Office of Disciplinary Counsel v. Leong

• Court: Hawaii Supreme Court
• Decided: September 30, 2025
• Docket: SCAD-25-0000205
• Status: Published

Opinion

Electronically Filed Supreme Court SCAD-XX-XXXXXXX 30-SEP-2025 12:17 PM Dkt. 15 ORD

SCAD-XX-XXXXXXX IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ________________________________________________________________ OFFICE OF DISCIPLINARY COUNSEL, Petitioner,

vs.

DONNA Y.L. LEONG (BAR NO. 3226), Respondent.

ORIGINAL PROCEEDING (ODC Case No. 19-0023) ORDER (By: Recktenwald, C.J., McKenna, Eddins, and Ginoza, JJ., and Intermediate Court of Appeals Associate Judge McCullen, in place of Devens, J., recused; and Concurrence of McKenna, J., in which Eddins, J., joins)

In the instant petition, the Office of Disciplinary

Counsel (ODC) seeks an order immediately restraining Respondent

Donna Y.L. Leong (Respondent) from the practice of law pursuant

to Rules of the Supreme Court of the State of Hawaiʻi (RSCH) Rule

2.13. As discussed below, we deny the petition.

I. Background

This matter arises from a federal criminal case

regarding an agreement between Respondent, as then-Corporation Counsel for the City and County of Honolulu (City), then-

Honolulu Police Commission (Commission) chair Max Sword (Sword),

and then-City Managing Director Roy Amemiya (Amemiya) for the

retirement of and $250,000 payment to then-Honolulu Police

Department Chief Louis Kealoha (Chief Kealoha).

On March 17, 2022, the government filed in the United

States District Court, District of Hawaii (U.S. District Court)

a First Superseding Indictment in Case No. 1:21-cr-00142-LEK

(Criminal Case), charging Respondent, in six felony counts, with

conspiracy to commit fraud offenses, and making false

statements.

Nearly three years later, on March 3, 2025, a

Superseding Information was filed in the Criminal Case, charging

Respondent, Sword, and Amemiya with one count of conspiracy to

deprive rights under color of law. Specifically, the government

alleged that Respondent, Sword, and Amemiya, while acting under

color of law, knowingly and willfully combined, conspired, and

agreed “with each other and with others to deprive the residents

of Honolulu, Hawaii, of the rights secured and protected by the

Constitution and laws of the United States, namely, the right to

procedural due process, in violation of” 18 U.S.C. §§ 3711 and

1 18 U.S.C. § 371 provides:

2 242.2 This offense is a misdemeanor. See 18 U.S.C.

§ 3559(a)(6).

The next day, March 4, 2025, a Memorandum of Plea

Agreement (Plea Agreement) was filed in the Criminal Case.

Pursuant to the Plea Agreement, Respondent agreed to plead

guilty to the misdemeanor charge in the Superseding Information,

and the government agreed to move to dismiss all six felony

charges in the First Superseding Indictment.

Also on March 4, 2025, Respondent pled guilty to the

misdemeanor charge in the Superseding Information, and the U.S.

District Court granted the government’s motion to dismiss the

First Superseding Indictment.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

2 18 U.S.C. § 242 provides, in relevant part:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both[.] 3 On March 5, 2025, the U.S. District Court entered a

judgment (1) adjudging Respondent guilty of the misdemeanor

count in the Superseding Information, (2) dismissing all six

counts in the First Superseding Indictment, (3) sentencing

Respondent to one year of supervised release, and (4) ordering

she pay $100,000 in restitution to the City.

On March 20, 2025, ODC filed the instant petition for

the immediate restraint of Respondent from the practice of law

under RSCH Rule 2.13,3 on the basis that the offense to which

3 RSCH Rule 2.13 provides, in relevant part:

2.13. Attorneys convicted of crimes. (a) Upon learning an attorney has been found guilty of a crime that: . . . (3) involves dishonesty or false statement, Counsel shall obtain proof of the finding of guilt and file it with the Board and with the clerk of the supreme court. For purposes of this Rule, a finding of guilt is a verdict or judgment of guilty, a guilty plea, or a no contest plea. . . .

