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Electronically Filed Supreme Court SCAD-XX-XXXXXXX 21-JUL-2025 08:25 AM Dkt. 46 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
vs.
MARK R. ZENGER, Respondent.
SCAD-XX-XXXXXXX
ORIGINAL PROCEEDING (CASE NO. DB 19-9001)
JULY 21, 2025
McKENNA AND EDDINS, JJ., AND INTERMEDIATE COURT OF APPEALS JUDGE McCULLEN, IN PLACE OF DEVENS, J., RECUSED; WITH RECKTENWALD, C.J., CONCURRING IN PART; AND GINOZA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY EDDINS, J.
In this disciplinary proceeding, we find no Hawaiʻi Rules of
Professional Conduct (HRPC) violation. Thus, we dismiss the
Office of Disciplinary Counsel’s (ODC) amended petition filed
against Mark Zenger. *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
I.
Opposing counsel, Stacey Joroff, filed a disciplinary
complaint against Zenger. Joroff represented a wife and Zenger
a husband in a Family Court of the Fifth Circuit divorce case.
After a disciplinary board member approved initiation of
formal disciplinary proceedings, ODC filed a petition for
discipline and summons in August 2019. See Rules of the
Disciplinary Board (DBR) Rule 19(a) (“Counsel shall institute a
Formal Disciplinary Proceeding when: (a) a Formal Disciplinary
Proceeding is approved or ordered by a Reviewing Board
Member[.]”). Then ODC filed an amended petition in October
2019.
ODC’s amended petition alleged that Zenger’s language in a
memorandum in opposition constituted misconduct. ODC said that
“[Zenger’s memorandum] characterized the opposing party and her
counsel’s tactics as ‘sleazy[,]’ ‘sneaky[,]’ ‘engaged in an evil
and intentional plan[,]’ a ‘hissy fit[,]’ and handled with
‘absolute neglect.’” ODC also alleged misconduct at a February
28, 2018 chambers conference before Family Court Judge Edmund
Acoba. ODC said that during the chambers conference, Zenger
raised his voice, used profanity, called Joroff “sneaky,”
“slimy,” and “sleazy,” and “loomed over Joroff and pointed his
finger at her.”
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ODC maintained that Zenger’s conduct violated HRPC Rules
4.4(a) and 3.5(c).
HRPC Rule 4.4(a) reads:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
HRPC Rule 3.5(c) reads: “A lawyer shall not engage in
conduct intended or reasonably likely to disrupt a tribunal.”
Zenger, an attorney since 1983 with a spotless professional
record, denied violating the rules of professional conduct.
Seasoned Honolulu attorney David Lum (hearing officer)
presided over the disciplinary hearing. In October 2020, Zenger
moved to dismiss the amended petition’s allegations that words
in his memorandum violated ethical rules. Zenger maintained,
among other things, that his statements were protected by the
litigation privilege and the constitutional right to free
speech. He said that he “at worst, engaged in rhetorical
hyperbole, which is considered to be non-defamatory and fully
protected by the First Amendment freedom of speech.”
In February 2021, the hearing officer recommended that the
Board Chair grant Zenger’s motion to dismiss. In April 2021,
the Disciplinary Board denied Zenger’s motion and remanded the
case to Hearing Officer Lum for further proceedings. See DBR
Rule 4(a) (“ The Chairperson approves the filing and dismissal of
all petitions[.]”) It reasoned that the litigation privilege
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immunized Zenger in litigation, but not from possible discipline
for professional misconduct, and that constitutional free-speech
provisions did not foreclose disciplinary proceedings.
After the Board returned the case to the hearing officer, a
hearing ensued. It spanned six days. Joroff, Zenger, and Judge
Acoba testified. Zenger called Judge Acoba’s court clerk. And
he also called character witnesses Peter C. Wolff, former
Federal Public Defender, and Trudy K. Senda, retired Fifth
Circuit district court judge.
The hearing officer ruled in Zenger’s favor. ODC had
failed to clearly and convincingly show an HRPC violation. In
November 2022, the hearing officer filed Findings of Fact,
Conclusions of Law, and Recommendations for Discipline.
