SPECIAL REPORT
First Of Three Parts
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Ethical lapses In the summer of 1998, Glenn H. Kobayashi was one of roughly 4,000 attorneys in Hawaii.
hit isles hard
Rates of sanctions, client complaints
and resignations are among
the highest nationwideLegal experts blame personal and
How to file a complaint
financial stress for the problems
The numbers, the penaltiesBy Rob Perez
rperez@starbulletin.com
He was a dishonest one, according to findings of a client protection fund. Kobayashi siphoned off thousands of dollars in settlements and other payments that belonged to his clients.
A three-part series
Day 2 | Day 3More than $100,000 has been repaid to six of them from the industry-financed protection fund.
Kobayashi, however, no longer practices law. Rather than face discipline for his misconduct, he took the drastic step of voluntarily resigning from the profession in July 1998.
The Kobayashi case was one of 41 that year in which Hawaii lawyers were sanctioned or voluntarily resigned because of professional misconduct. Another 45 cases were reported in 1999.
In both years the state led the nation in the rate of the most severe attorney sanctions triggered by misconduct, according to a Star-Bulletin analysis of American Bar Association statistics, the most recent available nationally.
Disbarments and resignations in the face of impending discipline typically result when attorneys are guilty of extremely serious misconduct.
In 1999, the Hawaii rate of one disbarment or resignation for every 313 actively licensed attorneys easily topped the next-closest state (Louisiana at one in 477) and was more than four times the national average. In 1998 the local rate of one in 547 was more than twice the national average.
What's more, Hawaii in both years had among the highest rates in the country for overall sanctions, from informal reprimands to disbarments.
To add to the sobering picture, Hawaii also had among the highest rates of complaints against attorneys in 1998 and 1999.
"These have been really tough times for the profession," said Peter Donahoe, who runs an assistance program for Hawaii attorneys and judges struggling with alcohol, drug or other problems.
Although more recent statistics are not available nationally for comparisons, the Hawaii rates for disbarments/resignations and overall sanctions dropped in 2000 and 2001.
But that does not necessarily mean ethical lapses are on the decline here. Other trends raise troubling questions about the state of Hawaii's legal profession and where it is headed. In one telling measure, the number of professional-misconduct complaints resulting in sanctions has grown steadily in recent years, to 118 in 2000 from 49 in 1997.
And the statistics are only half the story. Behind the numbers are tales of trauma and tragedy. Some clients lost tens of thousands of dollars because of ethical missteps by their lawyers. Others lost lawsuits, had their cases thrown out of court or suffered other legal and personal setbacks stemming from their attorneys' unethical actions.
Often, the lawyers were struggling to cope with personal battles of their own. Depression, financial problems, drug abuse -- Donahoe has seen it all in his dealings with troubled attorneys.
Beyond the effects on the individual clients, the growing number of discipline cases and the increasing severity of them are tarnishing a profession already held in low esteem by many residents.
Although the vast majority of Hawaii lawyers will go their entire careers without drawing any disciplinary complaints, enough have crossed the ethical line to bring dishonor to the profession.
What does a lawyer have to do to draw a sanction?
Consider these cases from the past several years:
>> One attorney received a public reprimand after he tried to intimidate a potential witness hostile to his client by slipping her an envelope containing photos of her and another woman in "sexually explicit poses," according to the disciplinary files. He then told the woman, who had lied previously about his client, that she should stay out of the case.
>> An attorney was disbarred after his inattention to his client's case cost the client a $75,000 judgment. The attorney, suffering from depression, eventually moved to Thailand, apparently to play in a band.
>> Another lawyer was forced out of the profession after authorities here learned he had been disbarred and suspended on the mainland. Among his infractions: giving alcohol to a female client with a history of alcohol abuse and then having sex with her.
No one knows for sure why the rate of Hawaii sanctions in recent years has been so high. But theories abound.
Trial lawyer James Duffy Jr., a past president of the Hawaii State Bar Association, believes Hawaii's relatively small, isolated community, where many lawyers are familiar with or know one another, is a contributing factor.
