, 1978, he received a telephone call from Albertini
who said he was calling in his capacity as counsel for
Gourmet Wines, Ltd., an entity with which Fatt had been
associated, and as President of Chronometrics, Inc., an
entity of which Fatt is a shareholder. Albertini stated his
call had nothing to do with the litigation, but in fact
during the conversation he said he was surprised Fatt was
represented by the same counsel as those representing
another party, Robert Schaefer, and invited Fatt to visit
him in his office so that he could fully advise Fatt of facts
relevant to his status in the litigation of which he believed
Fatt had no knowledge. Albertini asked whether Fatt
knew that, at the time he loaned money to Sysgen, Inc., a
party to the litigation, Schaefer, its president, had
$120,000 on deposit in a bank. Albertini indicated that
there was a possibility that Fatt could be dismissed from
the litigation.
Fatt’s declaration further stated that Albertini tele-
phoned him frequently in the ensuing days, encouraging
him to come to Albertini’s office to discuss facts affecting
Fatt’s position in the litigation and asking him for infor-
mation concerning matters in issue in the litigation,
Appendix C-3
including dates relevant to the corporate existence of
Sysgen, Inc.
Fatt declared that the longest such telephone call,
lasting over 45 minutes, occurred on July 23, 1978, and in
such call Albertini asked whether or not Fatt was still a
partner with Schaefer and if net when he withdrew,
stating that these were “main issues in the litigation,”
discussed Fatt’s supposed unawareness of the assets
transferred to Sysgen, Inc., and the source of such assets,
asked when Fatt became associated with Sysgen, Inc., and
the date on which he terminated such association, charac-
terized Schaefer as a “crook,” mentioned his inability to
convince the district attorney to prosecute Schaefer,
described his persistence in seeking to recover monies
supposedly paid by him to Schaefer, discussed Schaefer’s
supposed failure to pay his bills, despite the fact that he
purportedly had received approximately $100,000 by
virtue of a loan on his house, inquired whether Sysgen,
Inc., was based in Warren, Ohio, and whether such pres-
ence was maintained for the purpose of “hiding funds” so
as to avoid an attachment and discussed information
germane to Schaefer’s activities in the computer software
industry. Albertini again urged Fatt to visit with him so
that he could apprise Fatt of facts that might cause a
change of attitude in the way Fatt viewed the litigation.
In a call on August 4, 1978, according to Fatt’s decla-
ration, Albertini “indicated that (Fatt’s) counsel of record
in the litigation ... was not adequately representing
(Fatt’s) interests” and again invited his visit. By the third
week in August 1978, according to Fatt, he had had eight
to ten such telephone conversations with Albertini, all
placed by the latter except that in one instance Fatt
returned a call made to him while he was in a meeting. In
Appendix C-4
one of the last conversations, Albertini said that he did not
have anything against Fatt but, because Schaefer was
hiding his assets, Albertini would be required to satisfy
any judgment and accordingly a meeting and eventual
settlement wouid be in Fatt’s interest.
Fatt further declared that these discussions made him
“very nervous” about his status in the litigation and that
he accordingly consulted an attorney other than his
counsel of record in the litigation and that attorney com-
municated with Albertini. On January 16, 1979, Fatt’s
accountant (Stein) told him he had been called by Albertini
who requested him to suggest to Fatt that he (Fatt) meet
with Albertini. Fatt then decided, he said, for the first time
to advise his counsel] of record of these communications
and did so on January 31, 1979. His declaration was dated
February 2, 1979.
A declaration of Morton Stein averred that on January
14 or 15, 1979, Albertini called him at his residence and
requested that he ask Fatt to consider meeting with
Albertini concerning litigation involving them. Albertini
stated, in response to an inquiry from Stein, that he would
insist that Fatt have an attorney present at the meeting.
Stein declared that he passed this information on to Fatt
on or about January 16, 1979, and within the next few
days received a telephone call and a letter from Albertini
thanking him for his cooperation.
The third declaration presented in support of the
application for an order to show cause was that of I. Bruce
Speiser, who declared that he was a member of the State
Bar of California, a member of the law firm of McKenna
& Fitting, and counsel for Fatt, among others, in the
litigation. Speiser declared that he did not learn of the
Appendix C-5
communications from Albertini to Fatt concerning matters
in controversy in said actions until January 26, 1979, and,
that neither he nor any other attorney at McKenna &
Fitting authorized or consented to such communications.
Declarations of Eugene J. Albertini, Barry I. Gold, and
Robert Miles Runyan were filed on the return date of the
order to show cause in opposition to the proposed disquali-
fication of the law firm. Albertini denied that he ever
discussed settlement with Fatt or any other defendant in
the litigation, stated that he had known Fatt for many
years and was the attorney for Runyan. He stated that in
May or early June 1978, Runyan notified him that he had
received intimations through mutual friends of Fatt’s and
his that Fatt desired to settle the litigation. On June 20,
1978, Albertini declared, he telephoned Fatt, told him he
was calling him only as the former attorney of Gourmet
Wines and asked Fatt about documents Albertini had been
asked to produce as a witness in a certain lawsuit (appar-
ently different from the litigation described above). After
this discussion was finished, Albertini averred, Fatt asked
if it was all right to talk to Albertini about the current
litigation between himself and Chronometrics. Albertini
declared that he told Fatt he could only discuss settlement
with Fatt in the presence of Fatt’s attorney. There was
some discussion about Fatt’s obtaining attorneys other
than McKenna & Fitting. On July 13, 1978, Albertini
telephoned Fatt and asked him if he had obtained another
attorney for the purpose of entering into settlement
negotiations and Fatt said he intended to do so but had
not yet found another lawyer and asked Albertini to call
back in about a week. On July 20, 1978, Albertini called
back and Fatt said he had not yet found another lawyer
but would be contacting Albertini shortly. On August 8,
Appendix C-6
1978, Fatt called Albertini and told him he had retained
Jonathan Klar who would be contacting Albertini shortly.
