Investigations against Hawai`i attorneys mostly begin based upon complaints (initially called “grievances”) submitted in writing by an individual. However, investigations also may be self-initiated by ODC.
There is no statute of limitations applicable to attorney discipline proceedings. There is also no standing requirement to bring a complaint, and a complainant need not suffer harm before filing a complaint. The Hawai`i Rules of Professional Responsibility applies to pre-1994 conduct. The Hawai`i Rules of Professional Conduct applies to post-1993 conduct.
Screening of Grievances
Each grievance form/letter is initially reviewed by the Chief Disciplinary Counsel or designee. The grievance is then assigned to one of ODC’s Investigators, who is supervised by the Chief Disciplinary Counsel and the Deputy Chief Disciplinary Counsel.
Decision to Investigate
An investigation will normally be commenced where the facts raised in the grievance, if assumed to be true, are sufficient to raise a viable issue under the ethics rules.
"Mediation"
If the grievance arises from a dispute or misunderstanding between an attorney and client which may be susceptible to resolution, an effort may be made to resolve the matter rather than undertake an investigation. For example, a client may complain that his or her attorney has not provided sufficient information regarding a pending legal matter. Alternatively, a client who has discharged an attorney may complain that the attorney has not returned the client's file in a timely manner. In these cases, ODC may contact the attorney and client to determine whether the problem can be resolved. If such efforts are successful, full investigation of the matter will be deemed unnecessary, and the matter will be closed. If the problem cannot be resolved, an investigation can still be undertaken.
Decision Not to Investigate or "Mediate"
ODC may determine at the outset that the grievance does not raise disciplinary questions or does not contain sufficient facts upon which to base an investigation or "mediation." In those situations, the complainant is informed of the determination in writing and is usually given direction on how to further pursue the grievance and/or directly resolve the problem. ODC may send a copy of the grievance to the lawyer (even though no response is required) to inform the lawyer of the complainant's concerns.
Decision to Investigate
Upon determining that a matter should be investigated, ODC notifies the attorney (who is then referred to as the “respondent”) in writing of the investigation. The respondent is directed to submit a detailed written response concerning the matter to ODC within a specified time. A respondent has a duty to respond and cooperate in an ethics investigation. Failure to do so constitutes a separate act of misconduct. Providing false information during the ethics investigation also violates the attorney’s professional obligations, and constitutes a separate act of misconduct. ODC may also issue subpoenas. Summary suspension may be ordered by the Hawai`i Supreme Court when a respondent has failed to fully cooperate during an investigation.
Once a formal investigation has commenced, it cannot be concluded merely upon the complainant’s request.
In addition, at any time during an ethics investigation or formal disciplinary proceeding, ODC may pursue an interim suspension of the respondent if ODC receives sufficient evidence demonstrating that an attorney has committed a violation of the HRPC and poses a substantial threat of serious harm to the public. ODC may transmit the evidence to the Supreme Court and contemporaneously make a reasonable attempt to give notice. Upon examination of ODC’s evidence and any rebuttal evidence submitted by the attorney, the Supreme Court may enter an order immediately suspending the attorney, pending final disposition of disciplinary proceedings predicated upon the conduct causing the harm, or may order such other action as it deems appropriate.
ODC bears the burden of proving allegations of the Petition, as well as any aggravating circumstances, while the respondent bears the burden of establishing defenses and mitigating circumstances.
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.
Self-Initiating Investigations
Since ODC may investigate any matter coming to its attention, a grievance is not required before an investigation is begun. Using independent sources of information, ODC can investigate attorney misconduct that would otherwise escape investigation. Examples of sources from which ODC may obtain information to determine whether an investigation is warranted are: (1) public listings or court files concerning litigation brought against attorneys; (2) State and federal prosecutors and law enforcement agencies; (3) other disciplinary investigations; (4) news media; (5) Consumer Protection or Ombudsman's offices; (6) State and federal tax authorities; (7) Judgment listings; (8) State and federal legislators; (9) Bar Association; (10) Bar Examiners; (11) Judges and other court personnel; and (12) Attorney discipline offices in other jurisdictions.