Veteran criminal defense attorney Earle Partington faces possible disbarment from the practice of law in Hawaii “unless he shows cause as to why such discipline is unwarranted.”

The Hawaii Supreme Court, acting on a petition filed by the Office of Disciplinary Counsel, issued an order last week under a “reciprocal discipline” rule which requires Hawaii to consider imposing “the same or substantially equivalent discipline” when an attorney is sanctioned for misconduct in another jurisdiction.

Partington’s current legal woes are the latest chapter in his lengthy and rather quixotic attempt to challenge findings that he had violated rules of professional conduct while representing a Pearl Harbor sailor in a 2006 court martial proceeding. A string of unsuccessful legal appeals link that 2006 proceeding directly to the latest disbarment process.

Documents show Partington told California authorities he deliberately refused to comply with court rules in order to trigger the disbarment proceeding, which he believed would create an opportunity to reargue his longstanding claim that the U.S. Navy violated his due process rights in the course of the 2006 case, despite the obvious risks involved in the unusual legal strategy.

The State Bar Court of California, in its January 2020 decision and order recommending that Partington be disbarred, noted as a mitigating factor he had 37 years of practice without facing prior disciplinary action. This appears to refer to the period beginning when he was admitted to the practice of law in California in January 1970, and continuing until the 2007 disciplinary action by the Navy Judge Advocate General. Subsequent disciplinary actions cited by the California court appear to have all been related to the original Navy case.

Partington, who has been practicing law in Hawaii since 1975, broke into the headlines and public prominence again last year when he was a surprising late addition to the defense team of former Honolulu deputy prosecutor Katherine Kealoha in the middle of her federal corruption trial. Kealoha, her husband, former Honolulu Police Chief Louis Kealoha, and several police officers were convicted in the case.

Civil Beat reported at that time that Partington had earned a reputation as an aggressive and sometimes controversial defense attorney “known to take some unorthodox approaches.”

Retired Intermediate Court of Appeals Judge Dan Foley and Partington’s former law partner, described Partington as a talented and aggressive attorney, but also told Civil Beat: “He unnecessarily pissed off a lot of people, but that was just who he was.”

Court records show Partington has several active cases on appeal in state courts, but the Hawaii Supreme Court order said it could not determine whether he is currently in the state.

In the 2006 Navy case, Partington successfully negotiated a plea agreement in which his client pled guilty to lesser charges while more serious charges were set aside. Then, in a subsequent automatic appeal, Partington argued that all charges, including those to which his client pled guilty, should be dismissed because of what he argued were violations of the defendant’s due process rights.

In a 2007 decision, the United States Navy-Marine Corps Court of Criminal Appeals rejected Partington’s argument and affirmed the convictions. The court went further by “expressing concern about Partington’s ‘unsavory tactics’ and stating that Partington’s appellate brief had contained ‘disingenuous’ arguments, ‘misrepresentations of the record,’ and ‘wholly unsupported allegations of error,’” according to the summary in a subsequent decision in Hawaii’s federal district court. This in turn led to an investigation by the Office of the Judge Advocate General of the Navy of “potential professional responsibility violations.”

That finding by the Navy Judge Advocate General’s office, which led to Partington being indefinitely suspended from practicing law in Navy JAG proceedings, set in motion a cascading series of similar disciplinary actions as state licensing officials in Oregon, California, Hawaii, Oregon, California, and the District of Columbia, along with other military courts and the U.S. Federal District Court in Honolulu, were notified of the Navy’s action and began their own reciprocal discipline proceedings.

Meanwhile, Partington has repeatedly but unsuccessfully fought the Navy’s charge of misconduct in civil courts.

A decade ago, Partington filed a civil lawsuit in the U.S. District Court for the District of Columbia alleging his constitutional rights had been violated by the Navy’s administrative decision to suspend him from appearing in Naval courts. The court ruled against Partington, who then appealed.

The appeal was heard by three-judge panel from the Court of Appeals for the D.C. Circuit that included Brett Kavanaugh, now a U.S. Supreme Court Justice. The American Civil Liberties Union filed an amicus brief supporting Partington’s position. One of the two ACLU lawyers on that brief was Dan Gluck, senior staff attorney and later legal director in the ACLU’s Honolulu office. Gluck is now executive director of the State Ethics Commission.

The D.C. appeals court, in a July 2013 decision, rejected Partington’s challenge and upheld the district court, finding it had committed no reversible error. The appeals court decision found the Navy had provided sufficient due process before handing suspending Partington.

In its decision, the court found:

In reviewing this exhaustive record, it is clear to us that Partington received ample due process. He was informed numerous times of the specific violations of the NJAG’s Rules of Professional Conduct alleged against him and was provided with several opportunities to respond, including an opportunity for a hearing that he effectively waived. It is therefore apparent that Partington was not deprived of the fundamental due process rights of notice and hearing….

Between 2013 and 2015, Partington made several further legal efforts to overturn the court decisions. All were unsuccessful. In April 25, the U.S. Supreme Court declined to review his case.

That legal background is important in understanding how Partington finds himself facing possible loss of his license to practice in Hawaii after already being disbarred in California.

His decision not to comply with California court rules, a decision which led to being disbarred in that state and prompted the Hawaii disbarment proceedings, was apparently an unconventional and, so far, unsuccessful attempt to once again find a venue to argue the Navy had violated his constitutional rights more than a decade earlier.

From the April 24, 2019 decision and order by the State Bar Court of California:

At trial, Respondent claimed essentially that he purposely failed to file his rule 9.20 compliance declaration in order to trigger disciplinary proceedings and a trial, during which he could argue his due process claims against the underlying disciplinary matter in the United States
Department of the Navy, Office of the Judge Advocate General (JAG) case. Respondent testified at the trial in this present matter, “if I had not violated probation, I would not have had any court left to go to.”

See:

Petition for Reciprocal Action Pursuant to RSCH RULE 2.15.

Partington v. Houck JAGC USN, US Court of Appeals for the District of Columnbia, July 23, 2013.

In the Matter of Partington, U.S. District Court for the District of Hawaii, October 12, 2017.

“Who Is Earle Partington And What’s He Doing In The Kealoha Case?” Civil Beat, August 5, 2019.