(b) When proof of a finding of guilt is filed with the supreme court, the court may issue an order providing the attorney the opportunity to respond within 20 days of the service of the order upon the attorney, informing the supreme court as to why the attorney should not be immediately suspended. Manner of service shall be at the discretion of the supreme court. However, the supreme court may enter an order immediately restraining the attorney from the practice of law, pending final disposition of a disciplinary proceeding based on the finding of guilt.

(c) The supreme court may set aside such order restraining the attorney from the practice of law in the interest of justice and for good cause shown. An order restraining an attorney from the practice of law shall not constitute a suspension of the attorney for the purposes of Rule 2.16 of these Rules unless the supreme court so orders. 4 Respondent pled guilty is a crime that involves dishonesty or

false statement. ODC also asks the court to, pursuant to RSCH

Rule 2.13(d), refer the matter to the Disciplinary Board of the

Hawaiʻi Supreme Court for institution of a formal proceeding in

which the sole issue to be determined shall be the discipline to

be imposed. ODC recites the count to which Respondent pled

(d) When proof of a finding of guilt is filed with the supreme court, the supreme court shall refer the matter to the Board for institution of a formal proceeding in which the sole issue to be determined shall be the discipline to be imposed. Such a disciplinary proceeding shall not be brought to hearing until the conviction is final, unless the respondent requests that the proceeding continue. For purposes of this Rule, a conviction is deemed final when:

(1) the availability of appeal has been exhausted and the time for filing a petition for certiorari in the United States Supreme Court on direct review of the judgment of conviction has elapsed and no petition has been filed or the petition has been denied; or

(2) the judgment of conviction has been affirmed.

(e) The final conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.

(f) If an attorney suspended solely under the provisions of paragraph (b) above demonstrates to the supreme court that the underlying finding of guilt has been reversed or vacated, the order for interim suspension shall be vacated and, upon payment of all required registration fees, the attorney may be placed on active status. Vacation of the interim suspension will not automatically prohibit or terminate any formal proceeding against the attorney and disposition of any formal proceeding against the attorney must be on the basis of the available evidence other than the finding of guilt.

(Emphasis added.)

5 guilty but does not otherwise explain how the offense

constitutes a crime that involves dishonesty or false statement.

On March 24, 2025, the court ordered Respondent to

file a response regarding any reasons why she should not be

immediately restrained and suspended from the practice of law.

On April 25, 2025, Respondent filed a response. ODC

did not seek to file a reply. It is undisputed that Respondent

does not currently represent clients or practice law in any

capacity, as her law license has been on voluntary inactive

status.

II. Discussion

Based on the record before this court, we cannot

conclude that the offense to which Respondent pled guilty

involved “dishonesty or false statement.” See RSCH Rule

2.13(a)(3).

Preliminarily, the RSCH does not describe crimes

involving “dishonesty,” and we have not opined on the term in

the context of RSCH Rule 2.13. Black’s Law Dictionary defines

“dishonesty” as “[d]eceitfulness as a character trait; behavior

that deceives or cheats people; untruthfulness;

untrustworthiness.” Black’s Law Dictionary 589 (12th ed. 2024).

Here, the record before us does not establish that the

subject offense involves dishonesty or false statements. We

6 initially note that a conviction of the subject offense does not

necessarily require conduct involving dishonesty or false

statements. Again, Respondent pled guilty to conspiracy to

violate 18 U.S.C. § 242 (deprivation of rights under color of

law), in violation of 18 U.S.C. § 371 (conspiracy). As set

forth in the Plea Agreement, the elements of the conspiracy

offense in violation of 18 U.S.C. § 371 comprise: (1) an

agreement between at least two persons to violate 18 U.S.C.

