Discipline board says
it’s above disclosure

But the attorneys agency
answers to the state Supreme Court

By Ian Y. Lind

If you want details about the agency that investigates complaints of unethical conduct against attorneys, you can forget it, at least for now.

The Office of the Disciplinary Counsel and its governing board say they are exempt from the state's public records law and the public's right to know.

Disciplinary Board Chairman James A. Kawachika, a Honolulu attorney, said in a letter earlier this month that the agency has never publicly revealed administrative records and "has determined to maintain its nondisclosure policy."

Kawachika said the Disciplinary Board is exempt from the law because it is not a government agency and is not "owned, operated, or managed by or on behalf of" the state.

The board considers itself an independent group because it is funded by annual licensing fees paid by attorneys. Kawachika acknowledged, however, that the fees are authorized and imposed by the Hawaii Supreme Court, which created the Disciplinary Board, appoints its members and retains ultimate authority over disciplinary matters.

The disciplinary counsel reviews allegations of ethics violations and misconduct by attorneys.

The board can issue private reprimands, but recommendations for public censure, suspension or disbarment are forwarded to the Supreme Court, which makes the final ruling.

The office has been the subject of public criticism over the years because most of the hundreds of complaints made each year remain confidential and are never publicly acknowledged.

Kawachika's statement came in response to a Star-Bulletin request originally made in September. At that time, the Star-Bulletin asked to examine certain financial records, minutes of board meetings and records relating to the termination of former chief disciplinary counsel Laureen K.K. Wong. The request was made following Wong's sudden and unexplained departure from the position last summer.

State law requires government records to be publicly available unless disclosure would unnecessarily invade the personal privacy of an individual or if the requested records fall within a limited number of specific exemptions.

Despite Kawachika's statement that the board is not a state agency, his letter is written on stationery that features the seal of the Hawaii Supreme Court and appears to identify the Office of Disciplinary Counsel as a court agency.

Gerald H. Kibe, then chief disciplinary counsel, said in a 1990 Hawaii Bar Journal article that the Supreme Court retains "at all times its ultimate authority over discipline of attorneys licensed to practice in this state." Kibe said the court's authority is fixed both by provisions of the state constitution and laws regulating attorneys.

Chief Justice Ronald Moon was unavailable for comment, but James Brahnam, staff attorney for the Hawaii Supreme Court, said the Disciplinary Board's nondisclosure policy had not been reviewed or approved by the court.

"The fact remains that the (Disciplinary) Board is an arm of the court," Associate Justice Steven Levinson said. "So draw your own conclusions."

The Disciplinary Board's policy also appears contrary to prior rulings of the Office of Information Practices, which advises public and government agencies about the application of the law. Moya Gray, director of the office, said she could not yet definitely say that the Disciplinary Board is a government agency, "but everything that I've looked at would tend to lead to that conclusion."

Gray pointed to a 1993 opinion by her office that the disclosure law applies to the committee in charge of administering the bar examination, a sister agency of the Disciplinary Board.

Other Office of Information Practices opinions have determined that agencies acting on behalf of government agencies, from private contractors to the Hawaiian Humane Society, must comply with the law by making their records public.

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