EXHIBIT A-2
RULES OF THE
DISCIPLINARY BOARD
(SCRU-11-0000504)
Appended by Order
of
December 16, 2022
as Amended through
January 1, 2023
The Judiciary
State of Hawaiʻi
RULES OF THE DISCIPLINARY BOARD
Table of Contents
I. TITLE; PURPOSE; DEFINITIONS
RULE 1. TITLE;
CITATION.
RULE 2. PURPOSE.
RULE 3. DEFINITIONS.
II. BOARD ORGANIZATION
RULE 4. OFFICERS;
DUTIES.
RULE 5. MEETINGS;
QUORUM.
RULE 6. ORGANIZATIONAL
MEETING; ELECTIONS.
RULE 7. FISCAL
RESPONSIBILITIES; OUTSIDE SERVICES.
RULE 8. COMMITTEES.
III. ABSTENTION, RECUSAL, DISQUALIFICATION, AND
GRIEVANCES
AGAINST COUNSEL, BOARD MEMBERS, HEARING
OFFICERS,
OR HEARING COMMITTEE MEMBERS
RULE 9. ABSTENTION;
RECUSAL; AND EX PARTE COMMUNICATIONS
RULE 10. DISQUALIFICATION.
RULE 11. GRIEVANCES.
IV. INVESTIGATION; RECOMMENDATION BY COUNSEL
RULE 12. COMMENCEMENT;
SCOPE OF INVESTIGATION; COMPLAINT
PROCESSING TIME
GOALS; PROTECTIVE ORDER.
RULE 13. DOCKETING
STANDARD FOR COMPLAINTS.
RULE 14. NOTIFICATION
TO RESPONDENT.
RULE 15. NOTICE TO
RESPONDENT OF THIRD PERSON SUBPOENAS.
RULE 16. CONCLUSION
OF INVESTIGATION.
RULE 17. WHEN
COUNSEL’S RECOMMENDATION IS APPROVED.
RULE 18. WHEN
COUNSEL’S RECOMMENDATION IS DISAPPROVED.
V. FORMAL DISCIPLINARY PROCEEDING
RULE 19. INSTITUTION
OF FORMAL DISCIPLINARY PROCEEDING.
RULE 20. INITIATION
OF FORMAL DISCIPLINARY PROCEEDING.
RULE 21. ASSIGNMENT
OF HEARING OFFICER OR HEARING COMMITTEE.
RULE 22. CONDUCT
OF FORMAL DISCIPLINARY PROCEEDING.
RULE 23. HEARING
OFFICER’S OR HEARING COMMITTEE’S REPORT TO THE
BOARD.
VI. BOARD REVIEW; DISCIPLINARY SANCTIONS
RULE 24. BOARD
DISPOSITION OF FORMAL DISCIPLINARY PROCEEDING.
RULE 25. PRIVATE
INFORMAL ADMONITION.
RULE 26. PRIVATE
REPRIMAND.
RULE 27. PUBLIC
REPRIMAND.
RULE 28. BOARD’S ROLE IN CASES OF RESIGNATION IN
LIEU OF DISCIPLINE OR DISBARMENT BY CONSENT.
RULE 29. BOARD’S
ROLE IN CASES OF DISBARRED AND SUSPENDED
ATTORNEYS.
RULE 30. BOARD’S
ROLE IN CASES OF REINSTATEMENT OF DISBARRED
ATTORNEYS OR
ATTORNEYS SUSPENDED FOR MORE THAN ONE
YEAR.
RULE 31. PROCEEDINGS
WHERE AN ATTORNEY IS DECLARED INCOMPETENT
OR ALLEGED TO
BE INCAPACITATED.
RULE 32. ROLE IN
TRUSTEE PROCEEDINGS.
VII. RETENTION OF RECORDS
RULE 33. RETENTION
OF RECORDS.
VIII. EFFECTIVE DATE
I. TITLE;
PURPOSE; DEFINITION
Rule 1. TITLE; CITATION.
These rules shall be known as the
“Disciplinary Board Rules.” Particular
rules shall be cited as “DBR.”
Rule 2. PURPOSE.
These rules of the Disciplinary Board of
the Hawaiʻi Supreme Court are promulgated pursuant to Rules of the Supreme
Court of the State of Hawaiʻi (“RSCH”) 2.4(e)(6). RSCH 2.1 through 2.24 apply
to all proceedings before the Board.
(a) “Alleged Misconduct” means grounds for
discipline that are under consideration, investigation, review, or that have
been made the subject of a formal disciplinary proceeding.
(b) “Attorney” includes any person admitted
to practice law in this State or specially admitted by a court in this State
for a particular proceeding, but does not include a full-time judge, except as
provided by RSCH 8.2(c).
(c) “Board” means the Disciplinary Board of
the Hawaiʻi Supreme Court, which has the power and duty to investigate ethical
Complaints and Attorney incapacity; supervise the Office of Disciplinary
Counsel (“ODC”); adopt and publish advisory opinions; and act as a reviewing
body in which formal disciplinary action is taken. In matters before the Board,
if a sanction is a Private Informal Admonition, a Private Reprimand or a Public
Reprimand, the Board makes the final determination with the consent of the
Respondent and the ODC; and if the recommendation is for Suspension or
Disbarment, the Board submits its recommendation to the Supreme Court.
(d) “Complaint” is a Grievance involving an
Attorney that falls within the jurisdiction of the Attorney discipline system.
(e) “Complainant” is a person who has
expressed dissatisfaction with an Attorney to the ODC.
(e)(1) “Complex Case” is a case with the
following factors: multiple complaints; voluminous, technical or unavailable
records; unavailable witnesses; and other similar issues
that require additional time and effort to investigate.
(f) “Conclusion of a Hearing” occurs when
all of the evidence has been submitted. If post-hearing pleadings have been
ordered or authorized, then the hearing is concluded when the last authorized
pleading is filed.
(g) “Conclusion of an Investigation” occurs
when (i) Counsel has submitted a recommendation to a Reviewing Board Member for
the disposition of a matter; or (ii) Counsel has referred a matter for Minor
Misconduct or other non-disciplinary action, such as the Attorneys & Judges
Assistance Program in accordance with RSCH 2.7(b).
(h) “Counsel” means the Chief Disciplinary
Counsel, Deputy Chief Disciplinary Counsel and Assistant Disciplinary Counsel
appointed pursuant to RSCH 2.4(e)(2) or Special Assistant Disciplinary Counsel
pursuant to RSCH 2.4(e)(3).
(i) “Disability Proceeding” means an
investigation or proceeding before the Board or the Supreme Court pursuant to
RSCH 2.19 or DBR 31.
(j) “Disbarment” means the termination of a
person’s status as an Attorney authorized to practice law in Hawaiʻi.
(k) “Filing” is accomplished when a document is
stamped by the Filing Clerk “Received by the Disciplinary Board”, together with
a date and time.
(l) “Filing Clerk” is a clerk designated by
the Board, who is authorized to accept and file documents.
(m) “Formal Hearing” is a hearing where a
Petition for Discipline is adjudicated by a Hearing Officer or Hearing
Committee and a recommendation is made to the Board.
(n) “Formal Disciplinary Proceeding” is the
process commencing with the Filing of a Petition for Discipline with the Board.
(o) “Grievance” means any expression of
dissatisfaction with an Attorney that is submitted to or initiated by the ODC.
(p) “Hearing Committee” means a three-person
panel, one of whom may be a layperson, appointed by the Board Chairperson to
preside over a Formal Disciplinary Proceeding.
(q) “Hearing Officer” means an Attorney
appointed by the Board Chairperson to preside over a Formal Disciplinary
Proceeding.
(r) “Minor Misconduct” is a violation of the
Hawaiʻi Rules of Professional Conduct of a minor nature, resolved by way of
non-disciplinary proceedings or dismissal pursuant to RSCH 2.7(b).
(s) “ODC” is the entity established by the
Supreme Court of the State of Hawaiʻi with the power and duty to investigate,
prosecute, dispose of, and make recommendations concerning Attorney
disciplinary matters.
(t) “Party/Parties” mean the ODC and the
Respondent.
(u) “Petition for Discipline” is a pleading
filed with the Board specifying formal charges of violations of the Hawaiʻi
Rules of Professional Conduct.
