The 9th Circuit Court of Appeals has issued a temporary stay that puts further reciprocal disciplinary proceedings against Honolulu attorney Gary Dubin on hold.

The Hawaii Supreme Court issued an order of disbarment against Dubin on September 9, 2020, and the 9th Circuit was notified immediately. 9th Circuit rules require that the court initiate its own reciprocal proceedings when notified that an attorney has been disciplined in another jurisdiction.

From the Federal Rules of Appellate Procedure for the 9th Circuit:

(c) Reciprocal Discipline. An attorney who practices before this Court shall provide the Clerk of this Court with a copy of any order or other official notification that the attorney has been subjected to suspension or disbarment in another jurisdiction. When this Court learns that a member of the bar of this Court has been disbarred or suspended from the practice of law by any court or other competent authority or resigns during the pendency of disciplinary proceedings, the Clerk shall issue an order to show cause why the attorney should not be suspended or disbarred from practice in this Court.

(d) Response. An attorney against whom an order to show cause is issued shall have 28 days from the date of the order in which to file a response. The attorney may include in the response a request for a hearing pursuant to FRAP 46(c). The failure to request a hearing will be deemed a waiver of any right to a hearing.

Accordingly, on October 9, 2020, the court issued an order that Dubin resign within 30 days, “or shall show cause, in writing, why respondent should not be ineligible to practice law in this court….”

Dubin submitted his response to the show cause order on October 9. It included a 10 page memo, and 986 pages of exhibits from the disciplinary proceedings of the Hawaii Office of the Disciplinary Counsel and, later, the Hawaii Supreme Court.

On the same day, without reviewing the substance of Dubin’s response, the court issued a new order: “Reciprocal disciplinary proceedings are stayed pending the outcome of: (1) his pending request to Justice Elena Kagan for a stay of his Hawaii disbarment; and (2) his contemplated petition for a writ of certiorari to the United States Supreme Court.”

Almost immediately, Dubin sent out an email saying the court agreed “to review the merits of my defenses to disbarment” as well as issuing a stay on its reciprocal disciplinary proceedings.

Although the court did issue a stay, its order did not appear to include agreement to “review the merits” of Dubin’s defense.

Further, Dubin did not request a hearing and, according to the rules cited above, appears to have waived any right to a hearing at the 9th Circuit.

Dubin’s email said his law firm will have to be restructured as a result of staff and client departures following the Hawaii Supreme Court’s Order of Disbarment.

Notwithstanding this good news, the unjustified disbarment order of the Hawaii Supreme Court of course has created a terrible financial and emotional burden on me, my clients, and my staff.

As a result, several clients and staff have left or are leaving me next week.

The loss of Fred in particular will cause me to restructure my law firm even if Justice Kagan were to grant me a stay next week.

I am looking at a number of alternatives and will let you know what I decide shortly.