RSCH Rule 2.13 Interim Restraint Requires a Record Showing the Conviction Offense Involved “Dishonesty or False Statement”

I. Introduction

Office of Disciplinary Counsel v. Leong is an attorney discipline order in which the Hawaiʻi Supreme Court denied the Office of Disciplinary Counsel’s (“ODC”) request to immediately restrain attorney Donna Y.L. Leong from practicing law under Rules of the Supreme Court of the State of Hawaiʻi (“RSCH”) Rule 2.13.

The petition arose from Respondent’s federal criminal case connected to an agreement—reached while she served as Corporation Counsel for the City and County of Honolulu—concerning the retirement of Honolulu Police Department Chief Louis Kealoha and a $250,000 City payment. After initially being charged in a First Superseding Indictment with six felony counts (conspiracy to commit fraud offenses and making false statements), Respondent ultimately pled guilty under a Superseding Information to a single misdemeanor: conspiracy to deprive rights under color of law (18 U.S.C. §§ 371 and 242). The felony charges were dismissed.

The central issue before the Hawaiʻi Supreme Court was narrow but consequential: whether, on the record ODC presented, Respondent’s misdemeanor conviction qualified as a crime that “involves dishonesty or false statement” within the meaning of RSCH Rule 2.13(a)(3), thereby justifying immediate interim restraint from practice pending further дисциплиary proceedings.

II. Summary of the Opinion

The court denied ODC’s petition for immediate restraint. It held that, on the record provided, it could not conclude Respondent’s conviction for conspiracy to violate 18 U.S.C. § 242 (via 18 U.S.C. § 371) “involved dishonesty or false statement” as required by RSCH Rule 2.13(a)(3).

The court emphasized two related points:

1. The elements of conspiracy under 18 U.S.C. § 371, with the underlying § 242 offense, do not necessarily require deceit, untruthfulness, or false statements.
2. The Plea Agreement’s factual basis did not expressly reflect conduct involving dishonesty or false statements (e.g., no stated deception or intent to deceive the City Council or public).

Accordingly, ODC did not meet its burden to show that the particular conviction triggered the specific interim restraint relief requested under Rule 2.13.

III. Analysis

A. Precedents Cited

Although the order is brief, the court grounded its analysis in federal conspiracy and civil-rights-crime doctrine to assess what the Respondent’s conviction does—and does not—necessarily entail.

1. United States v. Kaplan, 836 F.3d 1199 (9th Cir. 2016)

The court cited United States v. Kaplan for the familiar three-part structure of a § 371 conspiracy: (1) agreement to engage in criminal activity; (2) one or more overt acts; and (3) requisite intent to commit the substantive offense. This mattered because none of these elements inherently includes deception or falsity. By emphasizing Kaplan’s formulation, the court signaled that ODC could not assume “dishonesty” merely from the label “conspiracy.”

2. United States v. Moore, 708 F.3d 639 (5 th Cir. 2013)

The court cited United States v. Moore for the elements of 18 U.S.C. § 242: (1) willfully; (2) deprived another of a federal right; (3) under color of law. Again, the elements speak to abuse of official authority and willful rights deprivation—not necessarily dishonesty or false statement. This supported the court’s conclusion that the conviction offense does not categorically “involve dishonesty.”

3. United States v. Avery, 15 F.3d 816 (9th Cir. 1993)

The court invoked United States v. Avery for the proposition that a conspiracy conviction requires the same degree of intent as the substantive offense. This allowed the court to focus on the mental state required under § 242—willfulness—and to assess whether that mental state implies deceit. The court concluded it does not.

4. United States v. Reese, 2 F.3d 870 (9th Cir. 1993)

The court quoted United States v. Reese to explain the meaning of “willfully” under § 242: acting “in open defiance or reckless disregard of a constitutional requirement that has been made specific and definite.” This is critical to the court’s Rule 2.13 analysis because “willfully” in this context is about deliberate illegality with respect to constitutional constraints—distinct from lying, cheating, or making false statements.

5. Screws v. United States, 325 U.S. 91 (1945)

Screws v. United States, quoted via Reese, supplied the canonical articulation of § 242 willfulness and, importantly, the notion that one can specifically intend to deprive constitutional rights without “thinking in constitutional terms.” The court used this to show that the offense can be committed through purposeful rights-deprivation conduct even absent deception, thereby undercutting any inference that “dishonesty” is built into the crime.

B. Legal Reasoning

The court’s reasoning proceeds in a disciplined, two-step manner consistent with the structure of RSCH Rule 2.13.

1. Interpreting the Rule’s Trigger: “Dishonesty or False Statement”

RSCH Rule 2.13(a)(3) requires action when an attorney has been found guilty of a crime that “involves dishonesty or false statement.” The court noted that:

• The RSCH does not define “dishonesty.”
• The court had not previously construed the term in the specific context of Rule 2.13.