(v) "Petitioner" is the ODC.
(w) “Private Informal Admonition” is the least severe form
of discipline imposed by Counsel or the Board. It declares specified conduct of
an Attorney unethical, but does not limit the Attorney’s ability to practice
law. When imposed it is non-public; however, it may become public as a
circumstance in aggravation in any subsequent Formal Disciplinary Proceeding.
(x) “Private Order of Discipline” is a
written order that memorializes the imposition of the sanction of Private
Reprimand.
(y) “Private Reprimand” is a form of
discipline imposed by the Board that declares specified conduct of the Attorney
unethical, but does not limit the Attorney’s ability to practice law. When
imposed it is not public; however, it may become public as a circumstance in
aggravation in any subsequent Formal Disciplinary Proceeding.
(z) “Public Censure” is a form of Public
Discipline imposed solely by the Hawaiʻi Supreme Court pursuant to RSCH
2.3(a)(3) that declares the conduct of the Attorney unethical, but does not
limit the Attorney’s ability to practice law.
(aa) “Public Discipline” includes Public
Reprimand, Public Censure, Suspension, and Disbarment.
(bb) “Public Reprimand” is a form of Public
Discipline imposed by the Board that declares the conduct of the Attorney
unethical, but does not limit the Attorney’s ability to practice law.
(cc) “Record of Formal Disciplinary Proceeding”
shall consist of the Board file, which includes all materials commencing with
the Petition for Discipline, all hearing transcript(s), and all exhibits.
(dd) “Respondent” includes any Attorney against
whom a Grievance or Complaint has been made or who is the subject of an
investigation by the ODC.
(ee) “Reviewing Board Member” is a Board member
assigned to review Investigative Files and make a determination pursuant to DBR
16.
(ff) “Suspension” is the removal of an
Attorney from the practice of law for a period of time not to exceed five
years.
(Amended February 24, 2011, effective July
1, 2011.)
II. BOARD ORGANIZATION
Rule 4. Officers;
Duties.
(a) Chairperson. The Chairperson shall
preside over Board meetings and coordinate and supervise the administration of
RSCH 2. The Chairperson approves the filing and dismissal of all petitions and
performs all duties imposed by the RSCH and DBR.
(b) Vice Chairperson. The Vice Chairperson
shall assist the Chairperson and perform all duties and functions of the
Chairperson in the latter’s absence, disqualification, or disability.
(c) Secretary. The Secretary shall prepare
minutes for each Board meeting, and shall certify the index to the Record of
Formal Disciplinary Proceedings. In the case of the absence, disqualification,
or disability of the Chairperson and Vice Chairperson, the Secretary shall
perform all duties and functions of the Chairperson.
(d) Treasurer.
The Treasurer shall oversee the Board’s
budget and monies. In the case of the absence, disqualification, or disability
of the Chairperson, Vice Chairperson, and Secretary, the Treasurer shall
perform all duties and functions of the Chairperson.
(Amended August 29, 2013.)
Rule 5. Meetings;
Quorum.
(a) Upon
Call of Chairperson. Meetings shall be
at the call of the Chairperson at least once each quarter. In the absence of
the Chairperson, the Vice Chairperson shall call the meeting.
(b) Upon
Call of Members. Upon the call of
five Board members, a special meeting shall be held.
(c) Quorum.
Seven Board members shall constitute a
quorum; the Board shall act only with the concurrence of seven or more of its
members.
Rule 6. Organizational
Meeting;
Elections.
(a) Organizational
Meeting. The Board shall hold an annual organizational
meeting following the Supreme Court’s appointment of Board members at such time
and place as the incumbent Chairperson shall specify. At the organizational
meeting, the Board shall elect a Chairperson, a Vice Chairperson, a Secretary,
and a Treasurer to serve until the next organizational meeting.
(b) Elections.
The election of officers shall be by members present, in person or by
telephone, and shall be by secret ballot and seriatim in order of
Chairperson, Vice Chairperson, Secretary, and Treasurer. The Chairperson shall
first call for nominations by secret ballot for Chairperson. After all nominees
have been proposed, the Chairperson shall declare the nominations closed. The
Chairperson shall select two inspectors of election, who are not nominees. The
Office Administrator or designee of the ODC will act as tally clerk. The
Chairperson shall recess the meeting while votes are cast and collected for
tallying. When the vote is complete, the Chairperson shall call the meeting to
order and announce the results. If no candidate has a majority of votes cast,
and two or more persons are nominated for the office, the process shall repeat
for the two persons with the highest number of votes for the office. Each
office will be filled based upon a simple majority of the votes.
Rule 7. Fiscal
Responsibilities;
Outside Services.
(a) Fiscal Responsibilities. Withdrawals of
monies of the Board shall require the signatures of two of the following:
Chairperson, Vice Chairperson, Secretary, Treasurer, Chief Disciplinary
Counsel, and Deputy Chief Disciplinary Counsel.
(b) Outside Services. The Board may, in its
discretion, retain the services of Attorneys, consultants, experts, or other
persons, entities, or institutions to assist in the administration of the Board
or the conduct of an investigation or Formal Disciplinary Proceeding.
(a) Executive Committee. The Executive
Committee shall include the Chairperson, Vice Chairperson, Secretary,
Treasurer, and such other Board members as may be appointed by the Chairperson.
(1) The
Executive Committee shall make recommendations to the Board concerning the
custody of the monies and other assets of the Board, investment of the monies
of the Board, and the maintenance of appropriate financial records. The
Executive Committee shall provide the Board with quarterly financial statements
and a proposed annual budget.
(ii) The
Executive Committee may make recommendations to the Board concerning personnel
matters, prospective Board members, and the establishment of Board member
criteria. The Executive Committee also shall undertake all matters delegated to
it by the Board.
(iii) Members
of the Executive Committee whose terms as Board members are expiring and who
wish to be reappointed to the Board shall recuse themselves from making any
recommendation to the Board of prospective Board members.
(b) Opinion Committee. The Opinion Committee
shall formulate advisory formal opinions interpreting the Hawaiʻi Rules of
Professional Conduct for adoption by the Board. A member of the Opinion
Committee shall also approve all informal written opinions by the ODC.
(c) Rules Committee. The Rules Committee
shall formulate all rule changes for adoption by the Board or for
recommendation by the Board to the Supreme Court.
(d) Ad Hoc Committees. The Board Chairperson
may appoint ad hoc committees.
III.
ABSTENTION, RECUSAL,
DISQUALIFICATION, AND
GRIEVANCES AGAINST COUNSEL, BOARD MEMBERS, HEARING
OFFICERS, OR HEARING COMMITTEE MEMBERS
Rule 9. Abstention; Recusal; and
Ex Parte Communications.
(a) By Counsel. If Counsel determines that
the ODC should abstain from a particular matter, Counsel shall inform the Board
Chairperson, who shall appoint Special Assistant Disciplinary Counsel to
discharge the powers and duties of Counsel.
(b) By Board Members. If a Board member
determines that he or she should abstain from a particular matter, the Board
member shall inform the Board Chairperson.
(c) By Hearing Officers or Hearing Committee
Members. If a Hearing Officer or a Hearing Committee member determines that
he or she should abstain from a particular matter, he or she shall inform the
Board Chairperson.
(d) Ex Parte Communication. Except as otherwise provided herein, ex parte
communications concerning a pending or impending proceeding between the ODC, a
Respondent, or a Respondent’s counsel, on the one hand, and any member of the
Board, a Hearing Officer or a member of a Hearing Committee, on the other hand,
are prohibited.
(Amended
March 28, 2013, further amended April 24, 2014.)
(a) Of Counsel. If a Respondent submits a
written request to disqualify Counsel, the matter shall be decided by the Board
Chairperson, after Counsel has had an opportunity to respond.
(i) The
Board Chairperson shall decide whether to grant or deny the request. The Board
Chairperson’s decision shall be communicated to the Parties without further
Board action.
(ii) If
Counsel is disqualified, the Board Chairperson shall appoint Special Assistant
Disciplinary Counsel to discharge the powers and duties of Counsel in the
particular matter.
(b) Of Board Members. If a Respondent submits
a written request or orally moves to disqualify a Board Member, the matter
shall be decided by the Board Chairperson, after Counsel has had an opportunity
to respond.
