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Raising Cane Rob Perez |
Thomason case illustrates
flaws in lawyers’
disciplinary systemBy the time Honolulu attorney Mark R. Thomason agreed to quit the legal profession after committing numerous acts of ethical misconduct, he was the target of 25 separate ethics investigations dating to 2001.
Some of the infractions were so serious he faced possible disbarment, the most severe and humiliating sanction a lawyer can receive.
Yet until the Hawaii Supreme Court approved an order April 25 granting Thomason's request to resign rather than face discipline, no public record of the investigations existed.
Even if consumers were considering hiring Thomason as their lawyer, they would have had no way of knowing that he was under investigation by the state Office of Disciplinary Counsel for multiple counts of misconduct.
They would have had no way of knowing that the ODC had conducted a preliminary review of each of the 25 complaints against Thomason and determined they weren't frivolous and warranted further investigation.
They would have had no way of knowing such information because all of it was confidential, tucked away in sealed government files.
In a lawyer disciplinary system that is designed primarily to protect the public, the Thomason case underscores how Hawaii's system, steeped in excessive secrecy, in some ways falls far short of that goal.
It underscores how a lawyer can be accused of serious and repeated misconduct -- well beyond just frivolous complaints -- and potential clients would have no access to that information.
It underscores that something clearly is wrong with our disciplinary system for lawyers.
If the main purpose of the system is to protect the public from unethical lawyers like Thomason, how could something like this happen?
Amazingly, the rules allow it. The Hawaii Supreme Court has established regulations governing the disciplinary process that makes our system among the most secretive in the country.
Bound by those rules, the ODC doesn't make public any information from a case until the agency determines that a lawyer committed ethical misconduct and a hearing committee or officer recommends a public sanction. That could be months or even years after the agency, having found clear and convincing evidence of the alleged misconduct, formally charges the lawyer through the filing of a petition.
In the majority of other states, the accusation becomes public as soon as the petition is filed -- or even before that in a few states.
In the Thomason case, the 49-year-old Harvard University law school alumnus decided to resign before a recommendation for public sanction had been made, meaning everything about the case remained confidential until the April 25 order was approved. At that point, only the order became public, and that document gives no details about what misconduct Thomason committed. It also doesn't indicate when or whether formal charges were filed.
But by agreeing to resign, which is the equivalent of being disbarred, Thomason was required under the rules to admit that the basic facts from the 25 complaints were correct and that he had no defense for them.
I tried reaching Thomason at his published work and home phone numbers to get his comments, but both numbers were disconnected.
Hawaii's high court currently is considering changing its rules to make the disciplinary proceedings public 90 days after a petition is served on a lawyer -- an improvement on the existing system, but still later in the process than in many other states.
The ODC board recommended the rule change after I wrote a series last year that detailed the secrecy of our system.
Carroll Taylor, chairman of the ODC board, said the 90-day cushion was included to give the agency the flexibility to try to get the most egregious offenders out of the profession as quickly as possible.
If such a lawyer sees the petition and knows it will become public in 90 days, the attorney may be more inclined to resign rather than fight the charges, wanting to keep all misconduct details confidential, Taylor said. "Our analysis is attorneys more realistically respond to the threat (of public disclosure) when they see the charges in writing."
When a lawyer resigns instead of going through the full proceedings leading to disbarment, more than a year is cut from the process, reducing the time the lawyer could be harming clients, Taylor said.
But Pamela O'Leary Tower, a Honolulu attorney who has worked with the District of Columbia's lawyer disciplinary agency and has taught litigation ethics at American University law school, doesn't believe the 90-day cushion would be beneficial to the public.
"It still smacks of secrecy," said Tower, who argues that the petition should be public upon filing. "This is a nonsensical solution that buys more time to protect the attorney."
Much of the debate about the discipline system focuses on whether it adequately protects the public from unethical lawyers who commit the most serious offenses and do so repeatedly.
Taylor said the Thomason case indicates that the ODC doesn't have the ability under the existing rules to respond fast enough to serious serial offenders.
In the most egregious cases in which clients are continuing to be cheated, the ODC should be able to take evidence straight to the Supreme Court -- bypassing the time-consuming, laborious ODC hearing process -- so the justices can conduct an expedited proceeding, some lawyers suggest.
Hawaii's discipline system also has come under fire for the perception that lawyers with political connections get special treatment.
The most recent example, critics say, is the case involving Alvin T. Sasaki, a Supreme Court attorney who last month received a public censure and orders to do community service for committing numerous ethical infractions in the late 1980s and early 1990s. The violations included repeatedly lying to the court, falsely notarizing legal documents and attempting to conceal his misconduct from investigators.
A substitute panel of Supreme Court justices handed down the relatively light sanction even though another attorney it mentioned in its ruling got a far more serious sanction -- a six month suspension -- for committing a far lesser offense in a separate case.
The disparity was so glaring that the ODC, which recommended a three-year suspension of Sasaki, took the rare step of asking the high court to reconsider its decision. The court has not ruled on the request.
The state Senate also has weighed in on the overall debate about the lawyer discipline system. It passed a resolution last month recommending that the disposition of all disciplinary proceedings be made public once cases are completed.
"Consumers are owed that kind of information," said Sen. Les Ihara, the main sponsor of the resolution.
The lack of public information -- indeed, a pervasive culture of secrecy -- seems to be at the root of the system's shortcomings. In balancing the public's right to know with the rights of an accused attorney, the scales appear to tilt more often toward the lawyers.
Consider that the Hawaii State Bar Association (a quasi-public institution given that the state requires practicing attorneys to join the group) recently held hearings to gather testimony on the proposal to make the disciplinary proceedings more open.
What lawyers say about opening an excessively secretive system would be of significant public interest.
Yet the hearings were held behind closed doors.
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.