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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

In re Sanctions Against EARLE A. PARTINGTON and 

ROBERT PATRICK MCPHERSON, Petitioners/Real Parties in Interest,

in

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, 

vs.

MAGGIE KWONG, Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-18-0000301

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-18-0000301; CASE NO. 1DTA-17-02539)

MARCH 5, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, JJ., 

WITH WILSON, J., DISSENTING.

OPINION OF THE COURT BY, McKENNA, J.

I. Introduction

This case concerns whether the Intermediate Court of 

Appeals (“ICA”) abused its discretion by (1) sanctioning 

attorneys Robert Patrick McPherson (“McPherson”) and Earl A. 

Partington (“Partington”) (sometimes collectively referred to as

“Counsel”) each in the amount of $50.00 based on Hawaiʻi Rules of 

Electronically Filed

Supreme Court

SCWC-18-0000301

05-MAR-2020

09:15 AM
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Appellate Procedure (“HRAP”) Rule 51 (2010) (“sanctions orders”) 

and by denying Counsel’s motion to reconsider the sanctions 

orders; and (2) whether the Office of Disciplinary Counsel 

(“ODC”) was authorized to thereafter send letters to Counsel 

indicating it was administratively disposing of the matter and 

that the sanctions orders could be used as evidence of 

aggravation in any future disciplinary proceedings. 

As explained below, we hold (1) that the ICA did not abuse 

its discretion by imposing sanctions on Counsel and denying the 

motion for reconsideration; (2) but that the ODC was without 

authority to treat the sanctions orders as administrative 

dispositions that might be used in the future as evidence of a 

pattern of conduct in aggravation.

We therefore affirm the ICA’s sanctions orders against

Counsel, but also order that the clerk of the court transmit 

this opinion to the ODC for appropriate action consistent with 

this opinion. 

II. Background

A. District court proceedings and notice of appeal

On July 17, 2017, the State of Hawaiʻi (“State”) charged 

Maggie Kwong (“Kwong”) via a complaint with “operating a vehicle 

under the influence of an intoxicant” (“OVUII”) in violation of 

Hawaiʻi Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2014). 
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After a jury-waived bench trial on March 14, 2018,1 the District 

Court of the First Circuit (“district court”) found Kwong guilty 

as charged and sentenced Kwong to pay a fine and various fees, 

as well as to attend a substance abuse program. Upon 

McPherson’s request, the district court delayed sentencing with 

respect to Kwong’s license revocation until April 13, 2018.

On March 14, 2018 the district court entered a judgment of 

guilt and Kwong’s partial sentence. On its face, the judgment 

indicated that further sentencing on “LR,” which appears to be 

shorthand for “License Revocation,” would take place on April 

13, 2018.2 Before that date, however, on April 3, 2018, a notice 

of appeal was filed by McPherson and Pedric Arrisgado 

(“Arrisgado”). At the April 13, 2018 sentencing hearing,

Arrisgado informed the district court of Kwong’s appeal. The 

district court did not proceed to sentencing with respect to the 

license revocation and stayed Kwong’s previously imposed partial 

sentence pending appeal.

On May 29, 2018, the ICA filed a notice indicating Kwong’s

jurisdictional statement was due on June 8, 2018 and that her

opening brief was due on July 9, 2018. On June 8, 2018, 

 

1 The Honorable William M. Domingo presided.

2 The district court used the standard “Notice of Entry of Judgment 

and/or Order and Plea/Judgment” form, which is also used for final judgments. 

This could create confusion as to whether a judgment is partial or final. 
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Partington entered an appearance for Kwong and filed a 

jurisdictional statement asserting the ICA had appellate 

jurisdiction over Kwong’s appeal. On April 12, 2018, McPherson

had filed a request for transcripts, and various transcripts 

were filed on June 12, 2018.

Counsel did not, however, file an opening brief on July 9, 

2018. Instead, two days later, on July 11, 2018, Counsel

submitted an amended statement of jurisdiction pointing out that 

appellate jurisdiction was lacking because sentencing had not 

been completed.

3 Counsel’s amended statement of jurisdiction 

stated in relevant part:

The Judgment filed below in the District Court of the First 

Circuit on March 14, 2018 . . . is not a final judgment. 

Sentencing was not completed on March 14, 2018, as final 

sentencing on Defendant’s license revocation was not held 

until April 13, 2018, ten days after the notice of appeal 

was filed[.] No final judgment has ever been filed. 