(i) The
Board Chairperson shall decide whether to grant or deny the request. The Board
Chairperson’s decision shall be communicated to the Parties without further
Board action.
(ii) Ad
hoc members may be appointed to the Board pursuant to RSCH 2.4 (c).
(iii) A
Board member shall not represent a Respondent in the investigation of a
Grievance or Complaint or in any investigation or proceeding before any Hearing
Officer, Hearing Committee, or the Board while serving or within a one-year
period after the conclusion of his or her term. A Board member shall not accept
representation of a Respondent in any matter that was pending with the ODC
while said member was serving.
(c) Of Hearing Officers or Hearing Committee
Members.
(i) No
person representing a Respondent in any investigation or proceeding shall be
appointed as a Hearing Officer or as a Hearing Committee member.
(ii) If,
a person on the panel of Hearing Officers or Hearing Committee Members
undertakes representation of a Respondent, that person shall be disqualified
from further service for a period of one year following conclusion of his or
her representation of such Respondent.
(iii) Deleted.
(Amended May 27, 2010, effective July 1,
2011.)
(a) Against Counsel or Attorney Board Members.
Grievances alleging a violation of the Hawaiʻi Rules of Professional Conduct
against Attorney members of the Board or Counsel shall be handled as follows:
(i) The
original Grievance shall be immediately forwarded to the Board Chairperson for
initial review and analysis.
(ii) If
a Grievance is filed against the Board Chairperson, the reviewer shall be the
Vice Chairperson and, upon the absence, disability, or disqualification of the
Vice Chairperson, the Secretary shall undertake the duties of the Chairperson
described above.
(iii) If
the reviewer determines that: (A) a Grievance falls outside the jurisdiction of
the Board pursuant to RSCH 2; (B) sufficient information is not contained in a
Grievance to allow a meaningful investigation; or (C) a finding of an ethical
violation and the imposition of discipline is not likely to occur, the reviewer
shall notify the Complainant that no investigation will be undertaken.
(iv) If
the reviewer determines that: (A) a Grievance falls within the jurisdiction of
the Board pursuant to RSCH 2; (B) sufficient information is contained in a
Grievance to allow a meaningful investigation; or (C) a finding of an ethical
violation and the imposition of discipline may occur, the reviewer shall
appoint an Attorney =Hearing Committee Members to serve as a Special Assistant
Disciplinary Counsel to conduct the investigation.
(v) In
investigating the Complaint, the Special Assistant Disciplinary Counsel shall
request written and oral input from the Complainant and the Respondent as
necessary. The Special Assistant Disciplinary Counsel may not use the services
of attorneys, paralegals, or investigators employed by the ODC to investigate
the matter.
(vi) Based
on information acquired during the investigation, the Special Assistant
Disciplinary Counsel shall prepare and forward to the reviewer a summation of
the file and a recommended disposition of the matter in the format required by
DBR 16.
(vii) The reviewer shall affirm or modify the
recommendation of the Special Assistant Disciplinary Counsel or remand the
matter to the Special Assistant Disciplinary Counsel for further investigation.
(viii) If
the reviewer dismisses the matter, the Complainant and the Respondent shall be
notified.
(ix) If
the reviewer's decision is that a Private Informal Admonition should be
imposed, the reviewer shall impose the Private Informal Admonition in
accordance with DBR 25.
(x) If
the reviewer decides that a Formal Disciplinary Proceeding should be commenced,
the Special Assistant Disciplinary Counsel shall present the case pursuant to
RSCH 2.7 (c), (d), and (e).
(xi) Upon
final completion of the investigation or proceeding, all files in the case
shall be forwarded to the ODC, which shall maintain a permanent record of the
matter in accordance with DBR 33.
(b) Against Hearing Officers or Hearing Committee
Members. Grievances against Hearing Officers or Hearing Committee members
shall be handled in accordance with the DBR Rules contained in Section IV
below.
IV.
INVESTIGATION; RECOMMENDATION BY COUNSEL
Rule 12. Commencement;
Scope of
Investigation; COMPLAINT PROCESSING Time goals;
Protective Order.
(a) Duty of Counsel to Investigate. Counsel
has a duty to investigate all matters involving alleged violations of the
Hawai’i Rules of Professional Conduct in accordance with RSCH 2.6(b) (2) and
2.6(b) (3).
(b) Scope of Investigation. Counsel shall
investigate to elicit factual information relevant to any misconduct alleged or
reasonably indicated by the circumstances.
(c) Motion for Protective Order.
(i) If
a Respondent disputes the information sought, he or she may file a motion for
protective order with the Board Chairperson through the Filing Clerk. A copy
shall be served upon Counsel, and Counsel shall have an opportunity to respond.
The
Board shall decide the motion on the written submissions within 30 days. In his
or her discretion, the Board Chairperson may hold oral argument on the motion.
(ii) If
the motion for protective order is denied, a Respondent may file a motion for
protective order with the Hawaiʻi Supreme Court. A copy shall be served upon
Counsel, and Counsel shall have an opportunity to respond.
(d) Complaint Processing Time Goals.
(i) This
Rule intends that the period of time from ODC’s opening of a case (either by
receipt of a complaint or by ODC’s initiation of an inquiry) to the institution
of Formal Disciplinary Proceedings, or other disposition of the case, pursuant
to the order of a Reviewing Board Member (as provided for in DBR Rule 16)
should not exceed eighteen months.
(ii) Within
fifteen months from the opening of an ODC case, ODC’s investigation and
recommendation for disposition should be provided to a Reviewing Board Member
pursuant to RSCH 2.7(a) and DBR Rule 16.
(iii) Any formal Petition for Discipline or other
disposition should be filed or otherwise implemented within two months following
the date institution of formal proceedings or other disposition is ordered by a
Reviewing Board Member.
(iv) The
Chairperson may exercise discretion to grant extensions on the showing of
cause.
(e) Failure to Meet Time Goals. Failure of
the ODC to meet the time frames provided for in section (d) shall not be a grounds
for the dismissal of any matter, but may be raised by a Subject Attorney as a
mitigating factor upon a showing of material prejudice. [See: ABA Std. Imposing Lawyer Sanctions,
9.32(j); see also: In re Tenenbaum, 918 A.2d 1109 (Del. 2007); In re
Johnson, 319 Mont. 188 (2004)].
(f) Failure to Cooperate. If a subpoena is
issued due to an attorney’s failure to cooperate, the minimum sanction is an
Informal Admonition in the absence of substantial mitigating circumstances
showing a lack of fault on the attorney’s part.
(Amended February 24, 2011, effective July
1, 2011; further amended February 28, 2013; further amended November 23, 2022,
effective January 1, 2023.)
Rule 13. Docketing
Standard for
Complaints.
(a) Counsel shall docket a Grievance as a
Complaint if Counsel determines that a finding of an ethical violation and the
imposition of discipline are likely to occur assuming the facts to be true and
no other credible information contradicts those facts.
(b) When a Complaint has been docketed, it shall
be formally investigated.
(c) When Counsel determines, after such initial
informal investigation as Counsel deems to be sufficient, that a finding of an
ethical violation and the imposition of discipline are not likely to occur
pursuant to subparagraph (a) above, Counsel may summarily dispose of or dismiss
the Grievance with the concurrence of a Reviewing Board Member. Except in
matters requiring dismissal because the Grievance is frivolous on its face or
falls outside the Board’s jurisdiction, Counsel shall first afford Respondent an
opportunity to state his or her position with respect to the allegations and
may advise Respondent of the proposed disposition notwithstanding Rule 16(e).
(d) When the Reviewing Board Member disagrees
with the recommendation of Counsel, the Grievance shall be docketed as a
Complaint.
(e) Under no circumstances shall any Grievance or
Complaint be disposed of or dismissed without the review and approval of the
appropriate Reviewing Board Member.
(Amended April 26, 2018; further
amended October 26, 2018; further amended April 2, 2020, effective April 1,
2020.)
Rule 14. Notification
to
Respondent.
After
a Complaint has been docketed and before the Conclusion of an Investigation,
Counsel shall notify the Respondent in accordance with RSCH 2.11(b) by communication
marked “CONFIDENTIAL” and afford the Respondent an opportunity to respond.
Rule 15. Notice
to Respondent of
Third Person Subpoenas.