Next, we detail the material factual findings and legal
conclusions.
The “hotly contested” divorce case involved custody and
visitation, and financial-related issues. The parties attended
mediation. They appeared to agree on custody and visitation.
Property division and other matters concerning their children
remained unresolved. On February 7, 2018, Joroff emailed
Zenger, informing him that she would prepare a stipulation
regarding custody and visitation. If Husband signed off, Joroff
communicated, then her client would withdraw an upcoming motion
for pre-decree relief.
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In her email, Joroff wrote that she understood that Husband
wanted to keep the home; therefore, an appraisal would need to
be completed to determine the buyout amount. Joroff requested
the most recent mortgage statement. Zenger did not reply to the
email. Joroff did not send a draft stipulation.
On February 20, 2018, Joroff moved for an Immediate Sale
and/or Order for Appraisal of Real Property. Without alerting
Zenger, she sought and received a “quick answer” hearing date -
February 28, 2018. Joroff declared: “[Husband] has stated that
he wishes to buy [Wife] out of the property . . . [Wife]
requests that an appraisal be ordered by the court with
[Husband] paying for the appraisal since he is saying he wants
to buy [Wife] out.” Yet during litigation, Husband made no such
representation. Hearing Officer Lum later found that “Ms.
Joroff had no factual basis for her Declaration statement that
[Husband] stated wanting to buy [Wife] out of the property. The
statement was false because the only information she received
was from [the mediator] telling her in mediation that [Husband]
wanted to retain the home.” Joroff served Husband by U.S. mail.
On February 26, 2018, Zenger filed Husband’s memorandum in
opposition to the motion. He disputed Joroff’s assertion that
Husband wanted to buy Wife’s interest in the home. He explained
that Wife had “arbitrarily short set” the hearing, and served
the motion by “snail mail” on Zenger. Zenger wrote: “[Wife] did
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all of these sneaky, sleazy things as part and parcel of an evil
and intentional plan to ‘sandbag’ [Husband] and give him a very
short time within which to file a cogent opposition.” Zenger
described Wife’s actions as a “hissy fit” in retaliation for
Husband’s unwillingness to provide the mortgage information
demanded in Joroff’s February 7 email.
Right before the February 28 court hearing on the motion
for property appraisal and sale, Judge Acoba summoned Zenger and
Joroff to his chambers. As they sat, Joroff served Zenger with
an unfiled copy of Wife’s motion to set trial. It already had a
hearing date, March 7, 2018. Judge Acoba asked the lawyers for
the number of witnesses they aspired to call at trial. The
court focused on matters relating to the motion to set and
trial, and not the short-set hearing.
Zenger voiced displeasure about discussing an unfiled
motion that he had just received. As for that day’s hearing,
neither Judge Acoba nor Joroff had read Husband’s memo in
opposition. The hearing officer added, Joroff “never filed a
reply to address these words[.]” And he found that “[p]rior to
her formal [disciplinary] hearing testimony, [Joroff] had never
complained about or otherwise objected to [Zenger’s] use of”
words in the memorandum that the ODC alleged violated the
ethical rules (“hissy fit,” “sneaky,” “sleazy,” “evil and
intentional plan,” and “abject neglect”).
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Joroff’s ODC complaint letter only mentioned Zenger’s
remarks during the chambers conference. (ODC later alleged that
Zenger’s memorandum in opposition language violated HRPC Rules
4.4(a) and 3.5(c).)
Judge Acoba did not view Zenger’s conduct as disrupting the
unscheduled chambers conference. The hearing officer related
that Judge Acoba “never mentioned or questioned the propriety or
the use of the words in the Memo [in] Opposition or warned
against using or sought to sanction or hold [Zenger] in contempt
for use of those words or for disrupting the tribunal with
them.”
Context was key to the hearing officer. He found that
Zenger’s words “descriptively characterize[d] the actions or
inactions of [Wife], [Joroff’s] client, in the context of
the . . . divorce.” Thus, Zenger’s language “amounted to
nothing more than statements of opinion about what was
happening[] which . . . [were] based upon fully-disclosed
facts.”
