[ OUR OPINION ]

Lawyer discipline
needs less secrecy

THE ISSUE The state judiciary is considering increased public access to the process of disciplining attorneys for unethical conduct.

ALTHOUGH Hawaii's judiciary is considering allowing a sliver of sunshine on its process of disciplining ethically errant attorneys, the process would remain a largely private matter. The public deserves greater oversight over this important function of government.

In an opinion column on this page yesterday, Carroll Taylor, chairman of the Disciplinary Board of the Hawaii Office of Disciplinary Counsel, maintained that disciplinary proceedings should remain secret "long enough to give offenders the chance to quietly resign" rather than contest charges against them, thus allowing them to become public. Carroll disputed the opinion of Star-Bulletin columnist Rob Perez that greater public access be allowed, but Hawaii's secrecy rule is in the minority among states and against the trend of opening disciplinary proceedings.

Perez reported on May 4 that Honolulu lawyer Mark R. Thomason quietly resigned from the bar last month rather than contest numerous complaints that the disciplinary board had decided warranted further investigation. Thomason's resignation keeps details about his alleged misconduct under wraps; if he had chosen to fight the allegations, they would have become public.

Strong arguments have been made over the years about the advantages of conducting the public's business behind closed doors. Public officials are more candid and can achieve their ends more efficiently, it has been argued, if public access is denied. Not surprisingly, demands for public access have been least successful in the least democratic branch of government -- the judiciary.

Carroll argued that the state's disciplinary system balances public access to its proceedings with protection of attorneys against public charges that could damage their reputations. "The primary goal of the disciplinary system is to protect the public, not to embarrass or punish attorneys," Carroll explained.

However, as Perez reported last year, 37 states are more open than Hawaii in their process of disciplining lawyers. Hawaii's judiciary is considering adoption of a rule that would open disciplinary proceedings 90 days after formal charges are leveled against an attorney, but the process would remain more secretive than those in many other states.

"Even the best operational initiatives are meaningless unless the courts are accessible to the public," Judith S. Kaye, chief judge of New York state, said in her State of the Judiciary address in January. Kaye placed greater access to New York's attorney disciplinary system at the top of her goals of "improving the delivery of justice and promoting public confidence in the courts."

Kay urged enactment of legislation that would ensure public access to disciplinary records and hearings "once formal charges are lodged," not three months afterward. "Opening the attorney disciplinary process at that stage," she said, "will promote community confidence in the bar and foster the rights of clients who seek to learn whether their attorneys are subject to disciplinary proceedings."