On August 23, 1978, Albertini was contacted by Klar and
they discussed settlement. Klar said he would look into
the matter further and on September 14 and 15, 1978,
Albertini and Klar held settlement discussions. Further
negotiations by correspondence between Albertini and
Klar did not result in a settlement and the negotiations
were terminated in a telephone conversation on January
26, 1979. Albertini thereafter called Stein, to find out if he
knew whether Fatt was sincere in his expressed desire to
settle the litigation. Albertini denied that he ever commu-
nicated or discussed with Fatt facts and matters which are
the subject of the litigation.
Gold’s declaration stated that he was attorney for the
plaintiff in an action entitled McHale vs. Hilson, et al., Los
Angeles Superior Court No. WEC 32912, and that in
connection with that lawsuit he had discussed with Alber-
tini various transactions and documents involving Gour-
met Wines and that Albertini had indicated that he would
seek out some oi the managers or officers of Gourmet
Wines and endeavor to obtain information needed in
respect of that lawsuit that he did not have.
Runyan’s declaration stated that he was president and
principal shareholder of a corporation of which Albertini
was the attorney and Fatt was a former officer and em-
ployee. Runyan declared that about the middle of June
1978, an acquaintance who also knew Fatt told him that
Fatt wished to resolve his differences with Runyan and
that he informed Albertini of this information a few days
later.
Appendix C-7
On February 21, 1979, the trial court made an order
that the law firm be disqualified and prohibited from
acting as attorneys of record for or otherwise serving or
assisting as counsel to Chronometrics, Inc., and Facit-
Chronometrics, Inc., in the instant action and those two
corporations have appealed.
(1) Rule 7-103 of the California Rules of Professional
Conduct provides in part that “(a) member of the State
Bar shall not communicate directly or indirectly with a
party whom he knows to be represented by counsel upon a
subject of controversy, without the express consent of such
counsel.” It is undisputed in the opposing declarations that
Albertini did communicate with Fatt without the consent
of his attorney of record in the litigation, the only matter
controverted being whether the communication was “upon
a subject of controversy.” The trial court resolved this
conflict against appellants. As stated in Fuller v. Lin-
denbaum (1938) 29 Cal.App.2d 227, 230, 84 P.2d 155, 157
“in the consideration of an appeal from an order made
upon affidavits involving the decision of a question of fact,
an appellate court is bound by the same rule that controls
it where oral testimony is presented for review. If there is
any conflict in the affidavits, those in favor of the prevail-
ing party must be taken as true, and the facts stated
therein must be considered established.”
Accordingly, we must take as true the fact that Alber-
tini communicated with Fatt respecting a subject of
controversy, knowing that he was represented by counsel,
without the consent of such counsel, and thus violated rule
* A declaration under penalty of perjury is the legal equivalent of
an affidavit under Code of Civil Procedure section 2015.5.
Appendix C-8
7-103 of the Rules of Professional Conduct (West’s
Ann.Bus. & Prof.Code (1974 ed., 1980 cum.supp.), § 6076,
at p. 96; Deering’s Cal.Codes Ann.Rules (1980 ed.) at p.
293). Whether such a violation authorizes the trial court to
disqualify him and his law firm from acting as counsel in
an action which related to the subject in controversy
appears not to have been directly decided in California.
Respondents cite four federal cases which they contend
support their position that a trial court has authority to
disqualify an attorney and his law firm from continuing to
represent a party “when the attorney compromises the
integrity of the litigation through a breach of Jegal ethics.”
They particularly rely on the language of Ceramco, Inc. v.
Lee Pharmaceuticals (2d Cir. 1975) 510 F.2d 268, 270-271:
“The district court was incorrect in its view that the
various bar associations constitute the only proper forum
for investigation of a claim of professional misconduct. On
the contrary, the courts have not only the power but also
the duty and responsibility to disqualify counsel for
unethical conduct prejudicial to his adversaries.”
The holding of the Ceramco case does not necessarily
support respondents’ position. The court’s jurisdiction over
the defendant Lee Pharmaceuticals and the propriety of
venue in the Eastern District of New York were issues in
the case. An attorney associated with the law firm repre-
senting the plaintiff telephoned defendant’s order depart-
ment and, without identifying himself, asked for and
obtained the names of customers with whom defendant did
business in that district. The court of appeals affirmed the
denial by the district court of defendant’s motion to dis-
qualify the law firm representing plaintiff. While, it said,
the lawyer’s conduct was not to be commended, it was not
the kind of conduct which prior decisions indicated should
Appendix C-9
result in disqualification. It pointed out that the circum-
stances of such cases indicating “the need to enforce the
lawyer’s duty of absolute fidelity and to guard against the
inadvertent use of confidential information” were not
present in the case under consideration and no other
compelling reason for disqualification appeared. (/d. at p.
