2013 ANNUAL REPORT THE DISCIPLINARY BOARD OF THE HAWAI I SUPREME COURT

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1 THE DISCIPLINARY BOARD OF THE HAWAI I SUPREME COURT 2013 ANNUAL REPORT The Disciplinary Board s mission is to maintain the integrity of the legal profession and protect the public from professional misconduct by attorneys.

2 TABLE OF CONTENTS Overview of Hawaii s Disciplinary System Supreme Court Disciplinary Board Hearing Officer Panel Office of Disciplinary Counsel Disciplinary Board-Who We Are Disciplinary Board Members Board Staff Hearing Officers What We Do Mission Statement Disciplinary Board Responsibilities Disciplinary Review Responsibilities Administrative Responsibilities Board Governance Meetings Budget Disciplinary Board Policies Disciplinary Board Rules Hearing Officer: Recruitment and Training Education and Outreach Advisory Opinions Membership in the National Council of Lawyer Disciplinary Boards (NCLDB) Oversight of ODC Case Processing Minor Misconduct Technology Conclusion Appendices Disciplinary Process Flow Chart & Timeline 2. Brochure: Ethics Complaints Against Lawyers 3. Voluntary Settlement Conferences 4. List of Disciplinary Board Members and Terms 5. List of Hearing Officers and Terms 6. Orientation Outline for New Disciplinary Board Members 7. Annual Statistics for Disciplinary Board Rules Effective August 29, Disciplinary Board Budget

3 Disciplinary Board of the Hawai i Supreme Court 201 Merchant Street, Suite 1600 Honolulu, Hawai i Telephone (808) Chairperson Hon. Clifford L. Nakea (Ret.) Vice Chairperson Hon. Leslie A. Hayashi Secretary Nathan J. Sult, Esq. Treasurer Joy M. Miyasaki, Esq. Filing Clerk Faye F. Hee Board Members James L. Branham, Esq. A. Didrick Castberg, Ph.D. Gary M. Farkas, Ph.D., MBA Diane D. Hastert, Esq. Shelton G.W. Jim On, Esq. Harrilynn K. Kame enui, Esq. Hon. Evelyn B. Lance (Ret.) Philip H. Lowenthal, Esq. Jeffrey P. Miller, Esq. Carolene N. Kawano Neely, M.S.W., M.Ed. Jeffrey S. Portnoy, Esq. Irwin J. Schatz, M.D. Judith A. Schevtchuk, Esq. Asst. Chief Eugene Uemura, (Ret.), MA.Ed. Board Counsel Bradley R. Tamm, Esq. Dear Chief Justice Mark E. Recktenwald and Justices of the Supreme Court: On behalf of your Disciplinary Board, I respectfully submit the enclosed annual report for the year The purpose of this report is to provide information concerning the work and responsibilities of the Disciplinary Board. The Disciplinary Board has a wide range of responsibilities including functioning as a special master to carry out the Supreme Court s authority to investigate, prosecute, dispose of, or make recommendations about attorney disciplinary matters; oversight administration of the Office of Disciplinary Counsel; participating in various rule changes; and helping to educate the public about the disciplinary process. The Disciplinary Board s 18 volunteers, staff members, and over 80 voluntary hearing officers are committed to administering our duties in a fair, independent, and effective manner. In 2013, the Disciplinary Board disposed of 140 cases, an increase of 55% from In addition, the Board has begun review of its various policies including fiscal matters. A complete set of policies will be adopted and included in the orientation of future board members. The Board also continues to revise its Disciplinary Board Rules. In fiscal year 2013, the Board reduced its operational expenses by $39, or 2% from the previous year. The Board continues to seek additional budgetary savings where possible. We are mindful that the sole source of funding comes from the attorney registration fees. Finally, we are also mindful of the trust that the public and legal profession have given to the Disciplinary Board and we remain committed to maintain that trust. Aloha, Hon. Clifford L. Nakea (Ret.) Chairperson, Disciplinary Board of the Hawai i Supreme Court May 2, 2014 The Disciplinary Board s mission is to maintain the integrity of the legal profession and protect the public from professional misconduct by attorneys.

4 Overview of Hawai i s Disciplinary System The Hawai i Supreme Court ( Court ) established the current disciplinary system on July 1, A disciplinary board ( Disciplinary Board or Board ) consisting of 18 volunteer lawyers 2 and non-lawyers along with the Office of Disciplinary Counsel ( ODC ), the prosecutorial arm of 3 the disciplinary system, were created. In addition to the Court, the Board, and ODC, the disciplinary 4 system includes volunteer hearing officers. Each plays a distinct role in the disciplinary process. 5 Flow charts of the disciplinary process are included in the appendices to this report. Supreme Court Unlike other professionals who are subject to regulation by the executive branch of 6 government, the legal profession is self-regulated by the Supreme Court through its constitutional 7 and inherent authority. While the court has delegated the day-to-day operations of the ODC to the 8 Disciplinary Board, it still maintains ultimate oversight. 1 Prior to the creation of the Disciplinary Board and the Office of Disciplinary counsel, disciplinary actions were vested in the Rule 16 Committee of the Hawaii Supreme Court and the Legal Ethics Committee of the Hawaii State Bar Association, both of which consisted of volunteer members. Prior to these committees, it appears the Attorney General prosecuted cases for both ethical violations and attorney malpractice. See In the Matter of D.B. Mahoe, An Attorney at Law, 3 Haw. 255 (1871); In re Keliipio, 6 Haw. 111 (1873); and Matter of William C. Jones, An Attorney at Law, 3 Haw. 240 (1870). 2 ODC includes chief disciplinary counsel, deputy chief disciplinary counsel, assistant disciplinary counsel, investigators, and administrative support staff. 3 Rules of the Supreme Court of Hawai`i ( RSCH ) 2. Disciplinary Rules. 4 Disciplinary proceedings are designed to protect the public interest, the integrity of the judicial process, and the integrity of the courts, by providing a mechanism by which to determine whether an attorney admitted to practice in this state is fit to continue as an officer of the court. In Re Disciplinary Board of the Hawai`i Supreme Court, 91 Haw. 363, 370 (1999). 5 At the Supreme Court s request, the disciplinary process flow charts will be interpreted into certain community languages. 6 The Department of Commerce and Consumer Affairs regulates 25 professions including accountants, nurses, physicians and realtors. 7 In re Trask, 46 Haw. 404 (1963); Akinaka v. Disciplinary Board, 91 Haw. 51 (1999); In Re Disciplinary Board of the Hawai`i Supreme Court, 91 Haw. 363 (1999); and Disciplinary Board v. Bergan, 60 Haw. 546 (1979). 8 See Breiner v. Sunderland, 112 Haw. 60, 64 (2006) Annual Report 1

