Beyond Aspirations: Restricting Attorney Discipline to Conduct Expressly Covered By the Hawaiʻi Rules of Professional Conduct

Introduction

In Office of Disciplinary Counsel v. Zenger, the Supreme Court of Hawaiʻi confronted fundamental questions about the permissible scope of attorney discipline. The case originated from a complaint by attorney Stacey Joroff against opposing counsel, Mark R. Zenger, stemming from a contentious 2018 divorce proceeding on Kauaʻi. The Office of Disciplinary Counsel (“ODC”) alleged that provocative language in a written memorandum and heated remarks during an in-chambers conference violated two provisions of the Hawaiʻi Rules of Professional Conduct (“HRPC”):

• Rule 4.4(a) – prohibiting conduct that has no substantial purpose other than to embarrass, delay, or burden a third person; and
• Rule 3.5(c) – prohibiting conduct intended or reasonably likely to disrupt a tribunal.

After the Disciplinary Board twice rejected the Hearing Officer’s recommendation to dismiss all charges and, relying heavily on the Guidelines of Professional Courtesy and Civility for Hawaiʻi Lawyers (“Guidelines”), ordered a public reprimand, Zenger invoked his right under RSCH 2.7(d) to have the Supreme Court review the matter. The Court, in a majority opinion by Justice Eddins, ultimately dismissed the amended petition in its entirety.

Summary of the Judgment

The Court held that:

• ODC failed to prove by clear and convincing evidence that Zenger’s written or spoken words had “no substantial purpose other than to embarrass, delay, or burden” anyone (Rule 4.4(a)).
• ODC failed to establish that Zenger’s conduct was “intended or reasonably likely to disrupt a tribunal” (Rule 3.5(c)).
• The aspirational Guidelines of Professional Courtesy and Civility are not incorporated into the HRPC and cannot enlarge the substantive reach of the disciplinary rules.
• Because attorney discipline is quasi-criminal, principles of procedural due process require clear notice of prohibited conduct; relying on non-binding “ideals” fails that standard.
• All charges against Zenger were therefore dismissed, and the Disciplinary Board’s recommended public reprimand was rejected.

Analysis

1. Precedents Cited and Their Influence

• Office of Disciplinary Counsel v. Luke (suspension for calling opposing party a “slut”). Distinguished because Luke involved direct, personalized epithets unsupported by litigation context, whereas Zenger’s words were deemed rhetorical characterizations of litigation tactics supported by disclosed facts.
• Office of Disciplinary Counsel v. Au (2005) – Reaffirmed the Court’s role as ultimate trier of fact and law in disciplinary cases. The Court relied on this precedent to scrutinize the Board’s findings de novo.
• Office of Disciplinary Counsel v. Breiner (1999) – Addressed disrespectful courtroom behavior. The Court contrasted Breiner (public courtroom, presence of third parties) with the private, judge-controlled chambers conference in Zenger.
• In re Ruffalo, 390 U.S. 544 (1968) – Quasi-criminal nature of disciplinary proceedings and due-process requirements. Cited to stress the need for clear notice and procedural safeguards.
• Akinaka v. Disciplinary Board, 91 Haw. 51 (1999) – Characterized ODC as a quasi-prosecutor and underscored the public-protection—not punitive—goal of discipline; nevertheless, punitive effects demand heightened fairness.
• Other references: Matter of Thalheim, Bank of Hawaiʻi v. Kunimoto, Hallock v. Grievance Committee, among others, for procedural-due-process principles.