271.)
In United States v. Clarkson (4th Cir. 1977) 567 F.2d
270, a lawyer who prepared tax returns for taxpayers and
was later accused of criminal tax fraud was disqualified
from further representing taxpayers on tax matters
because of at least a potential conflict of interest. The trial
court’s order finding him in contempt for violating the
order was affirmed.
In Gas-A-Tron of Arizona v. Union Oil Co. of Califor-
nia (9th Cir. 1976) 534 F.2d 1322, the court of appeals
recognized the principle that a lawyer may be disqualified
from representing a party against a former client where he
may be in a position to use confidential information
against such client, but held that the principle had been
wrongly applied in the case. Plaintiff’s lawyers had been
disqualified because an associate of the firm had formerly
worked for a large law firm which had represented some of
the defendants in certain matters. The order of disqualifi-
cation was reversed because there was no showing that
the lawyer had actually obtained any confidential informa-
tion or had worked on matters substantially related to the
pending litigation.
The fourth federal case cited is In re Gopman (5th Cir.
1976) 531 F.2d 262. In that case, because of an obvious
Appendix C-10
conflict of interest, a lawyer was disqualified from simul-
taneously representing in a grand jury investigation
certain labor unions and certain officers thereof.
For California authority, respondents cite Code of
Civil Procedure section 128, which states: “Every court
shall have power: ... To control in furtherance of justice,
the conduct of its ministerial officers, and of all other
persons in any manner connected with a judicial proceed-
ing before it, in every matter appertaining thereto; ... ”
They also refer us to Comden v. Superior Court (1978) 20
Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971, which upheld a
court order requiring a law firm representing the plaintiff
to withdraw from the case on the ground that Rule 2-
111(A)(4) of the Rules of Professional Conduct, as it then
existed, required withdrawal when the attorney “knows or
should know that he . . . ought to be called as a witness on
behalf of his client....” They particularly call our atten-
tion to footnote 4 found on page 916, 145 Cal.Rptr. at 13-
14, 576 P.2d at 975-76 of that case, where the Supreme
Court said:
“Application of rule 2-111 is not limited to
breaches of standards of conduct for which disci-
pline may be imposed, although the rule mani-
festly has application for that purpose. (See Bus.
& Prof.Code, §§ 6076, 6077.) We have this year
held that a trial court has authority to recuse a
prosecutor on the basis that he may be biased
against a defendant. (People v. Superior Court
(Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476,
561 P.2d 1164) We noted in that case: ‘It has long
been established in civil cases that the court has
the power, on motion of a party, to disqualify an
opposing attorney from participating in a trial
when, for example, the attorney improperly seeks
Appendix C-11
to proceed against a former client. (Citations.)’
(Id. at pp. 263-264(, 137 Cal.Rptr. 476, 561 P.2d
1164); see also Wutchumna Water Co. v. Bailey
(1932) 216 Cal. 564(, 15 P.2d 505); Big Bear Mun.
Water Dist. v. Superior Court (1969) 269
Cal.App.2d 919(, 75 Cal.Rptr. 580)) Although
there may be greater reason for disqualifying an
attorney in a conflict of interest case, the court
nevertheless has authority to disqualify in any
instance when, as here, the court reasonably
deems it necessary to‘... control in furtherance
of justice, the conduct of its ministerial offi-
cers....’ (Code Civ.Proc., § 128; see People v. Su-
perior Court, supra, 19 Cal.3d 255, 261, fn. 4(,
137 Cal.Rptr. 476, 561 P.2d 1164.))”
In Bauguess v. Paine (1978) 22 Cal.3d 626, 150
Cal.Rptr. 461, 586 P.2d 942, the Supreme Court reversed
an order requiring a party’s attorney to pay an opposing
party’s attorney’s fees occasioned by a mistrial which the
trial court believed was caused by the misconduct of the
attorney against whom the sanction was levied. The court
recognized that all courts have supervisory or administra-
tive powers to enable them to carry out their duties and
that this power has been expressly recognized by the
Legislature in Code of Civil Procedure section 128. (Id. at
pp. 634-636, 150 Cal.Rptr. 461, 586 P.2d 942.) It pointed
out that the traditional American practice has been for
each party to bear his or her attorney’s fees and deter-
mined that the case it was considering did not fall within
any of the recognized exceptions to the rule. (/d. at pp.
634-637, 150 Cal.Rptr. 461, 586 P.2d 942.) It then consid-
ered whether the court might award attorney’s fees as a
sanction under its supervisory power. It recognized that
“(p)ursuant to this power, a court may take appropriate
action to secure compliance with its orders, to punish
Appendix C-12
contempt, and to control its proceedings.” (Id. at p. 637,
150 Cal.Rptr. at p. 467, 586 P.2d at p. 948.) It declined,
however, to permit the award of attorney’s fees as a
sanction for misconduct, stating: “It would be both unnec-
essary and unwise to permit trial courts to use fee awards
as sanctions apart from those situations authorized by
statute. If an attorney’s conduct is disruptive of court
processes or disrespectful of the court itself, there is ample
power to punish the misconduct as contempt.” (Id. at pp.
