Another Side of the Story
By Carroll Taylor
Allowing unethical lawyers
to quit protects the publicRob Perez' "Raising Cane" column in the May 4 Star-Bulletin opines that the case of attorney Mark R. Thomason, who quit the legal profession after committing numerous acts of ethical misconduct that, by practice, were not made public, illustrates the flaws in the lawyers' disciplinary system in Hawaii. I disagree.
The Supreme Court of Hawaii is responsible for regulating the conduct of attorneys it has licensed to practice law. To discharge that obligation, the court has promulgated the Rules of Professional Conduct, an exhaustive treatise of the "dos" and "don't's" for attorneys. It also has created the Disciplinary Board of the Hawaii Supreme Court to oversee the Office of Disciplinary Counsel (ODC), which investigates and prosecutes attorney conduct that allegedly violates those rules. For the past three years, I have served as the chairman of the Disciplinary Board.
The primary goal of the disciplinary system is to protect the public, not to embarrass or punish attorneys. To accomplish that goal, there are different levels of sanctions that may be imposed on attorneys who violate the rules, the most serious of which is disbarment -- cancellation of the attorney's right to practice law. In order to learn of possible attorney misconduct, the rules make it easy for people (usually, but not always, unhappy clients) to file grievances with the ODC against an attorney.
However, the Supreme Court is also concerned about the fairness of a disciplinary system that could result in an attorney losing the right to practice the profession for which he or she completed at least three years of schooling beyond college, and had to study for and pass a specialized exam after graduating from law school.
Accordingly, the Supreme Court has devised a disciplinary system that balances the legitimate desire of the public for an open, fair and transparent system with the legitimate interest of attorneys in a system that protects them from false charges that could damage their reputations.
Perez and the Disciplinary Board disagree on where and how to strike that balance.
Perez believes that the public will be better protected if pending disciplinary proceedings against an attorney become public as soon as formal charges are filed by the ODC. When charged are filed it means that the ODC and one Disciplinary Board member have agreed that it is highly likely that the particular attorney's conduct seriously violates an ethical rule. Perez reasons that other members of the public would then be alerted to the possibility of ethical problems that could influence their decision to hire the attorney as the complaint wends its way through the disciplinary system (trial before a hearing committee, appeal to the Disciplinary Board and possible further appeal to the Supreme Court).
However, the Disciplinary Board believes that the public is best served if attorneys who are guilty of serious misconduct are put out of business as soon as possible. The primary method of doing this is permitting such attorneys to resign in lieu of discipline; thus surrendering their law license without going through the time-consuming disciplinary process.
You may rightfully ask: "What would make an attorney, trained to argue, give up his law license without fighting for it?" And the answer would be: He can avoid adverse publicity by voluntarily leaving the profession.
Many attorneys choose to do just that. Since 1994, 30 attorneys in Hawaii have resigned in lieu of discipline, while 17 have been disbarred in the same period. But the resignation option would likely not be utilized if the facts of the attorney's misconduct were made public as soon as the formal charges were filed; at that point, the attorney has no incentive not to fight the charges to the bitter end (meanwhile staying in business and signing up new clients who may not know of the pending charges).
Thus it is the Disciplinary Board's judgment the public may be less informed but is better protected by a system that preserves the confidentiality of disciplinary proceedings long enough to give offenders the chance to quietly resign.
Carroll Taylor, an attorney in Hawaii since 1969, is chairman of the Disciplinary Board of the Office of Disciplinary Counsel.