Because of the relatively small number of lawyers practicing in such a confined space as urban Honolulu, anyone engaging in misconduct will be noticed eventually, Duffy said.
"It's just not possible to get too lost here," he said.
Combine that with a sluggish economy in which lawyers and clients are under more financial and personal stress, and you get conditions in which disputes are more likely to arise, triggering more complaints, Duffy and others said.
The poor economy also means larger law firms and the government are hiring fewer attorneys, which means more inexperienced lawyers are forced to open solo practices or join tiny firms without the opportunity for much mentoring.
"They go out and hang a shingle and then get in trouble," said Carole Richelieu, head of the Office of Disciplinary Counsel, which investigates complaints involving lawyer misconduct.
In addition, Richelieu and others cite the relatively aggressive enforcement of ethics rules here, especially involving theft of client funds, to help explain the high sanction rates. Other jurisdictions are not as aggressive, they say.
What they do not believe, however, is that the high numbers mean that Hawaii has a greater proportion of unethical or incompetent lawyers than other places or that the University of Hawaii law school turns out less professional practitioners than institutions elsewhere.
"If we were really the sleazeball capital of the world, I would be stumbling on it every day," said Carroll Taylor, chairman of the ODC board and a practicing attorney in Hawaii since 1969. "I don't think we have a bunch of sleazeballs out there."
Still, even the UH law school is placing more emphasis on ethics training for its students. Starting last fall, they were required to take 50 percent more class time for the main ethics and professional responsibility course.
"We encourage them to set the bar high," said UH law professor Randy Roth, who teaches the course.
To help foster such attention to ethics, the ODC, in its news releases announcing public disciplines of individual lawyers, now mention where the lawyers went to law school.
Once attorneys are hit with or face serious sanctions, they often move away, leaving little trace of where they have gone. Even authorities sometimes have trouble finding them.
Efforts by the Star-Bulletin to contact a number of the attorneys who were disbarred or resigned, including Kobayashi, were unsuccessful. In a letter to one of his former clients, though, Kobayashi said his firm was having difficulty paying financial obligations because of its dissolution.
Despite the high rates of sanctions here, attorneys familiar with the disciplinary system say many infractions are relatively minor or result from negligence or inattention, not an intent to defraud.
That was the case with many of the dozens of public discipline files the Star-Bulletin reviewed at the ODC from the past five years.
But some of the worst misconduct cases are not public. Records of attorneys who choose to resign instead of face sanctions are kept confidential at the ODC under Hawaii Supreme Court rules.
Only if their clients file claims with the industry-financed Lawyers Fund for Client Protection or sue the attorneys do details become public.
The ODC's Taylor said the disciplinary system, designed more to protect the public than to punish lawyers, is effective in making the distinction between lawyers who temporarily cross the line and those who simply should not be in the profession.
One possible example of the former was Dawn Slaten, an attorney who received a public reprimand in 1997 for messing up on a divorce case, partly because she was dealing with her elderly father, who needed extensive care following an accident.
Even as the ODC was investigating Slaten, she was honored by the Oahu chapter of Hawaii Lawyers Care as the outstanding attorney for 1996. She could not be reached for comment.
The ODC files contain many other examples of lawyers who simply seemed to have buckled under pressure but were not out to harm their clients' interests.
"There are good lawyers who make mistakes," Taylor said. "There are bad lawyers who shouldn't be practicing. We do a good job of recognizing the difference and disciplining appropriately."
State office investigates
possible lawyer disputesThey make it so easy.
If you believe your attorney has acted unethically -- he or she wasn't meeting court deadlines, wasn't being truthful with you, was using your funds without permission or committing other acts of misconduct -- the Office of Disciplinary Counsel wants to hear from you. (Preferably after you first discussed the problem with your attorney and still are not satisfied.)
All you need to do to file a complaint is write a letter to the ODC, which investigates allegations of ethical misconduct in the legal profession, and provide the pertinent facts for what you believe was the infraction.