637-638, 150 Cal.Rptr. at pp. 467-68, 586 P.2d at pp. 948-
49.) While the award of attorney’s fees is a different
situation from the instant case, the teaching of Bauguess
as applied to this case is that the power of a trial court to
control its proceedings is not unlimited and the availabil-
ity of remedies other than sanctions unauthorized by
statute should be considered.
Pepper v. Superior Court (1977) 76 Cal.App.3d 252,
142 Cal.Rptr. 759, is a case involving to some extent Rule
7-103 of the Rules of Professional Conduct. An attorney
brought on behalf of a client a class action against a
country club of which both the attorney and the client
were members, alleging that the club’s imposition of
transfer fees upon sales of memberships was illegal and
contrary to the club’s bylaws. The trial court disqualified
the attorney on the basis of what it perceived to be a
conflict of interest because of the attorney’s membership in
the defendant club. The attorney sought a writ of mandate
from the Court of Appeal, which was denied because, the
appellate court determined, he had unclean hands in that
he had communicated directly with the Board of Directors
of the club about the litigation without the consent of its
counsel in violation of Rule 7-103. The client then died,
naming the attorney as his co-executor. The trial court
Appendix C-13
denied the attorney's motion to be substituted as party
plaintiff for the deceased client and the attorney again
sought a writ of mandate, this time successfully. The Court
of Appeal held that the unclean hands with which it had
previously been concerned was in a different transaction,
though a related one, from the instant matter, that its
effect had been substantially attenuated by the death of
the client and that the petition could not longer be denied
on that basis. It concluded that the attorney’s membership
in the club did not in itself create a conflict of interest
which would bar him from suing the club, decided that he
was entitled to be substituted as party plaintiff as the co-
executor and ordered the trial court to vacate its order
denying the substitution. While there are obviously some
differences from the instant case, Pepper indicates that a
violation of Rule 7-103 should not necessarily bar an
attorney for all time from participating in a lawsuit in
connection with which the violation occurred.
The Supreme Court has stated in respect of Rule 12,
the predecessor of Rule 7-103, that “The rule was designed
to permit an attorney to function adequately in his proper
role and to prevent the opposing counsel from impeding
his performance in such role.” (Mitton v. State Bar (1969)
71 Cal.2d 525, 534, 78 Cal.Rptr. 649, 654, 455 P.2d 753,
758; Abeles v. State Bar (1973) 9 Cal.3d 603, 609, 108
Cal.Rptr. 359, 510 P.2d 719.)
(2) We detect a common theme in the cases relating to
disqualification of attorneys by trial courts. If the status or
misconduct which is urged as a ground for disqualification
will have a continuing effect on the judicial proceedings
which are before the court, it is justified in refusing to
permit the lawyer to participate in such proceedings. Thus
a disqualification is proper for conflict of interest and,
Appendix C-14
under a rule of professional conduct as it existed at the
time of the opinion in Comden v. Superior Court, supra,
when he ought to be a witness in a forthcoming trial. If, on
the other hand, the court’s purpose is to punish a trans-
gression which has no substantial continuing effect on the
judicial proceedings to occur in the future, neither the
court’s inherent power to control its proceedings nor Code
of Civil Procedure section 128 can be stretched to support
the disqualification.
(3) In applying this principle to the instant case, we
recognize that such information as Albertini may have
learned from Fatt cannot be unlearned and that, whether
Albertini is or is not disqualified as counsel, he can use
this information as President of Chronometrics. Still it
cannot be said that the court’s order served no useful
purpose in exercising proper control of the proceedings
before the court. As counsel, Albertini would have the
improperly obtained facts instantly available in his mind
in questioning witnesses, making and responding to
objections and addressing the court and jury. Albertini as
counsel would be in quite a different position from a
substituted counsel who might acquire such information
second hand by discussions with Albertini before or after
court sessions or during recesses. It was not an abuse of
the court’s discretion to refuse to permit the wrongfully
obtained information to be used by Albertini directly in the
proceedings before the court. The extension of the disquali-
fication beyond Albertini personally to his law firm has,
however, no purpose but a punitive one.’ As we have
* We assume that, as was reported to us by counsel at oral argu-
ment, Fatt is no longer a party to the lawsuit and we take that fact
into consideration. We express no opinion as to the propriety of the
(Continued on following page)
Appendix C-15
indicated, such purposes should be accomplished through
established disciplinary proceedings.
The order is modified to provide for the disqualifica-
tion of Eugene J. Albertini, personally, rather than the law
firm of Albertini & Gill, in this action and, as modified, the
order is affirmed. Each side shall bear its own costs on
appeal.
KAUS, P. J., and STEPHENS, J., concur.
disqualification of an entire law firm in a case such as this if the
opposing party wrongfully contacted remains in the action:
Appendix D-1
Of Counsel:
ROECA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
KEITH K. HIRAOKA 3423-0
khiraoka@rlhlaw.com
RHONDA L. CHING 8140-0
rching@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai‘i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
CRUDELE & DE LIMA
Attorneys at Law, A Law Partnership
BRIAN J. DE LIMA 3407-0
delima@bigislandlawyers.com
101 Aupuni St., Suite 133
Hilo, Hawai‘i 96720
Telephone: (808) 969-7707
Attorneys for Defendant
STANLEY H. ROEHRIG, AAL, ALC
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
GEORGE MIYASHIRO, ) CIVIL NO.
