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Editorials
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Wednesday, August 8, 2001



Don’t expect lawyers
to tattle on clients

The issue: The American Bar Association's
governing body has chosen not to drastically
change exceptions to attorney-
client confidentiality.



CONFIDENTIALITY is a crucial element of a person's trust in his or her attorney, and ethical rules for lawyers recognize it as such. Many lawyers regard it as even more important than exceptions allow, rendering conflicting rules difficult if not impossible to enforce. That is why a fierce debate within the American Bar Association's House of Delegates about exceptions to the rule may have been a lot of lawyer talk of little consequence.

Under ABA rules, a lawyer can -- but is not required to -- squeal on his client to prevent someone from being killed or harmed. The House of Delegates voted this week to allow members of the profession to extend that to activities that may not be criminal, such as suicide, or that may cause eventual harm, such as release of a poisonous product.

The delegates voted against changing the rules to allow lawyers to report fraud or crime in which clients enlist their lawyers' involvement. The relevant ABA rule remains the same: A lawyer is supposed to try talking his client out of committing a crime and to withdraw from representation if the client refuses.

Hawaii's ethical code is even more demanding of lawyers, at least hypothetically. An attorney may reveal information to prevent a crime or fraudulent act that he or she "reasonably believes" will result in someone's death, substantial bodily harm or financial loss. If the lawyer has information that "clearly establishes" a crime or fraud that had been furthered by the lawyer's service, the lawyer is obligated to reveal it.

That doesn't happen because a lawyer's exposure of a client's wrongdoing, even persistent wrongdoing aided by legal work, is contrary to the dynamics of the justice system. Victims of crime or fraud seek redress from the offender, not the lawyer, and are not about to waste their time complaining to the bar's disciplinary authorities, which don't award compensation in such cases.

During a scam that spanned 12 years and took in an estimated $113 million, numerous victims of art fraud filed lawsuits against Center Art Galleries-Hawaii. Confidential settlement of those suits kept the fraud under wraps until federal authorities finally stepped in. No disciplinary complaint was filed against any of the gallery's attorneys who had been involved in the secret settlements. Asked about the lawsuits during his Senate confirmation hearings to be a federal judge, David Ezra, who was one of the gallery's attorneys, denied any knowledge of the fraud while it was going on.

Ethical questions are bound to arise in legal representation of society's dregs. Rarely will such a question cause a lawyer to breach attorney-client confidentiality or deliberately fail to provide his or her client aggressive representation, which are ethical tenets in their own right.


No end in sight
in temple dispute

The issue: For 13 years, a Buddhist
temple and nearby residents have fought
about the structure's height.



The 13-year legal battle between a Buddhist temple and Palolo Valley residents about the structure's height appears to have resulted in nothing but dissatisfaction for both parties and an unfortunate polarizing of neighbors. The Mu-Ryang-Sa Buddhist Temple of Hawaii is taking measures to bring the structure into compliance with zoning laws, but further legal action will likely extend the long-running dispute. It is time to find another way to resolve the conflict.

The clash began in 1988 when the Concerned Citizens of Palolo and Life of the Land took the temple to court, contending that the building violated height limits. The suit came in an atmosphere of suspicion because the city had issued a permit for the temple six days before a more restrictive land use ordinance was to go into effect, sparking charges of favoritism and accusations of wrongdoing.

In 1998, the Hawaii Supreme Court ruled for the citizens' groups. Appeals by the temple, as well as attempts to gain a variance, failed. Meanwhile, parts of the temple and its roof already had been built. In 1999, the city planning agency and the temple worked out a plan to lower the structure's roof line by 6.2 feet in an attempt to end the conflict. However, even as the temple is now whittling down the roof, the dispute goes on.

The citizens' groups say they will go back to court because removal of the roof's pointed corners are merely "cosmetic changes" and that the high court had ordered the building be lowered 9 feet. They also complain that they were excluded from the discussions between city officials and the temple about the alterations.

At the same time, the attorney for the temple is blaming the citizens' groups for damaging the architecture of the structure, labeling it "pretty ugly." Through all these years the temple's congregation has had to wait for the building to be completed, stymied by a stop-work order.

Conflicts that go on for so long are not easily resolved. Time allows opponents to become entrenched in their views and frustrates all parties. Although citizens have the right to take these matter to court, legal wrangling could extend the battle for many more years and will probably leave both sides as unhappy as they are now. It may be more fruitful for neighbor to look to neighbor for reconciliation in another framework.






Published by Oahu Publications Inc., a subsidiary of Black Press.

Don Kendall, President

John Flanagan, publisher and editor in chief 529-4748; jflanagan@starbulletin.com
Frank Bridgewater, managing editor 529-4791; fbridgewater@starbulletin.com
Michael Rovner,
assistant managing editor 529-4768; mrovner@starbulletin.com
Lucy Young-Oda, assistant managing editor 529-4762; lyoungoda@starbulletin.com

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