Honolulu foreclosure attorney Gary Dubin has filed an application asking U.S. Supreme Court Justice Elena Kagan to issue an emergency stay blocking the Hawaii Supreme Court from finalizing Dubin’s ouster from the practice of law. In his application, Dubin asks for his disbarment to be blocked so that he can file an appeal to the nation’s high court. Kagan is the justice assigned to the 9th Circuit for such matters.

The application was submitted electronically on Saturday, October 3, according to an attached “proof of service.”

Dubin faces a deadline at the end of this week to pay $19,885 in restitution to a former client “and to submit proof of that payment to this court by October 9, 2020.”

The Hawaii court issued its Order of Disbarment on September 9, and then rejected Dubin’s motion for reconsideration on September 26, but gave the attorney an extra 30 days to wind down his law practice. Dubin’s disbarment will become effective on November 9, 2020 unless the U.S. Supreme Court intervenes.

The Supreme Court, for its part, rarely accepts appeals in attorney discipline cases, so it would appear Dubin faces long odds against a successful appeal even if a preliminary stay were to be granted.
The court cited several specific cases in which it found Dubin had overcharged clients, taken money from the clients trust fund before it was earned, failed to respond to questions from either the clients or to the Office of Disciplinary Counsel, and in the process “inflicted actual, serious, injury upon the clients and upon the profession,” and in one case “inflicted injury on the public at large and the integrity of the profession.”

The appeal to Justice Kagan appears to be largely a rehashing of arguments previously made in proceedings before the Disciplinary Board and later before the Hawaii Supreme Court.

Dubin, in the October 3, 2020 submission to Justice Kagan, asserts that “[t]here is overwhelming evidence in the record below that Petitioner was denied his Fifth and Fourteenth Amendment Due Process fair hearing rights.” However, it’s a position that was previously argued at length and found to be “without merit” by a unanimous Hawaii Supreme Court.

Dubin also continues to argue “there is no proof of any ethical violations,” despite the court’s itemized list of several of Dubin’s past violations of court rules. Dubin, in the hearings before the disciplinary board, in the disbarment proceedings before the Hawaii Supreme Court, and in his appeal for an emergency stay, attempted to explain away each of the alleged violations with long explanations pointing the finger elsewhere.

After review these cases, ODC concluded Dubin’s testimony on these matters was “inherently incredible,” a finding the Hawaii Supreme Court did not disagree with.

According to a guide published by the U.S. Supreme Court’s public information office, there are several possible responses to such an application to a particular justice.

It may be denied with explanation, in which case the petitioner can shop around for a more responsive justice. Alternately, the justice can seek a reply from the opposing side in the case, and may grant an interim stay under the response is received. In practice, according to the guide, “renewed applications usually are referred to the full Court to avoid such a prolonged procedure.”

If the stay is granted, Dubin could be given a specific period of time in which to file a petition for a writ of certiorari to the U.S. Supreme Court.

See:

“Court deals major setback to condominium associations, attorneys,” iLind.net, Sept 26, 2018

“Well-known foreclosure defense attorney facing possible disbarment,” iLind.net, Sept. 30, 2019.

“Attorney Gary Dubin disbarred by order of the Hawaii Supreme Court,” iLind.net, Sept. 10, 2020.

“Court affirms disbarment of attorney Gary Dubin,” iLind.net, Sept. 30, 2020.