Plaintiff, ; 04-1-0211 (Hilo)
ws ) AMENDED FINAL
: JUDGMENT
ROEHRIG, ROEHRIG, )
WILSON & HARA: ) (Filed Jan. 11, 2007)
STANLEY H. ROEHRIG, ?
AAL, ALC; GLENN S. )
HARA, AAL: CAROL MIYA- ?
SHIRO; JEFF MIYASHIRO; ?
TITLE GUARANTY CO. ?
Appendix D-2
and DOE DEFENDANTS +?)
1-100, )
Defendants. )
AMENDED FINAL JUDGMENT
Pursuant to Haw. R. Civ. P. 58, judgment is hereby
entered in favor of Defendant STANLEY H. ROEHRIG,
Attorney at Law, A Law Corporation and against Plaintiff
GEORGE MIYASHIRO as to all claims alleged in Plain-
tiff’'s First Amended Complaint (filed on August 4, 2004).
Pursuant to Haw R. Civ. P. 58, judgment is hereby
entered in favor of Defendant TITLE GUARANTY ES-
CROW SERVICES, INC. and against Plaintiff GEORGE
MIYASHIRO as to all claims alleged in Plaintiff’s First
Amended Complaint (filed on August 4, 2004).
All claims against Defendants CAROL MIYASHIRO
and JEFF MIYASHIRO were dismissed by notice filed
pursuant to Haw. R. Civ. P. 41(a)(1)(A) on October 20,
2004. |
All claims against Defendants GLENN S. HARA and
ROEHRIG, ROEHRIG, WILSON & HARA were dismissed
with prejudice by stipulation and order entered on Sep-
tember 1, 2005.
All claims not specifically identified above are hereby
dismissed without prejudice.
Dated: Lihu‘e, Hawai‘i, JAN 11 2007.
[SEAL] /s/ George M. Masuoka
Judge of the Above-Entitled Court
Appendix D-3
APPROVED AS TO FORM:
DAVID J. GIERLACH
EUGENE J. ALBERTINI
Attorneys for Plaintiff
Appendix E-1
Of Counsel:
ROECA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
ARTHUR F. ROECA 1717-0
aroeca@rlhlaw.com
KEITH K. HIRAOKA 3423-0
khiraoka@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai‘i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
Attorneys for Defendants
ROEHRIG, ROEHRIG, WILSON & HARA,
and GLENN S. HARA
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
GEORGE MIYASHIRO, ) CIVIL NO. 04-1-0211
Plaintiff, ) ORDER DENYING WITH-
a ) OUT PREJUDICE PLAIN-
) TIFFS MOTION TO ALLOW
ROEHRIG, ROEHRIG, ) BUGENE J. ALBERTINI TO
WILSON & HARA; STANLEY ) APPEAR AS COUNSEL
H. ROEHRIG, AAL, ALC; ) PRO HAC VICE FILED
GLENN S. HARA, AAL; ) SEPTEMBER 16, 2004
CAROL MIYASHIRO; JEFF ) 5,00 pate:
MIYASHIRO; TITLE GUAR-_ ) /*&4ring Date:
October 11, 2004
ANTY CO. and DOE DE- rage Aha
PENDANTS 1-100, ) Judge: Ronald Ibarra
Defendants.
) (Filed Oct. 27, 2004)
Appendix E-2
ORVER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO ALLOW EUGENE J.
ALBERTINI TO APPEAR AS COUNSEL PRO HAC
VICE FILED SEPTEMBER 16, 2004
Plaintiff's Motion to Allow Eugene J. Albertini to
Appear as Counsel Pro Hac Vice, filed September 16, 2004,
was heard at 11:00 a.m. on October 11, 2004, by the
Honorable Ronald Ibarra. David Gierlach appeared for the
Plaintiff. Eugene J. Albertini, the applicant, also ap-
peared. Keith K. Hiraoka-appeared for Defendants Roe-
hrig, Roehrig, Wilson & Hara, Stanley H. Roehrig, AAL,
ALC and Glenn S. Hara. Brian J. Delima appeared for
appeared for [sic] Defendant Stanley H. Roehrig, AAL,
ALC. The Court, having considered the written and oral
submissions of counsel and the record and files in the case,
and being otherwise fully advised, orders as follows;
IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED that Plaintiff's Motion to Allow Eugene J. Alber-
tini to Appear as Counsel Pro Hac Vice be and is hereby
DENIED without prejudice.
Dated: Kealakekua, Hawai‘i, OCT 27 2004.
/s/ Ronald Ibarra [SEAL]
Judge of the Above-Entitled Court
APPROVED AS TO FORM:
/s/ David Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff
/s/ Brian DeLima
BRIAN J. DELIMA
Attorney for Defendant
STANLEY H. ROEHRIG, AAL, ALC
Appendix F-1
Of Counsel:
ROECA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
KEITH K. HIRAOKA 3423-0
khiraoka@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai'i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
Attorney for Defendants
ROEHRIG, ROEHRIG, WILSON & HARA,
STANLEY H. ROEHRIG, AAL, ALC
and GLENN S. HARA
CRUDELE & DE LIMA
Attorneys at Law, A Law Partnership
BRIAN J. DE LIMA 3407-0
delima@bigislandlawyers.com
101 Aupuni St., Suite 133
Hilo, Hawai‘i 96720
Telephone: (808) 969-7707
Attorney for Defendant
STANLEY H. ROEHRIG, AAL, ALC
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAT‘I
Defendants.