5 The Supreme Court also retains authority for imposing the more serious disciplinary 9 sanctions of disbarment, suspension, and public censure. In addition, certain disciplinary matters such as requests for resignation in lieu of discipline, reciprocal disciplinary proceedings as well as trustee appointments, are original proceedings, instituted directly to and decided by the Supreme Court. 10 Disciplinary Board 11 The Disciplinary Board is comprised of 18 volunteers including non-lawyers; in addition, the 12 neighbor islands of Maui, Kaua i and Hawai i are represented. The attorney board members are knowledgeable in certain substantive areas of the law such as family law, litigation, criminal defense, estate planning and bankruptcy. Non-lawyers bring other areas of expertise such as business management and human resources experience, as well as representing the public s interest. 13 Potential board members are nominated by the Supreme Court s Nominating Committee and ultimately appointed by the Supreme Court. Disciplinary Board members serve three year terms and 14 may request re-appointment. The Disciplinary Board s Executive Committee consists of the four 9 RSCH 2.3. Types of Discipline. 10 RSCH Resignation in lieu of discipline or disbarment by consent of attorneys under disciplinary investigation or prosecution.; RSCH Reciprocal Action.; and RSCH Trusteeship proceedings. 11 Under RSCH 17(b), the Disciplinary Board may be subject to the HSBA governance. However, to date the HSBA has respected the Board s autonomy. An HSBA-DB Liaison Committee has been established to foster communications between both organizations. 12 The Supreme Court amended its rules on June 25, 2013 to codify the Board s practice relating to the composition and representation of the Board; the rules became effective July 1, Akinaka v. Disciplinary Board, 91 Haw. 51 at 57 (1999). 14 The Board has implemented term limits for board members and officers as part of its policies effective January 1, Board members shall serve no more than three terms absent good cause, officers shall serve no more than one year, and the Chair shall serve no more than three consecutive terms Annual Report 2

6 officers and others appointed by the Disciplinary Board Chair. Specific duties include development of the budget and oversight of operations and personnel matters. Hearing Officer Panel 15 The panel of hearing officers is comprised of both lawyers and non-lawyers. In more complex cases, or when a request is made, a panel of three hearing officers will be appointed by the 16 Board Chair. All hearing officers are volunteers appointed for three year terms subject to reappointment by the Disciplinary Board. Hearing officers conduct evidentiary hearings in cases proceeding by way of a formal petition 17 for discipline or petition for reinstatement has been filed. They hear testimony, review exhibits, assess credibility, make findings of fact, conclusions of law and recommendations for the imposition 18 of disciplinary sanctions or whether to recommend reinstatement. In recommending disciplinary sanctions, hearing officers may consider the American Bar Associations ( ABA ) Standards which include the following factors: a) the duty violated; b) the lawyer s mental state; c) the actual or 15 The Board is working on a more formal recruitment process. Currently interested persons submit their resume for consideration to the Board or are solicited by Board members. Other jurisdictions engage in background checks and interviews prior to appointment. 16 DBR 21 and (e) Assignment of Hearing Officer or Hearing Committee. 17 Non-lawyer hearing officers are not permitted to conduct hearings unless as part of a duly constituted hearing committee. See Disciplinary Board Rule ( DBR) 1(p) and (q). 18 The factual findings of the hearing officers are entitled to greater weight than the factual findings contained in the Board s report. However the Board s recommendations as to discipline should be accorded greater weight than the hearing officer or hearing committee s recommendation. The Board s recommendation is given serious consideration. Ultimately, the Supreme Court is not bound by the findings and recommendations of either the Board or hearing officer or committee and will independently consider all the testimony and evidence in the record. See Disciplinary Board v. Kim, 59 Haw. 449 (1978) and Disciplinary Board v. Bergan, 60 Haw. 546 (1979) Annual Report 3

