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In re Partington

United States District Court, D. Hawaii

October 12, 2017




         This 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.

         This 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.

         This 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.

         II. BACKGROUND.

         A. Military Proceedings.

         Partington's 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 64.[1] 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.

         In an 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 971-73.

         Partington 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.

         Without 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.

         As 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 guilty.

         In 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.

         Partington 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 “disingenuous” arguments, “misrepresentations of the record, ” and “wholly unsupported allegations of error.” See Id. at 510.

         Specifically, 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.

         The 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 1625-26.

         The 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.

         In a 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.

         On 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.” Id.

         On 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.

         In 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.

         On June 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.

         On July 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 sheet.” Id.

         On July 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.

         On 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.” Id.

         As of 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         Captain 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 decisions.

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.

         On 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.

         On 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.

         On 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, ‚ÄúSadly, what happened ...

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