If Counsel causes a subpoena to be issued
to a third person for the production of documents, Counsel shall serve a copy
of the subpoena upon the Respondent in the manner provided by RSCH 2.11(b) not
later than two full business days before the time specified in the subpoena for
compliance therewith.
Investigation.
(a) An investigation may be concluded by Counsel
referring a matter for Minor Misconduct or other non-disciplinary action, such
as the Attorneys & Judges Assistance Program in accordance with RSCH
2.7(b).
(b) Preparation and Submission of Investigative
File. Upon the conclusion of an Investigation, Counsel shall forward or
present the following to a Reviewing Board Member:
(i) Counsel’s
summation of the file;
(ii) Relevant
portions of the file, including substantive communications received from the
Respondent in response to the notice given under DBR 14; and
(iii) Counsel’s
recommendation as to the disposition of the matter by any of the following
based on clear and convincing evidence:
·
Dismiss the
matter;
·
Dismiss with a
letter of caution, with or without violation;
·
Impose a private
Informal Admonition; or
·
Institute a
Formal Disciplinary Proceeding
(c) Deadline for Reviewing Board Member's Review
of Investigative File. The Reviewing Board Member shall review and respond
to an Investigative File within seven days of receiving the file.
(i) The
Reviewing Board Member shall return the file within seven days regardless of
whether the review has been completed. If the Reviewing Board Member fails to
return the file to Counsel within the prescribed time, Counsel shall contact
him or her to determine the status of the review of the file.
(ii) If
the Reviewing Board Member retains the file and fails to complete his or her
review within an additional seven days after Counsel’s inquiry, Counsel shall
notify the Board Chairperson.
(d) Non-Disclosure of Identity of Reviewing Board
Member. The name of the Reviewing Board Member shall not be disclosed.
(e) Non-Disclosure of Counsel’s Recommendation.
Counsel shall not reveal his or her recommendation to the Complainant or the
Respondent.
(Adopted February 24, 2011, effective July
1, 2011; renumbered February 24, 2011, effective July 1, 2011.)
Rule 17. When
Counsel’s
Recommendation
Is
Approved.
If the Reviewing Board Member approves
Counsel’s recommendation, then it shall be implemented, and the Respondent and
the Complainant shall be notified.
Recommendation Is
Disapproved.
If the Reviewing Board Member disapproves
Counsel’s recommendation, he or she shall return the file to Counsel with his
or her decision. Counsel shall then have ten days from the date of receipt of
the decision in which to request a review by a second Reviewing Board Member.
Counsel may forward the file to the second Reviewing Board Member, who shall
review it in accordance with DBR 16(b).
A decision is final when Counsel does not
timely request a second review or when a second Reviewing Board Member makes a
decision.
In a case where Counsel has determined
that Minor Misconduct applies, RSCH 2.7(b) shall control.
V. FORMAL
DISCIPLINARY PROCEEDING
Rule 19. Institution of Formal
Disciplinary
Proceeding.
Counsel shall institute a Formal
Disciplinary Proceeding when:
(a) a Formal Disciplinary Proceeding is
approved or ordered by a Reviewing Board Member;
(b) a Respondent rejects Counsel’s imposition
of a Private Informal Admonition and demands a Formal Hearing pursuant to DBR
25(b)(i); or
(c) as provided by RSCH 2.13 (Attorneys
Convicted of Crimes).
(Amended December 13, 2012.)
Disciplinary
Proceeding.
(a) Petition for Discipline; Notice. A Formal
Disciplinary Proceeding shall be commenced by Counsel’s Filing of a Petition
for Discipline with the Filing Clerk after review and approval by the Board
Chairperson. The Petition for Discipline shall name the ODC as the Petitioner
and shall be sufficiently clear and specific to inform the Respondent of the alleged
ethical violations.
Counsel shall attach a notice to the
Petition for Discipline stating the name and address of Counsel and notifying
the Respondent to file a written answer with the Filing Clerk within 20 days
after service and to serve a copy upon Counsel.
(b) Service; Notification. Counsel shall
serve a copy of the Petition for Discipline upon the Respondent as provided by
RSCH 2.11(a) and shall notify the Respondent’s employer, where applicable, as
required by RSCH 2.7(c).
Counsel also shall notify the Complainant
that a Petition for Discipline has been filed, and the Complainant shall be
provided a copy of such Petition when it is no longer confidential pursuant to
RSCH 2.22(a)(7).
(c) Answer; Admission for Failing to Answer.
Every defense, in law or fact, may be asserted in the answer, including
circumstances in mitigation. Allegations in the Petition for Discipline are
admitted if not denied in the answer or if no answer is filed.
If the Respondent fails to answer, the
Record of Formal Disciplinary Proceeding shall be transmitted directly to a
Hearing Officer or Hearing Committee for review and disposition in accordance
with RSCH 2.7(c).
(d) Amended Petition for Discipline; Service;
Time to Answer. Counsel may amend a Petition for Discipline to add
additional allegations at any time with approval from a Reviewing Board Member.
Service and the allowable time for answering an amended Petition for Discipline
shall be the same as for an original Petition for Discipline.
(e) Pleadings. Only pleadings or motions
ordered by a Hearing Officer, a Hearing Committee chairperson, or expressly
permitted by the RSCH or these rules may be filed by the Parties.
(f) Stipulation. If Counsel and the
Respondent file a stipulation with the Board setting forth facts relevant to a
determination of the matter, the disciplinary violations that serve as grounds
for discipline, and an agreement as to the recommended form of discipline, the
Record of Formal Disciplinary Proceeding shall be transmitted directly to the
Board for review and disposition in accordance with RSCH 2.7(e). The
proceedings before any Hearing Officer or Hearing Committee appointed prior to
the Filing of the stipulation shall be suspended pending the Board’s decision.
(g) Hawaiʻi Court Records Rules. All
Documents submitted for filing may be subject to public disclosure in accord
with RSCH Rule 2.22 and, therefore, shall comply with that rule and the Hawaiʻi
Court Records Rules (“HCRR”). Further, to the extent not inconsistent with
HCRR:
(i) Personal Information. HCRR defined
account numbers and personal information shall be redacted, and need not be
accompanied by the filing of unredacted copies under seal, unless otherwise
ordered by the formal/reinstatement hearings officer (“F/RHO”), Board, or
Court.
(ii) Information confidential by statute or rule.
Information that is confidential by statute or court rule (other than RSCH Rule
2.22) shall be filed under seal, with a “Fly Sheet” as defined by HCRR Rule
9.3.
(iii) Request to seal. A request to seal
information that is not confidential by statute or court rule shall be resolved
by order of the F/RHO when the information is first proffered. Denial of a
request to seal does not modify the application of RSCH 2.22. Any order
granting a request to seal shall comply with the standards for sealing court
records.
(iv) Duty to redact/seal. The initial
proponent of the document has the duty of compliance with HCRR. Other
documents, such as transcripts of hearings, shall require a joint effort by the
parties, subject to the order of the F/RHO as required.
(v) Redacted substantive documents. Unless
otherwise ordered by the F/RHO, within 14 days of a filing pursuant to
paragraph (ii) or of an order granting a request to seal pursuant to paragraph
(iii), the filing party shall file a redacted version of the document that may
become publicly accessible consistent with RSCH 2.22.
(Amended December 13, 2012, further
amended August 3, 2020, effective July 30, 2020.)
Rule 21. Assignment
of Hearing
Officer or Hearing
Committee.
(a) Conflict of Interest. The Filing Clerk
shall ascertain any conflicts of interest from the prospective Hearing Officer
or Hearing Committee members prior to their appointment. A party alleging a
conflict of interest by a Hearing Officer or Hearing Committee shall submit a
written request to the Filing Clerk for disqualification within 10 days of the
appointment, with copy to the opposing party.
(b) Time Limit for Appointment. A Hearing Officer or a Hearing Committee
shall be appointed within 30 days of the expiration of the period provided in
RSCH 2.7(a) for service of Respondent’s Answer to a Petition for Discipline. An extension of time for up to an additional
30 days may be granted upon written request to the Chair for good cause shown.
(c) Assignment. The Board Chairperson shall
assign the matter to a Hearing Officer, or if a request for three-person
hearing committee has been granted, to a Hearing Committee and notify the
Filing Clerk of the assignment.
