Electronically Filed
Supreme Court
SCAD-11-0000162
09-NOV-2011
11:40 AM
SCAD-11-0000162
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
vs.
EARLE A. PARTINGTON, Respondent.
ORIGINAL PROCEEDING
(ODC 10-079-8913)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Duffy, J., and Intermediate Court
of Appeals Chief Judge Nakamura, in place of Acoba, J., recused;
with Nakayama, J., dissenting, in which McKenna, J., joins)
We are presented with a reciprocal disciplinary
proceeding against Respondent Earle A. Partington brought
pursuant to the Rules of the Supreme Court of the State of
Hawai#i (RSCH) Rule 2.15, which obligates us to impose reciprocal
discipline, see RSCH Rule 2.15(d), unless it appears or is shown
that1 (1) the procedures in the foreign jurisdiction through
which discipline was imposed were “so lacking in notice or
opportunity to be heard as to constitute a deprivation of due
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RSCH Rule 2.15(c) provides that reciprocal discipline shall be
imposed “unless Counsel or the attorney demonstrates, or it clearly appears
upon the face of the other jurisdiction’s record, that” one of the four
conditions set forth above exists.
process”; (2) that “there was such an infirmity of proof
establishing the factual basis for the discipline . . . as to
give rise to the clear conviction that the supreme court could
not, consistent with its duty, accept as final the other
jurisdiction’s conclusion on that subject”; (3) “the reason for
the other jurisdiction’s discipline . . . no longer exist”; or
(4) that “the conduct established warrants substantially
different discipline . . . in this state.” See RSCH Rule
2.15(c)(1)-(4).
Upon consideration of the evidence in the record and
the Disciplinary Board’s Report and Recommendation for the
Disbarment of Respondent Partington, and following full
consideration of Respondent Partington’s arguments and evidence
submitted to this court in opposition to the Disciplinary Board’s
Report and Recommendation, we conclude as follows:
It appears that Respondent Partington submitted an
appellate brief to the United States Navy-Marine Corps Court of
Criminal Appeals in Washington, D.C., which omitted material
facts necessary to accurately portray the court-martial
proceedings that were the subject of the appeal. It further
appears that the Department of the Navy’s Office of the Judge
Advocate General imposed upon Respondent Partington an indefinite
suspension from the practice of law in the Department of the
Navy’s jurisdictions, and the United States Navy-Marine Corps
Court of Criminal Appeals in Washington, D.C. imposed a one-year
suspension upon Respondent Partington. Partington’s factual
omissions in the appellate brief were in violation of the Hawai#i
Rules of Professional Conduct Rule 3.3(a)(1) (“A lawyer shall not
knowingly . . . make a false statement of material fact or law to
a tribunal [.]”) and HRPC Rule 3.3 cmt. 2 (“There are
circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation.”); HRPC Rule
8.4(a) (“It is professional misconduct for a lawyer to . . .
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violate . . . the rules of professional conduct [.]”); and HRPC
Rule 8.4(c) (“It is professional misconduct for a lawyer to . . .
engage in conduct involving . . . misrepresentation [.]”).
It further appears that Respondent Partington has
substantial experience in the practice of law and continues to
refuse to acknowledge the wrongful nature of his conduct.
In mitigation, it appears that the record in the court-
martial was unclear in some respects, and that Partington had
some basis on which to argue that his client could not plead
guilty to a lesser included offense under the circumstances as
they existed.
In submitting an appellate brief which omitted material
facts, Partington engaged in professional misconduct. However,
unlike the Judge Advocate General and the dissent, and given the
lack of clarity in certain aspects of the record, we are not
convinced that Partington’s omissions were done deliberately with
the intent to mislead or deceive the court. Considering all of
the circumstances, we conclude that a suspension from the
practice of law is warranted, although Partington has
demonstrated that the conduct established warrants a shorter
period of discipline than the indefinite suspension to practice
law imposed by the Judge Advocate General, and the one-year
suspension imposed by the United States Navy-Marine Corps Court
of Criminal Appeals in Washington, D.C.
Therefore,
IT IS HEREBY ORDERED that Respondent Partington is
suspended from the practice of law in this jurisdiction for a
period of 30 days, effective 30 days from entry of this order, as
provided by the RSCH Rule 2.16(c). This 30-day suspension
appropriately recognizes the serious nature of Respondent
Partington’s misconduct, and is consistent with other cases that
we have decided involving misrepresentations to the court. See
ODC v. Parker, No. 18045 (Haw. Sept. 9, 1994) (unpublished)
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(suspending Parker for one month for his misrepresentations to
the Circuit Court, his client, and the ODC). Although there are
other cases involving misrepresentations where longer sanctions
have been imposed, see Dissenting Opinion at 7-8, those cases
often involve additional forms of misconduct.
IT IS FURTHER ORDERED that, in addition to any other
requirements for reinstatement imposed by the Rules of the
Supreme Court of the State of Hawai#i, Respondent Partington
shall pay all costs of these proceedings as approved upon timely
submission of a bill of costs.
IT IS FURTHER ORDERED that Respondent Partington shall,
within ten (10) days after the effective date of this order, file
with this court an affidavit in full compliance with RSCH Rule
2.16(d).
DATED: Honolulu, Hawai#i, November 9, 2011.
/s/ Mark E. Recktenwald
/s/ James E. Duffy, Jr.
/s/ Craig H. Nakamura
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