§ 242; (2) Respondent’s membership in the agreement, with

knowledge of at least one of its objects and intent to help

accomplish it; and (3) the commission of an overt act by any

conspirator, for the purpose of carrying out the conspiracy.4 As

also stated in the Plea Agreement, the elements of 18 U.S.C.

§ 242 are that Respondent: (1) deprived an individual in the

City of a right protected or secured by the Constitution or laws

of the United States; (2) was acting under color of law; and

(3) acted willfully.5

4 See also United States v. Kaplan, 836 F.3d 1199, 1212 (9th Cir. 2016) (“To prove a conspiracy under 18 U.S.C. § 371, the government must establish three elements: ‘(1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime.’” (citation omitted)).

5 See also United States v. Moore, 708 F.3d 639, 645 (5th Cir. 2013) (“To prove a violation of Section 242, the government must prove beyond a reasonable doubt that the defendant: (1) willfully; (2) deprived another of a federal right; (3) under color of law.”). 7 “A conspiracy conviction requires proof of the same

degree of intent as that required for the substantive offense.”

United States v. Avery, 15 F.3d 816, 818 (9th Cir. 1993). Here,

the intent required by the underlying substantive offense, 18

U.S.C. § 242, is “willfully.” See 18 U.S.C. § 242. To act

willfully under § 242 is to “act in open defiance or reckless

disregard of a constitutional requirement that has been made

specific and definite.” United States v. Reese, 2 F.3d 870, 881

(9th Cir. 1993) (quoting Screws v. United States, 325 U.S. 91,

105 (1945)) (emphasis in Reese). “[O]ne may act with the

specific intent to violate a constitutional right without

‘thinking in constitutional terms’; that is, . . . one may have

‘the purpose to deprive [another] of a constitutional right’

without knowing that the Constitution guarantees any such

right.” Id. Based on the foregoing elements, we do not discern

that the offense of conspiracy to violate 18 U.S.C. § 242, in

violation of 18 U.S.C. § 371, necessarily requires conduct

involving dishonesty or false statement.

Neither does the Plea Agreement’s factual basis

expressly reflect conduct involving dishonesty or false

statements. As stated in the Plea Agreement, Respondent

admitted that the government could prove the following facts

beyond a reasonable doubt: (a) while acting under color of law

8 as Corporation Counsel for the City, Respondent “knowingly and

willfully conspired with others,” including Sword and Amemiya,

to reach an agreement for Chief Kealoha’s retirement – “which

has been determined by the Court to be a settlement agreement” –

without first presenting the agreement to the Honolulu City

Council for approval pursuant to the Revised Ordinances of

Honolulu (ROH); (b) in furtherance of the conspiracy, the

Commission, led by Sword, together with Respondent and Amemiya,

reached an agreement for Chief Kealoha – “determined by the

Court to be a settlement agreement” – that included a $250,000

payment to Chief Kealoha from the City’s budget without first

seeking and receiving City Council approval, “which the Court

has determined was required pursuant to the ROH,” (c) pursuant

to the agreement, the City issued a $250,000 payment to Chief

Kealoha, and (d) in reaching the agreement, Respondent violated

the procedural due process rights of the City’s citizens by

depriving them of the right to a hearing and approval of the use

of City funds by the City Council. Absent any statement

indicating that Respondent deceived or intended to deceive the

City Council or the public or engaged in any untruthfulness, the

factual basis underlying Respondent’s guilty plea does not

support a finding that the crime in this particular case

involved dishonesty or false statements.

9 On the record presented here by ODC, we cannot

conclude that the misdemeanor to which Respondent pled guilty

involved dishonesty or false statements, as required to trigger

the specific relief requested by ODC under RSCH Rule 2.13.

Therefore, IT IS HEREBY ORDERED that the petition is

denied.

DATED: Honolulu, Hawaiʻi, September 30, 2025.

/s/ Mark E. Recktenwald

/s/ Sabrina S. McKenna

/s/ Todd W. Eddins

/s/ Lisa M. Ginoza

/s/ Sonja M.P. McCullen