The court therefore referenced Black’s Law Dictionary, defining dishonesty as “deceitfulness,” “behavior that deceives or cheats,” “untruthfulness,” or “untrustworthiness.” This definition framed the inquiry as requiring some demonstrable deceit-like quality—either as a necessary feature of the offense or as reflected in the conviction’s factual basis.

2. Elements-Based Analysis: The Crime Is Not Inherently a Dishonesty Offense

The court examined the statutory elements of the conviction offense: conspiracy under 18 U.S.C. § 371, with the object offense being deprivation of rights under 18 U.S.C. § 242. Because neither the conspiracy elements nor the § 242 elements necessarily require deception or false statements, the court found it could not treat the conviction as categorically involving dishonesty.

This is a key methodological point: the court refused to equate a morally serious offense (willful rights deprivation under color of law) with “dishonesty” absent a legal or factual basis tying the conviction to deceit or falsity.

3. Record-Based Analysis: The Plea Agreement Did Not Supply Dishonesty Facts

Even if an offense is not categorically a dishonesty offense, it may “involve” dishonesty based on the particular facts. The court therefore assessed the Plea Agreement’s factual basis, which described:

• An agreement reached without first presenting the settlement agreement to the City Council for approval as required by the Revised Ordinances of Honolulu (ROH).
• A $250,000 payment made without the required City Council approval.
• The deprivation of citizens’ procedural due process rights (loss of hearing/approval process through the City Council for use of City funds).

The court found the factual basis lacked any express statement that Respondent deceived or intended to deceive the City Council or the public, or that she made false statements. Without such facts, the record did not support the “dishonesty or false statement” condition that ODC invoked to obtain immediate restraint.

4. Practical Context (But Not a Dispositive Ground)

The order notes it is undisputed Respondent was on voluntary inactive status and not practicing. The court did not treat this as the legal basis for denial; rather, it denied the petition because the Rule 2.13(a)(3) predicate was not shown on the record.

C. Impact

The decision’s immediate doctrinal contribution is procedural and evidentiary: ODC must provide a sufficient record showing that the conviction offense “involved dishonesty or false statement” when seeking immediate restraint under RSCH Rule 2.13(a)(3).

Several practical implications follow:

• No automatic “dishonesty” inference from seriousness or public-office misconduct. Even willful deprivation of rights under color of law will not automatically qualify as a dishonesty crime for interim restraint purposes.
• Elements matter, but facts can matter too. If the offense’s elements do not require deceit, ODC will likely need to supply record materials (e.g., plea colloquy excerpts, admissions, stipulated facts) that demonstrate deceit or falsity as part of the conduct to satisfy Rule 2.13(a)(3).
• Charging history is not conviction. The prior felony charges for fraud/false statements were dismissed; the court focused on the offense of conviction and the plea’s factual basis. Future petitions should anticipate that dismissed allegations will not substitute for proof that the conviction itself “involved” dishonesty.
• Clarification of Rule 2.13’s gatekeeping function. The order underscores that interim restraint is an extraordinary measure that turns on the Rule’s specific predicates, not generalized concerns.

Over time, this approach may push Hawaiʻi attorney-discipline practice toward more careful, record-supported showings for interim measures—especially where the conviction is not a classic “false statement,” fraud, or theft offense.

IV. Complex Concepts Simplified

• “Immediate restraint” under RSCH Rule 2.13: A temporary court order stopping an attorney from practicing law while disciplinary proceedings continue. It is not necessarily the same as final discipline.
• “Involves dishonesty or false statement”: The court treated this as requiring evidence of deceit-like conduct (lying, cheating, untruthfulness), either because the crime’s elements require it or because the record shows it occurred in the particular case.
• 18 U.S.C. § 371 (conspiracy): An agreement between people to commit a crime, plus an overt act toward it, and intent to achieve the crime’s objective.
• 18 U.S.C. § 242 (deprivation of rights under color of law): A government official (or someone acting with official authority) willfully violates someone’s federal rights.
• “Under color of law”: Using power possessed by virtue of government position—acting with the authority (or apparent authority) of the state.
• “Procedural due process”: The right to fair procedures—such as notice and an opportunity to be heard—before the government takes certain actions. Here, the plea’s factual basis framed the deprivation as bypassing the City Council approval/hearing process for spending City funds.
• “Willfully” under § 242: Acting in open defiance or reckless disregard of a clearly established constitutional requirement; not necessarily requiring lying or deception.

V. Conclusion

Office of Disciplinary Counsel v. Leong establishes a clear constraint on interim attorney restraints under RSCH Rule 2.13(a)(3): the Hawaiʻi Supreme Court will not impose immediate restraint unless the record supports that the conviction offense involved “dishonesty or false statement.”

By focusing on the statutory elements of the offense of conviction and the Plea Agreement’s factual basis—and by declining to infer dishonesty from the broader scandal or dismissed allegations—the court reinforced a rule-of-law approach to interim discipline: extraordinary interim measures require the specific factual and legal predicates the RSCH demands.