PROCEEDING (ODC 13-006-9076)
Recktenwald, C.J., Nakayama, McKenna, Pollack and Wilson, JJ.
ORDER OF PUBLIC CENSURE
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: specifically, that, on 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.
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, 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).
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.
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).
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
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
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.
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
 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 accusations with
a reckless disregard to their truth or falsity, we ...