2. The Court’s Legal Reasoning

a. Contextual Evaluation of Speech

The Hearing Officer, whose factual findings were adopted by the Board, emphasized the litigation context: Zenger’s memorandum responded to what the officer deemed “false” or “sandbagging” tactics. The Supreme Court agreed that the language—while “ill-mannered”—articulated opinions about opposing tactics, grounded in disclosed facts, and therefore possessed a legitimate purpose beyond embarrassment or delay.

b. Insufficiency of Evidence Under the “Clear and Convincing” Standard

HRPC violations must be established by clear and convincing evidence (RSCH 8.9(e)). The Court found that ODC did not meet this burden because:

• Physical intimidation allegations (looming, finger-pointing) were contradicted by testimonial evidence, including the judge’s own observations.
• Profanity and rhetorical flourishes lacked evidence of intent to burden or embarrass; they were instead descriptive of litigation maneuvers.

c. Non-Integration of the Guidelines into the HRPC

The crux of the new precedent lies here. The Court stated unequivocally that the Guidelines are aspirational and cannot serve as an independent basis for discipline. Incorporating them sub silentio would:

• Violate procedural due process by failing to give attorneys adequate notice of actionable misconduct;
• Transform non-binding civility ideals into enforceable rules without the formal rule-making process contemplated by RSCH 2.2;
• Enable arbitrary or subjective enforcement based on taste rather than articulated legal norms.

d. Application of HRPC Rules 4.4(a) and 3.5(c)

The Court limited analysis strictly to statutory text:

• Rule 4.4(a): Requires proof that conduct had no substantial purpose other than embarrassment, delay, or burden. The Court stressed the words “no” and “other than,” concluding Zenger’s purpose—zealously protecting his client from perceived procedural unfairness—was substantial and legitimate.
• Rule 3.5(c): Focuses on disruption of the tribunal. A private, off-record chambers conference in which the presiding judge never admonished nor sanctioned counsel was not “reasonably likely” to disrupt proceedings.

3. Impact of the Judgment

• Clarifies Boundaries of Civility Enforcement: Boards and ODC may no longer rest disciplinary findings on aspirational guidelines; they must tether charges to explicit HRPC provisions.
• Protects Zealous Advocacy: The decision affirms that colorful—even crude—language, when tied to legitimate litigation objectives, is not automatically sanctionable.
• Procedural Due-Process Safeguard: Reinforces that attorneys must receive clear notice of prohibited conduct. Courts, boards, and ODCs cannot retroactively expand rules.
• Practical Effect on Future Cases: Expect narrower disciplinary petitions focusing on concrete rule text, more emphasis on evidentiary record, and potential challenges where boards cite aspirational statements.
• Cultural Message: While the Court underscored its commitment to courtesy, it declared that ethical regulation and aspirational professionalism occupy different spheres.

Complex Concepts Simplified

• HRPC Rules: Codified standards governing licensed attorneys; violation can lead to sanctions ranging from reprimand to disbarment.
• Aspirational Guidelines: Non-binding statements encouraging professionalism (akin to a “best practices” manifesto). Breaching them may prompt a judge’s scolding or fee sanctions but does not, by itself, justify disciplinary action.
• Clear and Convincing Evidence: A mid-level proof standard—more than “preponderance” but less than “beyond a reasonable doubt.” Requires a firm belief in the truth of allegations.
• Litigation Privilege: Common-law doctrine immunizing statements made in the course of judicial proceedings from civil liability (e.g., defamation). Although the Board rejected it as a bar to discipline, the privilege contextualized Zenger’s hyperbolic language.
• Procedural Due Process: Constitutional guarantee that the government will follow fair procedures before depriving an individual of life, liberty, or property. In the disciplinary realm, it translates to advance notice of charges and a meaningful opportunity to defend.

Conclusion

Office of Disciplinary Counsel v. Zenger draws a bright line between enforceable ethical duties and aspirational civility. By holding that attorney discipline must be grounded solely in conduct expressly prohibited by the HRPC and proven by clear and convincing evidence, the Court:

• Safeguards due-process rights of lawyers facing quasi-criminal sanctions;
• Preserves space for vigorous—if occasionally intemperate—advocacy;
• Signals to disciplinary authorities that professionalism initiatives must undergo formal rule-making to become enforceable.

Ultimately, the decision reinforces the principle that attorney regulation serves the public interest when it is transparent, predictable, and rooted in clear legal standards, not when it relies on subjective notions of politeness. The “new law” of Zenger will guide Hawaiʻi’s disciplinary bodies—and perhaps those of other jurisdictions—whenever they are tempted to convert courtesy into compulsion.