United States District Court, D. Hawaii
IN THE MATTER OF EARLE A. PARTINGTON
ORDER OF SUSPENSION
case concerns the membership of Earle Partington in this
court's bar. On November 18, 2011, the court was advised
that an Order of Suspension had been filed in the Supreme
Court of the State of Hawaii on November 9, 2011, suspending
Partington from the practice of law in Hawaii's state
courts for thirty days, effective thirty days from the date
of the order. ECF Nos. 1 & 2. This court, on November 21,
2011, then issued an Order to Show Cause why Partington
should not also face a reciprocal suspension in this court in
accordance with Local Rule 83.4(d). ECF No. 3.
case then was stayed for years as Partington engaged in
disciplinary proceedings in other jurisdictions in which he
was licensed. Those other proceedings arose from the same
facts as the present case, which appears to be the last or at
least one of the last proceedings remaining.
court suspends Partington from the practice of law before
this court for thirty days under Local Rule 83.4(d). Given
the years that have passed during the pendency of this action
and Partington's absence as counsel of record from cases
in this court during those years, the term of his suspension
shall be deemed to have run while the merits of the Order to
Show Cause were being litigated. Partington may apply for
reinstatement to practice law before this court.
suspension from the practice of law stems from his
representation of AM1 Stewart Toles II U.S.N., during a
court-martial proceeding at Pearl Harbor, Hawaii.
See Request to End Stay, Exhibit M, ECF No. 26-7 at
Toles's charges included various specifications under 18
U.S.C. § 1801 (video voyeurism), as well as allegations
of disorderly conduct, sexual harassment, possession of child
pornography, and the manufacturing of child pornography.
See id.; see also Id. at 727-30. In July
2006, Toles pled guilty to various charges and specifications
pursuant to a pretrial agreement negotiated by Partington.
See Id. During the plea colloquy, the military judge
initially accepted Toles's guilty pleas. See id.
at 956- 71. Following the acceptance of the guilty pleas, the
Government indicated that it would withdraw the charges to
which Toles had not pled guilty. See Id. at 971.
unusual move, Partington then moved to dismiss the
specifications under 18 U.S.C. § 1801 for failure to
allege offenses. He claimed there was a jurisdictional defect
in the charging document in that it did not allege that the
offenses had occurred within the Special Maritime and
Territorial Jurisdiction of the United States. See
Id. at 971, 978. The military judge understandably
questioned the timing of Partington's motion to dismiss,
particularly because, before Toles had pled guilty, the judge
had confirmed that there were no motions. Id. at
clarified that his client was still maintaining his guilty
pleas to the offenses under 18 U.S.C. § 1801, while at
the same time arguing that the offenses should be dismissed
based on a denial of due process. Id. at 976-78. The
military judge expressed concern about the ethics of the
motion to dismiss. Id.
expressly granting or denying the motion to dismiss, see
Id. at 999-1000, the military judge focused on whether
Toles's pleas were “provident.” Determining
that he could not accept the guilty pleas to the offenses
under 18 U.S.C. § 1801, he set those pleas aside.
See Id. at 1000-02. The military judge told the
parties that he had “entered findings of not
guilty” for the charges to which pleas had been set
aside. Id. at 1001.
Partington explained to this court during a hearing on May
15, 2017, the military judge had an off-the-record discussion
in the course of the hearing. Partington told this court that
the military judge ruled off-the-record that Toles was not
on-the-record proceedings before the military judge, the
Government took the position that Toles could plead guilty to
the lesser-included offense of disorderly conduct under
clauses 1 and 3 of Article 134 of the Uniform Code of
Military Justice without nullifying the pretrial plea
agreement. Id. at 1008. Partington agreed, stating,
“We believe that the defendant--the accused has already
been provident to that, to the lesser, and the Court can
accept the pleas to the lesser based on what the accused has
already stated in his providency.” Id. at
1009. Partington also agreed that the pretrial agreement
would be effective. Id. at 1010. The military judge
ultimately accepted this revised agreement, and Toles pled
guilty to instances of the lesser-included offense of
disorderly conduct. Id. at 1009-15. Toles was later
sentenced for these instances of disorderly conduct.
represented Toles in an automatic appeal. See Id. at
507. The United States Navy-Marine Corps Court of Criminal
Appeals affirmed on October 30, 2007, expressing concern
about Partington's “unsavory tactics” and
stating that Partington's appellate brief had contained
“misrepresentations of the record, ” and
“wholly unsupported allegations of error.”