(d) Notification. The Filing Clerk shall
notify Counsel and the Respondent of the names and contact information of the
Hearing Officer or Hearing Committee. The Filing Clerk shall also transmit
copies of the Petition for Discipline and answer to the Hearing Officer or Hearing
Committee.
(e) Request for Three-Person Hearing Committee by
Hearing Officer. Upon review of the Petition for Discipline and answer, for
good cause, the Hearing Officer may request appointment of a three-person
Hearing Committee. A written request must be submitted to the Board Chairperson
within 14 days following the prehearing conference. The Board Chairperson shall
decide the request, and the Filing Clerk will notify the Hearing Officer of the
decision.
(Adopted November 17, 2011, effective
December 1, 2011; amended February 28, 2013.)
Rule 22. Conduct of Formal
Disciplinary Proceeding.
(a) Prehearing Conference. The Hearing
Officer or Hearing Committee chairperson shall hold a prehearing conference as
authorized by RSCH 2.12 no later than 30 days after appointment, unless
extended by the Board Chairperson for good cause. Where the matter has been
assigned to a Hearing Committee, the chairperson or a designated member may
conduct the prehearing conference without all members present.
(i) The
purposes of the conference are to: address alleged conflicts; expedite matters;
narrow contested issues; establish deadlines to exchange exhibit and witness
lists; explore possible stipulations; discuss proposed submissions of any
discovery requests to the Board Chairperson; discuss requests for permission to
file motions; and to set the hearing date.
(ii) Following
the conclusion of a prehearing conference, a prehearing conference order shall
be issued.
(b) Discovery Requests. No discovery may be
initiated by a Respondent until the matter is addressed at the prehearing
conference.
(i) All
requests for discovery shall be made in writing to the Board Chairperson
through the Hearing Officer or the Hearing Committee. A Party making the
request shall provide a copy of the request to the opposing Party at the same
time it is submitted to the Hearing Officer or Hearing Committee. The Board
Chairperson may order discovery for good cause.
(ii) In
the event a deposition upon oral examination is permitted, it may be recorded
by any means agreed upon by the Parties, and in the absence of agreement, as
ordered by the Board Chairperson under DBR 22(b).
(c) Formal Hearing Date; Notice. The Hearing
Officer or the Hearing Committee chairperson shall set the date, time, and
place of the Formal Hearing and provide at least 14 days notice to Counsel and
the Respondent. The Formal Hearing shall be concluded no later than seven
months following the final appointment of a Hearing Officer or a Hearing
Committee unless extended by the Board Chairperson for good cause. The report
of the Hearing Officer or Hearing Committee must be filed within 30 days
following the Conclusion of the Formal Hearing as required by RSCH 2.7(c).
(d) Conduct of Formal Hearing. The Hearing
Officer or Hearing Committee shall receive evidence to resolve any factual
issues. The Hawaiʻi Rules of Evidence do not apply. Only trustworthy evidence
may be admitted in accordance with RSCH 2.7(c). The Hearing Officer or Hearing
Committee must disregard any error or defect in the proceeding that does not
affect a substantial right or result in a miscarriage of justice.
The Respondent may appear with or without
an Attorney. Witnesses may testify by telephone, unless the Hearing Officer or
Hearing Committee chairperson determines otherwise for good cause.
(e) Record of Formal Disciplinary Proceeding.
Each Hearing Officer or Hearing Committee shall record and preserve in writing,
on tape, or by the use of such other device as appropriate, the proceedings and
evidence in the Formal Disciplinary Proceeding. In designating the manner of
recording and preserving the proceeding, the Hearing Officer or Hearing
Committee may include any provision to assure that the record will be accurate
and trustworthy. Each Formal Hearing shall be transcribed, and the original of
each transcript shall be filed as part of the Record of Formal Disciplinary
Proceeding.
(f) Post Formal Disciplinary Hearing Proceeding.
Parties may be ordered by the Hearing Officer or Hearing Committee to file
briefs or memoranda and to submit proposed findings of fact, conclusions of
law, and recommendations pertaining to discipline. Copies shall be filed with
the Filing Clerk and served upon the Hearing Officer or Hearing Committee.
(g) A hearing officer shall not initiate, permit
or consider ex parte communications, or other communications made to such
officer outside the presence of the parties concerning a pending or impending
proceeding.
Rule 23. Hearing Officer’s or
Hearing Committee’s
Report to the Board.
(a) Report;
Contents; Due Date. The Hearing Officer’s or Hearing Committee’s report
shall include:
(i) Findings
of fact;
(ii) Conclusions
of law;
(iii) Each
ethical rule violated and constituting grounds for discipline;
(iv) Any
aggravating and mitigating circumstances; and
(v) Recommended
disposition.
The report must be submitted to the Board
within 30 days following the Conclusion of the Hearing and shall be accompanied
by the Record of Formal Disciplinary Proceeding. Upon receipt of the report,
the Board Chairperson shall schedule the matter for the next available Board
meeting.
(b) Service
of the Report; Notice. The Filing Clerk shall serve a copy of the report
upon Counsel and the Respondent in accordance with RSCH 2.11(b). Counsel shall
notify the Complainant that a report has been filed with the Board; and that a
copy of the report is available upon request. If a copy is provided to the
Complainant, he/she should be informed the report is a recommendation the Board
may, but need not, follow.
(c) Requests
for Briefing or Oral Arguments. Either Party may request permission to
submit briefs or to present oral argument to the Board. Such a request must be
made in writing to the Board Chairperson within ten days after service of the
Hearing Officer’s or Hearing Committee’s report in accordance with RSCH 2.7(d).
(d) Failure to Observe Deadlines. If a report
is not submitted timely, Counsel shall immediately notify the Board
Chairperson, who shall take appropriate action, including but not limited to
the following:
(i) Set
a final deadline for the Hearing Officer or the Hearing Committee to comply;
Reassign the responsibility to prepare the
Hearing Committee’s report to another member of the Hearing Committee;
(ii) Appoint
a substitute Hearing Officer or substitute Hearing Committee members and remand
the case for further proceedings as appropriate; or
(iii) Take
such other action deemed necessary to procure the timely submission of the
Hearing Officer’s or Hearing Committee’s report.
(Amended December 13, 2012.)
VI. BOARD
REVIEW AND
DISCIPLINARY SANCTIONS
Rule 24. Board Disposition of
Formal Disciplinary
Proceeding.
(a) Briefs; Oral Argument. If briefs or oral
arguments are requested by the Board or any Party, the Chairperson shall issue
an order setting forth the dates by which briefs are due and oral argument is
scheduled. The Filing Clerk shall notify the Parties of the order.
(i) If
no briefs are submitted or no oral argument is requested, then the Board
Chairperson shall issue an order setting the deliberation date. The Filing
Clerk shall notify the Parties of the order.
(ii) If
neither Party timely requests submission of briefs or oral argument, the Board
may order submission of briefs or oral argument by a majority vote pursuant to
RSCH 2.7(d).
(iii) Oral
arguments shall be recorded and preserved in writing, on tape, or by the use of
such other device as appropriate. Oral arguments shall be transcribed, and the
original of each transcript shall be filed as part of the Record of Formal
Disciplinary Proceeding.
(iv) The
Board Chairperson may set time limits for oral arguments.
(v) Brief
organization. Briefs, both Opening and Answering, must include the following
separate sections:
(1) A
concise statement of the case which includes a “Description of the alleged
Ethical Violations.”
(2) A
concise statement of the “Points of Error” in separate numbered paragraphs.
When the point involves a finding or conclusion of the hearing officer or
committee, a quotation of the finding or conclusion urged as error should be
included.
(3) A
section entitled “Standards of Review” setting forth the standard or standards
to be applied in reviewing the respective findings of fact, conclusions of law
and recommended discipline alleged to be erroneous and identifying the point of
error to which it applies.
(vi) Brief
Content.
(1) Review
shall be confined to the record, and all citation to factual matters shall be
to evidence in the record by docket number, or to the transcript of
proceedings.
(2) Case
law citations to published decisions shall include the case title, and
identification of the state or regional reporter, by volume and page number.
