Lawyer's search for clients to sue Kamehameha raises questions
Attorneys' ethics rules prohibit using e-mail to solicit plaintiffs
A local attorney is looking for students to challenge Kamehameha Schools' policy of giving preference to native Hawaiian students -- a task he began a day after the school settled a civil rights case before the U.S. Supreme Court.
Honolulu attorney David Rosen, in a May 15 e-mail, asked the head of a nonprofit group and a fellow lawyer to search for potential plaintiffs to sue Kamehameha over its 120-year admissions policy.
But some legal experts say the online request may have violated professional ethics codes that prohibit lawyers from soliciting potential clients through e-mail.
In a case raising ethics questions, a lawyer who e-mailed two people to look for students to challenge Kamehameha Schools over its Hawaiians-first admissions policy is defending his action.
Honolulu attorney David Rosen, in a May 15 message now being widely circulated, asked the head of a nonprofit group and a fellow lawyer to search for potential plaintiffs -- Hawaii residents between ages 4 and 16 who would be interested in applying to the school.
The request came a day after Kamehameha settled a case pending in the U.S. Supreme Court with a non-Hawaiian student who was denied admission in 2003. The student, identified only as John Doe, charged that the school's policy of giving enrollment priority to Hawaiians violated the Civil Rights Act of 1866.
According to some experts, the e-mails possibly violated professional ethics codes.
Rules prohibit attorneys from soliciting clients through e-mail, though it is OK to use regular mail or advertisement, said James Kawachika, an attorney who gives lawyers ethics advice and represents them before the Disciplinary Board.
"He would still be violating ethical rules because he cannot do indirectly that which he himself is prohibited from doing directly," said Kawachika, a former chairman of the board, which oversees allegations of ethics violations and misconduct by attorneys.
Messages left yesterday with the Office of Disciplinary Counsel, the administrative arm of the board, were not returned.
But Rosen argues he never intended to have his message forwarded by Richard Rowland, president of the Grassroot Institute of Hawaii, and attorney William Burgess, a critic of Hawaiian programs.
"It was an e-mail to two individuals. Who they disseminated it to is beyond my control," Rosen said. "To my knowledge, there's no problem with that."
The Hawaii State Bar Association, prompted by a wave of complaints it got about Rosen's e-mail, will investigate the matter at a regular board meeting tomorrow, said President Jeffrey Portnoy.
"I find this kind of solicitation of clients to be very troubling," he said, noting that courts have been loosening attorneys' solicitation laws to protect their free-speech rights. "It's a tough debate."
Jon Van Dyke, a University of Hawaii constitutional law professor who has helped Kamehameha defend its preference policy, said those rules tend to be relaxed in civil liberties cases of high public interest.
In his e-mail, Rosen said he wants at least 10 plaintiffs to file an "identical" suit to the one Kamehameha stopped earlier this month through an undisclosed, out-of-court settlement.
Rosen says Kamehameha relied on its estimated $7.6 billion trust to reach that deal and prevent the high court from possibly hearing the case.
"A lot of people were hoping that the John Doe case being considered by the Supreme Court would have resolved this issue," Rosen said yesterday, declining to answer whether any potential clients have stepped forward. "I don't want to create a case that the school can settle by just throwing a bunch of money at people."
Kamehameha Schools vowed to aggressively fight any future challenges to its 120-year policy of requiring applicants to prove Hawaiian bloodlines.
Spokeswoman Ann Botticelli noted the school now enjoys the legal backing of the 9th U.S. Circuit Court of Appeals, which ruled 8-7 in December to uphold the admissions prerequisite.
"We knew there was always a possibility we would get sued again," she said. "We are not interested in settling this case. We have legal precedent at the 9th Circuit level that our policy is lawful and that it does not trample the rights of non-Hawaiians. ... He is gambling, and it's a huge gamble."
Rosen, however, said the appeals court decision was narrow and that he believes the courts will agree to revisit "an issue that affects the community at large."