See Id. at 510.
in his appellate brief, Partington had asserted that the
military judge had “dismissed” the video
voyeurism charges and “acquitted” Toles, using
quotations marks around the words “dismissed” and
“acquitted.” See Exhibit I, ECF No.
26-3, PageID # 1611. In the “Statement of the Case,
” Partington wrote, “As to the video voyeurism
specifications of charge IV to which Toles pled guilty, the
military judge only accepted Toles' guilty pleas to the
included offenses of disorderly conduct under UCMJ Art. 134,
‘acquitting' him of the charged offenses of video
voyeurism.” Id. In the “Statement of the
Facts, ” Partington stated, “The military judge
then ‘acquitted' Toles of these specifications
because they did not allege the charged offenses of video
voyeurism (Record at 278).” Id., PageID #
1613. In the “Summary of the Argument, ”
Partington contended that “the military judge dismissed
specifications 2-7, 9-21, and 23 of charge IV and was never
requested to reconsider these dismissals nor did he state
that he was going to reconsider these dismissals.”
Id., PageID #s 1615-16. In the
“Argument” portion, Partington again repeated
that the military judge had “acquitted” Toles and
noted that “Toles had moved for neither an acquittal
nor a dismissal of these specifications.” Id.,
PageID # 1617. He further explained that “the military
judge's ‘acquittal' was not an acquittal for
double jeopardy purposes”; instead, “the military
judge dismissed those specifications for failure to allege an
offense, a legal issue.” Id.
heart of Partington's appellate argument relating to the
video voyeurism issue stated:
At no time did the government request reconsideration of the
dismissals of the video voyeurism specifications nor did the
military judge give notice to any party that he was
reconsidering his dismissals. Therefore, there were no
specifications pending to which the military judge could
accept pleas to included offenses. The acceptance of
Toles' pleas to disorderly conduct under dismissed
specifications was a nullity. If the military judge intended
to accept Toles' pleas to disorderly conduct under these
specifications, he should not have dismissed them. He should
have just accepted the pleas for disorderly conduct. Further,
the court should have objected to the dismissals if it wanted
to proceed on included offenses, but it did not. The findings
as to these specifications must be set aside and the
government's failure to object to the dismissals was a
waiver of any right to proceed further on them.
Id., PageID # 1618; see also id., PageID #s
Court of Appeals observed that, after Toles had moved to
dismiss the offenses under 18 U.S.C. § 1801, the
“military judge did not dismiss the 18 U.S.C. §
1801 offenses, did not acquit the appellant as to those
offenses prior to the findings, and did not rule that they
failed to state an offense.” See ECF No. 26-7
at 510. The court said the record showed that the military
judge initially set aside the guilty pleas to the 18 U.S.C.
§ 1801 offenses “but then, upon the recommendation
of the parties with the agreement of [Toles] that he could
plead to -- and be found guilty of -- the lesser included
offense, allowed [Toles] to enter guilty pleas to those
lesser included offenses.” Id. The court
further concluded that the judge had not abused his
discretion in finding Toles not guilty of the offenses under
§ 1801 but guilty of the lesser-included offense of
disorderly conduct. Id. at 510-11.
footnote, the Court of Appeals instructed the Clerk of Court
to forward the opinion to the Assistant Judge Advocate
General of the Navy for review under JAG Instruction 5803.1C,
Professional Conduct of Attorneys Practicing Under the
Cognizance and Supervision of the Judge Advocate General
(32 C.F.R. § 776). See Id. at 510.
October 10, 2008, the Office of the Judge Advocate General of
the Navy (Navy JAG) sent Partington a letter noting that the
appellate judge who had authored the 2007 unpublished opinion
in the Toles case had lodged a “complaint”
against Partington that alleged potential professional
responsibility violations. Id. at 365. The letter
informed Partington that the JAG Rules Counsel was
“conducting an inquiry to determine whether there is
probable cause to believe you have violated any rules of
professional responsibility, in particular, Rules 3.1 through
3.3” of the Navy Judge Advocate General Rules of
Professional Conduct. Id. Enclosed with the letter
was a copy of the 2007 unpublished opinion. Id. The
letter set forth the procedures that the Rules Counsel would
follow, including allowing Partington to “provide
written comment on the issues raised in the enclosure . . .
within 10 working days of receipt of this letter.”
