New rules
shine light on
lawyer’s sanctions
An ex-judge violated ethics rules
in seven cases, records show
When the Hawaii Supreme Court proposed bringing more sunshine into a secretive disciplinary system for lawyers accused of misconduct, many attorneys panned the idea.
But the justices made the change anyway, heeding calls to make the process more open to better protect the public from unethical lawyers.
It took only a few months for a case to emerge that illustrates why more sunshine was needed, according to consumer advocates.
The case involves attorney Richard Y.S. Lee, a former Family Court judge.
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Not part of the public record was the fact that the ODC had determined that Lee violated ethics rules in seven more cases between 1999 and 2003, receiving informal private admonitions, the least severe sanction, in each case. The violations ranged from charging unreasonable fees to engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, according to ODC records.
Another fact not accessible to someone considering hiring Lee: He was the subject of three more complaints in 2002 and 2003, all of them currently being investigated by the ODC.
Only in May, because of the new rule adopted by the justices, did the information about Lee's private sanctions and the three pending complaints become public.
The new rule, originally proposed by the ODC board, makes public any formal charges against an attorney 90 days after the charging document, called a petition, is served on the lawyer. In Lee's case, the three pending complaints about his client-retainer agreement were consolidated into one petition, which was served earlier this year. The 90-day period lapsed in May.
Because Lee's prior discipline is relevant to the current case, those sanctions are included in the public record.
Some supporters of the new rule say Lee's case not only underscores the benefit of making the system more open but exposes a shortcoming that still remains. They say lawyers can repeatedly break the ethics rules, but if the sanctions are private -- because the ODC determines the offenses are minor and don't warrant more serious public punishments -- such information would be unavailable to prospective clients.
That Lee's multiple cases of rule violations weren't exposed sooner raises questions about whether the ODC adequately considered the public's interest, some lawyers say.
"If the purpose is to protect the public, then the system failed," said attorney Madalyn Purcell, who represents a former Lee client who won a malpractice and deceptive trade practices lawsuit against Lee last year. A jury awarded Rieko Tanaka roughly $285,000, but a judge later reduced the amount to about $184,000. Lee has appealed the judgment.
Suzanne Mishkin, associate counsel for HALT, a Washington, D.C.-based nonprofit organization that pushes for reforming the legal system, said repeated use of private punishments doesn't discourage offending behavior.
"When private sanctions are issued over and over again, particularly when offenses are egregious, it really sends the message to the lawyer that he can continue doing this at no expense to his career," Mishkin said.
She said one of Lee's offenses warranted a public sanction on its own. According to ODC records, he warned an opposing party that Lee's client would pursue a criminal theft charge if their civil dispute over a $10,000 loan wasn't resolved.
Lee defended his record and said the ODC, which he called a vengeful, out-of-control agency, has been harassing him for years because he has repeatedly questioned its actions.
"I'm one of the few who just keeps fighting, and they don't like me," Lee said.
He said the agency shows favoritism for large law firms and bias against small ones, often fishing for even the smallest violations. He acknowledged committing a few minor violations but said any lawyer can be found to have broken the rules if the ODC looks hard enough.
Lee said he stopped taking legal clients four to six months ago, in part because of the hassle and expense of fighting the ODC. His daughter now runs his law firm.
An ODC official said she couldn't respond to Lee's comments because of the pending case. But the ODC in the past has denied showing any favoritism or bias in handling cases, saying its decisions are based solely on the facts.
Speaking in general terms, attorney Chuck Kleintop, ODC chairman, said the agency conceivably could issue multiple informal admonitions to a lawyer if the violations were minor and didn't involve the same or similar offenses.
"I could see a situation where a lawyer has four or five or even more IAs (informal admonitions)," he said.
If the violations were similar or the same, indicating a pattern, or the violations progressively got worse, the ODC likely would take the view that the lawyer had a serious problem, warranting a more severe sanction, Kleintop said.
The ODC typically issues private admonitions for minor violations, such as failing to respond to a client's request for information. Often, such admonitions involve first-time offenders. Private reprimands are considered the next most serious sanction. Beyond that, the sanctions are public, with disbarment being the most severe. From 1995 through 2003, the majority of lawyers the agency disciplined received private sanctions.
The pending Lee case focuses on a provision in his retainer agreements that reflected his critical views of the ODC.
The provision required clients to pay Lee $2,000 if the ODC became involved in a fee dispute before an attempt was made to resolve the dispute via binding arbitration.
The ODC charged that the provision was designed to intimidate his clients from filing complaints with the agency. It also said parts of the provision were false and misleading.
Lee disagreed, saying the ODC's interference in fee disputes is unwarranted and amounts to price fixing.
The case now goes before a three-member panel, which will make a recommendation to the ODC board on possible action. A hearing date has not been set.