Rob Perez

Raising Cane

By Rob Perez

Friday, April 20, 2001

interprets own ruling in
State Farm case

Former justice Robert Klein used
a previous ruling to his
client's advantage

IN 1999 the Hawaii Supreme Court issued an opinion in a case involving State Farm Fire and Casualty Co., the huge national insurer. Robert Klein was among the justices who signed the opinion.

Two years later, Klein, as a private attorney, represented State Farm in the same case. At a March hearing, Klein attempted to convince a state judge to interpret the Supreme Court opinion in a manner favorable to State Farm. The judge essentially obliged.

Doesn't something seem fishy with that picture?

The Supreme Court has rules governing what is taboo when a judge leaves the bench and returns to a law practice. What's more, the rules were adopted by the court when Klein was a member.

Here's what one says:

"A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge ... unless all parties to the proceeding consent after disclosure."

No consent was granted in this case.

"It certainly raises the appearance of a conflict of interest," says Lis Wiehl, a University of Washington law professor who teaches legal ethics.

James and Sandra Delmonte, who sued State Farm alleging breach of fiduciary duties, now want a state judge to disqualify Klein's law firm, McCorriston Miller Mukai MacKinnon, as State Farm's counsel, partly because of Klein's involvement. A disqualification motion is scheduled to be heard this afternoon in Circuit Court.

The McCorriston firm said the motion had no merit and was yet another "unseemly tactic" by the plaintiffs to gain unfair advantage over State Farm, harass the company and unduly delay the case. "We have every confidence the court will support our position," it said.

The firm in a court filing also noted that Klein had "extremely limited involvement" in the case, appeared at the March hearing for a limited purpose because two other attorneys were unavailable, and did not have access to confidential information regarding this matter while a Supreme Court member.

Yet the same filing said Klein "will be screened from any further participation." Klein did not respond to a request for comment.

Cases involving former judges getting into trouble for representing clients they had previous dealings with are rare, judicial ethics experts say.

One 1995 case in Hawaii involving former Family Court Judge Richard Y.S. Lee resulted in a public reprimand.

Lee had signed an uncontested divorce decree in a 1983 case, and a decade later, after having left the bench, represented the husband in a child-custody matter with the client's former wife, according to Supreme Court records. Lee told his client that Lee's past involvement in the divorce case would not pose a conflict of interest, the records show.

But the ex-wife's attorney filed a motion to disqualify Lee as the man's attorney, and it was granted in November 1993. The Supreme Court's disciplinary board ordered the public reprimand in December 1995.

Attorney Terrance Revere, who represents the Delmontes in the State Farm case, said the McCorriston firm reaped a huge -- but unfair -- advantage by having an author of the 1999 Supreme Court opinion argue its meaning. "It's like having one side in a theological debate on the meaning of the Ten Commandments represented by a parish priest and the other side represented by Moses," Revere said.

He also questioned the opposition getting the favorable ruling after Klein participated in the hearing and then saying the former associate justice would no longer be involved in the case. That's akin to a bank robber agreeing to no longer rob banks but refusing to return any loot, Revere said.

Something, indeed, seems fishy.

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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