Defendant’s Notice of Appeal was timely filed pursuant to 

Rule 4(b)(1) of the Hawai[‘]i Rules of Appellate Procedure 

on April 3, 2018[.]

. . . . 

The Judgment below did not dispose of all the claims 

against all the parties as sentencing was not complete. 

. . . . 

 

3 HRS § 641-12(a) (2016) provides: 

(a) Appeals upon the record shall be allowed from all final 

decisions and final judgments of district courts in all 

criminal matters. Such appeals may be made to the 

intermediate appellate court, subject to chapter 602, 

whenever the party appealing shall file notice of the 

party’s appeal within thirty days, or such other time as 

may be provided by the rules of the court.
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Further sentencing as to Defendant’s license revocation did 

not take place until April 13, 2018. The sentence has been 

stayed pending appeal . . . . This case must be remanded to 

the district court for entry of a final judgment.

(Emphasis added.) Thus, Counsel alerted the ICA to the lack of 

appellate jurisdiction and stated that the case must be remanded 

to the district court for entry of a final judgment.

B. Order to show cause, Counsel’s response, and order for 

sanctions

Six days later, on July 17, 2018, the ICA clerk’s office 

sent a memorandum to Counsel, which stated:

We docketed the record on appeal in the above-entitled case 

on 29-May-2018. The time for filing the appellant’s 

opening brief expired on 09-Jul-2018. 

This is to inform you that the matter will be called to the 

attention of the Court on 27-Jul-2018 for such action as 

the court deems proper, and the appeal may be dismissed. 

See Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 30.[4]

Any request for relief from this default should be made by 

motion. See HRAP Rules 26 and 27.

Counsel did not file anything in direct response to the July 17, 

2018 memorandum from the ICA. 

 

4 HRAP Rule 30 (2015) provides in relevant part:

When the brief for appellant is not filed within the time 

required, the appellate clerk shall forthwith give notice 

to the parties that the matter will be called to the 

attention of the appellate court on a day certain for such 

action as the appellate court deems proper and that the 

appeal may be dismissed. When the brief of an appellant is 

otherwise not in conformity with these Rules, the appeal 

may be dismissed or the brief stricken and monetary or 

other sanctions may be levied by the appellate court

. . . .
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Almost six months later, on January 7, 2019, the ICA filed 

an order to show cause directed at Counsel, which stated as 

follows:

(1) On April 3, 2018, [Kwong] filed the notice of appeal, 

through [McPherson];

(2) On May 29, 2018, the district court clerk filed the 

record on appeal, and the appellate clerk notified Kwong, 

through McPherson, that, among other things, the opening 

brief was due on or before July 9, 2018;

(3) On June 8, 2018, [Partington] entered an appearance 

for Kwong;

(4) Kwong failed to file the opening brief, or request an 

extension of time;

(5) On July 17, 2018, the appellate clerk notified Kwong, 

through McPherson and Partington,[5] that the time for filing 

the opening brief had expired, the matter would be called 

to the court’s attention on July 27, 2018, for appropriate 

action, which could include dismissal of the appeal, 

pursuant to Hawaiʻi Rules of Appellate Procedure Rule 30, 

and Kwong may request relief from default by motion; and

(6) Kwong took no further action in this appeal.

Therefore, IT IS HEREBY ORDERED that within ten (10) days 

from the date of this order, [McPherson] and [Partington] 

each shall show cause, jointly or separately, in the form 

of a declaration, affidavit, or other sworn statement, 

indicating why they failed to file the opening brief, or 

request an extension of time. Failure to timely respond to 

this order or to show good cause may result in sanctions.

Counsel timely responded to the order to show cause on 

January 17, 2019 as follows: 

In State v. Kilborn, 109 Haw. 435, 442, 127 P.3d 95, 102 

(App.2005), this court held that 

Judgments of conviction entered in district 

courts may not be appealed unless they are 

final. Judgments of conviction are not final 

unless they include the final adjudication and 

the final sentence. In the instant case, the 

sentence imposed was not the final sentence 

 

5 The notice of default was also addressed to Arrisgado, who had also 

appeared as an attorney for Kwong in the notice of appeal. The ICA did not, 

however, include Arrisgado in the later order to show cause or impose 

sanctions on Arrisgado. 
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because the district court expressly left often 

the possibility that its sentence of Kilborn 

might include an order requiring Kilborn to pay 

restitution. The court did not finally decide 

whether it would order Kilborn to pay 

restitution and, if so, in what amount. 

