THE ATTORNEY DISCIPLINARY & COMPLAINT PROCESS
INVESTIGATION OF COMPLAINT
Each complaint is reviewed to make sure the allegations fall within the jurisdiction of the ODC to investigate. If it does, and no further details are needed from the complaining party, a copy of the complaint letter is sent to the lawyer against whom the complaint was filed, and he/she is asked to submit a written response.
Investigations may also be initiated by ODC.
There is no statute of limitations or time limit in which to file an ethical complaint against an attorney, but the acceptable doctrine of Laches may apply when actual delay induces prejudice in present. There are 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 Complaints
Each complaint is initially reviewed by the Chief Disciplinary Counsel (CDC)or designee. If the CDC determines a potential violation has been articulated, the complaint is then assigned to an ODC Investigator under the supervision of the assigned Disciplinary Counsel (i.e. Chief, Deputy Chief, Assistant).
Opening an Investigation
An investigation will normally commence where well-stated facts (and not conclusory accusations) raised in the complaint, if assumed to be true, are sufficient to raise the potential for a finding of ethical misconduct
If the grievance arises from a minor dispute or misunderstanding between an attorney and client, efforts may be made to resolve the matter informally. 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 with Board approval the matter will be closed. However, if the problem cannot be resolved, an investigation may still be undertaken, and may lead to formal disciplinary process.
Decision Not to Investigate
ODC may determine at the outset that the complaint does not raise disciplinary questions or does not contain sufficient facts upon which to base an investigation. In such situations, with the concession of the Board, the complainant is informed of the determination in writing and the matter is closed. ODC will generally send a copy of the complaint to the lawyer (even though no response is required) to inform the lawyer of the complainant's concerns.
Decision To Investigate
When ODC has determined that a matter should be investigated, ODC notifies the attorney (who is 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 with 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 fails to fully cooperate during an investigation.
Once a formal investigation has commenced, it will not be dropped even if a complainant makes such a 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 is committing ongoing violations of the HRPC and poses a substantial threat of serious harm to the public. ODC may transmit the evidence to the Supreme Court. Upon examination of ODC’s evidence and any rebuttal evidence submitted by the Respondent, 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 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.
At the conclusion of the investigation ODC may recommend to the Board member assigned to review the investigation that the matter be: (1) dismissed with a finding of no unethical conduct or that a finding of unethical conduct is not supported by clear and convincing evidence; (2) dismissed for any other reason; (3) private informal admonition; or (4) that formal charges be commenced. Formal charges will then proceed in position of a formal disciplinary hearing in compliance with the Rules of the Supreme Court of Hawai`i.
Since ODC may investigate any matter brought to its attention, a complaint is not required before an investigation is initiated. Using independent sources of information, ODC can investigate attorney misconduct that would otherwise not have been investigated. Examples of sources from which ODC may obtain information to determine whether an investigation is warranted are inter alia: (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(s); (10) Bar Examiners; (11) Judges and other court personnel; (12) Attorney discipline offices in other jurisdictions; and (13) those Hawai`i's banks who are authorized to provide client trust accounts.
WHAT TYPE OF VIOLATIONS ARE INVESTIGATED?
A lawyer may be disciplined only for violating a specific ethical provision of the Hawai`i Rules of Professional Conduct ("HRPC") or a related rule (i.e. RSCH, RGTA, HRAP, HCRR, HRCC, HRDC, etc.). A violation must be proven by clear and convincing evidence of wrongdoing before discipline can be imposed.
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 found to be "negligent" or have committed malpractice for which the client may seek redress in the civil courts.
WHAT CAN YOU 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. 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.
HOW TO FILE A COMPLAINT WITH THE ODC
Complaints for violations of the HRPC can be filed by any person. A complaint 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 complaint form or letter must be submitted for each attorney complained against. Please refer to our sample complaint form and instructions for submitting a complaint.
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 help support the complaint.
· 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.
· 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.”
The complaint 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 complaint form or your own written complaint, 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.
· Copies of any pertinent court or administrative documents in your possession.
DO NOT PROVIDE ORIGINAL DOCUMENTS. All documents received become property of ODC, and may be destroyed without further notice.
WHAT CAN YOU EXPECT WHEN A COMPLAINT IS FILED?
You don't have to be the 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.
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. (RESTITUTION MAY BE ORDERED IN CERTAIN CIRCUMSTANCES)
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.
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; (3) private informal admonition; or (4) formal charges. Formal charges initiate a formal disciplinary petition which will then go through the hearing process, and the Complainant may be called as a witness.
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.
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 and costs assessed against Respondents. Ethics investigations are conducted without charge to any complaining party.
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:
· 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.” This is a higher standard than civil actions, so ODC may decline to pursue charges that are not clearly evident and subject to convincing proof.
· The ODC can defer to minor misconduct in certain special circumstances, and such deferral is done confidentially.
· The ODC can impose minor discipline (a Private Informal Admonition) with the concurrence of a member of the Disciplinary Board; the Disciplinary Board can impose more serious discipline such as a Private Reprimand or Public Reprimand; the Disciplinary Board may also recommend Public Censure, Suspension or Disbarment to the Supreme Court, which has the exclusive authority to impose such discipline.
· The HRPC and the Disciplinary Board Rules permit the dismissal of a complaint. If ODC determines the imposition of discipline is unlikely, it will make a recommendation to the Board to dismiss the matter.
· 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.