Office of Disciplinary Counsel v. Kaiama ( 2017 )

Electronically Filed
Supreme Court
SCAD-16-0000522
01-MAY-2017
SCAD-16-0000522 01:00 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
DEXTER K. KAIAMA,
Respondent.
ORIGINAL PROCEEDING
(ODC 13-006-9076)
ORDER OF PUBLIC CENSURE
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack and Wilson, JJ.)
Upon examination of the July 18, 2016 report filed with
this court by the Disciplinary Board of the Hawai'i Supreme
Court, the exhibits appended to it, and the record as a whole,
and upon full and careful consideration of the briefs in this
matter submitted to this court by Respondent Dexter K. Kaiama and
by the Office of Disciplinary Counsel, we conclude, by clear and
convincing evidence, that the record supports the violations
identified by the Disciplinary Board:1
specifically, that, on
1
We accept the Findings and Conclusions as amended by the
Board, with two exceptions. Based upon the Hearing Officer’s role as
finder of fact, we accept Finding No. 12 as proposed by the Hearing
Officer, and accept Finding 13, as amended to read “It was never
Respondent’s intent to be disruptive.” Nevertheless, insofar as we
join other jurisdictions in applying an objective test regarding such
conduct, and conclude Respondent Kaiama, at a minimum, leveled his
(continued...)
July 13, 2012, by filing the Notice of Protest and its
attachments in the Third Circuit litigation presided over by the
Judge in question, Respondent Kaiama, with reckless disregard as
to the truth or falsity of the allegation, accused the presiding
Judge of committing war crimes under international Conventions,
and thereby filed a frivolous document that served no legal or
practical purpose, in violation of Rule 3.1 of the Hawai'i Rules
of Professional Conduct (HRPC) (1994), harassed and embarrassed
the Judge, in violation of HRPC Rule 3.5(b), engaged in conduct
reasonably likely to disrupt the tribunal - and which did disrupt
the tribunal - in violation of HRPC Rule 3.5(c), and made
statements with reckless disregard as to their truth or falsity
concerning the integrity of the Judge, in violation of HRPC Rule
8.2.
With regard to Respondent’s arguments concerning the
scope of permitted testimony at the disciplinary hearings, we
note Respondent Kaiama had an opportunity to argue before the
Hearing Officer for the admission of witness testimony, and was
allowed to submit written evidence into the proceedings regarding
the legal arguments which he asserted supported his accusations
against the Judge. We therefore conclude the Hearing Officer’s
evidentiary rulings, made following the October 17, 2014 hearing,
1
(...continued)
accusations with a reckless disregard to their truth or falsity, we
conclude the record supports the violations of the Hawai'i Rules of
Professional Conduct identified by the Board.
2
and the general conduct of the proceedings did not deny
Respondent Kaiama’s rights to due process. See Bank of Hawaii v.
Kunimoto, 91 Hawai'i 372, 388, 984 P.2d 1198, 1214 (1999).
We conclude that Respondent Kaiama’s allegations are
clearly false upon the evidence in the record, as Respondent
Kaiama has not proffered any evidence the Judge in question has
been convicted of war crimes by any court or tribunal.
We further conclude the Respondent’s accusations were
not opinion based upon fully-disclosed facts, but were mere
allegations, based upon tenuous legal analysis of broad statutory
provisions which do not survive analysis. We conclude Respondent
Kaiama’s allegations “‘imply a false assertion of fact’” which
could “reasonably be interpreted as stating actual facts about
their target” which are not true, and the charge of war criminal
does, by its plain language, charge the Judge with “commission of
a criminal offense.” See Standing Comm. on Discipline of the
U.S. Dist. Ct. v. Yagman, 55 F.3d 1430, 1438 (9th
Cir. 1995)
(quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990)).
In sum, in the words of the United States Court of Appeals for
the Ninth Circuit, Respondent Kaiama’s accusations “erode public
confidence without serving to publicize problems that justifiably
deserve attention,” id. at 1438. As such, Respondent’s
allegations are not protected speech. Cf. State ex. rel.