Consequently, the December 5, 2003 Judgment is 

not final and, because it is not final, it is 

not appealable. 

On July 11, 2018, Kwong filed an Amended Statement of 

Jurisdiction noting that no judgment as required by Kilborn

has ever been filed in this case. Therefore, Kwong’s

attorneys have been waiting for this court to dismiss this 

appeal and remand this case to the district court for entry 

of a judgment. Her attorneys were not aware that any more 

was needed to be done than that. The filing of any brief 

would have been a meaningless act.

On February 13, 2019, the ICA entered a sanctions order, 

ruling that Counsel’s January 17, 2019 response to the January 

7, 2019 order to show cause failed to demonstrate good cause for 

their failure to file an opening brief or request an extension 

of time. The ICA noted that the amended statement of 

jurisdiction filed after the “default on the opening brief” was 

not a motion to dismiss the appeal for lack of appellate 

jurisdiction. The ICA pointed out that it was not until Counsel 

were ordered to show cause that Counsel represented Kwong’s

appeal should be dismissed for lack of jurisdiction. The ICA

then ordered as follows: 

(1) Pursuant to Hawaiʻi Rules of Appellate Procedure Rule 

51,[6] Earle A. Partington and R. Patrick McPherson are 

sanctioned in the amount of $50.00 each. 

 

6 HRAP Rule 51 provides in relevant part:

Any attorney of record or party in a case, who fails to 

comply with any of the provisions of the Hawaiʻi Rules 

of Appellate Procedure . . . or any order of the court 

(continued. . .)
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(2) Separate checks in the full amount, payable to the 

State Director of Finance, along with a copy of this order, 

shall be deposited with the Supreme Court Clerk’s Office 

within ten days from the date of this order. 

(3) A declaration of Counsel, jointly or separately, 

attesting to the payment shall be filed within ten days 

from the date of this order. 

(4) The sanction shall be paid by Counsel personally and 

without reimbursement.

(5) Failure to comply with this order may result in 

additional sanctions. 

Then, on February 22, 2019, the ICA entered an order 

dismissing Kwong’s appeal for lack of appellate jurisdiction, 

because the judgment “on its face” indicated Kwong’s sentencing 

was incomplete. The ICA noted that because the notice of appeal 

was jurisdictionally defective, filing the notice had not 

transferred jurisdiction from the trial court to the appellate 

court, quoting State v. Ontiveros, 82 Hawaiʻi 446, 449, 923 P.2d 

388, 391 (1996). 

C. Motion for reconsideration 

On February 22, 2019, Counsel filed a motion for 

reconsideration of the sanctions order. Counsel asserted the 

ICA incorrectly stated that Counsel had not represented to the 

ICA that the appeal should be dismissed for lack of jurisdiction 

until their January 17, 2019 response to the order to show 

cause. Counsel contended their July 11, 2018 amended statement 

 

(. . . continued)

shall be subject to monetary or other sanctions by 

the appellate court before which such case is pending, such 

sanctions to be levied by order of the appellate court or 

by order of any judge or justice thereof.
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of jurisdiction had set forth the lack of appellate 

jurisdiction, and that they “are aware of no rule requiring them 

to timely inform this court of the lack of jurisdiction more 

than once.”

The ICA denied the motion for reconsideration on February 

28, 2019.7 The ICA noted that the amended statement of 

jurisdiction did not request the appeal be dismissed, but rather

stated the ICA must remand the case for entry of a final 

judgment, which was a different remedy than dismissal for lack 

of jurisdiction. The ICA also noted that the amended statement 

of jurisdiction had been filed after the default of the opening 

brief.

After the denial of the motion for reconsideration, on 

February 28, 2019 and March 1, 2019, McPherson and Partington 

each paid their $50.00 sanctions.

D. Application for writ of certiorari

On March 6, 2019, Counsel timely filed an application for 

writ of certiorari posing one question:

Whether the ICA gravely erred in sanctioning Counsel and 

refusing reconsideration for Counsel’s failure to request 

dismissal in Kwong’s amended statement of jurisdiction 

 

7 The ICA construed the motion for reconsideration as a motion by 

Partington on his behalf alone, and not also for McPherson, because

Partington electronically signed the motion for reconsideration alone, as 

attorney for Kwong. As the motion for reconsideration also listed McPherson, 

and, in any event, McPherson was not required to file a motion for

reconsideration in order to be included in the certiorari application, we do 

not further address this issue.
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wherein Kwong repeatedly informed the ICA that there was no 

judgment below and asked that the case be remanded to the 

district court for entry of judgment which the [ICA] 

refused to do[.]