7 potential injury caused by the lawyers misconduct; and d) the existence of aggravating or mitigating 19 factors. In addition, hearing officers as well as Disciplinary Board members may serve as settlement 20 officers where parties request a voluntary settlement conference. Office of Disciplinary Counsel The ODC includes Chief Disciplinary Counsel ( CDC ), Deputy Disciplinary Counsel ( DCDC ), Assistant Disciplinary Counsel ( ADC ), investigators, and administrative support staff. ODC s employees are funded through the annual attorney registration process collected by 21 the Hawaii State Bar Association ( HSBA ). Although the ODC has no separate autonomy from the Disciplinary Board, e.g. it cannot enter into contracts and has no separate budget, the roles and responsibilities of the ODC and the Board are often confused by both attorneys and the public. ODC s chief responsibility is to 22 investigate and prosecute cases of alleged ethical violations. Conversely, the Disciplinary Board 19 The ABA standards can be found on the DB/ODC website under Disciplinary Process (Formal Hearings). Go to: 20 A detailed explanation of the Voluntary Settlement Conference process is included in the appendices. It was published in the Hawaii Bar Journal, Raising the Bar in Ethics: Voluntary Settlement Conferences, June 2012 pgs Although the Disciplinary Board and ODC were created by the Supreme Court, ODC employees are not state employees. For tax purposes the Disciplinary Board is both an instrumentality of the government when it comes to paying FICA taxes and not an instrumentality of the government with respect to the 401K plans per D Amato & Aquinaldo s October 9, 2007 opinion letter. 22 ODC is also appointed trustee under RSCH See also Office of Disciplinary Counsel v. Cusmano, 93 Haw. 411 (2000). ODC also responds to requests for informal ethical opinions. If ODC believes the informal opinion request has sufficiently broad significance, it may request a formal ethics opinion from the Disciplinary Board s standing Opinion Committee Annual Report 4

8 function is more appropriately described as a reviewing body with regards to disciplinary matters. The Board s responsibilities are more fully described in the What We Do section of this report. Disciplinary Board-Who We Are Disciplinary Board Members 23 Board members terms generally expire on June 30 of each year. A current list of board members is found in the appendices along with brief biographies. Board Staff The Board recently retained part-time staff attorney ( Board Counsel ) to assist with the preparation of its decisions, conduct legal research, and assist with other administrative tasks. Under its rules, the Board also has a filing clerk. Currently, ODC s office manager has been designated as the filing clerk. The filing clerk also provides assistance in assigning hearing officers to formal cases. Hearing Officers Hearing officers terms expire on June 30 and are reviewed by the Board. A complete list of the current hearing officers and their terms is found in the appendices. 23 Several board members terms were appointed on different dates Annual Report 5

9 What We Do Mission Statement On March 25, 2010, the Board adopted its mission statement: The Disciplinary Board s mission is to maintain the integrity of the legal profession and protect the public from professional misconduct by attorneys. As the Court s agent, the Board performs all duties delegated to it including administrative 24 and special master functions relating to attorney discipline. A number of committees have been established to assist in carrying out these responsibilities. The three standing committees are: Executive, Opinion, and Rules. Ad Hoc Committees are created as the need arises. Disciplinary Board Responsibilities Disciplinary Review Responsibilities The Board acts in a quasi-adjudicatory function by reviewing ODC s requests to institute 27 formal disciplinary proceedings and dismiss investigations. The Board also performs a quasi- 24 RSCH 2.4. Disciplinary board.; see also Breiner v. Sunderland, 112 Haw. 60, 64 (2006). ( The [ODC] and the Disciplinary Board are creatures of this court, created pursuant to the court s inherent and constitutional authority to regulate the practice of law. [citation omitted]. The ODC and the Board are tasked to carry out this court s authority to investigate, prosecute, dispose of, or make recommendations about attorney disciplinary matters. [citation omitted]. As an agent of this court, the ODC can act only within the authority granted by this court, and separation of powers concerns do not require that we give the ODC the kind of deference given to legislatively created administrative agencies... ). 25 DBR 8. Committees. 26 Current ad hoc committees include: Case Processing, Liaison with HSBA, Evaluation of CDC, Hearing Officer Recruitment and Training, and Fiscal Policies. 27 RSCH 2.7. Procedure Annual Report 6

10 appellate function reviewing the reports and recommendations of hearing officers or hearing committees as well as stipulations from either RSCH 2.7(e) settlements or voluntary settlement 28 conferences. The only types of sanctions that the Board can impose are the less serious sanctions of 29 informal admonitions, private and public reprimands. For the more severe sanctions - public censure, suspension, or disbarment - the Board submits its recommendations to the Supreme Court. The Board also makes recommendations regarding whether to grant or deny petitions of disciplined attorneys seeking reinstatement. 30 In 2013, the Board heard 20 cases resulting in: 1 - Private Informal Admonition; 11 - Private Reprimands; 1 - Public Reprimand; 1 - Public Censure; 4 - Suspensions; 1 - Disbarment; and one case is currently ongoing. A copy of the annual statistics is included in the appendices. 28 See Hawai`i: Report on the Lawyer Discipline System, Sponsored by the American Bar Association Standing Committee on Professional Discipline, June 2009, pg RSCH 2.3(a)(4)-(6). Types of Discipline. 30 Hawai`i does not have permanent disbarment. Thus, disciplined attorneys may seek reinstatement regardless of whether they have been suspended or disbarred. RSCH Attorneys who have been suspended one year or less shall be reinstated at the end of the suspension period in accordance with RSCH 2.17(b) without the required formal reinstatement process. For attorneys suspended more than a year and a day, the attorney must show by clear and convincing evidence of rehabilitation, fitness to practice law, competence and compliance with all applicable disciplinary or disability orders and rules, and compliance with any other requirements imposed by the supreme court, which may include, inter alia, the successful completion of requirements for passing the bar examination. RSCH 2.4(d) and 2.17(b). This standard of clear and convincing evidence of rehabilitation is higher than the standard for an applicant seeking initial admission to the bar who has the burden of proving good character and fitness under RSCH Rule 1.3(c). A suspension of five years differs from a disbarment with respect to the requisite waiting period before the disciplined attorney may petition for reinstatement. RSCH 2.17(b). A resignation in lieu of discipline is considered a disbarment. RSCH 2.14(d) Annual Report 7

