Wednesday, February 13, 2002

Secrecy only hurts
lawyers’ reputations

The issue: A higher percentage
of lawyers in Hawaii are disciplined
than in any other state.

MOST lawyers in Hawaii are proud of their profession. Whether that pride is entirely justified is shrouded by rules that prevent the public from gaining access to information about attorney misconduct.

What is known is that Hawaii leads the nation in the percentage of lawyers who resigned or were disbarred because of disciplinary charges. Thirty-seven states are more open than Hawaii about their disciplinary systems. The judiciary's policy of keeping disciplinary information secret only adds to lawyers' low public esteem.

The Hawaii judiciary's Office of Disciplinary Counsel keeps all complaints against lawyers confidential until a sanction is recommended to the high court. Beyond that point, nearly two-thirds of the complaints, even those resulting in sanctions, remain confidential because the office determines the infraction to be minor. If an attorney accumulates numerous reprimands, they can continue to be blocked from public access if deemed minor.

As the Star-Bulletin's Rob Perez noted in a series of articles this week, only 1 percent of Hawaii's 3,800 practicing attorneys are sanctioned in a given year. A small fraction of those -- attorneys who have gained prominence -- receive headlines. Many others go largely unnoticed, but most are afforded confidential treatment.

People are promised immunity from being sued for filing disciplinary complaints against lawyers, even if their allegations are false. However, few of the complaints are frivolous and those are quickly rejected by the ODC. A small fraction of those that are not frivolous -- only one in 20 in 1999 -- result in sanctions.

Complaints that result in private sanctions remain in the offending lawyer's record with the judiciary. Carroll Taylor, chairman of the ODC's disciplinary board, says that enables the agency quickly to dispose of minor cases that lawyers want to be kept confidential and focus on more serious ones. That may serve the interests of the ODC and the lawyers, but not those of clients; they would not have made complaints if they didn't regard them as serious. Potential clients have reason to know about those complaints.

The judiciary may have a legitimate reason for keeping frivolous complaints private, although Oregon officials say a policy that allows even those to be public has created no problems. All other states put a lid on such complaints.

The only reason for secrecy of substantive complaints is to protect lawyers from public scrutiny. However, secrecy breeds speculation about whether some lawyers or law firms receive special treatment in the handling of complaints. That kind of speculation tarnishes the entire profession.



Marriage license bill
overshoots its aim

The issue: The measure would increase
the fee for a license and require those
who perform weddings to pay $100 a year.

RAISING the fee for a marriage license in Hawaii would be justified if the increase sped the issuing process, as a bill before the state Legislature proposes. Another part of the measure, however, would require those who perform weddings to register with the state and pay an annual $100 fee, which could place an undue burden on religious organizations.

The state wants to boost the marriage license fee to $90 from $50 and use the additional money to set up a computer system for the process that is now done on paper. This would cut the time the state takes to issue a license to a few days, while at present it may take up to four months. The fee increase seems reasonable.

What is questionable is the demand that officiants register with the state every year and pay $100 annually to be licensed to perform weddings. The rationale is that the state would be able to track such persons and standardize licensing procedures, which are handled differently in each county. At present, those who perform weddings are required to register only once; government officials say they are then left with information that may be outdated.

The $100 fee apparently is aimed at people who perform ceremonies for profit. Obtaining documents or becoming an "ordained" ministers who can perform weddings is easy; Internet sites for such matters abound. However, the net the bill casts in trying to gain control of the problem is too wide. Those who do weddings as a business can pass the extra cost on to their customers, but clergy members and judges, who often do not charge for their services, would be unfairly taxed. Errol J. Christian of the Hawaii Catholic Conference said the Honolulu diocese, with about 200 priests and 50 deacons, would have to pay $25,000 a year if the bill were approved.

Sen. David Matsuura, chairman of the Senate Health and Human Services Committee, said the bill may be amended to lower the $100 fee for officiants to $1 and the registration requirement changed to five years instead of every year.

As the bill stands, about $10 of the $90 marriage license fee would be used to computerize the process and another portion would be directed to a state birth defects program. The person who registers the marriage with the state would take $25. However, most of the money generated would go into the state's general fund, prompting state Sen. Sam Slom to declare, "If it looks like a tax, and smells like a tax, it's a tax." Indeed.


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

Don Kendall, Publisher

Frank Bridgewater, managing editor 529-4791;
Michael Rovner,
assistant managing editor 529-4768;
Lucy Young-Oda, assistant managing editor 529-4762;

John Flanagan, contributing editor 294-3533;

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