(Capitalization altered.)

E. Letters from the Office of Disciplinary Counsel

On March 21, 2019, Counsel filed a supplemental memorandum

in support of their application attaching letters dated March 

14, 2019 they had received from ODC. The letters are discussed 

in Section IV.B, infra.

III. Standards of Review

A. Order for sanctions

Sanctions imposed under statute, court rule, or the trial 

court’s inherent powers are reviewed for an abuse of discretion. 

Gap v. Puna Geothermal Venture, 106 Hawaii 325, 331, 104 P.3d 

912, 918 (2004). The trial court abuses its discretion if it 

bases its ruling on an erroneous view of the law or on a clearly 

erroneous assessment of the evidence. Id.

B. Motion for reconsideration 

A court’s ruling on a motion for reconsideration is also 

reviewed for an abuse of discretion. State v. Oughterson, 99 

Hawaiʻi 244, 253, 54 P.3d 415, 424 (2002).
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C. Questions of law

Questions of law are reviewable de novo under the 

right/wrong standard of review. State v. Baranco, 77 Hawaiʻi 

351, 355, 884 P.2d 729, 733 (1994). 

IV. Discussion

A. The ICA did not abuse its discretion by imposing sanctions

pursuant to HRAP Rule 51 and denying the motion for 

reconsideration

1. Contrary to Counsel’s assertion, Joshua is 

inapplicable

On certiorari, Counsel maintain that although they did not 

expressly ask for dismissal of the appeal, they “did exactly 

what this court said they should do [in State ex rel. Office of 

Consumer Protection v. Joshua, 141 Hawaiʻi 91, 405 P.3d 527

(2017)] – move to remand this case to district court for the 

entry of a judgment.” Counsel cite to State v. Nicol, 140 

Hawaiʻi 482, 488, 403 P.3d 259, 265 (2017), for the proposition 

that “[t]he rule of finality for jurisdiction to appeal is the 

same in criminal case[s].” Counsel contend this court should 

therefore reverse the ICA’s order for sanctions and order the 

State Director of Finance to refund Counsel’s sanction payments.

We reject Counsel’s contention that the ICA should have 

remanded the case to the district court for an entry of final 

judgment based on Joshua. 
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In Joshua, we prospectively held that when a party to a 

circuit court civil case timely appeals a purported final 

judgment later determined not to meet finality requirements set 

out in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaiʻi 115, 

119, 869 P.2d 1334, 1338 (1994) (per curiam), “rather than 

dismiss the appeal, the ICA must temporarily remand the case to 

the circuit court ‘in aid of its jurisdiction’ pursuant to

HRS § 602-57(3) (2016) for entry of an appealable final judgment 

with a direction to the circuit court to supplement the record 

on appeal with the final judgment.” Joshua, 141 Hawaiʻi at 93, 

405 P.3d 529. 

By its clear language, Joshua only applies to purported 

“final judgments” in circuit court civil cases, which are so 

titled and intended by circuit court judges, but fail to meet 

Jenkins finality requirements. Its holding does not apply to 

any other kind of judgment, especially not to judgments that 

were never intended to be “final judgments.” Thus, Counsel’s 

argument that they “did exactly what this court said they should 

do – move to remand this case to district court for the entry of 

a judgment,” is devoid of merit.8 

 

8 In addition, Counsel never “moved” the ICA to remand the case to the 

district court for entry of final judgment as represented; if Counsel had 

clearly done so, the ICA could have denied the motion at the time. 
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In addition, to the extent Counsel may be suggesting that, 

through this case, we expand the Joshua requirement of a remand 

for entry of final judgment to district court criminal 

judgments, we decline to do so for the following reasons.

First, a remand for entry of final judgment under the 

circumstances of this case would contravene HRAP Rule 4(b)(4)

(2020), which governs “Premature Notice[s] of Appeal” in 

criminal cases, and provides:

(b) Appeals in criminal cases.

. . . .

(4) Premature Notice of Appeal. A notice of appeal filed 

after the announcement of a decision, sentence or order but 

before entry of the judgment or order shall be deemed to 

have been filed on the date such judgment or order is 

entered.