What's more, you have absolute privilege, which means you can't be sued for what you say in the complaint, even if you know the information is false. (If the attorney sues you anyway, the court usually will dismiss the suit because you have immunity.)
The ease with which people are able to file complaints is designed to make the system as accessible as possible if someone believes an attorney has done something unethical.
But because complaints are easy to file, they are kept confidential until a certain stage in the process, and the standard of proof that must be met is higher than a civil complaint but not quite as high as a criminal one, said Carroll Taylor, chairman of the ODC board.
Instead of a preponderance of evidence, the standard for civil matters, the ODC must determine there was clear and convincing evidence an ethical violation occurred. In criminal cases the standard is beyond all reasonable doubt.
When the ODC gets a complaint, it does a preliminary investigation to basically determine if there's probable cause to warrant the start of formal disciplinary proceedings.
Roughly one-third to one-half the complaints never even get to the formal stage, mainly because the complaints lack merit or don't pertain to a violation of the professional conduct rules governing Hawaii attorneys.
If a petition is filed starting the formal process, the case typically is referred to a hearing committee, which holds a hearing akin to a civil trial and then makes a recommendation to the 18-member disciplinary board. The ODC staff also can make a recommendation if it disagrees with the committee's findings.
If the board believes the infraction is serious enough to warrant a public censure, suspension or disbarment, it makes a recommendation to the state Supreme Court, which makes the final decision. Lesser punishments involving reprimands and informal admonitions can be handled at the board or staff level.
Last year, the agency received 676 new complaints, about a third of which didn't survive the initial screening. Of the 454 docketed for investigation, 22 percent involved alleged client neglect, typically the most common type of complaint.
Hawaii had the highest rate of disbarments and resignations in the face of impending discipline among licensed attorneys in 1999, the year for which the most recent national data is available. The state ranked fourth nationally in the rate of overall sanctions and third in complaints against attorneys. Dubious distinction
Disbarments/resignations in lieu of discipline
Total Active
lawyersRate per
lawyerHawaii 12 3,755 1 per 313 Louisiana 38 18,107 1 per 477 Nebraska 10 5,840 1 per 584 Maine 6 3,875 1 per 646 Florida 73 59,741 1 per 818 U.S. 813 1,147,125 1 per 1,411
Overall sanctions
North Dakota 24 1,856 1 per 77 Rhode Island 52 4,132 1 per 79 Iowa 96 7,787 1 per 81 Hawaii 41 3,755 1 per 91 Tennessee 166 15,219 1 per 92 U.S. 6,549 1,147,125 1 per 175
Complaints received by disciplinary agency
Colorado 4,961 19,000 1 per 3.8 Nevada 1,232 5,020 1 per 4.1 Hawaii 824 3,755 1 per 4.6 Ohio 7,441 36,767 1 per 4.9 Arizona 2,404 11,810 1 per 4.9 U.S. 116,922 1,147,125 1 per 9.8 Source: American Bar Association, Star-Bulletin
Here are the categories that generated the most complaints in Hawaii in 1999: Where's the beef?
Neglect of client matters: 22%
Incompetence: 9%
Abandonment: 7%
Conversion (theft of client funds): 6%
Misrepresentations to court: 4%Source: State Office of Disciplinary Counsel
When lawyers violate the Supreme Court's professional conduct rules, they face a range of sanctions, depending on the severity of the infraction and other circumstances. Here are the types of discipline, ranked from least to most severe. Suffer the consequences
>> Informal admonition: Usually results from first-time offenses involving minor infractions. Imposed by the disciplinary board or counsel. Remains part of attorney's permanent record but is not public information.
>> Private reprimand: Imposed by the board. Remains confidential.
>> Public reprimand: Imposed by the board, becomes public, published in bar journal and news releases to media.
>> Public censure: Imposed by the court. Also made public.
>> Suspension: Imposed by the court, prohibits attorney from practicing law for up to five years. Suspensions longer than one year require the lawyer to apply for reinstatement. Discipline made public.
>> Disbarment: Imposed by the court. Kicks lawyer out of the profession. Made public.