GEORGE MIYASHIRO, +) CIVIL NO. 04-1-0211
Plaintiff, ) ORDER GRANTING IN
a ) PART AND DENYING
) IN PART PLAINTIFF’S
ROEHRIG, ROEHRIG, ) MOTION TO ALLOW
WILSON & HARA, etal, |) EUGENE J. ALBERTINI
TO APPEAR AS COUN-
SEL PRO HAC VICE
Appendix F-2
) Date: April 6, 2005
) Time: 10:00 a.m.
) Judge: George M. Masuoka
) (Filed Sep. 1, 2005)
ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION TO ALLOW
EUGENE J. ALBERTINI TO APPEARS
AS COUNSEL PRO HAC VICE
Plaintiff's Motion to Allow Eugene J. Albertini to
Appear as Counsel Pro Hac Vice was heard by the Honor-
able George M. Masuoka at 10:00 a.m. on Wednesday,
April 6, 2005. David J. Gierlach appeared for Plaintiff
GEORGE MIYASHIRO. George Miyashiro and Eugene J.
Albertini attended the hearing. Brian J. De Lima ap-
peared for Defendant STANLEY H. ROEHRIG, AAL,
ALC. Keith K. Hiraoka appeared for Defendants ROE-
HRIG, ROEHRIG, WILSON & HARA, GLENN S. HARA
and STANLEY H. ROEHRIG, AAL, ALC. Diana L. Van de
Car appeared for Defendant TITLE GUARANTY ES-
CROW SERVICES, INC. The Court, having considered the
written and oral submissions of counsel and the stipula-
tions placed on the record by counsel and agreed to by
Plaintiff George Miyashiro and by Eugene J. Albertini,
enters the following order:
IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED as follows:
1. The motion is granted only with respect to out-of-
court proceedings such as depositions, mediation and
settlement negotiations. Mr. Albertini shall, as a condition
precedent to his limited pro hac vice status, file with the
Court an annual notice of compliance with Hawai'i Su-
preme Court Rule 1.9.
Appendix F-3
2. The motion is denied as to in-court proceedings.
Mr. Albertini shall be permitted to attend hearings and
other court proceedings with David J. Gierlach, but Mr.
Albertini is not allowed to argue or address the Court
unless the Court specifically directs a question to Mr.
Albertini.
Dated: Lihu‘e, Hawai‘,
/s/ George M. Masuoka (seal)
Judge of the Above-Entitled Court
APPROVED AS TO FORM:
/s/ David Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff
/s/ Diana L. Van de Car
DIANA L. VAN DE CAR
Attorney for Defendant
TITLE GUARANTY ESCROW SERVICE, INC.
Appendix G-1
Of Counsel:
ROECA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
ARTHUR F. ROECA 1717-0
aroeca@rlhlaw.com
KEITH K. HIRAOKA 3423-0
khiraoka@rlhlaw.com
RHONDA L. CHING 8140-0
rching@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai‘i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
CRUDELE & DE LIMA
Attorneys at Law, A Law Partnership
BRIAN J. DE LIMA 3407-0
delima@bigislandlawyers.com
101 Aupuni St., Suite 133
Hilo, Hawai‘i 96720
Telephone: (808) 969-7707
Attorneys for Defendant
STANLEY H. ROEHRIG, AAL, ALC
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
GEORGE MIYASHIRO, ) CIVIL NO.
04-1-0211 (Hilo)
Plaintiff, )
ae ‘ ORDER DENYING
ROEHRIG, ROEHRIG, ‘ npn meagan
ha ; STANLEY ) RENEWED MOTION
H. ROEHRIG, AAL, ALC:
GLENN S. HARA. AAL: )TO ALLOW EUGENE J.
, ) ALBERTINI TO
) APPEAR AS COUNSEL
Appendix G-2
CAROL MIYASHIRO; JEFF ) PRO HAC VICE WITH
MIYASHIRO; TITLE GUAR- ) FULL STATUS FILED
ANTY CO.andDOEDE- —_) AUGUST 28, 2006
FENDANTS 1-100, ) sae
Defendants. ) September 19, 2006
Time: 1:00 p.m.
dy udge: George M. Masuoka
) (Filed Nov. 13, 2006)
ORDER DENYING PLAINTIFF GEORGE
MIYASHIRO’S RENEWED MOTION TO ALLOW
EUGENE J. ALBERTINI TO APPEAR AS
COUNSEL PRO HAC VICE WITH FULL
STATUS FILED AUGUST 28, 2006
Plaintiff George Miyashiro’s Renewed Motion to Allow
Eugene J. Albertini to Appear as Counsel Pro Hac Vice
with Full Status, filed on August 28, 2006, was heard at
1:00 p.m. on September 19, 2006, by the Honorable George
M. Masuoka. David J. Gierlach appeared for the Plaintiff,
Keith K. Hiraoka appeared for Defendant Stanley H.