(Emphasis added.) Applying this rule, the April 9, 2018 

premature notice of appeal in this case could not have been

deemed to have been filed on a later date because the sentence 

on license revocation had not been “announced” as of the April 

9, 2018 filing of the notice of appeal. Thus, pursuant to HRAP 

Rule 4(b)(4), the ICA would not have been able to “‘aid . . .

its jurisdiction’ pursuant to HRS § 602-57(3) (2016)” because it 

would not have been able to acquire appellate jurisdiction even 

if it had ordered a remand. Joshua, 141 Hawaiʻi at 93, 405 P.3d 
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at 529. In order for appellate jurisdiction to exist, a new 

notice of appeal would have been required.9

In comparison, Joshua did not implicate concerns under HRAP 

Rule 4(a)(2), which governs “Premature filing of appeal[s]” in 

civil cases, and provides as follows:

If a notice of appeal is filed after announcement of a 

decision but before entry of the judgment or order, such 

notice shall be considered as filed immediately after the 

time the judgment or order becomes final for the purpose of 

appeal.

In other words, in the circuit court civil cases for which

Joshua requires remand for entry of Jenkins-compliant final 

judgments, not only have “decision[s]” been “announce[d],” the 

circuit courts have already entered purported “final judgments” 

termed as such. Thus, not only is Joshua consistent with HRAP 

Rule 4(a)(2), it does not impose a significant administrative 

burden on the ICA.

10

 

9 We note that, as stated by the ICA in its sanctions orders, Kwong’s 

premature notice of appeal did not deprive the district court of 

jurisdiction, Ontiveros, 82 Hawaiʻi at 449, 923 P.2d at 391, and the district 

court retained jurisdiction to proceed with Kwong’s sentencing. If, however, 

the district court had proceeded on the license revocation matter on April 

13, 2018, and had entered an appealable “final judgment,” but another notice 

of appeal was not filed within thirty days thereafter, the thirty-day 

deadline for filing a notice of appeal under HRAP Rule 4(b)(1) would have 

passed by the time this appeal was dismissed by the ICA on February 22, 2019. 

10 The issue of whether Joshua should be extended to premature notices of 

appeal from district court criminal cases that may be consistent with HRAP 

Rule 4(b)(4) is not before us at this time, and we do not address it. We do 

note, however, that only a small percentage of the 3,334 “civil actions” 

filed in state circuit courts in fiscal year 2019 will result in “final 

judgments” subject to Joshua’s remand requirement, but a significantly higher 

percentage of the 27,932 “criminal actions” filed in state district courts 

could result in “judgments” being filed that do not meet Kilborn finality 

(continued. . .)
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Second, as we noted in Joshua, Jenkins finality 

requirements resulted in numerous dismissals of appeals from 

intended and purported “final judgments.” Joshua, 141 Hawaiʻi at 

97 n.9, 405 P.3d at 533 n.9. Dismissals based on non-compliance 

with Jenkins finality requirements were sometimes due to circuit 

court civil cases involving numerous parties and claims.11 As 

compared to circuit court civil judgments, however, similar 

issues have not arisen based on finality requirements for 

district court criminal judgments.

12

Finally, and as noted earlier, Joshua applied to circuit 

court civil judgments so titled and intended to be “final 

 

(. . . continued)

requirements for appellate purposes. See, State of Hawaiʻi Judiciary, 2019 

Annual Report Statistical Supplement 12, 25 (2019), available at 

https://perma.cc/CN89-LYU8. Thus, requiring the ICA to remand for entry of 

final judgments in district court criminal cases in which a final decision 

has been “announced” but a premature notice is filed before entry of final 

judgment could result in a significant administrative burden on the ICA, 

because (1) premature notices of appeal could be filed in a significant 

number of district criminal cases; and (2) in those cases, the ICA would need 

to ascertain whether remand for entry of final judgment would be consistent 

with HRAP Rule 4(b)(4).

11 For example, in circuit court civil cases, there are sometimes many 

parties in addition to a plaintiff and a defendant, such as additional 

plaintiffs, additional defendants, third-party and additional third-party 

defendants, cross-claim and additional cross-claim defendants, and 

counterclaim and additional counterclaim defendants. All of those parties 

can assert claims against each other; some claims are asserted against some 

parties, but not others. The circuit courts must then endeavor to provide 

detailed dispositions of each claim in final judgments. 