11 Administrative Responsibilities The second major responsibility includes administrative duties, specifically governance of 31 the Disciplinary Board and oversight of the ODC. Board Governance Meetings. The Board generally meets on the last Thursday of each month with the exception of November and December. Officers are elected at the organizational meeting held each year in July or as soon thereafter. 32 Orientation is provided to new board members prior to the organizational meeting. An outline of the board member orientation is included in the appendices. In addition a Liaison Committee meets quarterly with members of the HSBA. The Disciplinary 33 Board Chair also meets as needed with the Supreme Court liaison. The Board meets annually with the Supreme Court and held its first joint meeting on March 28, Budget. Pursuant to RSCH 2.4 (e)(8), the Board submits its annual budget to the HSBA for th review and comment no later than September 15. The HSBA must submit comments by October th 15. The Disciplinary Board then submits its budget along with HSBA s comments to the Supreme Court for approval no later than November 1 of each year. The Disciplinary Board s budget is funded by mandatory assessments on all active and pro hac vice attorneys. The attorney registration fee is the only source of income for the disciplinary process which is collected by the HSBA as part of the annual registration process. Because of its legal federal tax status, the Disciplinary Board is prohibited from raising funds for any of its activities, including educational programs. 31 RSCH 2.4. Disciplinary Board. 32 DBR 6. Organizational Meeting; Elections. 33 The current liaison is the Hon. Simeon Acoba Annual Report 8

12 The Disciplinary Board budget for 2013, as approved by the Supreme Court, was $1,881,625 The actual expenditures will be approximately $1,694,978, nearly $187,00 less than budgeted. Nevertheless, the Board s reserves will still be reduced by the lesser amount of approximately $360,000, leaving a balance of nearly $930,000. A copy of the 2013 budget is included in the appendices. Disciplinary Board Policies. Recently the Board revised its existing policies and is in the 34 process of adopting additional policies regarding fiscal matters. Disciplinary Board Rules. The Disciplinary Board has adopted Disciplinary Board Rules ( DBR ) which supplement the Rules of the Supreme Court ( RSCH ). These rules are continually reviewed and revised. A copy of the current rules effective as of August 29, 2013, is included in the appendices. 35 The most current set of rules are also available on the website at 36 Hearing Officers: Recruitment and Training. Currently, the Board does not have a formal hearing officer recruitment process. Interested persons may submit their names and resumes for the Board s consideration. Hearing officers have also been solicited by individual board members, at training programs for administrative law judges, 34 In June 2009, the American Bar Association (ABA) submitted its 73 page report: Hawai`i Report on the Lawyer Discipline System. The Disciplinary Board prepared its response dated June 16, 2010 and submitted it to the Supreme Court. The Supreme Court then provided a written response dated June 25, The Board replied by way of letter dated September 20, Several of the ABA s recommendations were approved by the Board and the Court and are in the process of being adopted by way of changes to the Rules of the Supreme Court, the Disciplinary Board Rules and its policies which will include interpreted proceedings, board member duties and responsibilities and term limits for board members and officers. 35 Certain disciplinary rules have already been identified for revision in The Disciplinary Board Rules posted on the Judiciary s website are not necessarily the most recent st version as the Supreme Court only updates rules January 1st and July 1 of every year Annual Report 9

13 and through advertisements in the Hawaii Bar Journal. Other jurisdictions have rigorous recruitment which include complete background checks, diversity goals, and interviews. Training materials have been received from other jurisdictions which will assist in future training programs for the hearing officers. Education and Outreach Disciplinary Board members participate as guest speakers in continuing legal education programs, especially the mandatory professionalism courses held in June and November of each 37 year. Materials prepared for the mandatory professionalism course appear on the Disciplinary Board/ODC s website under the Resources section: A Short Guide to Client Trust Accounting and hyperlink to the HSBA s website materials for solo and small firm practitioners. The Disciplinary Board also comments on various rule changes. In 2013, the Board was asked to comment on proposed rule changes including RSCH 2.17(c) and (d) and HRPC Rule 1.5 In addition, Disciplinary Board members actively participate in the drafting of proposed amendments to numerous rules. The Disciplinary Board reviewed and approved the most recent set of proposed amendments to the Hawai`i Rules of Professional Conduct (HRPC) which involved a complete overhaul of the current rules. A joint committee consisting of several Disciplinary Board members, representatives from ODC, the HSBA and other entities studied the model rules and comments and compared them to the existing HRPC. Essentially, the joint committee recommended 37 Supreme Court Rule 1.14 Mandatory professional course requires that each person licensed to practice law after July 1, 2001 shall complete a Hawai`i Professionalism course conduced under the joint sponsorship of the Hawai`i State Bar and the Supreme Court of Hawai`i. CDC and other ODC attorneys also engage in presentations to educate attorneys about their ethical responsibilities. A column appears monthly in the Hawaii Bar Journal regarding issues of interest such as annual statistical reports, how to handle flat fees, trust account basics, oath of civility, summary of private reprimand cases Annual Report 10

