Raising Cane
By Rob Perez
Open up disciplinary system
In 1994, a former employee of Maui attorney Lowell Chatburn filed a complaint with the state, accusing her ex-boss of unethical and illegal conduct in his handling of client funds.
Two other complaints -- one by an attorney, another by a businessman -- were filed against Chatburn over the next two years, raising additional questions about the way he conducted his business.
One complainant was blunt in his accusations:
"When a lawyer refuses to return calls for two years, he has no honor," the businessman wrote in 1995 to the state Office of Disciplinary Counsel. "When a lawyer makes an agreement to pay and doesn't, he is a thief."
Anyone considering hiring a lawyer accused of such serious allegations probably would think twice about hiring him.
But there was one problem.
Because Chatburn practiced law in Hawaii, his potential clients weren't privy to such information. The complaints were considered secret under the Hawaii Supreme Court rules that govern lawyer disciplinary procedures.
Even after the ODC determined in 1999 that probable cause existed to warrant filing formal charges against Chatburn, that information was kept confidential.
In fact, nothing about the charges became public until mid-2001, roughly seven years after the initial complaint was filed.
The accusations turned out to be credible.
Investigators found 35 ethics violations committed by Chatburn involving multiple clients. Based on those findings, the Hawaii Supreme Court last month disbarred him, imposing the harshest disciplinary sanction that can befall a lawyer. In addition to being kicked out of the profession, Chatburn was ordered to pay restitution of more than $128,000 to a former client.
The Chatburn case underscores a major shortcoming of Hawaii's disciplinary system for lawyers accused of ethical misconduct: It is far too secretive until too late in the process.
As the Star-Bulletin reported in a three-part series in February, Hawaii has a disciplinary process that is more secretive than what is used in at least 37 other states.
In those states, complaints become public once the investigating agency establishes probable cause and files formal charges, according to the American Bar Association. The probable-cause threshold theoretically weeds out frivolous complaints.
One state, Oregon, makes complaints public from the get-go.
In Hawaii, however, the high court requires proceedings to remain confidential until a public sanction is recommended by an ODC committee or the disciplinary board publicly reprimands the attorney.
Such secrecy is designed to balance the public's right to know with the rights of an accused attorney, particularly because the filing of a complaint is as simple as writing a letter to the ODC.
The complainant also has absolute privilege against being sued, even if information in the complaint is false.
But as the Chatburn case shows, years can pass before misconduct allegations against an attorney are made public.
At the least, the state should open the process to public scrutiny once the ODC determines probable cause exists and files a formal petition against the attorney.
In the Chatburn case, that would have been in December 1999.
Though the Chatburn case was unusual in how long the proceedings lasted, partly because of its complexity and because the ODC was awaiting the outcome of a civil lawsuit against the attorney, the case should bolster calls for making Hawaii's process less secretive.
Following the Star-Bulletin's February series, the ODC board established a special committee to look into whether changes should be recommended to the Supreme Court.
Attorney Doug Crosier, who heads the committee of three lawyers and three lay members of the board, said he favors opening the process because that would promote more public confidence and more accountability in the system.
"I think the more information the public has, the better," Crosier said.
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But attorney Carroll Taylor, chairman of the ODC board, said he favors leaving the system as is, believing it strikes a proper balance between making complaints easy to file and protecting attorneys' reputations from frivolous or unsupported accusations.The only caveat, Taylor added, is that he wants to hear what Crosier's committee recommends.
Taylor believes his position is supported by statistics showing Hawaii has among the highest rates in the country for imposing the toughest sanctions on lawyers.
In 1998 and 1999, Hawaii led the nation in the rate of disbarments and attorney resignations in lieu of discipline. In 2000, the most recent year available for state-by-state comparisons, Hawaii ranked seventh nationally, according to a Star-Bulletin analysis of new ABA statistics.
Those numbers, Taylor said, suggest Hawaii is effective in aggressively weeding out bad lawyers, all the more reason to keep the current system intact.
To be sure, changing the system would result in tradeoffs.
Although potential clients would be better served if allegations were made public at the probable-cause stage, such a change effectively would eliminate options the board now has to impose private sanctions for relatively minor infractions.
The majority of ODC cases resulting in discipline typically involve private sanctions. By allowing the sanctions to remain confidential, ODC officials and board members believe they can more readily resolve minor cases and focus on more serious ones.
But the benefits to the public of a more transparent system clearly outweigh the drawbacks, something that at least 37 other states recognize.
"The general rule should be things are done openly," said attorney Evan Shirley, who has written about Hawaii's ethics system.
And the benefits wouldn't be just theoretical.
If Hawaii had a more open system, potential clients of Chatburn, the Maui attorney, would have had quicker access to details of the case against him -- assuming they bothered to check.
They would have discovered that he was accused of spending client money on office and personal expenses.
Or that he put his wife in charge of managing client funds in 1992 even though she had no training in bookkeeping or accounting, had no experience working in a law office and had difficulty concentrating on the job because of health problems, according to a Chatburn filing in the case.
Chatburn did not return a phone call seeking comment, and his attorney in the case declined comment.
But in filings with the ODC, Chatburn said the agency failed to prove most of the allegations against him. He admitted that client funds were commingled with his own but that he wasn't aware of it initially and that he corrected the situation once he found out. He said no clients lost money as a result.
The ODC, for the most part, didn't buy his defense. Neither did the Supreme Court.
While the Chatburn case demonstrated that a system dominated by attorneys can harshly discipline a fellow attorney who crosses the line, it is a system where too much is done in secret.
And that begs the question:
Why should Hawaii lawyers need greater protection than most of their mainland counterparts?
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: rperez@starbulletin.com.
