 Good morning and aloha everybody. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea and today our program is called OMG. It's the ODC and our guest is Bruce Kim who is the Chief Disciplinary Council of the Office of Disciplinary Council of the Supreme Court of the State of Hawaii and that's a long title but it's well earned by my friend for over 50 years Bruce Kim and Bruce welcome to our show good to see you. Mark thanks so much for having me this morning it's great to see you again and reminding me that it's been over 50 years and as long as I'm not in front of you at the ODC I guess it's okay because lawyers think you know when you hear from the ODC maybe you're in trouble or maybe there's a problem but maybe tell our viewers what is the ODC for first of all. Office of Disciplinary Council is an arm of the Hawaii Supreme Court and basically there's a board the disciplinary board of the State of Hawaii Supreme Court which basically administers the Office of Disciplinary Council so in a way in a way of describing it would be something like we are a special master of the Hawaii Supreme Court appointed as special masters for the Hawaii Supreme Court in order to prosecute investigate and prosecute instances of attorney ethical violations. Okay ethical violations all right now I'll get into that a little bit later but ethical violations how do you how do you hear about ethical violations or how do you how does that come before the ODC? Well that's where the whole process starts and generally speaking the process starts through complaints that are filed with our office these are written complaints are available at our website people complain about their lawyers or other lawyers or the conduct of their lawyers or other lawyers we also get complaints from lawyers themselves who may be litigating against a particular lawyer and and file complaints as well but the vast majority of complaints come from members of the public and generally from clients or who are represented by clients by attorneys who they accuse of committing an ethical violation. Okay and so the ODC is subject to the Supreme Court it's organized by the Supreme Court is that right? Correct by rule and and you are the chief disciplinary counsel correct that's the right title I got correct okay what do you do what's what's your job and I assume you have some lawyers that work under you correct what is your job specifically at the ODC? Well right I thought I've only been on the chief for about a month now I was appointed by the disciplinary board on May 16th of this year to become the disciplinary chief April or March 16 March March 16 correct so prior to that I was just a line assistant disciplinary counsel for about a year and a half litigating cases on behalf of the agency so since I've taken over I've learned that there's a lot of administrative issues that have to be dealt with on a regular basis is very time-consuming we also interface with other portions of the bar including the Supreme Court and the Hawaii State Bar Association as well as nationally through various organizations the National Organization of Bar Council and the National Organization of Bar Council state chiefs so it's a very like a broad that the portfolio is very broad and it deals with ethical complaints correct and you're the head of it and you get these complaints now what what gives you the background what what is your background to be head of this this or this organization that oversees complaints against lawyers that's a very good question people may want to ask that question you know of me and as you know I was in private practice for quite a number of years approximately 32 years and during that time I was pretty much all in civil litigation had a wide exposure to different types of litigation involving real property personal injury employment law etc. this this that particular background was well suited to what I'm doing now because the complaints that we get are involving all types all types of law all segments of the law practice wide variety correct and that would be kind of match your practice of what you did when you were in private practice exactly so it was really helped me get adjusted to the kinds of problems that we're seeing you know in the bar today as well as prosecuting these particular violations was very helpful and then I had a year and a half a little under over a year and a half of experience as an assistant disciplinary counsel where I got to see the nitty gritty prosecution of the case from investigation all the way through a hearing so those experiences really helped me you know in terms of the context of what the kind of what kind of work I'm doing right now as the chief and and you know I got I got to say you your dad was an attorney correct too and was very well respected here in our community yes and so you come from a legal background yes yeah and and did you feel that that's helped you too no absolutely you know my father was obviously very influential in my personal legal career and he was a great mentor to me he as well did a number of different types of cases I don't know if many people know this in the bar but I think my dad was like the second Korean American attorney licensed in the state of Hawaii well the first Korean American attorney was Herbert Choi who was his first cousin there's a number of Kims in our family actually who became lawyers afterwards people like Patricia Park and Sean Sean Kim so it's it's kind of a family affair yes background that you have now the odc and I would you know I was kind of in a way I was kidding about you know lawyers are afraid when they hear from the odc but it's it's serious as you say it's the odc gets involved when there's an ethical type of complaint for what is what is an ethical complaint and what are we talking about what is ethics what what type of complaints are we talking about that the odc gets just generally mm-hmm for the audience out there you know that that's really an excellent question because a legal profession involves at this very core the issue of trust and not not only trust by between an attorney's client but between the attorney and the court as well as the attorney and the public so there's a lot of trust placed in attorneys so the system of discipline I think evolved over the years since the American judicial system was established and mostly now these that disciplinary