The hearing officer made extensive findings about Zenger’s
conduct in relation to HRPC Rules 4.4(a) and 3.5(c):
6. Mr. Zenger delineated in the pleading a bases [sic] for why he felt that [Wife], through her attorney Ms. Joroff’s motion constituted a “hissy fit[,]” why he believed that Ms. Joroff’s client’s actions were “sneaky” and “sleazy” and amounted to engaging in an “evil and intentional plan[,]” and why he thought that Ms. Joroff’s client had handled her divorce case with “abject neglect[.]”
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7. When Mr. Zenger asserted that Ms. Joroff’s client has engaged in certain “sneaky” and “sleazy” things as part and parcel of an “evil and intentional plan[,]” he also again openly related why he felt that way: it was because Ms. Joroff’s client has short-set the hearing on her motion for only 8 days later and then proceeded to serve the motion by depositing in the mail to Mr. Zenger, rather than serving him personally, in order to give him a very short time within which to file a cogent opposition. And, finally, when Mr. Zenger referenced Ms. Joroff’s client’s “abject neglect” in the handling of the divorce case, he told the court why: Ms. Joroff’s client had not initiated formal discovery.
8. Under these circumstances, Mr. Zenger’s use of these words in the pleading amounted to nothing more than statements of opinion about what was happening, which opinions are based upon fully-disclosed facts. These words, while some may deem to be exaggerated, emphasize a point.
9. The ODC has further presented no proof or evidence as to how or why Mr. Zenger’s use of the aforesaid words had no substantial purpose other than to embarrass, delay or burden Ms. Joroff.
10. A reasonable lawyer could not find that Mr. Zenger meant to embarrass or publicly shame Ms. Joroff by filing the Memo in Opposition through use of these words, for example, sand bag [sic], given the revised statement of facts.
11. Mr. Zenger’s language in the Memorandum in Opposition is not the type of obstreperous conduct that HRPC 3.5([c]) prohibits in the context of the situation facing [Husband].
In chambers, the conference got heated. Zenger and Joroff
both talked loudly. Judge Acoba testified that Zenger and
Joroff maintained at least three feet between them, even “once
[Zenger] started leaning in.” Contrary to ODC’s allegation, the
hearing officer found that Zenger did not point his finger
within six inches of Joroff’s face or chest or loom over her.
The hearing officer also found that Zenger “was not out of
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control, [and did not] yell, bully [or] physically threaten
[Joroff] in any way, in protecting [his client’s] interests.”
The hearing officer credited Zenger’s explanation that he
said “horseshit” and “bullshit” to describe what “Ms. Joroff was
attempting to do during the chambers conference when she
insisted on proceeding forward with her Motion to Set which was
unfiled yet had a hearing date assigned on March 7, 2018 and
opposing his request for more time to put his position statement
together.” He found that “[Zenger] had ample ‘ammunition’” to
explain to Judge Acoba the implications of Joroff’s motion to
set and appraisal and sale filing. Zenger thus “never . . .
used profanity or other words aimed to embarrass [Joroff].”
The hearing officer concluded there was no misconduct. The
words objected to in the memo in opposition were not “personal
attacks made with the intention of embarrassing” either Wife or
Joroff nor were the words “intended or reasonably likely to
disrupt a tribunal.” The hearing officer believed that the
memo’s context mattered, and that Zenger made statements on
behalf of Husband “to disclose the honest truths behind the
actions of [Wife] and her counsel”:
The ODC has not presented by clear and convincing evidence the allegations pertaining to the words used in Memo in Opposition violate HRPC Rules 4.4(a) and 3.5(c). This is unlike ODC v. Luke ([attorney] suspended for calling an opposing party a “slut”). I do not consider the words objected to in the Memo in Opposition to be personal attacks made with the intention of embarrassing both or either of them. ODC has construed the Motion for Immediate Sale as a simple, routine motion for appraisal. I disagree
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and find that the evidence is contrary to such characterization. That is important for my establishing the context in which the words were used in the Memo in Opposition. ODC claims that the Memo in Opposition was disproportionate to the language chosen by Ms. Joroff in her motion – previously citing an example as [Husband], through his counsel, lobbing a hand grenade in response to a firecracker. I again disagree. Read the title to an alleged routine motion for appointment of an appraiser for the property. I find that the better example from the evidence is hand grenade to defend against hand grenade. [Husband] and Mr. Zenger made these statements to disclose the honest truths behind the actions of [Wife] and her counsel. Nor do I find that the words in the Memo in Opposition were used intended or reasonably likely to disrupt a tribunal.