14 adoption of the ABA Model Rules where possible. After numerous and lengthy meetings, the final proposed rules were submitted to the Disciplinary Board. After discussion, the Board voted to approve the recommended amendments and transmitted the proposed rules to the Supreme Court on May 25, On June 25, 2013, the Supreme Court issued the new HRPC rules with the exception of HRPC Final amendments to the rules were issued on December 16, These rules will be effective January 1, The following rules were drafted by the Disciplinary Board in 2013: DBR 4(a); DBR 12(d); DBR 21(b); DBR 24(b); and RSCH 2.8 (immunity amended to include Board Counsel.) Advisory Opinions The Board s standing Opinion Committee considers requests for formal advisory opinions when the issue has broad significance for the bar. Current opinions are posted on the website at and address such issues as charging interest on client accounts, captive law firms and attorneys websites. Membership in the National Council of Lawyer Disciplinary Boards (NCLDB) Hawai`i s Disciplinary Board is a member of the National Council of Lawyer Disciplinary Boards. Twenty-six other jurisdictions are also members. NCLDB acts as a clearinghouse for information from its member jurisdictions and provides a forum for discussing common issues. NCLDB holds its annual meeting in conjunction with the mid-year meeting of the American Bar Association. By virtue of its membership in NCLDB, the Disciplinary Board is automatically a member of the National Organization of Bar Counsel (NOBC) Annual Report 11

15 A board member attended annual meetings for the last three years and prepared reports which 38 included recommendations for improving Hawai`i s disciplinary system. Many of the suggestions have been discussed and considered by the Board. Oversight of ODC The Board s second major administrative responsibility includes oversight of ODC. The Board has adopted the policy that the CDC acts as a Chief Executive Officer and thus certain matters 39 are left to the CDC s discretion. Case Processing. The Ad Hoc Committee on Case Processing closely monitors the status of cases and has been effective in reducing the backlog. The Voluntary Settlement Conference process has been approved and adopted by the Disciplinary Board as a mechanism to assist the parties in resolving the cases. 40 Minor Misconduct. ODC has sole discretion in determining whether a case should be 41 referred to the minor misconduct program.. The minor misconduct program is a non-disciplinary means of addressing an act or omission by an attorney which, although it is violative of the Hawaii Rules of Professional Conduct, is of a minor nature. The program may consist of arbitration, mediation, lawyer practice assistance, substance abuse recovery programs, psychological counseling, mentoring, or any other non-disciplinary proceeding authorized by the Supreme Court. In the case 38 Beginning July 1, 2013, the DB will have a director on the NCLDB for a 3 year term. 39 The CDC is evaluated annually by the DB, Supreme Court, Lawyer Client Trust Fund and the HSBA as well as staff. 40 The Board voted to make the Voluntary Settlement Conference permanent; whether rules should be adopted are currently being considered. 41 RSCH 2.7(b). Minor misconduct Annual Report 12

16 of mentoring, a mentor is obtained through the assistance of the Hawaii State Bar Association. In the case of substance abuse recovery, a program is created through the assistance of the Attorneys and Judges Assistance Program. Technology. In 2010, the Board contracted with the Louisiana Disciplinary Board for 42 computer software to track its cases. The Attorney Complaint Tracking System (ACTS) is functioning well with DocTools, and the Board is assured that the system will be compatible with IMIS, the replacement computer system to be implemented by the HSBA in April However, all correct date from ODC s prior program has not yet been transferred to the ACTS program. Conclusion The disciplinary system consists of more than investigations, formal hearings and the imposition of sanctions. There is also an emphasis on education and prevention of ethical violations as well as critical review and periodic revisions to various rules, including the Hawai`i Rules of Professional Conduct, the rules which govern ethical behavior of attorneys. Thus, members of the Disciplinary Board engage in a wide array of responsibilities. Board members serve on standing and ad hoc committees; review cases investigated and submitted by ODC and make recommendations concerning case disposition; and they participate in presentations to the 43 bar in an effort to de-mystify the disciplinary process and prevent ethical violations. 42 The 2009 ABA Report recommended that ODC have direct electronic access to the master roll of lawyers admitted to practice in Hawai`i. Pgs This has been accomplished. The HSBA Board recently voted to replace its existing computer system which will be implemented in The Board does not anticipate any computer programming issues at this time. 43 Former board member Judge Linda Luke participated in the Mandatory Professionalism Course on June 15, 2013; Vice Chair Judge Leslie A. Hayashi presented at the HSBA Leadership Institute on August 5, 2013 and at the Mandatory Professionalism Course on November 16, Annual Report 13

17 The past few years have seen significant improvements in the Disciplinary Board s governance as well as the overall functioning of the ODC. Emphasis has been placed on reducing the backlog of disciplinary cases, especially with the adoption of the voluntary settlement process. Many rule and policy changes have been considered and have been implemented as a result of the ABA s Report in By taking advantage of existing resources offered through the National Council of Lawyer Disciplinary Boards, the Board has also been able to obtain information from other jurisdictions regarding recruitment and training of hearing officers, case processing and setting of timelines to bring cases to conclusion. While much work remains to be accomplished, the Disciplinary Board commends the work of its volunteer members and hearing officers. Because of their commitment and dedication, Hawai`i s disciplinary system continues to meet its mission statement to maintain the integrity of the legal profession and protect the public from professional misconduct by attorneys Annual Report 14

