David C. Farmer vs. Harmon - Witness James Duca

Kessner, Duca, Umebayashi, Bain & Matsunaga
220 South King Street, 19^th Floor
Honolulu, HI 96813

NEW DISCOVERY (07-18-08): Undisclosed professional conflicts of interests with Defendant’s attorney, Bradley Tamm, and attorneys representing parties involved in Harmon’s RICO lawsuit and EQ2048; breach of attorney-client privilege confidentiality rules:

Current members of the Bankruptcy Mediation Panel are listed below. Applications for appointment to the panel will be accepted on a continuing basis.
Ryther L. Barbin, Esq. Louis L. C. Chang, Esq. Robert E. Chapman, Esq. Chuck C. Choi, Esq. Harrison P. Chung, Esq. Charles W. Crumpton, Esq. Nicholas C. Dreher, Esq. James N. Duca, Esq. Don Jeffrey Gelber, Esq. Steven Guttman, Esq. Owen H. Hellekson, Jr., Esq.	Simon Klevansky, Esq. Ronald K. Kotoshirodo, Esq. Colin K. Kurata, Esq. Remy Luria, Esq. Alan J. Ma, Esq. Michael F. Nauyokas, Esq. William J. Plum, Esq. Bradley Tamm, Esq. Susan Tius, Esq. James A. Wagner, Esq. Thomas J. Wong, Esq.
LBR 9019-2. ALTERNATIVE DISPUTE RESOLUTION (a) Purpose and Scope. To facilitate the voluntary resolution of adversary proceedings and contested matters, the Bankruptcy Court is authorized to establish guidelines for court-sponsored Bankruptcy Alternative Dispute Resolution (“BDR”) procedures. This rule does not preclude parties from participating in the alternative dispute resolution (“ADR”) procedures implemented under LR 16.11 or in any other ADR process. (b) Program Administration. (1) Bankruptcy Mediation Committee. The court may establish a Bankruptcy Mediation Committee to formulate guidelines for BDR procedures and the selection, training and evaluation of individuals to serve on a Mediator Panel. (2) BDR Administrator. The court may appoint a BDR Administrator to administer the BDR program and to serve as liaison between the court and the Bankruptcy Mediation Committee. (3) Bankruptcy Mediator Panel. The BDR Administrator shall publish and maintain a list of qualified individuals approved by the court to serve as members of a Bankruptcy Mediator Panel. Individuals selected to serve on the panel may be required to provide a minimum amount of service without compensation. (c) Confidentiality. (1) Except as otherwise provided by this rule or applicable law, any and all communications made in connection with any mediation under this rule shall be subject to Rule 408 of the Federal Rules of Evidence. (2) Mediators and parties shall not communicate with the court about the substance of any position, offer or other matter in the mediation without the consent of all parties, unless such disclosure is required to enforce a settlement agreement or to provide evidence in an attorney disciplinary proceeding, but only to the extent required to accomplish that purpose. (d) Immunity of Mediators. All persons serving as mediators under this rule shall be deemed to be performing quasi-judicial functions and shall be entitled to all of the privileges, immunities and protections that the applicable law accords to persons serving in such capacity.
12/19/2002

03/30/02

Letter from Harmon to Bradley Tamm re Ch 7 Case 99-04339

www.kycbs.net/Claim-Tamm-3-30-2.htm

www.kycbs.net/Claims-Branch-Dunn-Tamm.htm

04/06/02

Fax from Harmon’s attorney, Bradley Tamm, to Steven Guttman, Matt Tsukazaki, and Susan Tius requesting that these parties “SHOULD ALL COOPERATE IN EXCHANGING SUCH INFORMATION FOR OUR MUTUAL BENEFIT AND THE PRESERVATION OF OUR CARRIER’S INTERESTS.” This is indisputable evidence of violation of attorney-client privilege and conspiracy to commit fraud.

www.kycbs.net/Claim-Tamm-4-6-2.pdf

NEW DISCOVERY (02-09-08): Kamehameha Schools made a “confidential” settlement agreement with the plaintiff in the John Doe vs. Kamehameha Schools case, which my former attorney, John Goemans, Esq., says, according to what he has learned from the IRS, violates the rules for a non-profit charitable trust:

An attorney involved in a challenge to Kamehameha Schools' Hawaiians-only policy reveals the amount of a settlement

Kamehameha Schools made the first move to settle a legal challenge to their admissions policy giving preference to native Hawaiians and later agreed to pay $7 million, a lawyer involved in the case said yesterday.