In finding no chambers conference misconduct, the hearing
officer concluded that “[t]he ODC has not presented by clear and
convincing evidence the allegations pertaining to conduct during
the in chambers conference violated [HRPC] Rules 4.4(a) and
3.5(c). The words and conduct attributable to [Zenger] was
[sic] not intended or had no substantial purpose other than to
embarrass [Joroff], or intended or reasonably likely to disrupt
a tribunal.”
Thus, the hearing officer recommended that the Board
dismiss the amended petition.
On March 2, 2023, the Disciplinary Board accepted the
hearing officer’s uncontested findings of fact. The Board had
no quarrel with any finding. It concluded that the “[hearing
officer’s] decision of mixed findings of fact and law to dismiss
the provoking writings was not clearly erroneous.” But the
Board rejected the conclusion of law that Zenger’s in-chambers
conduct was not misconduct under the HRPC. Thus, per DBR Rule
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27, the Board ordered a public reprimand at its next regularly
scheduled meeting. And it ordered Zenger to pay the Board all
costs of the years-long disciplinary proceedings.
On March 2, 2023, the same day the Board issued its
decision, Zenger filed his notice of rejection. See DBR Rule
27(b)(iii) (“ If either Party rejects the Public Reprimand or the
Respondent fails to appear without good cause, the Board shall
file a report with the Supreme Court.”)
Per Rules of the Supreme Court of Hawaiʻi (RSCH) Rule
2.7(d), the Board submitted the record to this court. In June
2023, the Board filed its Report, Findings, and Recommendations
for the Imposition of Discipline (Board Report).
The Board sided with ODC. It broadly construed HRPC Rule
4.4(a) to cover profanity, voice tone, and descriptions of
opposing counsel’s tactics as misconduct. And it tethered its
expansive view to the Guidelines of Professional Courtesy and
Civility for Hawaiʻi Lawyers. The Board Report reasoned:
The Hearing Officer made findings about [Zenger’s] behavior at the chambers conference. [Zenger] was found or admitted to have used profanity [“horseshit” “bullshit”] and argued in a raised voice. In the course of which he described opposing counsel and her client’s “sandbagging” tactics as “sneaky”, “sleazy”, “slimy”, and “evil”. . . .
The Disciplinary Board considered his conduct unprofessional. A lawyer must endeavor to persuade [sic] a client’s cause within the rules using facts and logic; not insults and ire. Lawyers are not hired thugs but are expected to be learned counsel to participate in the highly choreographed and finely tuned judicial apparatus. The Disciplinary Board, in light of the goals and aspirations inscribed in the rules of professional conduct and the guidelines for civility, finds that the ambit of rule
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4.4(a) HRPC is broad enough to proscribe [Zenger’s] behavior as alleged and admitted.
Daily exposure to the pressures and stresses of the conflicts in which a lawyer is immersed should not distract the lawyer from measured professional conduct.
(Emphasis added.)
The Board relied on the Guidelines of Professional Courtesy
and Civility for Hawaiʻi Lawyers to find misconduct and punish
Zenger. The Board Report quoted the Guidelines. “The practice
of law is an honorable and dignified profession. It is filled
with clients in need, busy schedules, and crowded dockets.
These guidelines are aspirational and will hopefully assist all
in the legal profession and the justice system in conducting
themselves in a manner that is fair, efficient, and humane.”
Then the Board turned to the courtesy and civility
guidelines to find misconduct, justify a public reprimand, and
send a message to other attorneys.
The Disciplinary Board considers this principle to be such an important message to the legal community that it views this case as appropriate for a public, rather than a private, reprimand.
This court granted Zenger’s request to submit briefing
pursuant to RSCH Rule 2.7(d) (“ The supreme court will not
entertain briefs or oral argument except[] . . . upon request of
the supreme court.”).
II.