18 Appendices 1. Disciplinary Process Flow Charts & Timeline 2. Brochure: Ethics Complaints Against Lawyers 3. Voluntary Settlement Conferences 4. List of Disciplinary Board Members and Terms 5. List of Hearing Officers and Terms 6. Orientation Outline for New Disciplinary Board Members 7. Annual Statistics for Disciplinary Board Rules Effective August 29, Disciplinary Board Budget 2013 Annual Report 15

19 APPENDIX 1 7/31/2013 Grievance Received or ODC Initiated Inquiry Within 6 months ODC Investigation & Evaluation Dismissal of Grievance Referral to Minor Misconduct Referral to the Attnys & Judges Assist. Program DISCIPLINARY PROCESS Within 7 days, unless extended 7 addtl days Counsel forwards file & recommendation to DB Reviewing Board Member DB Reviewing Board Member reviews and responds Approval of Recommendation by Rev Board Mem Return file to Counsel Within 10 days Request for 2 nd Rev Board Member Disapproval of Recommendation by Rev Board mem No timely request for 2 nd Rev Board Member or 2 nd Rev Board Member disapproves recommendation Action implemented Private Admonition by ODC Decision Final Within 60 days of evaluation, unless extended up to 30 days Commence Formal Proceeding Formal Disciplinary Proceeding Initiated Petition filed Within 20 days Respondent files Answer Hearings Officer assigned and records sent to HO Within 14 days HO requests 3 person Hearing Committee Formal Hearing completed within 7 months from appt. of HO or HC At least 14 days notice Within 30 days Respondent fails to file Answer Within 30 days Prehearing Conference held and order Formal Hearing Hearing Officer or Committee Report Stipulation or Respondent not available for service Transmitted to Board for review 1 1

20 7/31/2013 Board review of HO or HC Report or Parties Stipulation Board affirms or modifies report or stipulation Board imposition of Private Informal Admonition, Private or Public Reprimand Board remands for further proceedings Board recommends discipline to Supreme Court - Public Censure, Suspension, Disbarment Board dismisses petition Board remands to same or new HO or HC 2 2

21 APPENDIX 2

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26 APPENDIX 3 VOLUNTARY SETTLEMENT CONFERENCES GOAL: It is critical for the protection of the public and the profession that cases be resolved swiftly. Most successful court systems rely on a settlement rate of approximately 90% to maintain control of their caseloads. While ODC does attempt to settle cases, it would be helpful for both ODC and Respondents to have a critical eye, such as a Reviewing Board Member or Hearing Officer, review the facts and circumstances surrounding the conduct, the law and alleged violations, to establish an appropriate level of discipline, or to make a determination that the matter should be dismissed. The stated Goal should be the full settlement of the case through a Stipulation which includes agreed upon facts, rule violations, factors in aggravation and mitigation, case law which supports the level of discipline, and final resolution regarding discipline and costs, including any recommendation for conditions, such as a PALMS course, or other conditions which would help the respondent rehabilitate the conduct which caused the rule violation, such resolution may include informal admonition, public or private reprimand, public censure, or even dismissal of the charges. NOTIFICATION TO RESPONDENTS: All new investigation matters will include a notice to Respondent of the ability to request a Voluntary Settlement Conference (VSC) once the investigation has been completed and ODC is ready to file a Petition, i.e., when probable cause exists to believe that there is a violation of the HRPC. All Respondents currently in the system will receive a similar notification in the next written communication from ODC to the Respondent or Respondent s Counsel. Note: ODC policy is to send out a letter to Respondents when ODC is ready to file a Petition. The Respondent is given 20 days to meet with the ADC to provide additional information or to work out a possible resolution. This might be the perfect time to notify Respondents of the opportunity to request a VSC. CASE IDENTIFICATION: ODC will make every effort to identify cases that would benefit from the help of a Settlement Officer (SO) as early in the process as possible. Once a case is identified, ODC will contact Respondent, or Respondent s counsel, to ascertain whether there is a desire to participate in a VSC. ODC, Respondent s counsel, or a Respondent, may also request a VSC at any stage of the investigation. Cases that appear to be minor should be identified early to explore possible resolution without an SO. Participation of an SO can be requested. It is preferable that the investigation be completed, at a stage where most of the facts and evidence seem to establish probable cause that a rule violation has occurred. Thus, the identification can be made prior to the filing of a Petition, or submission of an IF to a Reviewing Board Member (RBM), or even after the Petition has been filed and a Hearing Officer (HO) appointed.