Citation to unpublished decisions shall be by case title and case number. Where
the party cites to an unpublished decision from outside the State of Hawaiʻi,
an accurate and legible copy of that decision shall be attached as an appendix
to the brief.
(3) The
Answering Brief should emphasize areas of disagreement or contention and
provide alternative citation to the record, case law or other authorities.
(4) An
optional Reply may be filed by the party filing the Opening Brief in reply to
the Answering Brief and shall be confined to matters presented in the Answering
Brief.
(5) References
to transcript should include the date of the transcript and the specific page
or pages referred to.
(vii) Brief
Format. Briefs shall:
(1) be
double spaced, except that titles, captions, block quotes and footnotes may be
single spaced.
(2) be
printed on plain white paper, single sided, in not less than 14 point
proportionally spaced font, or 12 point monospaced font, for both body text and
footnotes.
(3) Initial
briefs (Opening and Answering) shall not exceed 35 pages of text, exclusive of
title page, table of contents, and table of authorities. Reply briefs must not
exceed 10 pages.
(4) Briefs
in excess of 15 pages must include a table of contents and table of
authorities.
(b) Closed Deliberations. Only eligible Board
members and board counsel shall be present during the deliberations.
(c) Review Standards.
(i) Findings of Fact. Findings of fact,
including circumstances in mitigation and circumstances in aggravation, are
subject to the "clearly erroneous" standard of review.
(ii) Conclusions of Law. Conclusions of law
are subject to the "right/wrong" standard of review.
(iii) Mixed Findings of Fact and Conclusions of
Law. Mixed findings of fact and conclusions of law are subject to the
"clearly erroneous" standard of review.
(iv) De Novo Review of Recommended Discipline.
Recommended discipline is subject to de novo review by the Board.
(v) Harmless Error. The Board must
disregard any error or defect in the proceeding that does not affect a
substantial right or result in a miscarriage of justice.
(d) Disposition
of Formal Disciplinary Proceeding. The Board shall promptly affirm or
modify the report of the Hearing Officer or Hearing Committee; remand the case
for further proceedings with instructions; or dismiss the Petition for
Discipline with the consent of Counsel, when required by RSCH 2.7(d). The Board
may remand to the same or a new Hearing Officer or Hearing Committee.
(e) Announcement of Decision; Certification.
Following its deliberations, the Board shall reconvene on the record and
announce its decision. The Board Chairperson shall then file a certificate of
the decision in the record.
(f) Imposition of Board Sanctions. If the
Board imposes a Private Informal Admonition or Private or Public Reprimand, DBR
25, 26, or 27 shall apply.
(g) Board
Report to the Supreme Court. If the Board recommends discipline to the
Supreme Court, then the Board shall file a report setting forth its findings,
conclusions, and recommendation. The report shall be accompanied by the Record
of Formal Disciplinary Proceeding. The Filing Clerk shall serve a copy of the
report upon Counsel and the Respondent in accordance with RSCH 2.11(b).
(h) Notice to Complainant. Counsel shall
notify the Complainant that the Board has filed its report with the Supreme
Court and provide the Complainant with a copy
(Amended March 31, 2011, effective July 1,
2011; further amended December 13, 2012; further amended January 31, 2013.)
Admonition.
(a) Significance. A Private Informal
Admonition signifies that: (i) misconduct has been found but is not of
sufficient gravity to warrant a Formal Disciplinary Proceeding; or (ii) the
gravity of the misconduct is substantially offset by a clear and convincing
showing of circumstances in mitigation.
(b) When and How Imposed. A Private Informal
Admonition may be imposed by Counsel at the Conclusion of an Investigation
based on the facts of the case upon the approval of a Reviewing Board Member or
by the Board as a result of a Formal Disciplinary Proceeding.
(i) By Counsel. If a recommendation for
Private Informal Admonition is approved or otherwise ordered by a Reviewing
Board Member, Counsel shall prepare and serve the Private Informal Admonition
upon the Respondent. The basis for the imposition of the Private Informal Admonition
shall be stated, including the misconduct and the violations of the Hawaiʻi Rules
of Professional Conduct. The Private Informal Admonition shall further inform
the Respondent that: (A) within ten days of receipt of the Private Informal Admonition,
he or she may demand that a Formal Disciplinary Proceeding be instituted
against him or her; and (B) in the event such demand is received by Counsel
within the ten-day period, the order for Private Informal Admonition shall be
vacated, and a Formal Disciplinary Proceeding shall be instituted. If no demand
is received within the ten-day period, the Private Informal Admonition shall be
final.
If the Respondent rejects the Private
Informal Admonition imposed by Counsel, the Respondent must submit a demand
within ten days of the receipt of the Private Informal Admonition requesting
that a Formal Disciplinary Proceeding be instituted.
(ii) By the Board. If the Respondent and
Counsel accept the Hearing Officer’s
or Hearing Committee’s recommendation for a Private Informal Admonition or the Board
determines that a Private Informal Admonition is the appropriate sanction, the
Board Chairperson shall prepare the Private Informal Admonition. The basis for
the imposition of the Private Informal Admonition shall be stated, including
the misconduct and the violations of the Hawaiʻi Rules of Professional Conduct.
The Filing Clerk shall file a copy in the Record of Formal Disciplinary
Proceeding and serve the Parties with a copy of the Private Informal
Admonition.
(iii) Rejection of Private Informal Admonition.
If either Party rejects a Private Informal Admonition, the Board shall file a
report with the Supreme Court.
(c) Service. The Private Informal Admonition
shall be served in accordance with RSCH 2.11(a) or by certified or registered
mail, return receipt requested, at the Respondent’s address shown on the
Respondent’s current Attorney Registration Statement or other last-known
mailing address.
(d) Effect of Stipulation. By stipulating to
a Private Informal Admonition, the Parties have consented to its imposition.
(e) Confidentiality. If a Private Informal
Admonition is imposed by the Board prior to the time when the matter is no
longer confidential pursuant to RSCH 2.22(a)(7), then the matter and its
disposition shall remain confidential.
(f) Notice to Complainant. Counsel shall
notify the Complainant that a Private Informal Admonition has been imposed;
however, no copy will be provided to the Complainant unless the Private
Informal Admonition is non-confidential pursuant to RSCH 2.22 and the
Complainant requests a copy.
(a) Significance. A Private Reprimand
signifies that misconduct has been found, and that while the matter does not
warrant the filing of a report with the Supreme Court, the misconduct is too
serious to be addressed by a Private Informal Admonition.
(b) Board Decision; Parties’ Rights. If the
Board determines that a Formal Disciplinary Proceeding should be concluded by
Private Reprimand, the Board Chairperson shall so notify the Parties. The
Parties shall have ten days from receipt of the Board’s notice to reject the
Private Reprimand. A Private Reprimand is complete upon its imposition on the
Respondent in the presence of the Board. The Respondent shall receive a copy of
the text of the Private Reprimand.
(i) If
neither Party rejects a Private Reprimand within ten days, the Board
Chairperson shall notify the Respondent of the date and time to appear for the
imposition of the Private Reprimand.
(ii) If
the Respondent fails to appear for the Private Reprimand without good cause,
the Board may reconsider Respondent’s discipline.
(iii) If
either Party rejects the Private Reprimand or the Respondent fails to appear
without good cause, the Board shall file a report with the Supreme Court.
(c) Effect of Stipulation. By stipulating to
a Private Reprimand, the Parties have consented to its imposition.
(d) Private Order of Discipline. Following
the imposition of a Private Reprimand, a Private Order of Discipline shall be
issued and filed in the Record of Formal Disciplinary Proceeding.
(e) Confidentiality. If a Private Reprimand
is imposed by the Board prior to the time when the matter is no longer
confidential pursuant to RSCH 2.22(a)(7), then the matter and its disposition
shall remain confidential.
(f) Notice to Complainant. When a Private
Reprimand is imposed or the Board files a report with the Supreme Court, the
Complainant shall be notified in accordance with RSCH 2.6(b)(7). No copy of the text of the Private Reprimand
shall be provided to the Complainant and the Complainant shall not be provided
with a copy of the Private Order of Discipline, unless the Order is
non-confidential pursuant to RSCH 2.22 and the Complainant requests a copy.
(a) Significance. A Public Reprimand
signifies that misconduct has been found, and that while the matter does not
warrant the filing of a report with the Supreme Court, the misconduct is too
serious to be addressed by a Private Informal Admonition or a Private
Reprimand, and requires public notice.