We find no violation of HRPC Rules 4.4(a) and 3.5(c). We
hold that the Disciplinary Board erred.
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First, we discuss the words in Zenger’s memo. The
Disciplinary Board adopted the hearing officer’s recommendation
to dismiss the charges arising from Zenger’s memo. Thus, the
Board does not seek to reprimand Zenger for his memo. Given the
Board’s conclusions regarding Zenger’s chambers language,
though, we address ODC’s charge that Zenger violated Rules
4.4(a) and 3.5(c) when he wrote “sneaky,” “sleazy,” “evil,” and
“hissy fit” to embarrass, delay, or burden Joroff and Wife in
his memo. Zenger’s memo supplies the context to his chambers
conduct. Our analysis, like the hearing officer’s, includes a
look at the memorandum in opposition and ODC’s allegation.
The hearing officer concluded that the context of the memo
in opposition oriented the inquiry. As the hearing officer
understood, when it comes to attorney discipline under the HRPC,
the circumstances matter. Zenger made those statements on
actions of [Wife] and her counsel.”
The findings are undisputed. According to the hearing
officer, Wife’s counsel made “false” statements about Husband’s
stance on the family home. Wife short set the appraisal and
sale hearing, and served Zenger by mail, leaving Zenger little
time to respond. Under the circumstances, the hearing officer
did not err in ruling that Zenger’s words were not “personal
attacks made with the intention of embarrassing . . . either
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[Wife or Joroff].” See Off. of Disciplinary Counsel v. Au, 107
Hawai‘i 327, 337, 113 P.3d 203, 213 (2005) (explaining the Hawai‘i
Supreme Court is the trier of fact and law in attorney
discipline cases).
Zenger also did not violate HRPC Rule 3.5(c). Judge Acoba
“never mentioned or questioned the propriety or the use of the
words in the Memo [in] Opposition or warned against using or
sought to sanction or hold [Zenger] in contempt for use of those
words or for disrupting the tribunal with them.” Thus, we agree
with the hearing officer that the memo’s content was not
reasonably likely to disrupt a tribunal. The language in
Zenger’s memorandum did not violate HRPC Rules 4.4(a) and
3.5(c).
Next, we discuss the chambers conference. Zenger’s conduct
in Judge Acoba’s chambers did not constitute misconduct. As the
hearing officer put it, “[t]he ODC has not presented by clear
and convincing evidence the allegations pertaining to conduct
during the in chambers conference violated [HRPC] Rules 4.4(a)
and 3.5(c).”
The physical conduct that ODC alleged did not happen.
Zenger neither pointed his finger within six inches of Joroff’s
face or chest, nor loomed over her, the hearing officer found.
Instead, Zenger sat before a judge and protected his client’s
interests. He “was not out of control, [and did not] yell,
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bully [or] physically threaten [Joroff] in any way, in
protecting [his client’s] interests.”
The linguistic conduct that ODC alleged happened. But it
was not misconduct. Zenger did not violate HRPC Rule 4.4(a).
The hearing officer found that Zenger “never . . . used
profanity or other words aimed to embarrass [Joroff].” We
agree.
Though ill-mannered, the profanity (“horseshit” and
“bullshit”) and other words from the memo repeated by Zenger,
were not intended to embarrass or burden Joroff. Rather, as the
hearing officer concluded, the words described Joroff’s
litigation tactics. They expressed Zenger’s reasonable
complaints about service and that day’s quickly-set hearing, and
his protest about discussing an unfiled (yet scheduled) motion
to set that Joroff had just served on him. The hearing officer
observed, “[Zenger] had ample ‘ammunition’” to explain to Judge
Acoba the implications of Joroff’s motion to set and her
appraisal and sale filing.
We reject the Board’s reliance on the Guidelines of
Professional Courtesy and Civility for Hawaiʻi Lawyers to find
misconduct under Rule 4.4(a) and its recommendation that we
discipline Zenger.
The Board reported to this court: “The Disciplinary Board,
in light of the goals and aspirations inscribed in the rules of
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professional conduct and the guidelines for civility, finds that
the ambit of rule 4.4(a) HRPC is broad enough to proscribe
[Zenger’s] behavior as alleged and admitted.”