function is performed by the actual courts themselves and there's a latin term called sui generis so that term is the basis for the jurisdictional actions that are taken by the various courts throughout our country both federal and state to police the practice of law before them and it's a very because of this issue with respect to trust it's a very heavy responsibility for our office obviously we need to make sure that the attorney has their opportunity to be heard as well as notice of the charges against them and we have to make sure under the system that we have here in Hawaii and throughout the country that we're doing fair by the attorney as well as the public the judiciary and the profession to police our profession so unlike many professions in this in our state and in the country our profession has the unique privilege of disciplining itself yeah and that's that to me is a very weighty responsibility for me in my office really yeah it is because and it could bring up I mean we got to trust you mm-hmm I mean that we have to trust you're talking about trust from the lawyer standpoint but you have the big responsibility yes of making sure that everything you do yes can't be a problem with trust that you have to do the right thing right yeah that's a big responsibility me and my staff so thanks for reminding me how many staff staff members you know right now we have I have a deputy chief and a line assistant disciplinary council and we're process of filling out additional spots okay you talk about trust what within that trust title what what subtitles are there what what type of trust things are we concerned with you know and I I think this is a you know to finish off your original question is the fact that all of the ethics rules of ethics I think relate back to trust and this relationship between attorneys their clients the public other attorneys in the court and in order for justice to function we have to have that trust with each other and when people violate that trust that's where the rules of ethics come into play so it might involve things like misappropriating funds from your trust fund a trust fund for the viewers out there are basically funds that are required by rule to be maintained in a separate account and not withdrawn until they're actually earned so attorney has an a client a client trust fund and some of the ethical complaints are about taking money out of that when they shouldn't when they shouldn't have done it and so the attorney acts as a fiduciary and it's in our rule to that that word fiduciary when they hold funds for their clients or third persons in that account so we're very careful about and and the rules are very clear about not taking out money before you earn it and not commingling earned fees in that account with the the funds of your clients because there's a host of problems that could arise by those that type of conduct and so that's an example of the type of rules we administer again based on the issue you know the overarching concern about maintaining this trust and why it's so critical especially for our profession was self-regulated so I can see that clients would be very concerned about money and the money that they've entrusted to their lawyer to put in their account and not take it out before it was due I can see that's a big big concern are there any any other type I mean what other type of client trust issues arise and then you also meant mentioned attorney complaints sometimes what give me some examples of that sure again taking off on the issue of trust we have complaints involving things like clan flicks of interest and again this is the trust between the attorney and his his or her client right that when they go to the attorney there they believe and hopefully the attorney is acting in there that clients soul interest and not the interest of some other person or third party so there's a very extensive rules in the rules of professional conduct dealing with conflicts of interest and obviously if you retain an attorney to represent you you have to trust that attorney is going to be representing you and not somebody else and maybe he had a prior relationship or some somehow he knows the other person and you the client wants to be assured that the attorneys working just for him absolutely it's the duty of loyalty and then also the conflicts can arise with the attorney he him or herself have conflicts with the client because they have interest in other clients they may have business or financial interest that may conflict with their client so there are also rules within the rules of professional conduct dealing with transactions between attorneys and clients as well I see so a client engages an attorney sometime during that engagement has a question about trust either funds or some conflict of interest and then they they send it on to to you to odc to the odc now I want to go into the procedures after our break but what type of complaints do attorneys make about attorneys to you I can't say categorically that it's limited exclusively to certain kinds of complaints because there's complaints all kinds of complaints but a lot of attorney complaints attorney versus attorney complaints arise from disputes that have arisen from litigate ongoing litigation or past litigation so they're already fighting correct with each other yes and they get angry about something the other attorney does and says that's unethical right and and we're obligated to investigate those complaints as well because some of them may be well well found it I see and then you would take in the complaint from the attorney of the client and proceed further on what has to be done with a performer normal investigation and you on one other point again this issue of trust actually courts need to trust attorneys to and a number of the rules within the rules of professional conduct deal with attorneys relationships with courts for instance there's a rule against lying to a court which is obviously a no-brainer right there's a new hope yeah you would hope you would hope there's rules about not disrupt disrupting a tribunal and we had a case on on that just last year that I was involved in and where an attorney representing one of the parties to a temporary restraining order proceeding went up to the pro se petitioner and started to accost this woman in a very loud tone of voice and used repeatedly a vulgar