October 26, 2008, Partington wrote to the Navy JAG to
acknowledge receipt of the letter informing him of the
professional responsibility complaint. Partington noted that
the letter did not set forth any specific allegations, apart
from the text and footnote five in the 2007 unpublished
opinion. Id. at 368. He argued that the appellate
opinion's assertions were “false on [their]
face.” Partington claimed that “every factual and
legal assertion [in his appellate brief] is supported by the
record references or case citations and is quite
meritorious.” Id. at 367. He also argued that
he had defended Toles ethically and competently and had had
no duty to inform opposing counsel or the military judge
about defects in the charges before Toles pled guilty.
Id. at 369-70.
early June 2009, Captain William Sprance determined that
there was probable cause to believe that Partington had made
misleading and inaccurate statements in his appellate brief.
Id. at 69. Thereafter, Captain Morin of the Rules
Counsel appointed Captain Robert Porzeinski to conduct a
preliminary inquiry into the allegations against Partington.
Id. at 308.
29, 2009, Captain Porzeinski mailed a letter to Partington,
informing him that his investigation was “substantially
complete” but that he wanted to afford Partington an
opportunity, as required, to review all the evidence he had
considered in his inquiry and to submit a written statement
or other written material. Id. at 310. Captain
Porzeinski asked Partington to submit his written materials
no later than July 10, 2009. Id. He also asked
Partington to let him know if he did not intend to submit any
material by the same deadline. Id.
1, 2009, Partington sent a letter to Captain Porzeinski,
stating that he had trouble responding because no one had
specifically told him how he had allegedly violated Rule 3.3.
Id. at 201. He asked for a “charge
30, 2009, Captain Porzeinski explained that, as he was
conducting a preliminary inquiry, no “charge
sheet” existed yet. Id. at 202. He directed
Partington to review the unpublished appellate opinion,
specifically page four and footnote five relating to the
court's discussion of Partington's use of the terms
“dismissal” and “acquittal” in
quotation marks. Id. Captain Porzeinski asked
Partington to submit any written material no later than
August 14, 2009. Id.
August 10, 2009, Partington sent another letter to Captain
Porzeinski. Id. at 282-83. He wrote, “I made
all of the statements in my brief that I am accused of making
and all of them are either correct statements of law
or, as facts, are true!” Id. at 283.
Addressing the use of the word “acquittal, ”
Partington explained, “A finding of not guilty is an
acquittal! Acquitted is in quotation marks because, as noted
below, the military judge could not, as a matter of law,
[have] acquitted Toles.” Id. He acknowledged
that “the military judge had dismissed the
specifications rather than acquitted Toles of those
specifications.” Id. Partington further stated
that his statements were true based on the record, that he
had not lacked candor before the court, and that he had not
made any misrepresentation. Id. at 284. At the end
of his letter, he said, “The Court of Criminal Appeals
owes me an apology, an apology I will never get.”
August 22, 2009, Partington had neither submitted any other
written material nor raised any other matters for Captain
Porzeinski's consideration. Id. at 69; see
Id. at 199. Captain Porzeinski concluded, by a
preponderance of the evidence, that Partington had violated
Rule 3.1 and Rule 3.3. Id. at 305. He also concluded
that “corrective action greater than counseling may be
warranted, ” id., and recommended an ethics
investigation. Id. at 307.
October 6, 2009, Captain Morin sent Partington a letter
informing him that an ethics investigation would be conducted
into the allegations against him. Id. at 111. The
letter informed Partington of his procedural rights,
including requesting a hearing, inspecting all evidence,
presenting written or oral statements or materials, calling
witnesses, being assisted by counsel, challenging the
investigating officer for cause, and affirmatively waiving
any of these rights. Id. at 111-12. Enclosed with
this letter were Captain Porzeinski's preliminary inquiry
report, a list of alleged professional conduct violations,
and a letter noting the appointment of Captain Blazewick as
the investigating officer. Id. at 113-200.
October 22, 2009, Captain Blazewick sent a letter to
Partington informing him that he was the investigating
officer and that he was extending the deadline for Partington
to request a hearing. Id. at 212-13. Captain
Blazewick also set forth the procedures he would follow if
Partington were to elect a hearing. Id.
October 29, 2009, Partington sent a letter to Captain Morin,
informing him that he was not on Oahu and that his secretary
had requested a hearing without his consent. Id. at
239. He requested additional time to respond to whether he
would elect a hearing. Id. Partington also requested
notice of the charges against him and Captain Blazewick's
curriculum vitae, questioned the Navy JAG's jurisdiction
over the proceedings, and said that he could not defend
himself without a waiver by Toles of the attorney-client
privilege. Id. at 239-40. He raised concerns about
whether he would be afforded due process in the proceedings
and observed that “[t]his matter is beginning to cross
the line between legitimate investigation and harassment of
criminal defense counsel.” Id. at 240.