Because the HRPC does not integrate the Guidelines, we hold
that failing to follow an aspirational “section” – like Section
6 Communications with Clients and Adversaries - does not subject
an attorney to discipline under the HRPC. The Guidelines are
not incorporated in the HRPC, so they are not factors the Board
may rely on to enlarge the professional conduct rules and
regulate a wider range of attorney conduct.
The Board’s belief that the HRPC’s scope is so broad as to
embrace the Guidelines is misguided. Attorney discipline is
quasi-criminal in nature. Matter of Thalheim, 853 F.2d 383 (5th
Cir. 1988). While “[t]he object of the disciplinary process is
not to punish lawyers,” punishment still flows from an HRPC
violation. See Akinaka v. Disciplinary Bd. of Hawaiʻi Sup. Ct.,
91 Hawaiʻi 51, 55, 979 P.2d 1077, 1081 (1999) (“[The goal is to]
protect members of the public and to ensure the orderly and
efficient administration of justice by disciplining those
attorneys who do not conform to the [HRPC].”); In re
Disciplinary Bd. of Hawaiʻi Sup. Ct., 91 Hawaiʻi 363, 370, 984
P.2d 688, 695 (1999) (“Attorney disciplinary proceedings are not
designed to be a forum for the disgruntled or a platform for the
disaffected. Disciplinary proceedings are designed to protect
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the public interest, the integrity of the judicial process, and
the integrity of the courts, by providing a mechanism by which
to determine whether an attorney admitted to practice in this
state is fit to continue as an officer of the court.”).
A disciplined attorney faces serious personal and
professional consequences. Disciplinary proceedings are
adversarial proceedings consuming time and resource efforts
comparable to civil and criminal proceedings. See In re
Ruffalo, 390 U.S. 544, 551 (1968) (“[Disbarment proceedings] are
adversary proceedings of a quasi-criminal nature.”); Akinaka, 91
Hawai‘i at 57, 979 P.2d at 1083 (“ODC acts in a quasi-
prosecutorial manner in the disciplinary process[.]”) (footnote
omitted). Findings imposing attorney discipline must be
supported by clear and convincing evidence. RSCH Rule 8.9(e).
Attorneys facing disciplinary proceedings are entitled to
procedural due process. Ruffalo, 390 U.S. at 551 (attorneys
facing disbarment are entitled to due process); State v. Perez,
885 A.2d 178, 186 (Conn. 2005) (“[A] sanction for professional
misconduct adversely affects an attorney’s vested right to
practice law. . . . Thus, attorneys subject to disciplinary
proceedings are entitled to due process of law.”) (quoting
Briggs v. McWeeny, 796 A.2d 516, 528 (Conn. 2002)); In re Trask,
46 Haw. 404, 420, 380 P.2d 751, 760 (1963) (for attorneys
accused of unprofessional conduct, “[a] fair trial by an
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impartial tribunal is essential to due process”); Bank of Hawaiʻi
v. Kunimoto, 91 Hawaiʻi 372, 388, 984 P.2d 1198, 1214 (1999)
(out-of-state attorneys had limited property interests in pro
hac vice status granting the procedural due process right to
notice); Hallock Grievance Comm. for Tenth Jud. Dist., 180
N.E.3d 549, 552 (N.Y. 2021) (“[a] lawyer charged with misconduct
is ‘entitled to procedural due process, which includes fair
notice of the charge’”) (quoting Ruffalo, 390 U.S. at 550-51).
Because our disciplinary rules aim to ensure fair process and
procedure, they must provide sufficient “notice” to attorneys
regarding what constitutes prohibited conduct.
Consistent with procedural due process, we reject the
Board’s broad reading embedding the Guidelines. Limiting the
HRPC to the rules themselves ensures that attorneys clearly
understand what constitutes professional misconduct, safeguards
attorneys against arbitrary enforcement, and advances a fair and
just application of the HRPC. See also RSCH Rule 2.2.