12 Although district court criminal judgments can involve more than one 

defendant with more than one charge, the ICA’s 1995 opinion in Kilborn made 

clear that “[j]udgments of conviction are not final [for purposes of 

HRS § 641-12(a), see note 3, supra] unless they include the final 

adjudication and the final sentence.” Kilborn, 109 Hawaiʻi at 442, 127 P.3d 

at 102.
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judgments” by circuit court judges. In comparison, this appeal 

arose because a notice of appeal was filed by McPherson and 

Arrisgado before Kwong’s sentencing was completed; on its face, 

the March 14, 2018 judgment of guilt, which only included 

Kwong’s partial sentence, never purported to be a “final 

judgment” meeting Kilborn requirements. 

Therefore, we decline to expand Joshua to district court 

criminal cases.

2. The ICA did not abuse its discretion in imposing the 

sanctions orders, which were grounded on HRAP Rule 51, and 

in denying the motion for reconsideration 

Counsel discuss the procedural history, summarized in 

Sections II.A through C above, and contend the ICA “exhalt[ed] 

form over substance” when it imposed sanctions and denied the 

motion for reconsideration on the grounds the July 11, 2018 

amended statement of jurisdiction did not suggest the ICA should

dismiss the appeal for lack of jurisdiction, but rather stated 

that the “case must be remanded to the district court for entry 

of a final judgment.”

As noted above, a court’s imposition of sanctions is 

reviewed for an abuse of discretion, and when a sanctions order 

is based on a violation of a court rule, there is an abuse of 

discretion if the court bases its ruling on an erroneous view of 

the law or erroneous assessment of the evidence. Gap, 106 
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Hawaiʻi at 331, 104 P.3d at 918. If a sanction is not imposed 

under a statute or court rule, however, a court may not invoke 

its inherent powers to sanction an attorney without a specific 

finding of bad faith. Bank of Hawaii v. Kunimoto, 91 Hawaiʻi 372, 

389, 984 P.2d 1198, 1215 (1999) (citations omitted).

The ICA’s February 13, 2019 sanctions orders were 

explicitly based on HRAP Rule 51, entitled “Sanctions,” which 

provides:

Any attorney of record or party in a case, who fails to 

comply with any of the provisions of the Hawai‘i Rules of 

Appellate Procedure, the Hawai‘i Electronic Filing and 

Service Rules, or any order of the court shall be subject 

to monetary or other sanctions by the appellate court 

before which such case is pending, such sanctions to be 

levied by order of the appellate court or by order of any 

judge or justice thereof.

It is undisputed that Kwong’s opening brief was not timely 

filed. Upon filing a notice of appeal, pursuant to HRAP Rule 

28(b) (2016), an appellant must file an opening brief within 

forty days after the filing of the record on appeal. The record 

on appeal in this case was filed on May 29, 2018, making Kwong’s 

opening brief due July 9, 2018. The ICA’s May 29, 2018 notice 

expressly notified Counsel that Kwong’s opening brief was due on 

that date.

Although it would not have made sense under the 

circumstances for Counsel to file an opening brief by the July 

9, 2018 due date, Counsel did not file their amended statement 
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of jurisdiction indicating there was no appealable final 

judgment until two days after the due date. In it, Counsel 

incorrectly asserted, “This case must be remanded to the 

district court for entry of a final judgment.”13 

Counsel did not even file anything in direct response to 

the July 17, 2018 memorandum from the ICA. Counsel’s January 

17, 2019 response to the ICA’s January 7, 2019 order to show 

cause then quoted Kilborn, and stated that based on their July 

11, 2018 amended statement of jurisdiction indicating no final 

judgment had been filed, “Kwong’s attorneys have been waiting 

for this court to dismiss this appeal and remand this case to 

the district court for entry of a judgment.” Contrary to this 

assertion, Counsel had never previously indicated that dismissal 

of the appeal was required due to a lack of appellate 

jurisdiction.14 In fact, on certiorari, they make clear that the 

statement in their amended statement of jurisdiction that 

“[t]his case must be remanded to the district court for entry of 

 

13 See Section IV.A.1, supra.

14 As discussed, under the circumstances of this case, dismissal of the 

appeal, not remand for entry of final judgment, was required. Sentencing 

regarding license revocation was never completed so a final judgment was not 

entered. 