sexual slurs against this woman and I think that was in the news also I hope so let me I want to take a break right now and then we'll come back and talk about the actual procedure sure okay so thanks thank you my name is Calvin Griffin host of military in Hawaii which airs here on think tech Hawaii every Friday at 11 a.m. police Jonas will be talking about issues concerning our military veterans community and other related issues that concern all of us hi I'm Stephen Philip Katz I'm a licensed marriage and family therapist in Hawaii and I do a show called shrink wrap Hawaii where shrinks and sometimes other people come on and talk about the art and science of psychology talking to people relationships and so if you are curious about shrinks and want to be shrunk and don't know where to go tune into shrink wrap Hawaii all right all right welcome back to think tech Hawaii law across the sea with Bruce Kim the chief disciplinary counsel of the odc omg it's the odc and that's title is all my fault so I apologize to you Bruce but it's good to have you here good to have you think thank you for telling us about the odc what it does it's a pleasure my pleasure my now we talked about different types of complaints that you get you get complaints about from clients about trust funds or maybe conflicts of interest and you get complaints from attorneys and I get the gist that a lot of it happens during litigation and during a fight in court lawyers can get pretty tied up and angry at times and they may find that things that the opposing party does the opposing attorney does they don't like and they report to you okay so I get it I get it you get complaints from clients you get complaints from attorneys various topics all to do with trust which I like you the way that you can categorize that I mean yeah it all has to do with trust really and and the trust of a attorney by the court and by the client and by other counsel what happens you get a complaint and you and you mentioned that I think that the forms for complaints are on your website correct odc Hawaii comm okay I'm a client or an attorney I want to file a complaint what what's the whole procedure to do that what happens all right it starts by downloading our form filling it out and signing it attaching whatever relevant documents you think is necessary sending it into our office when we do when we receive a complaint in our office there's an initial intake done the complaint is reviewed by several different parts of our office I'm sorry when you say parts of your office I'm gonna stop you every so who what are the parts of your office generally it's reviewed by the legal staff including me as chief okay so after the decision is made to go forward on the complaint some of them are just not within our jurisdiction I know people might be confused about the viewers might be concerned about that but we only have power to act within on cases that are within our jurisdiction for instance we can't we don't have power to act on ethical violations that might have occurred in another state unless it was committed by a Hawaii lawyer and we don't have power to act in complaints against judges for instance there's another body for complaints against judges so those are the type of issues dealing with jurisdiction that we're also aware of and but after the review is done and the decision is decided is made to move forward it's assigned to the investigator the investigator will conduct a thorough investigation okay let me stop you right now you so the odc has its own investigator staff yes I see and they're on staff yes and they're dedicated to the odc correct they work for the odc presently there's three of them including a supervising investigator well that's a recent change in a very very good change for our office that we have a supervising investigator okay so what does the investigator do they will generally the first step is to contact the respondent we refer to them as the respondent the attorney who the complaint is made against is the respondent we will send the respondent a copy of the complaint and ask for a written response there may be specific issues that we want them to address that would be in the cover letter sent to the respective attorney and does the attorney that's the respondent does that attorney get the whole complaint get everything yes and does the investigator or anybody on your staff talk to the complainant beforehand or do they just take it and evaluate and send it out is there some sort of interaction yeah there is a sort of screening process done by the investigative staff after they review the initial complaint they may contact the respondent directly and ask them just informally what's this about they may contact the complainant because they think that there's more information the complainant may have but they haven't provided it yet to odc so we may send out a separate inquiry to them either telephonically by email or in writing asking them to please supplement their complaint with additional information specific additional information that we need to go forward so at that point you're trying to gather the facts correct so the facts again we're not rushing to judgment here we're taking our time and we're going step-by-step through this process and even at that level some complaints are dismissed because after we talk to the respondent where the complainant won't cooperate with us anymore and we don't get the essential information there's no point in going forward and then you advise the parties yes in writing okay now let's say it goes forward what happens next you got your investigator what does what does the investigator will go step-by-step through the complaint in interview or communicate with relevant witnesses as I said the the initial first step is to send the complaint to the respondent attorney and ask for their detailed response written response of the complaint can the attorney say hey I'm not going to answer those questions I take the fifth or something like that that's a good question because we're dealing with that issue right now there's actually a Supreme Court rule called 2.12 a we can ask for an interim suspension if their attorney refuses to cooperate with their office it's also a separate ethical violation for an attorney not to cooperate with our office so during the course of an investigation that's why you know one of my