Per Rule 4.4(a), we examine whether Zenger’s conduct
intended solely to embarrass, delay, or burden others. See HRPC
Rule 4.4(a). The rule thus excludes an examination of whether
Zenger was “at all times . . . civil [and] courteous” pursuant
to the Guidelines. See Guidelines of Professional Courtesy and
Civility for Hawaiʻi Lawyers, Section 6: Communications with
Clients and Adversaries.
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Zenger’s chambers conduct also did not violate Rule 3.5(c).
Although we do not condone such occurrences, in context,
Zenger’s loud voice and word choices were not “abusive or
obstreperous conduct” reasonably likely to disrupt a tribunal.
HRPC Rule 3.5, cmt. 2 (“Refraining from abusive or obstreperous
conduct is a corollary of the advocate’s right to speak on
behalf of litigants.”). His comments pertained to the matters
at hand. He did not try to undermine or challenge the court’s
authority. The conference was off record, and no parties,
jurors, and members of the public were around. Cf. Off. of
Disciplinary Counsel v. Breiner, 89 Hawaiʻi 167, 168, 969 P.2d
1285, 1286 (1999).
Under the circumstances, Zenger’s conduct was not
reasonably likely to disrupt a tribunal, and did not violate
HRPC Rule 3.5.
We hold that the language in Zenger’s memorandum and his
conduct in chambers did not violate HRPC Rules 4.4(a) and
III.
Because the Board urges this court to publicly reprimand
Zenger for a putative disregard of the Guidelines for
Professional Courtesy and Civility, we go on.
HRPC Rule 4.4 does not, as the Board suggests, incorporate
guidelines covering courtesy and civility. We decline to
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formally reprimand Zenger for word choices that, when taken in
context, do not constitute misconduct under the HRPC.
Honor and integrity are core features of the legal
profession. Our profession is independent, self-regulated, and
serves the public interest. The HRPC’s Preamble reads: “The
profession has a responsibility to assure that its regulations
are conceived in the public interest and not in furtherance of
parochial or self-interested concerns of the bar. . . . Neglect
of these responsibilities compromises the independence of the
profession and the public interest which it serves.” The ODC
and the Disciplinary Board hold key enforcement roles in the
self-regulation of Hawaiʻi’s legal industry.
But the Guidelines are not disciplinary rules. They do not
regulate attorney conduct. They are ideals. See Guidelines
Preamble (“The Guidelines are not mandatory rules of
professional conduct, nor standards of care, and are not to be
used as an independent basis for either disciplinary charges by
the Office of Disciplinary Counsel or claims of professional
negligence. They are offered for the guidance of lawyers and
for the information of their clients, as well as for reference
by the courts.”).
Courts may look to the Guidelines to impose sanctions for
attorney conduct. See State v. Talo, No. CAAP-XX-XXXXXXX, 2022
WL 1640808, at *2 (Haw. App. May 24, 2022) (SDO). But court
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sanctions differ from attorney discipline imposed by the Hawaiʻi
Supreme Court under the HRPC. RSCH Rule 2.2 (“The Hawaiʻi Rules
of Professional Conduct, attached hereto as Exhibit A, shall
govern the conduct of all attorneys subject to discipline under
this rule.”).
This court values courtesy and civility within the legal
profession. “[Z]ealously . . . protect[ing] and pursu[ing] a
client’s legitimate interests, within the bounds of the law,
while maintaining a professional, courteous, and civil attitude
toward all persons involved in the legal system” is a balance
attorneys must aspire to. See HRPC Preamble.
Still, the Guidelines of Professional Courtesy and Civility
for Hawaiʻi Lawyers – laudable and goal-worthy as they are – have
no impact on attorney discipline.
The Board calls for a public reprimand. DBR Rule 27
details permissible attorney punishment. Per Rule 27(a), a
public reprimand “signifies that misconduct has been found.”
Because we find no misconduct, we decline to publicly reprimand
Zenger.
Public reprimand or other disciplinary measures from a
state’s high court may seriously harm an attorney’s livelihood
and professional reputation. See Hallock, 180 N.E.3d at 552
(“Sanctions imposed in disciplinary proceedings ‘may have
serious consequences resulting in impairment of repute, loss of
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clientele, or, in the case of disbarment, loss of license to
practice a profession which is their very source of
livelihood.’”). Potential clients or employers may hesitate to
hire or employ a disciplined attorney. Other attorneys, legal
professionals, and judiciary employees may view the reprimanded
attorney as unethical or untrustworthy. We decline to
underestimate the career impact of a supreme court order that
admonishes an attorney.
