Raising Cane

Rob Perez

Sunday, October 19, 2003

High court eases secrecy
over lawyers’ misdeeds

The justices of the Hawaii Supreme Court did good. In this story, they clearly came down on the side of the public.

Hawaii lawyers, on the other hand, mostly played the role of self-serving defenders of an excessively secretive system that short-changes the public.

The justices fortunately had the final say.

Earlier this month they approved a new rule that will bring more sunshine to Hawaii's system for investigating attorneys accused of ethical misconduct.

As it stands now, Hawaii has one of the more secretive systems in the country, affording accused lawyers protections beyond what their colleagues have in a majority of other states -- and far beyond what other state-regulated professionals have here.

Credible complaints against Hawaii lawyers aren't made public until a public sanction is recommended by a hearing officer or committee of the Office of Disciplinary Counsel, the arm of the Supreme Court that investigates lawyer misconduct.

In a system not known for its speed, the recommendation of a public sanction often comes months and sometimes years after the agency, finding "clear and convincing" evidence of misconduct, files formal charges against the lawyer.

What's the big deal about that?

Unsuspecting consumers can hire attorneys facing multiple charges of misconduct -- charges that went through a weeding-out process and were deemed not to be frivolous -- and the would-be clients have no way of knowing the disciplinary cases even exist.

That isn't the case with engineers, architects, doctors, contractors, real estate agents and virtually every other profession regulated by the state. When those professionals are formally charged with licensing violations, consumers can get access to that information, including details of the alleged infractions.

Not so with Hawaii lawyers.

Take the case of Honolulu attorney Mark R. Thomason, whom I wrote about in May. He was the subject of 25 separate ethics investigations dating back several years. But a client who hired him before April had no way of knowing about his shaky track record.

The existence of the 25 investigations didn't become public until April when the Supreme Court approved an order allowing Thomason to quit the law profession rather than face discipline.

Even if such cases are the exception, the public's interest clearly is compromised by a system that keeps confidential any hint that a lawyer is the subject of numerous investigations, even as the attorney continues to hire clients.

On Oct. 6, the justices rightly decided that such a system needed changing.

Despite overwhelming opposition from attorneys and their trade group, the justices approved a rule that makes public misconduct charges 90 days after the lawyer is served with a petition, the document that formally charges the attorney. The rule is scheduled to take effect Jan. 1.

Pamela O'Leary Tower, an attorney who pushed for even greater openness in the discipline system, was surprised to hear that lawyers overwhelmingly opposed the new rule.

"I do not understand why many attorneys here believe they are entitled to greater protections in disciplinary matters than other professionals," Tower said. "I applaud the justices for taking action."

Douglas Crosier, president of the Hawaii State Bar Association, said the organization's board voted to oppose the rule change after holding statewide hearings and discussing the pros and cons.

Lawyers who oppose the change commonly cite several reasons, including:

>> Accused attorneys don't get an opportunity to defend themselves before an independent tribunal until a hearing is held months after the petition's filing. A panel typically with three members, none of whom are ODC staff, conducts the hearing.

>> The decision to file the petition is made by the ODC with the consent of a board member. It is a decision that opponents deem analogous to police investigators recommending that a suspect be charged. The ODC, they say, is prosecutorial by its nature, and if the filing of formal charges is made public before a hearing committee can consider the evidence, an attorney's reputation can be unfairly damaged.

>> Complaints are easy to file, and those bringing the complaints, under Supreme Court rules, can't be sued, even if they know the allegations are false.

While such reasons seem sound, they brush over the fact that even with the rule change, Hawaii lawyers still will enjoy protections greater than what their counterparts have in a majority of other states. In those states, disciplinary cases generally become public once authorities determine "probable cause" exists to support misconduct charges and thus file a petition.

The new Hawaii rule provides the extra 90-day cushion, plus another 45 days in certain situations. What's more, the ODC before filing a petition must find "clear and convincing" evidence of misconduct, a higher legal threshold than the "probable cause" standard used in other states. That gives local lawyers an added buffer against frivolous complaints.

But even with the extra protections, the revised system will be far superior to the existing one.

Yet the bar's opposition, critics say, underscores that lawyers have a tendency to protect their own, and since the disciplinary system largely is run by lawyers, they're often able to do that.

This time, though, the public's interest prevailed.

The Star-Bulletin can take some credit for that.

After I wrote a series last year detailing the excessive secrecy of the discipline system, the ODC board formed a committee to study the issue. Based on the committee's work, the full board, made up of lawyers and non-lawyers, recommended that the 90-day rule be adopted.

And the justices, to their credit, agreed.

See the Columnists section for some past articles.

Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at:


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