pitches this morning is that when attorneys do receive a letter from ODC they should respond of the more they dialogue with us the better it's going to be for them but saying no or throwing it in the circular file is probably not a good idea it just aggravates the situation in most cases and it's not going to go away correct okay we don't need their cooperation you know and again like I said it's a separate ethical violation to not cooperate with office all right so you do the you do the investigation what what happens what happens next you're gathering facts gathering more information talking to parties what happens next correct so eventually the investigation is concluded at that stage again the complaint may be dismissed for lack of sufficient evidence in our in our office the burden that's been placed on us is to prove each of the allegations by clear and convincing evidence which is not exactly beyond a reasonable doubt for the viewers out there but it's not the mere preponderance standard in most civil cases so we have a heavier burden to prove in these cases that's why it really behooves us to take our time in these investigations and make sure the case is thoroughly vetted at all levels in the complaint process okay and and if you dismiss a case and the client or the complainant thinks that was wrong can they do something about that they could ask for the that decision to be reconsidered at that stage of the proceedings and that would be by you or by the fire or by the board or by who you would be done by reviewing board member I see so okay and then all right so you complete the investigation right you reach a decision to proceed you think there's an ethical violation you've concluded that yes and right that you made the conclusion is that within the board that's that's the that's when they decide to go forward that's what they've concluded correct so the way that the way that ends up is that after the attorney receives the investigative report and again these are in our board rules these procedures are in our board rules the cases sent out for review by a reviewing board member of the board of this morning board of the Supreme Court of the state of Hawaii that the reviewing board member performs a really important function in this process because up to that point it hadn't been handled all entirely within the odc but now a member of the board reviews the report as well as the evidence has been presented and generally copy of the proposed petition for discipline and makes a decision based on their review of the matter with it to proceed with it to dismiss okay so and that's one board member one board making that decision and that that I guess that goal is you can have somebody that's apart from the odc that governs the odc takes a look at it and if they have any questions can they come back and ask you yes talk to you about it okay they can return it to us and ask us to open it reopen the investigation because of certain things that the reviewing board member catches okay so again this it's a step by process step by step process and there's no rush to judgment so to speak is carefully reviewed at each one of these steps because it's an important decision ultimately the decision to prosecute and it affects the livelihood in the future of of individuals who are lawyers in the state of Hawaii right but most importantly the decision to prosecute is to protect the public protect the public okay i'm glad you told me that yes okay so that that's the ultimate goal that is the sole goal of our office is to protect the public protect the integrity of the profession protect the integrity of the courts okay many of the response believe that it's there to punish them but no the Supreme Court has said in multiple jurisdictions including the ABA has said the purpose of disciplinary action is to protect the public okay let's say what happens next then you you got a complaint that has been approved by a board member what's the next procedure then uh once we obtain approval by the reviewing board member to proceed with prosecution we generally send out what's referred to as a 20-day letter to the individual respondent with together with a copy of the proposed complaint again this is another step another break so to speak in the process to allow the respondent attorney another chance to respond to these claims and then ultimately you would have type some type of type of hearing or resolution of some way that's where it's going and and during that 20-day period at time information is given to the respondent attorney as well about the voluntary settlement conference process which is again outside of the normal disciplinary proceeding it's it runs parallel to the disciplinary proceeding but it's another opportunity for the for the attorney in our office to divert this away from formal hearing and maybe reach some sort of a settlement and conclusion that doesn't involve bringing in a formal hearing before the board correct is that correct correct and oftentimes it runs it works out in a situation it's a win-win situation for the respondent and for our office as well as the public okay now we we are actually coming to the end of our program i don't believe that and i just like to ask you know i'd like you to just go back and give some advice to attorneys when an attorney hears from the odc what should we do what what should the you know what is the odc's position and what as attorneys should we do you know i think in the brief time that i've been at at the office and now as chief you know i really want to reach out to lawyers in our bar our bar i believe is very uh you know ethical in the sense that you know we we try to do the right thing and we do have a little spirit for each other but the the best thing to do is not to ignore any communications you get from the odc the best thing is always to take the time to respond i understand that it's sometimes very frightening it could be frightening but the best thing is try to reach out to our organization and get and communicate establish a really good working relationship with the investigator and or the prosecuting attorney and thank you for talking to us and reaching out to us and being being with us today and we'll have to come back and talk about more specific cases at some point i hope you'd be willing to do that that my pleasure thank you for having me thank you thank you