WHAT TYPE OF VIOLATIONS DO YOU INVESTIGATE?
A lawyer may be disciplined only for violating a specific provision of the Hawai`i Rules of Professional Conduct ("HRPC"). A violation must be proven by clear and convincing evidence of wrongdoing before an attorney can be disciplined.
Unethical conduct and malpractice do not necessarily mean the same thing. Unethical conduct does not include every instance of inadequate representation or poor performance by an attorney. For example, a lawyer may make an error in judgment or other mistake in handling a client's case. A mistake or error in judgment is not necessarily unethical conduct that violates the HRPC. A lawyer in that situation may be guilty of "negligence" or "malpractice" for which the client may be able to sue for monetary loss suffered.
WHAT TO DO IF YOU BELIEVE YOUR LAWYER HAS ACTED UNETHICALLY?
If you believe an attorney has violated the HRPC and acted unethically, you can file a complaint with the ODC. Here are links to the complaint form
. However, before doing so, it is a good idea to consider the following.
If you feel your lawyer is not handling your legal matter properly, is not keeping you adequately informed about your case, or is charging you too much, you should first consider contacting your lawyer to discuss the problem. Open communication between lawyer and client is essential to a productive working relationship. Often, a frank discussion will eliminate or lead to a solution of the problem.
WHAT YOU CAN EXPECT WHEN A COMPLAINT IS FILED?
It is not necessary that a person be a client to file a complaint against an attorney. Complaints may be filed by any individual who feels that an attorney has acted improperly. Each complaint received by ODC is taken seriously and carefully weighed. Established procedures are followed in the review of every complaint received. You may be asked to answer questions from ODC staff investigating your complaint.
You will be notified of the final outcome of your complaint.
WHO PAYS FOR THE DISCIPLINARY PROCESS?
The operations of the Hawai`i lawyer discipline system are funded entirely by annual registration fees paid by Hawai`i's lawyers. Ethics investigations are conducted without charge to any complaining party.
WHAT YOU SHOULD NOT EXPECT WHEN YOU FILE A COMPLAINT
First, you will not receive assistance from the ODC or the Disciplinary Board concerning your underlying legal matter. The ODC does not give legal advice to any person. Neither the ODC nor the Disciplinary Board has the authority to order an attorney to take action or to refrain from taking action.
Second, you will not receive reimbursement or other monetary compensation through the lawyer discipline process.
Third, unless public discipline (disbarment, suspension, public censure, or public reprimand) are imposed, you will not be given detailed reasons for the final disposition of your complaint.
Fee disputes are not usually handled by the lawyer discipline system, unless a fee appears on its face to be "clearly unreasonable." Instead, fee disputes are referred to the Hawai`i State Bar Association, which operates a fee mediation/arbitration service. Here is the link to their website (http://www.hsba.org/Attorney_Client_Relations.aspx
A SUMMARY OF SOME THINGS YOU SHOULD KNOW
Below is a list of what this office can and cannot do when it considers a complaint against an attorney:
HOW TO FILE A COMPLAINT WITH THE ODC
- The ODC receives several hundred complaints each year. Each is considered carefully. Some take more time to investigate than others.
- A finding that an attorney violated a particular ethics provision must be supported by “clear and convincing evidence.”
- The ODC can impose minor discipline (an Private Informal Admonition) with the concurrence of a member of the Disciplinary Board; the Disciplinary Board can impose more serious discipline (Private Reprimand and Public Reprimand) upon a vote of its members; the Disciplinary Board may recommend public reprimand, public censure, suspension or disbarment to the Supreme Court, which has the sole authority to impose such discipline.
- The HRPC and the Disciplinary Board Rules permit the dismissal of a complaint. The ODC has the discretion not to pursue an ethics grievance if it determines the imposition of discipline is unlikely.
- The ODC cannot refer you to an attorney. If you do not have an attorney and wish to hire one, contact the Hawai`i State Bar Association ((808) 537-1868).
- If you are considering a legal action against an attorney, do not wait for the outcome of your ethics complaint. Statutes of limitations that may apply to a legal claim are not tolled by the filing of an ethics complaint.