Oklahoma Bar Ass’n v. Porter, 766 P.2d 958, 968 (1988). We
further conclude these allegations were made with a reckless
3
disregard to their truth or falsity, and were not assertions a
reasonable attorney, considered in light of all his professional
functions, would make in the same or similar circumstances. See
Yagman, 55 F.3d at 1440, U.S. Dist. Ct. v. Sandlin, 12 F.3d 861,
866-67 (9th
Cir. 1993); In re Terry, 394 N.E.2d 94, 95-96 (Ind.
1994); In re Comfort, 159 P.3d 1011, 1019-20, 1027 (Kan. 2007);
Kentucky Bar Ass’n v. Blum, 404 S.W.3d 841, 856 (Ky. 2013); In re
Cobb, 838 N.E.2d 1197, 1212 (Mass. 2005); In re Petition for
Disciplinary Action Against Nathan, 671 N.W.2d 578, 584-86 (Minn.
2013), In re Coe, 903 S.W.2d 916, 917 (Mo. 1995); Matter of
Westfall, 808 S.W.2d 829, 837 (Mo. 1991); Disciplinary Counsel v.
Gardner, 793 N.E.2d 425, 429 (Ohio 2003); Lawyer Disciplinary Bd.
v. Hall, 765 S.E.2d 187, 198 (W.Va. 2014).
We also emphasize Respondent Kaiama faces discipline
for the allegations made in the Notice of Protest, not for his
arguments in the underlying litigation that the court lacked
jurisdiction because of the continued existence of the Kingdom of
Hawai'i, an argument which, if successful, could achieve an
articulable objective for his client, i.e., dismissal of the
litigation. See ODC v. Burgess, No. 12608 (August 3, 1988)
(drawing a similar distinction and imposing a public censure for
Burgess’s personal denial of the de jure legitimacy of the
government of the State of Hawai'i and its courts, in so doing
repudiating his oath taken upon admission to the bar). By
contrast, the allegations for which Respondent Kaiama faces
4
discipline do not serve any discernible purpose within the
underlying litigation and, hence, cannot be characterized as mere
‘zealous representation’ of the Respondent’s clients. Nor do the
allegations bear a rational relationship to any previous opinions
of this or other courts of the State and, hence, are not good
faith arguments for an extension of such precedent. Nor was the
filing of the Notice justified for any other proper purpose:
Respondent Kaiama does not offer any specific evidence, cite to
any court rule or procedure of any other fora, or articulate any
reasonable legal theory to support his assertion that filing the
Notice of Protest was necessary to preserve the issue for review
by another forum. In short, we conclude that the allegations
serve no other purpose but to harass the presiding Judge by
threatening him with dire consequences for his previous and
subsequent rulings in the litigation.
Respondent Kaiama’s conduct warrants suspension, absent
mitigating circumstances. See American Bar Association Standards
for Imposing Lawyer Sanctions (2000), Standards 6.22 and 6.32;
ODC v. Ng, SCAD-12-414 (March 1, 2013); ODC v. Shea, SCAD-11-777
(May 1, 2012); see also ODC v. Cook, No. 28300 (March 6, 2007);
Gardner, 793 N.E.2d at 424, Sandlin, 12 F.3d at 862-63, 867; Cf.
Westfall, 808 S.W.2d at 838.
We find, in aggravation, that Respondent Kaiama has
substantial experience in the practice of law while, in
mitigation, we find Respondent Kaiama has a clean disciplinary
5
record, his conduct was absent a dishonest or selfish motive, and
he was fully cooperative with the disciplinary proceedings.
Therefore, in light of the mitigating factors, which outweigh
those in aggravation,
IT IS HEREBY ORDERED that Respondent Kaiama is publicly
censured for his misconduct. Respondent Kaiama is, however,
cautioned that further such conduct may result in a period of
suspension.
IT IS FINALLY ORDERED that Respondent Kaiama shall bear
the costs of the disciplinary proceedings upon the approval of a
timely-submitted verified bill of costs from the Office of
Disciplinary Counsel.
DATED: Honolulu, Hawai'i, May 1, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
6