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

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,

(...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.

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

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

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

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