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


1
 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,
 

1(...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. 

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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
 

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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 

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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
 

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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 

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