(b) Board Decision; Parties’ Rights.
If the Board determines that a proceeding should be concluded by Public
Reprimand, the Board Chairperson shall notify the Parties. The Parties shall
have ten days from receipt of the Board’s notice to reject the Public
Reprimand. A Public Reprimand is complete upon its imposition on the Respondent
in the presence of the Board. The Respondent shall receive a copy of the text
of the Public Reprimand.
(i) If
neither Party rejects the Public Reprimand within ten days, the Board
Chairperson shall notify the Respondent of the date and time to appear for the
imposition of the Public Reprimand.
(ii) If
the Respondent fails to appear for the Public Reprimand without good cause, the
Board may reconsider the Respondent’s discipline.
(iii) If
either Party rejects the Public Reprimand or the Respondent fails to appear
without good cause, the Board shall file a report with the Supreme Court.
(c) Effect of Stipulation. By stipulating to
a Public Reprimand, the Parties have consented to its imposition.
(d) Public Order of Discipline. Following the
imposition of a Public Reprimand, a Public Order of Discipline shall be issued
and filed in the Record of Formal Disciplinary Proceeding.
(e) Notice to Complainant. If a Public
Reprimand is imposed, Counsel shall furnish the Complainant with a copy of the
Board’s Public Order of Discipline, but not the text of the Public Reprimand.
(f) Public Notice. Counsel shall issue a
press release regarding the matter.
Rule 28. Board’s
Role in Cases of
Resignation
in Lieu of
Discipline or
Disbarment
by Consent.
Upon receipt of an RSCH 2.14 affidavit by
a Respondent, if the Board Chairperson finds it to be in proper form, he or she
shall direct Counsel, on behalf of the Board, to promptly file it with the
Supreme Court for entry of an appropriate order. If the Board Chairperson finds
the affidavit is not in proper form, he or she shall return it to the Respondent
with an explanation of that finding.
Rule 29. Board’s
Role in Cases of
Disbarred and Suspended
Attorneys.
The following duties of the Board are
delegated to Counsel:
(a) Publication of notices of Suspension and
Disbarment required by RSCH 2.16(e).
(b) Transmission of certified copies of orders of
Suspension and Disbarment to judges as required by RSCH 2.16(f). The certified
copies referenced to herein shall be transmitted, at a minimum, to all State
judges, and to the Chief Clerks of the United States District Court for the
District of Hawai’i, the Court of Appeals for the Ninth Circuit, and the United
States Supreme Court.
(c) Issuance of a press release regarding the
matter.
(d) Disbarment or suspension of an Attorney shall
not preclude investigation of the Attorney’s conduct in other pending or new
matters, to gather and preserve evidence; however, such matters may be held in
abeyance unless and until the attorney seeks reinstatement. In cases where the other pending or new matter
is abated, Disciplinary Counsel shall notify the Attorney that the abatement
may be lifted if reinstatement is sought and pursued either separately or in
combination with the reinstatement effort.
(Amended
January 29, 2022, effective February 1, 2022.)
Rule 30. Board’s Role in Cases of
Reinstatement
of
Disbarred
Attorneys or
Attorneys
Suspended for
More than One
Year.
(a) Scope. An Attorney who has been disbarred
or suspended for more than one year may seek reinstatement. For purposes of
this Rule, an Attorney who resigned in lieu of discipline shall be treated as a
disbarred Attorney.
(b) Petition for Reinstatement; Service. An
eligible disbarred Attorney or an eligible Attorney suspended from practice for
more than one year as defined by RSCH 2.17(b) may file a Petition for
Reinstatement with the Filing Clerk of the Board and shall serve a copy upon Counsel. The Petition for Reinstatement shall state:
(i) The
date of entry of: (A) the order imposing Suspension or Disbarment; and (B) any
order restraining the applicant from engaging in the practice of law or setting
aside such order;
(ii) That
a certified copy of each order is attached to the petition;
(iii) That
the time period required by RSCH 2.17(b) has elapsed;
(iv) That
from the entry of the order imposing Suspension or Disbarment, the applicant
has complied with all applicable provisions of RSCH 2 and the Disciplinary
Board Rules, and if a restraining order was issued pursuant to RSCH 2.13, that
the applicant has complied with the provisions of the order while it was in
effect and is prepared to prove compliance;
(v) That
the applicant has completed the prescribed questionnaire and attached it to the
petition; and
(vi) All
facts and supporting materials upon which the applicant relies in support of
his or her reinstatement.
(c) Prescribed Questionnaire. The questionnaire shall be in the form
prescribed by Counsel and approved by the Board Chairperson (“Prescribed
Questionnaire”). The applicant’s answers shall be verified under oath.
(d) Pleadings; Record of Petition for
Reinstatement; Public Notice. The Petition for Reinstatement and the
Prescribed Questionnaire shall constitute the entire pleadings; no other
pleadings shall be permitted.
Counsel shall notify all State and United
States District Court for the District of Hawaiʻi judges and the president of
each bar association of the filing of the Petition for Reinstatement, and seek
written comment. Counsel shall cause a notice of the filing of the Petition for
Reinstatement to be published in a newspaper of general circulation, and seek
written comment.
(e) Assignment to Hearing Officer or Hearing
Committee. Following a reasonable investigation by Counsel of the
applicant’s fitness for reinstatement, the Petition for Reinstatement shall be
assigned by the Board Chairperson to a Hearing Officer or Hearing Committee.
The same process as a Formal Disciplinary
Proceeding shall be followed, except the applicant must show proof by clear and
convincing evidence that he or she should be reinstated in accordance with RSCH
2.17(b).
(f) Proceeding Before the Board After Service of
Hearing Officer’s or Hearing Committee’s Report. Following the Filing of
the report of the Hearing Officer or Hearing Committee, briefing and oral
argument shall be permitted in accordance with DBR 24 (a).
Rule 31. Proceedings Where an
Attorney Is Declared
Incompetent or Alleged
to Be Incapacitated.
(a) Judicial Determination of Incompetency and
Involuntary Commitment. Whenever it comes to Counsel’s attention
that an Attorney has been judicially declared incompetent by a court or
involuntarily committed on the grounds of incompetency or disability in any
jurisdiction, Counsel shall obtain a certificate of the adjudication or
commitment, if possible.
(ii) Counsel shall file with the Supreme Court a
Petition for Judicial Determination of Incompetency appending the required
documents and requesting that the Supreme Court enter an order under RSCH
2.19(a) transferring the Attorney to inactive status effective immediately.
(b) Investigation
by Counsel and Board Action; Proceedings Pursuant to RSCH 2.19(b). Whenever
it comes to Counsel’s attention that an Attorney is or may be incapacitated
from continuing the practice of law by reason of mental or physical infirmity
or illness or because of the use of drugs or intoxicants, Counsel may
investigate the matter and prepare a report of the investigation, including
Counsel’s summation of the file and a confidential recommendation as to the
disposition of the matter.
(i) Before concluding an investigation, Counsel
shall notify the Respondent that within a reasonable time, he or she may state
his or her
position with respect to the grounds of disability under investigation, which
shall be set out in the notice. The report shall be submitted by Counsel to the
Board Chairperson and shall include any communication received from the
Respondent. If the Board Chairperson decides that a proceeding shall be
instituted in the Supreme Court under RSCH 2.19(b), Counsel shall prepare the
necessary petition and proceed as provided in Paragraph (a) of this rule.
Counsel shall allege the grounds of disability authorized by the Board
Chairperson as the basis for the petition.
(ii) If the Board Chairperson decides that no
proceeding should be instituted under RSCH 2.19(b), the Attorney whose capacity
has been in question shall be so notified by Counsel.
(c) Proceedings
to which RSCH 2.19(c) Applies. If Counsel determines that RSCH 2.19(c) applies
by reason of the Respondent’s contention in a disciplinary proceeding that he
or she is suffering from a disability, Counsel shall file a petition with the
Supreme Court setting out or appending the pertinent portions of the record and
requesting that the Supreme Court: (i) enter an order under RSCH 2.19(c)
transferring the Respondent to inactive status until a determination is made of
the Respondent’s capacity to practice law; and (ii) determine the Respondent’s
capacity in a proper proceeding.
