Thursday, October 12, 2006
by Mike Frisch [Updated with a link to find the opinion]
An effective attorney discipline system depends in large part on the ability of Bar Counsel to seek and obtain information from the accused lawyer, who often is the main source of information about the complaint. The attorney is duty-bound to cooperate and respond to the claims of misconduct. This duty provides an important justification for regulation of lawyers by lawyers.
A case just decided by the Hawai'i Supreme Court [go to link; click on Sept. 2006, go to 9/22/06, and open Breiner] tests the bounds of the duty to cooperate. The Court took the unprecedented step of removing the special disciplinary counsel from the case and ordered the Disciplinary Board to propose rules to protect accused attorneys from investigations that are too broad in scope and allowing protective orders against Disciplinary Counsel. Breiner v. Sunderland, decided September 22, 2006.
Myles Breiner is the subject of two bar complaints. Special Disciplinary Counsel asked him to respond to 26 questions in one complaint and over 150 questions with subparts in the other. Breiner sought and was granted a writ of prohibition. The Court found that the questions improperly sought admissions and legal conclusions on matters where the prosecutor had the burden of proof. The questions were characterized as "offensively imperious", reflected a "complete misunderstanding of the rules at best or... harassment at worst" and were "overbroad, uncivil, and abusive." The Court ordered the prosecutor removed, directed expedited review of the underlying complaints with dismissal as the remedy if the investigation takes more than six months and tasked its Board with proposing new rules regarding limits on subject matters that disciplinary counsel may investigate.
When an outlier case like this one comes along, there is the danger of an overeaction that can hamper the ability of the bar to investigate complaints of ethical misconduct. In D. C., the duty to cooperate was gutted by decisions that held that a general denial of misconduct sasified the duty to cooperate. We can only hope that the actions of one overly zealous prosecutor in Hawai'i will not intimidate disciplinary counsel around the country from doing their duty to fully and fairly investigate complaints.