Ruling on attorney criticized
By Jim Dooley
Advertiser Staff Writer
A substitute panel of the state Supreme Court finally ruled yesterday, three years after being asked to suspend Hawai'i Supreme Court staff attorney Alvin T. Sasaki from practicing law for three years, and reduced the penalty to public censure and 300 hours of community service.
Honolulu attorney Gilbert Butson, who chaired the disciplinary hearing committee that recommended Sasaki be banned from practicing law for three years, said yesterday of the ruling, "I am profoundly disappointed by this decision. I believe the facts warranted a substantial suspension of Mr. Sasaki's license to practice law."
All five members of the Supreme Court had disqualified themselves from hearing the disciplinary case against Sasaki, saying that the employer-employee relationship posed a conflict of interest.
Sasaki, a former chief deputy in the Public Defender's office, admitted to numerous acts of misconduct, almost all between 1988 and 1993, when he was in private practice. They included falsely notarizing 18 legal documents, lying under oath when questioned about the notarizations, and lying to an investigator from the state Office of Disciplinary Counsel.
Sasaki and his attorney, Keith Agena, did not return calls for comment yesterday.
His attorneys have argued that the actions were aberrations in a long career otherwise unmarred by ethical breaches. And his lawyers said the lengthy passage of time between the misconduct and disciplinary proceedings should result in a punishment of no more than three months' suspension.
But four members of the panel — Circuit Judges George Masuoka of Kaua'i, Shackley Raffetto of Maui, Ronald Ibarra of the Big Island and Gary W.B. Chang of O'ahu — ruled yesterday that Sasaki should be censured publicly and perform community service.
"While we view (Sasaki's) conduct as a matter of extreme gravity, the mitigating factors — including the passage of time and (Sasaki's) clean record since the incidents occurred — lead us to believe that (Sasaki) is unlikely to engage in this type of misconduct again and that a suspension is not warranted," the majority decision said.
A fifth panel member, O'ahu Circuit Judge Dan Kochi, dissented, saying, "I believe some period of suspension is warranted."
The case was unusual in the amount of time it took for the panel to rule.
The Supreme Court has averaged two to three months to act on recommendations for suspension or disbarment of attorneys received since 2000, according to figures compiled by the Office of Disciplinary Counsel, an arm of the Supreme Court that investigates lawyer misconduct and recommends sanctions. In one case, submitted in late 2000, the court took one year to decide.
Court spokeswoman Marsha Kitagawa last month declined to discuss reasons for the delay, citing confidentiality rules covering pending legal matters. She could not be reached for comment yesterday.
Former Hawai'i Supreme Court Justice Frank Padgett called the delay "unconscionable."
Padgett, who left the court before Sasaki was hired as a staff attorney, said some delay could be expected because the substitute justices were on four different islands. But taking three years to issue a ruling "really shouldn't happen," Padgett said. "There's no excuse for it. It's in the best interests of the parties involved and of the public to handle it quickly."
Norman Lau, a lawyer who testified in the disciplinary hearing against Sasaki, said one of his clients had lost ownership interest in a house and paid more than $5,000 in legal fees and expenses because of Sasaki's misconduct.
Yesterday, Lau said he, like Butson, was "profoundly disappointed" by the decision.
Sasaki had been publicly reprimanded by the Supreme Court in 1993 — shortly before being hired as a staff attorney — for falsely notarizing signatures on a mortgage document. An investigation into additional improper acts by Sasaki and his former partner Jonathan Ezer continued intermittently for the next seven years, according to court files. Ezer resigned from the practice of law two years ago in the face of unspecified misconduct charges brought against him by the Office of Disciplinary Counsel.
The disciplinary board of the ODC found that Sasaki had lied about past misconduct when questioned by an ODC investigator in November 1993, less than a month after he began working as a Supreme Court staff attorney.
The committee noted that Sasaki had cooperated with investigators since 1996, expressed "great remorse for his actions," was highly respected by his peers for his integrity both before and after his misconduct and had shown "exemplary behavior since the last misconduct in 1993."
The hearing committee and disciplinary board, made up of volunteer attorneys, recommended a three-year license suspension.
Sasaki's lawyers told the court he "has suffered tremendously from guilt for his misconduct and has fully cooperated in these proceedings."
Supreme Court Justice Paula Nakayama testified during the disciplinary committee hearing that the entire Supreme Court considered Sasaki's work "wonderful" and praised his "stellar performance and reliability."
Judiciary spokeswoman Kitagawa said last month that Nakayama testified at the Sasaki disciplinary hearing because she was subpoenaed to appear.
The Hawai'i Supreme Court's revised code of judicial conduct forbids judges from testifying voluntarily as character witnesses in legal proceedings, and discourages such testimony even when a judge is subpoenaed to appear.
"Except in unusual circumstances, where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness," according to a commentary to the code.
Former Justice Padgett said Nakayama's testimony was "very unusual," but added that he did not know enough about the circumstances to say whether she should have testified.
Sasaki's attorney at the time of the hearing, Chester Kanai, could not be reached for comment. Attorney Agena, who represents Sasaki now, also would not comment on the issue of Nakayama's testimony.
Reach Jim Dooley at jdooley@honoluluadvertiser.com or 535-2447.