October 30, 2009, Captain Blazewick responded to
Partington's October 29 letter to Captain Morin, again
extending the deadline for Partington to request a hearing
and addressing his concerns about the Navy JAG's
authority to regulate professional conduct and to conduct the
investigation. Id. at 216. Captain Blazewick
reiterated that, regardless of whether Partington elected a
hearing, Captain Blazewick would forward all materials to be
considered in drafting his report and provide Partington with
a reasonable time to respond. Id. Captain Blazewick
attached the allegations of professional conduct violations
and his curriculum vitae. See Id. at 216-20.
November 2, 2009, Partington wrote to Captain Blazewick,
pointing out that there appeared to be “a major
deficiency in the allegations” against him insofar as
they failed to specify the “falsity contained in each
false statement allegation.” Id. at 241. He
raised several questions as to who was representing the Navy,
who had the burden of proof, who had the initial burden of
persuasion, and what presumptions would arise. Id.
He again raised the issue that Toles would need to waive his
attorney-client privilege. Id. at 242.
November 9, 2009, Partington sent another letter to Captain
Blazewick, noting that Captain Blazewick had not yet
responded to his November 2 letter. Id. at 243.
Partington stated that he was “entitled to know, in
regard to the false statement allegations, what the truth is
alleged to be as to each allegation” and reiterated
that he needed a written waiver of the attorney-client
privilege from Toles. Id. He also explained why he
used the term “acquitted” in quotation marks and
the difference between “acquitted” and
“guilty, ” as used by the military judge.
Id. at 243-44.
November 16, 2009, Captain Blazewick responded to
Partington's letters from November 2 and November 9,
2016, apologizing for the delay because he had been traveling
for business. Id. at 225. He noted that Partington
had not yet “made an affirmative election or
waiver” of his right to a hearing. Id. Captain
Blazewick “presumed” that Partington would elect
to have a hearing “based on the tone and timing”
of his letters. Id. Captain Blazewick requested that
Partington contact him to schedule a specific hearing date
and repeated how the investigation would proceed.
Id. He said he did not intend to call any witnesses
at the hearing. Id. He also attached “a
complete copy of all the evidence” he intended to
consider in producing his report, including a summary of that
evidence, and reiterated that Partington could present
evidence, call and question witnesses, and be assisted by
counsel. Id. at 226.
Blazewick specifically told Partington:
You are accused of violating the Rules of Professional
Conduct by misrepresenting the record of trial to the NMCCA
in your appellate brief. This is a question of the candor and
merit of your brief and does not involve any tactical trial
Id. He also said that he did not believe the
accusations against Partington appeared to involve any
privileged communications between Partington and Toles.
Id. He explained the procedures Partington could
follow if Partington still believed his client's right to
confidentiality would be an issue. Id.
November 18, 2009, Partington sent Captain Blazewick a
letter, stating, “I gather from what you are telling me
that there is no prescribed procedure for this hearing and
that you are free to make it up as you go or after you
go.” Id. at 245. He raised concerns as to his
due process rights and a waiver of his client's
attorney-client privilege. Id. He also reiterated
that he needed to know what the asserted truth was as to each
false statement allegation against him. Id.
November 25, 2009, Captain Blazewick sent Partington a letter
giving Partington an additional week to submit any matters
for consideration. Id. at 229. He told Partington
what evidence he was relying on. Id. He also noted
that Partington's failure to respond to multiple requests
to elect and schedule a hearing was a waiver of the right to
a hearing. Id. Captain Blazewick observed that it
had been forty-four days since Partington had been notified
of his right to elect a hearing. Id.
December 3, 2009, Partington wrote to Captain Blazewick,
noting that Captain Blazewick had not responded to his
“previous letters concerning the alleged truth as to
the ‘specifications' alleging false statements, as
well as [his] procedural questions.” Id. at
246. He informed Captain Blazewick that Toles would not waive
his attorney-client privilege and again stated that the Navy
did not have jurisdiction over him for these proceedings.
Id. After reiterating his concern about the
procedures and charges against him, Partington wrote,
“I have no more interest in your proceeding and could
care less what the outcome is.” Id. at 247. He
further stated, “Sadly, what happened ...