Even when a court lacks subject matter jurisdiction, however, it 

retains jurisdiction to impose sanctions in order to “maint[ain] orderly 

procedure.” See Willy v. Coastal Corp., 503 U.S. 131, 137-39 (1992)

(affirming district court’s imposition of Rule 11 sanctions despite lack of 

subject matter jurisdiction). 
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a final judgment” was intended to mean exactly what it said: 

Counsel were demanding that the ICA remand the case for entry of 

a final judgment, rather than dismiss the appeal. 

The ICA’s sanctions orders also noted that the amended 

statement of jurisdiction was not a motion to dismiss, and it 

was not until Counsel were ordered to show cause that Counsel 

represented that the appeal should be dismissed for lack of 

appellate jurisdiction, a position they again now contravene on 

certiorari, arguing that the ICA should have remanded the case 

for entry of a judgment pursuant to Joshua. 

At bottom, nothing was filed by the due date of the opening 

brief and Counsel could have and should have alerted the ICA to 

the lack of appellate jurisdiction well before that date, which 

would have prevented the appellate clerk’s July 17, 2018 

memorandum and the ICA’s January 7, 2019 order to show cause. 

For all of these reasons, the ICA did not abuse its 

discretion in entering the sanctions orders against Counsel. 

The ICA also did not abuse its discretion by denying the motion 

for reconsideration, which did not present a basis in law as to 

why sanctions should not be imposed. See HRAP Rule 40(b) (2000)

(a motion for reconsideration “shall state . . . the points of 

law or fact that the moving party contends the court has 

overlooked or misapprehended . . . .”).
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B. The ODC was without authority to treat the sanctions orders 

as administrative dispositions that might be used in the 

future as evidence of a pattern of conduct in aggravation 

We now turn to address the March 14, 2019 ODC letters to 

Counsel. The letters stated as follows:

This office has been informed by the Intermediate Court of 

Appeals (“ICA”) that you were sanctioned in the above 

related case for violation of an applicable rule of court, 

or appellate procedure.1 The Hawaiʻi Rules of Professional 

Conduct (“HRPC”) provides that “[a] lawyer shall not: . . . 

(e) knowingly disobey an obligation under the rules of a 

tribunal . . .” Thus, the sanctioned conduct is likely 

“misconduct” within the disciplinary rules of the Hawaiʻi 

Supreme Court. 

However, we also note that the ICA order did not contain a 

specific instruction for ODC to review your conduct for 

possible institution of disciplinary charges (which it 

often does). Thus, we chose to deem this referral as an 

informational event, and elect to dispose of the matter 

administratively. Administrative disposition means that 

this event is not docketed as a “disciplinary complaint” 

and thus no formal record of disciplinary history will be 

created.

However, a record of this administrative disposition will 

be maintained in our internal files. Should the ICA, or 

other complainant, allege similar or more serious 

misconduct in the future, this administrative disposition 

might be used as evidence of a pattern of conduct in

aggravation.2 Thus it would behoove you to keep this an 

isolated or “one-off” event. 

1 Monetary sanctions are permitted by, inter alia, 

HRAP Rule 51.

2 See e.g.,: ABA Standards for Imposing Lawyer 

Sanctions (rev. 1992), Standard 9.22(c).

Each letter contained an assigned ODC case number in the 

headings. 

The record does not contain any referral from the ICA to 

the ODC of the sanctions orders. The ODC listed ICA as the 

“complainant” in each of the letters. A “complainant” is 
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defined by the Rules of the Disciplinary Board (“RDB”) Rule 3(d) 

(2011) as “a person who has expressed dissatisfaction with an 

Attorney to the ODC.” It is unclear from the record whether the 

ICA actually expressed dissatisfaction with Counsel to the ODC 

and, if so, how. 

In any event, the ODC indicated it was treating the 

sanctions orders as “informational event[s]” and that it was 

disposing of the matter administratively, resulting in an 

“administrative disposition.” The Rules of the Supreme Court of 

Hawaiʻi (“RSCH”) Rule 2.6(b)(2) (2013) requires, however, that an 

attorney be afforded an opportunity to be heard prior to the ODC

recommending or undertaking any disposition: 

Except in matters requiring dismissal because the complaint 

is frivolous on its face or falls outside the Board’s 

jurisdiction, no disposition shall be recommended or 

undertaken by [Disciplinary] Counsel until the accused 

attorney shall have been afforded the opportunity to state 

[their15] position with respect to the allegations against 

[them].

Counsel were not afforded an opportunity to state their 

positions to the ODC with respect to the allegations against 

them. Thus, the ODC’s “administrative dispositions” are not 

authorized by RSCH Rule 2.6(b). 

