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Raising Cane Rob Perez |
Accusations against isle
lawyers kept hush-hushTry figuring this one out. It's an amazing tale about disparate treatment, and I'm still not sure why the disparity exists.
But you be the judge.
If a consumer files a misconduct complaint against a doctor, real estate agent, contractor, physical therapist, engineer, architect, electrician, barber, travel agent, dentist, psychologist, pharmacist, massage therapist, social worker, veterinarian, chiropractor or virtually any other profession regulated by the state, the existence of the complaint is public information.
Details usually aren't immediately accessible, but at least other consumers who are contemplating hiring the licensed professional can find out the complaint has been filed. What's more, consumers can learn whether other complaints are pending.
If the state Department of Commerce and Consumer Affairs eventually files formal charges, believing the preliminary evidence supports pursuing an administrative investigation, details of the alleged violations become public.
The thinking behind this policy -- and it's a sound one -- is that such information is pertinent to consumers who are about to make hiring decisions.
Too bad such thinking doesn't prevail in our legal community.
Lawyers, for some reason, get special treatment in Hawaii. Their disciplinary system, operated under rules of the Hawaii Supreme Court, is much more protective of their privacy, not only when compared with other professions here but when compared with how lawyers are treated in the majority of other states.
When it comes to dealing with lawyers accused of ethical misconduct, Hawaii consumers are left out of the loop until well into the process. In some cases, consumers are completely shut out.
No public information is available until authorities actually recommend a public sanction, which could be months or even years after a complaint has been filed. Worse, it could be years after multiple complaints -- deemed not to be frivolous -- have been filed, and all the while the attorney can continue accepting new clients who are clueless about the multiple grievances.
If authorities decide a sanction should be private (used in cases involving relatively minor ethical lapses), the information isn't public at all.
Why do attorneys get such preferential treatment?
"Lawyers make the rules," said Earle Partington, a criminal defense lawyer and critic of Hawaii's attorney discipline system. "We've always had a tradition here of protecting the legal profession from the public, not protecting the public from the legal profession."
To be fair, the Supreme Court is considering opening up the discipline system to make it more accessible to the public.
Instead of making a case accessible only after a public sanction is recommended by a hearing officer or committee of the Office of Disciplinary Council, the high court is considering a proposed rule that would make the proceedings public 90 days after a petition -- the document that formally charges the lawyer -- has been served on the accused.
Even if that rule is adopted, however, Hawaii lawyers still would be getting white-glove treatment.
In misconduct cases involving other regulated professions here or involving lawyers in the majority of other states, the charging document becomes public upon filing -- not several months after the alleged violator has been served.
What's more, the standard for filing misconduct charges against Hawaii lawyers is tougher to reach than the standard generally used in other states or with other local professions, giving Hawaii attorneys an even greater measure of protection.
In the majority of other states, misconduct charges against a lawyer generally are filed once authorities determine "probable cause" exists to support the charges, according to the American Bar Association.
And while legally not the same, the standard for filing charges against professionals covered by the DCCA's Regulated Industries Complaints Office is roughly akin to probable cause, said Jo Ann Uchida, complaints and enforcement officer. There must be sufficient information or evidence to support the allegation that a licensing violation occurred, Uchida said.
But the state ODC, the entity that investigates lawyer complaints, must find clear and convincing evidence -- a legal threshold higher than probable cause -- to file a petition.
"There's no discernible reason why we as attorneys should be protected any more than these other professions," said Pamela O'Leary Tower, a Honolulu attorney who has worked with the District of Columbia's lawyer disciplinary agency.
Carroll Taylor, chairman of the ODC board, which recommended the rule change under consideration by the high court, disagreed.
He said attorneys deserve greater protection because the lawyer disciplinary system is more refined and organized, has a nationwide reach to draw on legal precedent, has the weight of the court already behind it and is more likely to find someone guilty than administrative systems used to investigate other professions.
Given those conditions, the extra protections are needed in the event an innocent attorney is falsely accused and the charge somehow survives the weeding out process, Taylor said.
He also maintained that having the 90-day cushion before a petition is made public will maintain the flexibility the ODC has to negotiate with more egregious offenders and persuade them to quit the profession, using the carrot of not making the allegations public if they do so. Since the goal of the system is to protect the public, such an outcome would be desirable and allows the ODC to more quickly dispose of serious cases, he said.
"We're putting efficiency above publicity," Taylor said.
As critics of the current system and the proposed changes say, such talk is little more than legal-speak. Upon closer scrutiny, it doesn't answer the fundamental question of why Hawaii lawyers deserve special treatment.
See the Columnists section for some past articles.
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.