John Goemans, an attorney for an unnamed non-native Hawaiian student who filed a lawsuit contesting the policy, said the charitable trust offered for the first time to talk about an out-of-court settlement last May, just days before the U.S. Supreme Court was to decide whether to hear the case.

Goemans, a former Big Island attorney recuperating in Florida from heart surgery, and Sacramento, Calif., lawyer Eric Grant, the lead attorney, represented the unnamed student and his mother.

"They (the schools) approached Eric and said we wanted to settle and we have to settle by Friday morning," when it was believed the high court was to make a decision about accepting the case, Goemans said.

He said it appeared the high court would accept their appeal of an 8-7 decision by the 9th U.S. Circuit Court of Appeals that upheld the policy.

"They (the schools) were worried about losing in the Supreme Court," Goemans said.

Goemans said he did not know how Grant and the Kamehameha Schools arrived at the $7 million figure.

The hotly disputed federal civil rights lawsuit caused a firestorm of controversy among Kamehameha Schools supporters who believed the challenge struck at the more than century-old admissions policy and the heart of the charitable trust's mission to educate children of Hawaiian ancestry.

The confidential settlement was announced on May 14. Those connected with the case repeatedly refused to disclose the terms.

Goemans said he was disclosing the amount because he said he recently learned from Internal Revenue Service officials that Kamehameha Schools, a tax-exempt charitable trust, cannot keep the figure confidential.

"Because exempt organizations operate in the public good, you got to report all your expenses with particularity, and you cannot keep information relative to those expenses confidential," he said. "It's in the public interest to have full disclosure."

Ann Botticelli, Kamehameha Schools spokeswoman, said yesterday the settlement contained a confidentiality clause.

"We intend to honor the terms, and we will not be discussing the settlement or John Goemans' assertions," she said.

Kamehameha Schools, a multibillion-dollar charitable trust and the state's largest private landowner, was established under the 1883 will of Princess Bernice Pauahi Bishop. It educates more than 6,700 students at its flagship campus at Kapalama Heights, two other campuses on Maui and the Big Island, and 31 preschools throughout the state.

Senior U.S. District Judge Alan Kay upheld the school's Hawaiians-first policy, but a panel of the appeals court in San Francisco ruled 2-1 that the practice violated federal civil rights laws. That decision triggered statewide protests and marches by school supporters.

It was an appeal by Grant of that 8-7 ruling that was on the doorsteps of the U.S. Supreme Court when the settlement was announced.

At the time, school officials indicated that the settlement calling for the dismissal of the lawsuit leaves intact the appeals court's 8-7 decision upholding the admissions policy.

But the dismissal does not guarantee that another lawsuit might surface and make its way to the high court, although it would first have to go through the federal trial and appeals courts, where the 8-7 ruling would be considered to be binding on the issue. But even if those who file the new lawsuit lose on those two levels, they could still ask the high court to review the case.

Honolulu attorney David Rosen said he has plaintiffs for a lawsuit to challenge the admissions policy. He said the settlement does not affect his case. Rosen said he expects the suit will be filed this year.

Goemans said Grant received 40 percent, or $2.8 million of the $7 million. Goemans said he is preparing to file his own lawsuit seeking to recover a "reasonable percentage" of the $7 million for his work in the case.

Goemans said he found the unnamed student and arranged for Grant to be the attorney for the student and his mother.

"I put the whole thing together," Goemans said. "But for me there would not have been a $7 million payment."

The student never was admitted to Kamehameha Schools because his case was pending. He has since graduated from high school and had been attending college, Grant said last year.

Supporters and critics expressed surprise yesterday at the $7 million Kamehameha Schools paid a student to settle a lawsuit disputing its Hawaiians-first admission policy.

One Kamehameha Schools alumnus says disclosure of the settlement with the anonymous, non-Hawaiian student will prompt questions among Hawaiians.

"I'm not happy with $7 million," said Kamehameha Schools alumnus Jan E. Hanohano Dill. "Unfortunately, that's a lot of money, and it's going to create a lot of questions in the Hawaiian community whether it was right or wrong and to continue."

Dill, also a board member of Na Pua a Ke Ali'i Pauahi, a nonprofit group whose members include students, parents, and alumni of Kamehameha Schools, said he continues to support the school's decision.

"I don't know the details, and I think that's something that has to be cleared," he said. "You settle because you want to avoid costs that would be incurred as you go forward."

He added, "I have to believe that they understood that this was something good for the Hawaiian people. ... It will be clear as things unfold whether that was true."

Dill, who is also president of the nonprofit Partners in Development Foundation, said the admissions policy must eventually be addressed and that the settlement avoids this case but does not stop other cases.

Marion Joy, former vice president of Na Pua, called the settlement a "misuse of trust funds."

"The trust is continually going to be challenged," she said. "This is not going to be the last. ... As far as settling for the particular lawsuit, it's not in the best interests of the beneficiaries (of the 1883 will of Princess Bernice Pauahi Bishop)."

Honolulu attorney David Rosen, who has sought potential clients to sue Kamehameha over its admissions policy after the settlement, sent out a statement yesterday that said the $7 million settlement was used to "buy off this case."

He added that the trustees should open a campus on the Leeward Coast of Oahu and possibly Molokai where increased educational opportunities are needed.

H. William Burgess, a retired attorney and founder of Aloha for All, a group opposed to Hawaiian sovereignty, said the settlement raises questions about the proper use of the trust funds.

"Normally, trustees, if they're doubtful about doing something, they ask the court to give them instructions," he said. "Yet in this case, the biggest charitable trust, probably in the nation, instead of welcoming the opportunity to get the highest court in the land to settle it, they pay $7 million to leave it open. And it is very much open."

Weeks after she was permanently removed as a $1 million-a-year trustee of the Bishop Estate, Lokelani Lindsey faces new troubles from the Internal Revenue Service, which says she and her husband owe $230,003 in back taxes.

The IRS has placed a tax lien on all Hawaii properties owned by the former trustee and her husband, Stephen Lindsey, for 1997 income taxes.

The IRS filed notice of the federal tax lien May 17 with the state Bureau of Conveyances.

The Lindseys' personal tax problems emerged while a separate division of the IRS was in the middle of a four-year audit of the charitable trust. The filing of the lien also coincides with a wide-ranging state attorney general investigation into alleged financial wrongdoing by the Bishop Estate's trustees.

James Duca, the Lindseys' tax attorney, said the former trustee intends to pay the taxes. Duca said he has had general discussions with the IRS to come up with a payment schedule.

Duca attributed Lindsey's failure to pay the taxes in part to payments she made to support many of her relatives. He said Lindsey also incurred huge attorneys' fees defending herself from various legal actions.

In addition to the attorney general's investigation, fellow trustees Oswald Stender and Gerard Jervis sued for Lindsey's removal as a trustee, saying she breached her fiduciary duties and was unfit to serve. On May 6, Circuit Judge Bambi Weil permanently removed Lindsey after a five-month trial.

Duca said he does not know how much Lindsey will end up owing on her 1998 taxes, since she recently filed for an extension.

It is also unclear whether Lindsey would face additional tax consequences arising from the IRS audit of the Bishop Estate.

The IRS has been investigating whether trustees were paid excessive compensation and whether they took improper benefits.