Roehrig and Diana L. Van De Car appeared for Defendant
Title Guaranty Escrow Services, Inc. The Court, having
considered the written and oral submissions of counsel
and the record and files in the case, and being otherwise
fully advised, orders as follows;
IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED that Plaintiff George Miyashiro’s Renewed Motion
to Allow Eugene J. Albertini to Appear as Counsel Pro Hac
Vice with Full Status filed on August 28, 2006, be and is
hereby DENIED.
DATED: Lihue, Hawai‘i, NOV 13 2006.
[SEAL] /s/ George M. Masuoka
Judge of the above-entitled Court
Appendix G-3
APPROVED AS TO FORM:
/s/ David Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff
DIANA L. VAN DE CAR
Attorney for Defendant
TITLE GUARANTY ESCROW SERVICE, INC.
Appendix H-1
DAVID J. GIERLACH 5041
500 Ala Moana Boulevard
Suite 330, 5 Waterfront Plaza
Honolulu, Hawaii 96813
Telephone: (808) 523-1332
Facsimile: (808) 526-2275
Email: gierlach33@aol.com
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF. HAWAII
GEORGE MIYASHIRO, ) CIVIL NO. 04-1-0211
Plaintiff ) (Other Civil Action]
= NOTICE OF APPEAL OF
} AMENDED FINAL
ROEHRIG, ROEHRIG, JUDGMENT, FILED
WILSON & HARA: ) JANUARY 11, 2007:
STANLEY H. ROEHRIG, _? EXHIBIT 1; CERTIFI-
Attorney at Law, ALC; CATE OF SERVICE
GLENN HARA, Attorney at
Law; CAROL MIYASHIRO;
JEFF MIYASHIRO; TITLE
GUARANTY CO.; AND DOE
DEFENDANTS 1-100, )
) TRIAL: FEBRUARY 20,
Defendants. 2007
)
) (Filed Jan. 22, 2007)
NOTICE OF APPEAL OF AMENDED
FINAL JUDGMENT, FILED JANUARY 11, 2007
NOTICE IS HEREBY GIVEN that Plaintiff George
Miyashiro, by and through his undersigned counsel, and
pursuant to Hawaii Revised Statutes § 641-11 and Rule 3
of the Hawaii Rules of Appellate Procedure, hereby ap-
peals to the Supreme Court of the State of Hawaii from
Appendix H-2
the Amended Final Judgment, filed January 11, 2007,
attached hereto as Exhibit 1.
DATED: Honolulu, Hawaii, January 22, 2007.
/s/ David J. Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff
Of Counsel:
ROEcA, LOUIE & HIRAOKA
A Limited Liability Law Partnership, LLP
KEITH K. HIRAOKA 3423-0
khiraoka@rlhlaw.com
RHONDA L. CHING 8140-0
rching@rlhlaw.com
841 Bishop Street, Suite 900
Honolulu, Hawai‘i 96813-3917
Telephone: (808) 538-7500
Facsimile: (808) 521-9648
CRUDELE & DE LIMA
Attorneys at Law, A Law Partnership
BRIAN J. DE LIMA 3407-0
delima@bigislandlawyers.com
101 Aupuni St., Suite 133 =
Hilo, Hawai‘i 96720
Telephone: (808) 969-7707
Attorneys for Defendant
STANLEY H. ROEHRIG, AAL, ALC
Appendix H-3
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
GEORGE MIYASHIRO, ) CIVIL NO. 04-1-0211
) (Hilo)
Plaintiff,
ik ) AMENDED FINAL
, JUDGMENT
ah ares ¢ — ) (Filed Jan. 11, 2007)
STANLEY H. ROEHRIG,
AAL, ALC: GLENN S.
HARA, AAL; CAROL MIYA- ?
SHIRO; JEFF MIYASHIRO; ?
TITLE GUARANTY CO.; and?
DOE DEFENDANTS 1-100, ?
Defendants.
= “~
AMENDED FINAL JUDGMENT
Pursuant to Haw. R. Civ. P. 58, judgment is hereby
entered in favor of Defendant STANLEY H. ROEHRIG,
Attorney at Law, A Law Corporation and against Plaintiff
GEORGE MIYASHIRO as to all claims alleged in Plain-
tiffs First Amended Complaint (filed on August 4, 2004).
Pursuant to Haw. R. Civ. P. 58, judgment is hereby
entered in favor of Defendant TITLE GUARANTY ES-
CROW SERVICES, INC. and against Plaintiff GEORGE
MIYASHIRO as to all claims alleged in Plaintiff's First
Amended Complaint (filed on August 4, 2004).
All claims against Defendants CAROL MIYASHIRO
and JEFF MIYASHIRO were dismissed by notice filed
pursuant to Haw. R. Civ. P. 41(a)(1)(A) on October 20,
2004.
Appendix H-4
All claims against Defendants GLENN S. HARA and
ROEHRIG, ROEHRIG, WILSON & HARA were dismissed with
prejudice by stipulation and order entered on September 1, 2005.
All claims not specifically identified above are hereby
dismissed without prejudiced.
Dated: Lihu‘e, Hawai‘i, JAN 11 2007.