 

15 “They, them, and their” are used as singular pronouns when (1) the 

gender identity of the person referred to is unknown or immaterial; or (2) 

those are the pronouns of a specific person.
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In addition, the ODC letters also stated that the 

unauthorized “administrative dispositions” could be used as 

evidence of aggravation, and cited to ABA Standards for Imposing 

Lawyer Sanctions (“ABA Standards”) Standard 9.22(c), which 

allows “a pattern of misconduct” to be considered as aggravating 

evidence in formal disciplinary proceedings. See RDB Rule

23(a)(iv). “Aggravating factors or circumstances may justify an 

increase in the degree of discipline to be imposed.” Office of 

Disciplinary Counsel v. Au, 107 Hawai‘i 327, 344, 113 P.3d 203, 

220 (2005) (internal bracketing and quotations removed) (quoting 

ABA Standards, Standard 9.21, at 15 (1991)). “Misconduct” is 

further defined by RSCH Rule 2.2 (2008) as “[a]cts or omissions 

by an attorney which violate the Hawai‘i Rules of Professional 

Conduct[.]” 

The ODC indicated the sanctions orders were “likely 

misconduct” based on HRPC Rule 3.4(e) (2014), which provides in 

part that “[a] lawyer shall not: . . . (e) knowingly disobey an 

obligation under the rules of a tribunal . . . .” (Emphasis 

added.) The RDB require the ODC, however, to investigate “all 

matters involving alleged violations of the Hawaiʻi Rules of 

Professional Conduct in accordance with RSCH [Rules] 2.6(b)(2) 
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and 2.6(b)(3).”16 RDB Rule 12 (2013). There is no indication 

that the ODC conducted an investigation to determine whether 

Counsel had “knowingly” violated an obligation under a court 

rule. Further, formal disciplinary proceedings require that 

attorney misconduct be established by “clear and convincing 

evidence,” a standard not required for sanction orders. RSCH 

Rule 2.7(c) (2019). 

Court sanctions orders can be issued for reasons that would 

not constitute a “knowing” violation of an obligation under a

court rule based on “clear and convincing evidence.” Monetary 

sanctions are sometimes imposed on counsel for late appearances 

or filings or for exceeding page limits set by court rules, 

 

16 RSCH Rule 2.6(b)(2) & (3) provide as follows:

2.6. Disciplinary counsel.

. . . .

(b) Powers and duties of Chief Counsel. Chief Counsel 

shall have the power and duty:

. . . .

(2) To dispose, subject to review by members of the 

Board assigned by the Chairperson, of all matters 

involving alleged misconduct by dismissal, private 

informal admonition, referral to a minor misconduct 

or assistance program, or the institution of formal 

disciplinary proceedings before a hearing committee 

or officer. Except in matters requiring dismissal

because the complaint is frivolous on its face or 

falls outside the Board’s jurisdiction, no 

disposition shall be recommended or undertaken by 

Counsel until the accused attorney shall have been 

afforded the opportunity to state [their] position 

with respect to the allegations against [them].

(3) To file with the supreme court certificates of 

conviction of attorneys for crimes.
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without the issuing judge having intended for the sanctions 

orders to be considered “misconduct” that could be considered as 

“aggravating” factors in later disciplinary proceedings. Thus, 

court sanction orders must not be treated by the ODC as 

referrals for investigation of misconduct without an express 

referral to the ODC by the court. If there is such a referral, 

ODC must follow the procedure set out by applicable rules, 

including providing an attorney with the due process protections 

provided by the rules. Therefore, even after a specific 

referral by a judge, the ODC may not consider orders for 

sanctions as evidence of aggravation under ABA Standard 9.22(c) 

unless a determination has been made through the procedures set 

forth in the RSCH and RDB that the sanctioned conduct is a 

“clear and convincing” and “knowing” violation constituting 

“misconduct” under the HRPC.

For these reasons, the ODC was without authority to treat 

the ICA sanction orders as administrative dispositions that

might be used in the future as evidence of a pattern of conduct 

in aggravation. 

V. Conclusion

For the foregoing reasons, we affirm the ICA’s sanctions 

orders against Counsel, but also order that the clerk of the 
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court transmit this opinion to the ODC for appropriate action 

consistent with this opinion. 

Earle A. Partington and /s/ Mark E. Recktenwald

R. Patrick McPherson,

Real Parties In Interest /s/ Paula A. Nakayama

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack