The disciplinary board asks a
state high court panel to reconsider
By Debra Barayuga
The Office of Disciplinary Counsel has asked a substitute panel of Hawaii Supreme Court justices to reconsider its April 1 order publicly censuring Honolulu attorney Alvin Sasaki.
In its motion filed Wednesday, the ODC -- which investigates lawyers accused of unethical conduct and recommends discipline to the high court -- has asked that the justices impose stiffer sanctions consistent with prior orders issued and allowed under Supreme Court rules.
On April 1, Sasaki was was censured by the the panel, which also recommended that he perform 300 hours of community service for ethical violations from 1988-1990.
The ODC noted that the sole court case cited by the panel in reaching its decision did not support the sanctions imposed.
The ODC also said the justices erred when they considered the length of time that has passed since the misconduct, Sasaki's "clean record" since and in ordering sanctions not authorized by Supreme Court rules. The state's high court cannot order community service in disciplinary cases.
It is the first time in recent memory that the ODC has sought a reconsideration of a Supreme Court order for discipline.
Sasaki, a staff attorney for the Hawaii Supreme Court since 1993, was found to have falsely notarized various documents between 1988 and 1990 while in private practice, testified falsely about the notarizations during a deposition and had been previously reprimanded.
Acting Justices George Masuoka, Ronald Ibarra, Shackley Raffetto and Gary Chang had concluded in their April 1 order that while they viewed Sasaki's conduct as a matter of "extreme gravity," a suspension was not warranted.
Circuit Judge Dan Kochi had dissented, noting some period of suspension was warranted.
The disciplinary board, which had recommended three years ago that Sasaki be suspended from practicing law for three years, filed its motion within the 10-day window required for challenges.
The court case cited by the justices involved Stephen Levine, a former Maui deputy prosecutor who lied to the court and was suspended for six months.
The case was brought to the court's attention by Sasaki's attorney, Keith Agena, after briefs had already been filed in the case.
No notice, as required by court and ethical rules, was given to the ODC, which would have responded had it been given the opportunity.
Agena had noted in a Nov. 16, 2001, letter to the Supreme Court clerk that the Levine decision, released just days earlier, showed that passage of time can be considered in determining appropriate discipline.
The board, in its motion filed this week, disagreed with Agena, noting that while delays in disciplinary proceedings are mitigating factors under American Bar Association standards, Sasaki would have had to prove that he suffered prejudice from the delay, which he did not.
A 3 1/2-year delay, the disciplinary board contends, was mainly due to Sasaki's attempts to cover up his misconduct, requests to continue formal hearings and his disclosure of additional misconduct.
The board said Sasaki's unethical conduct was far more serious and should be "more severe than the six-month suspension" Levine received.
Sasaki could not be reached for comment.
Agena declined to discuss the case.