Complaints (initially called “grievances”) for violations of the HRPC can be filed by any person. A grievance form can be used, or an ordinary letter describing the lawyer's actions believed to be unethical can be filed with the ODC office. A separate grievance form or letter must be submitted for each attorney complained against. Click here for a generic grievance form
and here for instructions
The complaint letter should include:
- The lawyer's full name. A detailed statement of the facts believed to show misconduct on the lawyer's part.
- The date of each event involved in the complaint.
- Copies of any papers, such as letters, attorney-client agreement, court records, etc., which will help support the complaint.
The grievance form or letter must be signed and the original must be mailed or delivered to:
Office of Disciplinary Counsel
201 Merchant Street, Suite 1600
Honolulu, Hawai`i 96813
Facsimile and email submissions are not accepted for security reasons and because original signatures are required.
There is no time deadline by which a complaint must be filed; however, evidence can be lost and memories fade as time passes. Therefore, it is a good idea to file a complaint as early as possible.
In addition to completing the grievance form, you should provide copies (not originals) of as many of the following items listed below as possible:A copy of any written fee agreement with the attorney. If there was no written agreement, please explain your understanding regarding payment to your attorney (for fees, costs, etc.)
- Copies of the front and back sides of all cancelled checks and/or copies of receipts showing payments made by you to the attorney.
- Copies of all correspondence between you and the attorney.
- A written explanation of the exact nature of your complaint. Explain what the attorney did or did not do that forms the basis of your complaint. [NOTE: Citations to one or more provisions of the HRPC you believe the attorney violated are not required.]
- The last date you were in contact with the attorney and what occurred at the time.
- The title of the case, the case number, and the name of the court or administrative agency.
- Copies of any pertinent court or administrative documents in your possession.
- If you have hired a new attorney, please provide his or her name, address, and telephone number.
- Your daytime telephone and cell phone number (if you have a cell phone).
- The number of attorneys in the law firm involved in your complaint. If you don’t know, state “Unknown.”
When providing documents to the ODC, please provide copies only. PLEASE DO NOT PROVIDE ORIGINAL DOCUMENTS WITH LEGAL SIGNIFICANCE, SUCH AS - FOR EXAMPLE AND IF RELEVANT TO YOUR COMPLAINT - ORIGINAL COPIES OF WILLS, TRUSTS, AND/OR DEEDS. All documents received, whether originals or copies, become the property of the ODC, and are subject to future destruction.
WHAT WILL ODC RECOMMEND AFTER IT INVESTIGATES MY COMPLAINT?
ODC may recommend: (1) dismissal with a finding of no unethical conduct or that a finding of unethical conduct is not supported by clear and convincing evidence; (2) dismissal with letter of caution; (3) private informal admonition; or (4) formal charges. Formal charges initiate a formal disciplinary hearing that complies with the Rules of the Supreme Court of Hawai`i.
PRIVATE DISCIPLINE: INFORMAL ADMONITION, FORMAL ADMONITION OR REPRIMAND
First-time and/or relatively non-serious ethical violations usually result in the imposition of private discipline, of which there are three forms: (1) an informal admonition is imposed by the ODC without a hearing; (2) a formal admonition imposed by the Disciplinary Board following hearing proceedings; or (3) a private reprimand is imposed by the Disciplinary Board following hearing proceedings. Because a private admonition and private reprimand are imposed by the full Disciplinary Board it is considered a more serious sanction than an informal admonition.
The identity of a privately-disciplined attorney cannot be revealed by the Disciplinary Board or the ODC. However, disciplinary sanctions are cumulative, and the imposition of an admonition or reprimand in one case can be used against the attorney as an aggravating factor should he or she be found guilty of an ethical violation in the future. The previously private admonition or reprimand can then become public.
Under the Supreme Court Rules ODC cannot reveal an attorneys non-public disciplinary history. Thus, ODC can not state (1) that no complaints have ever been filed against an attorney or (2) that any complaints have been dismissed. ODC may only reveal whether an attorney has ever been publicly disciplined.
In addition to its authority to impose a private reprimand, the Disciplinary Board may, in more serious cases, sanction an attorney with a public reprimand -- with the consent of ODC and the respondent. Other recommendations for public discipline such as disbarment, suspension, censure or reprimand must be submitted by the Disciplinary Board to the Supreme Court.
Attorneys who have been disbarred or suspended may petition for reinstatement, but may not practice law until reinstated by Supreme Court Order.