(d) Copies;
Service. Copies of all petitions and supplementary petitions filed with the
Supreme Court pursuant to RSCH 2.19 and this rule, together with a copy of the
Supreme Court’s order transferring the Attorney to inactive status, shall be
served on the Attorney, his or her guardian, if any, the director of the
institution to which he or she has been committed, if any, and such other
persons as the Court may order.
(e) Notice
of Transfer to Inactive Status. The Board delegates to Counsel its duties
under RSCH 2.19(d) and (e). In addition, certified copies of any order of
transfer to inactive status shall be transmitted, at a minimum, to all State
judges and to the Chief Clerks of the United States District Court for the
District of Hawaiʻi, the Court of Appeals for the Ninth Circuit, and the United
States Supreme Court.
(f) Consistent with RSCH Rule 2.19(h), the
provisions of Rule 29(d) shall apply, should the Attorney seek reinstatement
pursuant to RSCH Rule 2.19(g).
(Amended
January 29, 2022, effective February 1, 2022.)
Rule 32. Role in Trustee Proceedings.
(a) Board Appointment of Trustee Administrator. The Board
delegates to Chief Disciplinary Counsel its duties under RSCH Rule 2.20(g), to
appoint a specific Disciplinary Counsel to serve as Trustee Administrator in
all pending trustee matters. Where the
Trustee Administrator has appeared in a trustee proceeding under RSCH Rule
2.20, it is not necessary for successor Trustee Administrators to enter a
substitution in the record, other than to update the Judiciary Electronic
Filing System (JEFS) entry for attorney for Disciplinary Counsel.
(b) General
Rule. When it has
come to the attention of the Board or Disciplinary Counsel that an attorney has
become unavailable as defined by RSCH Rule 2.20(a)(5), the Trustee
Administrator should act to ascertain:
(i) Whether
the Subject Attorney had a law practice with active client matters; possessed
files, records or other property belonging to clients or other persons; or was
in possession of client, and/or third-party, funds held in one or more accounts
in any financial institution.
(ii) Whether the Subject Attorney has designated,
arranged for, or otherwise has an associated colleague who is an attorney who
is willing to serve as a trustee, without compensation, for the purposes of
RSCH Rule 2.20.
(iii) Whether
the Subject Attorney, or estate of the Subject Attorney, has a guardian,
personal representative, conservator, trustee, receiver, or other individual
capable to protect or otherwise act on behalf of the Subject Attorney in
coordination with any trustee that might be appointed pursuant to RSCH Rule
2.20.
(c) Special
Considerations. When circumstances warrant, the Trustee
Administrator should take action:
(i) When
no attorney is willing to serve as trustee without compensation, the Trustee
Administrator shall act to identify an attorney willing to serve as a
compensated trustee, preferably with the consent or absence of objection from
the Subject Attorney or person designated to act on behalf of the Subject
Attorney or Subject Attorney’s estate.
(ii) When a Subject Attorney in solo practice has
died or is incapacitated due to mental incapacity under RSCH Rule 2.19, the
Trustee administrator should notify the financial institution identified on the
Subject Attorney’s bar registration statement to put a temporary hold on the
funds pending appointment of a trustee by the supreme court.
(d) Request for
Appointment of Trustee.
(i) When the Trustee Administrator has ascertained
that a need exists for appointment of a trustee pursuant to RSCH Rule 2.20, the
Trustee Administrator, with the approval of the Chairperson, shall file with
the supreme court a motion, on behalf of Disciplinary Counsel, for appointment
of a trustee under such terms and conditions as the circumstances warrant. The motion is to be captioned “In re:
[Subject Attorney] (Bar No. ___, [status])” where status is either “deceased,”
“disbarred,” “suspended,” “disabled,” “disappeared” or “deported.”
(ii) The motion shall be supported by a declaration
of the candidate trustee (1) disclosing any material connections or potential
for conflict of interest as between the putative trustee, the Subject Attorney,
or the clients of the Subject Attorney’s law practice, and (2) describing any
limitations or special terms of engagement that are relevant to the desired
appointment.
(iii) When an attorney cannot be found who is
willing to undertake appointment without
compensation, the motion may seek compensated appointment, provided the
proposed hourly rate of compensation is detailed in the application, and
approved by the supreme court, prior to any services being rendered, except for
good cause shown. The motion should also
acknowledge that notwithstanding such terms and conditions set forth in the
motion, or any order approving appointment, the supreme court may allow
compensation different from that requested in the motion, if such terms prove
to have been improvident in light of developments not anticipated at the time
of the fixing of such terms and conditions.
(iv) Interim applications for compensation, and/or
expense reimbursement should be filed at least annually, but not more
frequently than quarterly. Final
applications for compensation, and/or expense reimbursement may be filed at any
time.
(e) Activities of the
Trustee Administrator subsequent to Appointment. When a trustee is appointed pursuant to RSCH
Rule 2.20, and that trustee is not an employee of the ODC, the Trustee
Administrator shall:
(i) Monitor the progress of the trusteeship in
accord with the order of appointment and requirements of RSCH Rule 2.20, and
when necessary take such action as appropriate.
(ii) Respond, oppose, or otherwise comment, on
behalf of the Disciplinary Board, to any orders of the supreme court, interim
status reports, final reports, or fee applications filed in the Trustee
Proceeding.
(iii) Provide reasonable administrative assistance
to the appointed trustee in the performance of the trustee’s duties; provided
however, the Trustee Administrator shall not give legal advice and shall at all
times act as Board representative.
(iv) Coordinate with the Lawyers Fund for Client
Protection administrator and its board of trustees to preserve the fund’s
rights and interests.
(v) In cases that involve a deceased Subject
Attorney, assist the trustee in filing claims in any pending probate case, or
if no probate case is pending, file a demand for notice with the probate court
under HRS § 560:3-804 to -805.
(vi) Take such further action as the supreme court
may direct.
(Adopted January 28, 2021, effective March
1, 2021.)
VII. RETENTION OF RECORDS
Rule 33. Retention of Records.
(a) General Rule. The ODC shall maintain
permanent electronic or paper data records of all RSCH 2 matters. The ODC shall
maintain the Board’s records as set forth in (d) below.
(b) Formal Disciplinary Proceeding. When a
Formal Disciplinary Proceeding or other RSCH 2 proceeding has reached final
adjudication, the file shall be deposited with the ODC as a permanent record,
except that exhibits to a Formal Disciplinary Proceeding may be destroyed after
the matter has been closed for six years. RSCH 2.14 resignations are excluded.
(c) Other Proceedings. In all other matters,
the files shall include at a minimum:
(i) Counsel’s
summation of the file prepared pursuant to DBR 16 (or the Grievance and
relevant papers if the matter was dismissed without
docketing), Counsel’s recommendation, the order of the Reviewing Board Member,
and Counsel’s correspondence informing the Complainant and the Respondent of
the disposition of the matter. The files in matters concluded by screening,
pending, dismissal, and dismissal with caution shall be destroyed after the
matter has been closed six years. All files of deceased Attorneys may also be
destroyed, except files of a Formal Disciplinary Proceeding.
(ii) If
a Private Informal Admonition was imposed, Counsel’s summation of the file
prepared pursuant to DBR 16, the statement of the basis for the Private
Informal Admonition prepared pursuant to DBR 25, the certified or registered
mail or service records evidencing imposition of the Private Informal
Admonition, and Counsel’s correspondence informing the Complainant of the
disposition of the matter as a permanent record.
(d) Board administrative documents include
financial records, contract and lease documents, and general correspondence.
(i) Financial
records include checks, disbursements, deposit slips, and daily items.
These records may be destroyed by ODC
after six years. However, Board accounting books, records, and annual financial
records are to be kept indefinitely.
(ii) Contracts,
leases, and documents of a similar nature may be destroyed by ODC six years
following the expiration of the contract.
(iii) General
correspondence may be destroyed by ODC after three years.
VIII.
EFFECTIVE DATE
These Disciplinary Board Rules apply to
all Grievances submitted to or initiated by the ODC on or after July 1, 2007,
and all proceedings under RSCH 2.14, RSCH 2.16, RSCH 2.17, RSCH 2.19, and RSCH
2.23 initiated on or after July 1, 2007.