At the time of the ODC hearing, Zenger was well-regarded on
Kauaʻi. Judge Acoba testified that he “thought highly of
[Zenger]” and considered Zenger “to be one of the best
litigators on Kauai.” Zenger “zealously represents his clients”
Judge Acoba said, and because he has “[g]ood client control,”
the fifth circuit regularly appointed him to the most difficult
criminal cases. Judge Senda related that Zenger is a “zealous
advocate” and “very compassionate and very committed to access
to justice.” He is “one of the few attorneys here on island
that always gladly accepts court appointed cases.” Zenger “did
pro bono work quite frequently,” Judge Senda recalled. Zenger,
she said, is “considered on this island a top tier litigator”
who is “very committed to the justice system.” Former Federal
Public Defender Wolff and Judge Senda also testified to Zenger’s
reliability, moral character, and integrity.
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A rebuke from this court is timeless; it mars an attorney’s
reputation forever. A Hawaiʻi attorney must act ethically and
obey the HRPC. Or suffer professional consequences. And when
ODC alleges misconduct, an attorney has the right to defend
themself. The disciplinary rules aim to provide fair
proceedings, consistent with due process. A Board
recommendation finding misconduct based on violating guidelines
outside the HRPC undercuts the framework and purpose of the
HRPC. When a case like this reaches us, we decide whether an
attorney has violated the HRPC, or not. Deciding whether an
attorney offended guidelines is just not something this court
should do in HRPC proceedings.
The concurrence’s framing of our reference to the record’s
evidence about Zenger’s professional life as “impliedly and
unfairly convey[ing] a sentiment that Stacey Joroff’s experience
in chambers that led to her filing a disciplinary complaint was
groundless” misses the context. Our discussion solely stresses
the reputational and career impact that a disciplinary reprimand
from this court may inflict on an otherwise well-regarded
attorney. It also highlights the private interests that prompt
this court to ensure procedural due process for attorneys
accused of misconduct. Because Joroff’s reputation is not the
focus of the ODC proceedings, we neither uplift nor disparage
hers.
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This court does not rule by “sentiment.” As we say,
context is key in this case. We do not comment on the “grounds”
for ODC complaints. This court determines whether attorneys
violate the HRPC. Whether Joroff’s actions “warranted” Zenger’s
conduct, or whether Zenger’s conduct constituted “zealous
advocacy” are not truly part of this HRPC inquiry. Given the
context of the legal proceedings, Zenger’s chambers conduct was
not intended to disrupt the tribunal, or embarrass, delay, or
burden Joroff. Thus, Zenger did not violate the HRPC.
The hearing officer found that “use of [words like ‘sneaky’
and ‘sleazy’] in the pleading amounted to nothing more than
statements of opinion about what was happening [which were]
based upon fully-disclosed facts.” Because we do not believe
this court should reprimand attorneys for not meeting
aspirational goals in the context of HRPC disciplinary
proceedings, we do not address whether seven dirty words –
“sneaky,” “slimy,” “sleazy,” “evil,” “hissy fit,” “horseshit,”
and “bullshit” - violate the Guidelines or deserve protection
under the litigation privilege.
Our regulatory framework does not allow this court to find
no professional misconduct, yet police words to see if a lawyer
lived up to an ideal.
We hold that Zenger did not violate HRPC Rules 4.4(a) and
3.5(c). ODC failed to show that Zenger’s conduct had “no
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substantial purpose other than to embarrass, delay, or burden”
Joroff. See HRPC Rule 4.4(a). ODC also failed to show that
Zenger’s conduct was “intended or reasonably likely to disrupt a
tribunal.” See HRPC Rule 3.5(c).
We dismiss ODC’s amended petition.
Walter Hebblethwaite /s/ Sabrina S. McKenna (on the briefs) /s/ Todd W. Eddins for petitioner /s/ Sonja M.P. McCullen James A. Kawachika (on the briefs) for respondent