[SEAL] George M. Masuoka
Judge of the Above-Entitled
Court
APPROVED AS TO FORM:
DAVID J. GIERLACH
EUGENE J. ALBERTINI
Attorneys for Plaintiff
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
GEORGE MIYASHIRO, __ ) CIVIL NO. 04-1-0211
Plaintiff, ) [Other Civil Action]
a CERTIFICATE OF
ROEHRIG, ROEHRIG, ) SERVICE
WILSON & HARA:
STANLEY H. ROEHRIG, __)
Attorney at Law, ALC; )
GLENN HARA, Attorney at)
Law; CAROL MIYASHIRO; )
JEFF MIYASHIRO; TITLE )
GUARANTY CO.; AND DOE )
DEFENDANTS 1-100, )
Defendants. )
Appendix H-5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing
document will be duly served by HAND DELIVERY,
UNITED STATES MAIL, postage prepaid, and/or FAC-
SIMILE TRANSMISSION to the parties identified below
at their last known address on the date herein indicated.
BRIAN J. DeLIMA, ESQ. (808) 969-6606
Crudele & De Lima
101 Aupuni Street
PH 1014-A, Hilo Lagoon Center
Hilo, Hawaii 96720
Attorney for Defendant
STANLEY ROEHRIG
KEITH K. HIRAOKA, ESQ. (808) 521-9648
Roeca Louie & Hiraoka
841 Bishop Street
Suite 900, Davies Pacific Center
Honolulu, Hawaii 96813
Attorney for Defendants
ROEHRIG ROEHRIG, WILSON & HARA
GLENN HARA
DIANA L. VAN DE CAR, ESQ. (808) 935-4853
101 Aupuni Street
Suite 238
Hilo, Hawaii 96720
Attorney for Defendant
TITLE GUARANTY ESCROW SERVICES, INC.
DATED: Honolulu, Hawaii, January 22, 2007.
/s/ David J. Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff
Appendix I-1
DAVID J. GIERLACH 5041
500 Ala Moana Boulevard
Suite 330, 5 Waterfront Plaza
Honolulu, Hawaii 96813
Telephone: (808) 523-1332
Facsimile: (808) 526-2275
Email: gierlach33@aol.com
Attorney for Plaintiff
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
GEORGE MIYASHIRO, ) CIVIL NO. 04-1-0211
) (Other Civil Action]
Plaintiff,
" PLAINTIFF-APPELLANTS
STATEMENT OF POINTS
ROEHRIG, ROEHRIG, ) ON APPEAL; CERTIFI-
WILSON & HARA: ) CATE OF SERVICE
STANLEY H. ROEHRIG,
Attorney at Law, ALC;
GLENN HARA, Attorney at
Law; CAROL MIYASHIRO;
JEFF MIYASHIRO; TITLE
GUARANTY CO.; AND DOE
DEFENDANTS 1-100,
Defendants. )
——— ee”
Nee eee ee ee
TRIAL: JANUARY 20, 2007
PLAINTIFF-APPELLANT’S STATEMENT
STATEMENT OF POINTS ON APPEAL
Plaintiff-Appellant George Miyashiro respectfully
submits the points he intends to raise on appeal pursuant
to Rule 10(b)(4) of the Hawaii Rules of Appellate Proce-
dure. Those points of error are as follows:
Appendix I-2
1. Whether the trial court erroneously granted
summary judgment in favor of Defendants herein.
2. Whether the trial court erroneously failed to grant
full pro hac vice status to Eugene J. Albertini.
3. Whether the trial court erred in failing to disqual-
ify the law firm of De Lima & Crudele as counsel for
Defendant Stanley Roehrig.
4. Whether the trial court’s ruling on Defendant
Roehrig’s request for attorney fees and costs was in error.
DATED: Honolulu, Hawaii, January 29, 2007.
/s/ David J. Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff-
Appellant
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
GEORGE MIYASHIRO, ) CIVIL NO. 04-1-0211
) (Other Civil Action]
Plaintiff,
li CERTIFICATE OF
SERVICE
ROEHRIG, ROEHRIG, )
WILSON & HARA;
STANLEY H. ROEHRIG,
Attorney at Law, ALC;
GLENN HARA, Attorney at
Law; CAROL MIYASHIRO;
JEFF MIYASHIRO; TITLE
GUARANTY CO.; AND DOE
DEFENDANTS 1-100,
Defendants.
ee eee eee ee”
Appendix I-3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing docu-
ment will be duly served by HAND DELIVERY, UNITED
STATES MAIL, postage prepaid, and/or FACSIMILE
TRANSMISSION to the parties identified below at their
last known address on the date herein indicated.
BRIAN J. DeLIMA, ESQ. (808) 969-6606
Crudele & De Lima
101 Aupuni Street
PH 1014-A, Hilo Lagoon Center
Hilo, Hawaii 96720
Attorney for Defendant
STANLEY ROEHRIG
KEITH K. HIRAOKA, ESQ. (808) 521-9648
Roeca Louie & Hiraoka
841 Bishop Street
Suite 900, Davies Pacific Center
Honolulu, Hawaii 96813
Attorney for Defendants
ROEHRIG ROEHRIG, WILSON & HARA
GLENN HARA
DIANA L. VA NDE CAR [sic], ESQ. (808) 935-4853
101 Aupuni Street
Suite 238
Hilo, Hawaii 96720
Attorney for Defendant
TITLE GUARANTY ESCROW SERVICES, INC.
DATED: Honolulu, Hawaii, January 29, 2007.
/s/ David J. Gierlach
DAVID J. GIERLACH
Attorney for Plaintiff
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