Some observers believe that Lindsey's financial problems underscore her unfitness to serve as a trustee. For the year ending June 30, 1998, the 60-year-old Lindsey earned more than $1 million as one of the five trustees of the Bishop Estate. Since becoming a board member in 1993, her pay has averaged about $900,000 a year.

"I'm not sure I would trust this person with my retirement plan," said Randy Roth, University of Hawaii law professor and co-author of the 1997 "Broken Trust" article criticizing the trustees' management of the Bishop Estate.

According to Duca, the federal tax liens were attached to all of the Lindseys' properties in Hawaii.

According to state land records, the Lindseys own an East Honolulu home, bought in 1994 for $1.25 million, and a Maui property, acquired in 1984 for $60,000.

A lien essentially is a creditor's claim against a debtor's property. If the debt is repaid, the lien is usually removed. If debt is not paid or worked out, the creditor can take steps to seize the property.

Duca said Lindsey has given "no thoughts" to filing for bankruptcy to protect her assets.

He also had no comment on Lindsey's plans to appeal Judge Weil's removal order. Attorneys Michael Green and David Gierlach, who are handling the removal issues, could not be reached for comment.

AZABU BUILDINGS: Involuntary Chapter 11 Case Summary
----------------------------------------------------
Alleged Debtor: Azabu Buildings Co., Ltd.
aka Azabu Tatemono K.K.
131 Kaiulani Avenue, Suite 200
Honolulu, Hawaii 96815

Petitioners' Counsel: James N. Duca, Esq.
Kessner Duca Umebayashi Bain & Matsunaga,
Attorneys at Law
19th Floor, Central Pacific Plaza
220 South King Street
Honolulu, Hawaii 96813
Tel: (808) 536-1900
Fax: (808) 529-7177

-- and --

Bruce Bennett, Esq.
Sidney P. Levinson, Esq.
Joshua D. Morse, Esq.
Hennigan, Bennett & Dorman LLP
601 South Figueroa Street, Suite 3300
Los Angeles, CA 90017

Petitioners Nature of Claim Amount of Claim
----------- --------------- ---------------
Beecher Limited Loans $42,269,000
2733 Warm Springs Avenue exclusive of
Boise, ID 83712 interest and
Attn: Peter Wachtell charges

Nippon Capital Partners, LLC Loans $30,405,798
c/o Peter Swanger exclusive of
Hudson Japan Saiken Kaishu K.K. interest and
Tranomon 45 MT Building charges
1-5, Toranomon 5-Chome
Minato-ku, Tokyo 105-0001
Japan

Wac, Inc. Loan $20,058,544
14315 Quail Ravine Court
Reno, NV 89511
Attn: John J. Prehn

Preh, Inc. Loans $8,991,383
2733 Warm Springs Avenue exclusive of
Boise, ID 83712 interest and
Attn: Peter Wachtell charges

Nippon Portfolio Loans $2,103,793
Partners III, LLC exclusive of
c/o Peter Swanger interest and
Hudson Japan Saiken Kaishu K.K. charges
Tranomon 45 MT Building
1-5, Toranomon 5-Chome
Minato-ku, Tokyo 105-0001
Japan

James Duca is expected to testify regarding his law firm’s undisclosed conflict of interest in this lawsuit, as Mr. Duca was the attorney for former Kamehameha Schools Bishop Estate trustee Lokelani Lindsey at the time of Defendant’s RICO lawsuit against the former trustees, et al.

Furthermore, James Duca is expected to testify regarding this firm’s clients which have direct, conflicting relationships with parties in interest in this case, including: John Mullen & Co., (a Defendant in Harmon’s RICO lawsuit); Hartford Insurance Company (the company which provided Trustee Bonds to the Bishop Estate trustees); Royal Insurance Companies (affiliated with Royal & SunAlliance, the company which insured Maui County and Judith Neustadter Fuqua in the Hale `O Kaula lawsuit); and Zurich Insurance Company (a company in which both Kamehameha Schools and Marsh & McLennan had financial interests).