27 REQUEST FOR VSC: The request, from either party, or both, should be directed to the Chair of the Disciplinary Board, or designee. The request may also be initiated by the RBM. The Chair, or designee, will appoint an SO within 10 days from a list of Board Members who are willing to serve as an SO. (Prior to the appointment of the SO, the Chair, or designee, will verify the availability of the SO to serve on the dates provided by the parties.) The preferred SO may be the RBM (if the RBM has been appointed); if the RBM has not yet been appointed, then the SO appointed by the Chair will become the RBM on the case. If the RBM appointed to be the SO agrees, the non-disclosure of the identity of the RBM as set forth in DB Rule 16(d) must be waived solely for purposes of conducting the VSC. If the RBM does not wish to waive the non-disclosure provided in DB Rule 16(d), then an alternate SO must be appointed prior to the expiration of the original 10 day deadline. The Chair should be given a list of Board Members willing to serve as an SO, and willing to waive non-disclosure for purposes of conducting a VSC only. If an HO has been appointed to hear the case after the filing of a Petition, the HO may call in the RBM for settlement purposes, or the parties may agree to allow the HO to serve as an SO, in lieu of the appointed RBM. VSC: Whenever possible, the VSC must be conducted within 15 days of the appointment of the SO, on a date, time, and place agreed to by the VSC participants. Each party may confer ex parte with the SO and the SO may review documents in camera. Each party is encouraged to bring documents relevant to their positions to the VSC. The SO may have a telephone conference or exchange with the parties before the VSC to determine what information may be helpful to promote settlement. Each party must have full settlement authority. Respondent must be present during the VSC, even if represented by counsel. SETTLEMENT OFFICER DUTIES: Settlement discussions shall remain confidential, and shall not be disclosed in subsequent proceedings if the case does not settle. The SO may discuss the case with both parties present. The SO may listen to each side separately to assess the strengths and weaknesses of each party s case, but shall not disclose the discussions to the opposing party without the agreement of the party who has provided information during separate caucus. The SO may evaluate the case of each party based upon all the information provided and craft a settlement of the case to which both parties can agree. If a settlement is reached, all material terms may be placed orally on the record or may be written out and signed by both parties and the SO to preserve the agreement. The Settlement Agreement shall be reduced to a formal stipulation signed by all parties, within 10 days of the VSC. If a

28 disagreement arises as to the terms of the agreement, the SO may set a date within 5 days to reconvene the VSC for the purpose of resolving the dispute. If a VSC takes place before the filing of a Petition, as part of the Settlement Agreement, the SO, on behalf of the Board, and each party must waive the filing of a Petition, filing of an Answer, and hearing on the matter. [Note: The rules currently provide that a Petition must be filed before ODC can proceed with a Stipulation. DBR 20(f).] The parties shall be informed that the Settlement Agreement must be approved by the Disciplinary Board (DB) and that, if the DB rejects the Settlement Agreement, the matter will be remanded for a hearing (which will require the filing of a Petition and Answer), and the parties will be fully released from the Settlement Agreement. SETTLEMENT AGREEMENT PRESENTED TO THE BOARD: The Settlement Agreement shall be presented to the Board by the SO, at the next regularly scheduled Board meeting. The Board may accept, or reject, the Stipulated Agreement, with due deference given to the recommendation of the SO. A rejected Stipulation will be remanded for filing of a Petition, Answer, and hearing proceedings. 1/18/12-4:40 p.m.

29 APPENDIX 4 DISCIPLINARY BOARD MEMBER Year Appointed Year Term Expires BRANHAM, James L CASTBERG, A. Didrick FARKAS, Gary M., Ph.D HASTERT, Diane D HAYASHI, Leslie A JIM ON, Shelton G.W KAME ENUI, Harrilyn-Joy K LANCE, Evelyn B LOWENTHAL, Philip H MILLER, Jeffrey P MIYASAKI, Joy M NAKEA, Clifford L NEELY, Carolene N PORTNOY, Jeffrey S SCHATZ, Irwin J., M.D SCHEVTCHUK, Judith A SULT, Nathan J UEMURA, Eugene

30 DISCIPLINARY BOARD MEMBERS AND TERMS (*Denotes Board Members Whose Terms Expired in 2013) JAMES L. BRANHAM, Esq. (Appointed 2013; Current term ends June 30, 2016) -Mr. Branham served as the Supreme Court Staff Attorney from 1993 to 2012 and brings with him a wealth of experience relating to disciplinary matters. Mr. Branham is the Chair of the Board s Opinion Committee. A. DIDRICK CASTBERG, Ph.D. (Appointed 2008; Current term ends June 30, 2014)--Dr. Castberg is currently Professor Emeritus of Political Science at the University of Hawai i at Hilo. Dr. Castberg is one of five non-attorney members and also represents the island of Hawai i. Dr. Castberg is a member of the Board s ABA Evaluation Sub-Committee on Sanctions and Probation. Dr. Castberg has served as a Presenting Board Member. GARY M. FARKAS, Ph.D, MBA (Appointed 2003; Current term ends June 30, 2015)--Dr. Farkas is a Clinical Psychologist in private practice and is one of five non-attorney members of the Disciplinary Board. Dr. Farkas is on the Board s Executive Committee, served as Chair of the CDC Search Committee, is the Chair of the CDC Evaluation Committee, and is a member of the Strategic Plan Committee. Dr. Farkas has served as a Presenting Board Member and Voluntary Settlement Officer. DIANE D. HASTERT, Esq. (Appointed 2002; Current term ends June 30, 2014)--Ms. Hastert is a director at Damon Key Leong Kupchak and Hastert, concentrating in litigation. Ms. Hastert has prior service as a hearing committee member, served as the Disciplinary Board Secretary from July, 2003 to July, 2004, and served as Vice Chairperson from August 2004 to June Ms. Hastert is also the Chair of the Board s Rules Committee, is a member of the Board s Executive Committee, Opinion Committee, Committee to Revise the HRPC, Committee to Review the ABA Report on the Lawyer Discipline System, CDC Evaluation Committee, Budget Committee, and was recently appointed to a Supreme Court committee assigned to draft a rule governing flat fees. Ms. Hastert has served as a Presenting Board Member and Voluntary Settlement Officer. HON. LESLIE A. HAYASHI (Appointed 2005; Current term ends June 30, 2014)--Judge Hayashi brings judicial experience to the Disciplinary Board. She is a member of the Board s Executive Committee, serving as Secretary from July 2007 to July 2008, and as Vice Chairperson from July 2008 to July 2012 and was re-elected as Vice Chairperson in July She has also served as a Presenting Board Member and Voluntary Settlement Officer. Judge Hayashi is also a member of the Board s Rules Committee, Committee to Revise the HRPC, Fiscal Policies Committee, DB/HSBA Liaison Committee, CDC Evaluation

