The Judiciary’s Chief Disciplinary Counsel, Bradley Tamm, responded to recent comments on a recent post here about his office’s case that resulted in the resignation in lieu of discipline of a senior partner in one of the state’s largest law firms (see “Fraud allegations lead to resignation of prominent business attorney“).

He objects to some commenters who “perceive resignations as an escape from accountability by the accused,” and spells out why he views cases like this as successful because they essentially result in disbarment without the cost and risk of full disciplinary proceedings.

His basic point is very well taken, but he leaves out one essential point which may not be apparent to all readers. That is, the Office of the Disciplinary Counsel (ODC), along with its 18-member Disciplinary Board, do not have the authority to bring criminal charges, even in those cases where evidence gathered as part of their investigation indicates charges might be appropriate.

The system of attorney discipline is summarized on the Disciplinary Board’s website.

Hawai`i’s lawyer discipline system consists of four parts: the ODC; Hearing Officers/Committees; a Disciplinary Board appointed by the Hawai`i Supreme Court; and the Court itself.

The ODC investigates and prosecutes ethical misconduct claims against attorneys; Hearing Officers/Committees adjudicate the cases and make recommendations for attorney discipline; the Disciplinary Board reviews the matters and, depending on their deliberative disposition, either imposes lesser sanctions or recommends more serious sanctions to the Supreme Court; the Supreme Court considers the recommendations of the Disciplinary Board for public censure, suspension and disbarment. The system is designed to protect the public and preserve the integrity of the judicial process and legal profession.

Tamm’s email is printed below in its entirety.

Mr. Lind,

I write to clear up what appears to be a misconception by the public as to a “Resignation with Disciplinary Charges Pending” … some public comments seem to perceive resignations as an escape from accountability by the accused.

This is a misperception.

Disciplinary resignations are permitted under Rule 2.14 of the Rules of the Hawai?i Supreme Court, and the title of that rule is: “Resignation in lieu of discipline or disbarment by consent of attorneys under disciplinary investigation or prosecution” (emphasis added.) Contrast with RSCH Rule 1.10 (Resignation or retirement from the bar while in good standing.)

To make this clear, Rule 2.14(d) specifically states: “Resignation in lieu of discipline is a disbarment for all purposes under these rules, including reinstatement” (emphasis added).

Resignations usually occur in situations where the respondent attorney knows the “jig is up” and it is hopeless to fight the charges.

Disciplinary resignation is a win for the public in that the process is very expedited and cost efficient. It also results in the most severe sanction that can be imposed in disciplinary proceedings – Disbarment; without risk that the hearings officer/committee, the Disciplinary Board, or the Hawai?i Supreme Court might disagree with ODC and impose a lesser sanction.

Finally, in cases of disciplinary resignation, the entire record, although abbreviated, is open for public inspection. RSCH Rule 2.14(c).

How the public could perceive a disciplinary resignation to be a process that cheats justice boggles my mind; I see it exactly the opposite.

Thank you for allowing me to comment here; we are regular readers of your blog, and while we may not agree with everything you say, we respect your opinion.

Aloha,

Bradley R. Tamm
Chief Disciplinary Counsel