Office of Disciplinary Counsel v. Kaiama
SCAD-16-0000522
| Haw. | May 2, 2017Background
- Respondent Dexter K. Kaiama filed a "Notice of Protest" (July 13, 2012) in Third Circuit litigation accusing the presiding judge of committing war crimes under international conventions.
- The Office of Disciplinary Counsel (ODC) charged Kaiama with violating Hawaiʻi Rules of Professional Conduct (HRPC) Rules 3.1, 3.5(b), 3.5(c), and 8.2 for filing the Notice.
- A Hearing Officer and the Disciplinary Board reviewed the matter; the Board reported to the Hawaiʻi Supreme Court. Kaiama contested evidentiary rulings but had opportunities to present written arguments and seek witness testimony.
- The Court found Kaiama proffered no evidence that the judge had been convicted of war crimes and that the allegations were neither opinions based on disclosed facts nor supported by sound legal theory.
- The Court concluded the filing was frivolous, made with reckless disregard for the truth, disrupted and harassed the tribunal, and harmed the judge’s integrity.
- Aggravating factor: substantial experience in practice. Mitigating factors: clean disciplinary record, absence of dishonest motive, and cooperation. The Court ordered a public censure and cost allocation, warning that further similar conduct could lead to suspension.
Issues
| Issue | Plaintiff's Argument (ODC) | Defendant's Argument (Kaiama) | Held |
|---|---|---|---|
| Whether filing the Notice accusing a judge of war crimes violated HRPC rules | The Notice was frivolous, harassing, disrupted the tribunal, and impugned the judge’s integrity in violation of HRPC 3.1, 3.5(b), 3.5(c), 8.2 | The filing was part of advocacy tied to jurisdictional and sovereignty arguments; Kaiama contested evidentiary rulings and sought to present witnesses | Court held the filing violated HRPC 3.1, 3.5(b), 3.5(c), and 8.2; allegations were false, not protected speech, and made with reckless disregard for truth |
| Whether the disciplinary process denied Kaiama due process via evidentiary rulings | ODC: disciplinary proceedings and Hearing Officer rulings were proper | Kaiama: he was deprived of opportunity to admit witness testimony and present evidence | Court held Kaiama had opportunity to argue for witnesses and submit written evidence; no due process violation found |
| Whether the accusations were protected opinion or defamatory/false factual allegations | ODC: accusations were false factual assertions, not protected; they alleged criminal conduct | Kaiama: framed allegations as legal opinion tied to broader jurisdictional claims | Court held allegations implied false assertions of fact (charging a crime), were not protected speech under Milkovich/Yagman line, and eroded public confidence |
| Appropriate sanction for misconduct | ODC: sanction warranted; suspension may be appropriate given seriousness | Kaiama: highlighted mitigation (clean record, cooperation, lack of dishonest motive) | Court found suspension would be warranted absent mitigation; weighed mitigating factors (which outweighed aggravation) and imposed public censure and costs |
Key Cases Cited
- Bank of Hawaii v. Kunimoto, [citation="91 Hawai'i 372, 984 P.2d 1198"] (Haw. 1999) (due process and disciplinary-procedure standards)
- Standing Comm. on Discipline of the U.S. Dist. Ct. v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (lawyer speech accusing judge of criminal conduct not protected; reckless disregard standard)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (opinion versus factual assertion analysis in defamation context)
- State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Okla. 1988) (discipline for personal attacks on government institutions and officials)
- In re Terry, 394 N.E.2d 94 (Ind. 1979) (discipline for false allegations against judge and standards for lawyer misconduct)