31 Committee, CDC Search Committee, Committee to Review the ABA Report on the Lawyer Discipline System, Human Resources Committee, Strategic Plan Committee, Budget Committee, and the Ad Hoc Committee on Board Counsel. Judge Hayashi also authors the Disciplinary Board Annual Report and provides orientation to new board members. She was recently elected to a three year term on the National Council of Lawyer Disciplinary Boards (NCLDB), a national organization which provides resources to disciplinary boards across the nation. SHELTON G.W. JIM ON, Esq. (Appointed 2013; Current term ends June 30, 2016) -Mr. Jim On is a solo practitioner at SJO & Associates, LLLC, which specializes in insurance defense, hospital law, professional (CPA, Attorney, Pharmaceutical) malpractice and tax litigation. Mr. Jim On has served as a Presenting Board Member and Voluntary Settlement Officer. HARRILYN-JOY KAIPOLEIMANU KAME ENUI, Esq. (Appointed 2012; Current term ends July 31, 2015) -Ms. Kame enui is counsel for Pulama Lanai. Ms. Kame`enui has served as a Presenting Board Member and is working on sanction guidelines. Ms. Kame enui is also a member of the Training of Hearing Officers Committee, and the Rules Committee and Budget Committee. HON. EVELYN B. LANCE (Ret.) (Appointed 2004; Current term ends June 30, 2014)--Judge Lance brings judicial experience to the Disciplinary Board. Judge Lance served as the Board s Vice Chairperson from and she is the Chair of the Board s Case Processing Committee, a member of the Board s Executive Committee; Opinion Committee, Rules Committee, the Human Resources Committee, the Committee to Review the ABA Report on the Lawyer Discipline System, and the Board s ABA Evaluation Sub-Committee on Sanctions and Probation. Judge Lance implemented and oversees the Pilot Project Voluntary Settlement Conferences. Judge Lance has served as a Presenting Board Member and Voluntary Settlement Officer. PHILIP H. LOWENTHAL, Esq. (Appointed 2007; Current term ends June 30, 2016)--Mr. Lowenthal provides expertise in criminal law and is one of the Board s neighbor island representatives, representing the island of Maui. Mr. Lowenthal is a member of the Ad Hoc Committee on Case Processing, and was recently appointed to a Supreme Court committee assigned to draft a rule governing flat fees. *MARGARET K. MASUNAGA, Esq. (Appointed 2007; Term ended June 30, 2013) Ms. Masunaga was one of the Board s neighbor island representatives, representing West Hawai i. Ms. Masunaga provided expertise in family law.

32 JEFFREY P. MILLER, Esq. (Appointed 2012; Current term ends June 30, 2015) -Mr. Miller is a partner at Bushnell & Miller. Mr. Miller s practice area includes legal services for business, construction, real estate, and collection. Mr. Miller has served as a Presenting Board Member and is a member of the Training of Hearing Officers Committee, the Rules Committee and the Budget Committee. JOY M. MIYASAKI, Esq. (Appointed 2008; Current term ends June 30, 2015)--Ms. Miyasaki s practice areas include tax and estate planning, trust and estate administration, non-profit and charitable organizations, and tax collection matters. Ms. Miyasaki has continually served as the Board s Treasurer from her appointment in 2008, to the present, and is also on the Executive Committee, served on the ABA Recommendations Committee, and is Chair of the Fiscal Policies Committee. HON. CLIFFORD L. NAKEA (Ret.) (Appointed 2001; Current term ends June 30, 2016) -Judge Nakea is a neighbor island representative representing Kaua i. Judge Nakea has served as a Reviewing Board Member, a Presenting Board Member, and a member of the Supreme Court Nominating Committee. He is currently Chairperson of the Disciplinary Board and has served in that capacity since July During his tenure as Chairperson, he has guided the Board through various transitions. He is also a member of the Rules Committee, the Committee on Case Processing, the HSBA Liaison Committee, and Chair of the Ad Hoc Committee reviewing the ABA Report on the Lawyer Discipline System. CAROLENE KAWANO NEELY (Appointed 2013; Current term ends June 30, 2016)--is a retired educator and administrator. She is a licensed and certified social worker and served as a guidance counselor for various grade levels at Hawaii Baptist Academy and Mid-Pacific Institute prior to her retirement in She also served as a probation officer for the State of Hawai`i Judiciary. *HON. DEAN E. OCHIAI (Appointed 2004; Current term ended June 30, 2013)- Judge Ochiai served as a member of the Executive Committee, the Chair of the Opinions Committee, a member of the Ad Hoc Committee reviewing the ABA Report on the Lawyer Discipline System, and a member of the Ad Hoc Computer Committee. JEFFREY S. PORTNOY, Esq. (Appointed 2009; Current term ends October 29, 2015)--Mr. Portnoy is a partner at Cades Schutte concentrating in media law; professional errors and omissions, including attorney and physician malpractice; insurance law; employment law; product liability law; personal injury defense; and securities litigation and arbitration. Mr. Portnoy currently serves as a member of the Board s Case Processing Committee and has been a Voluntary Settlement Officer.