Wong v. Schorr, 4900
| Decision Date | 06 March 1970 |
| Docket Number | No. 4900,4900 |
| Parties | Allen WONG, Plaintiff-Appellant, v. Sheldon SCHORR and Thomas S. White, Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
Communications regarding alleged unethical conduct of a member of the bar to the Chief Justice of Hawaii or to the committee established pursuant to Rule 16 of the Rules of the Supreme Court of the State of Hawaii or to the Committee on Legal Ethics of the Bar Association of Hawaii are absolutely privileged.
Mitsuo Uyehara, Honolulu (Gene A. Smith, Honolulu, with him on the briefs) for appellant.
Richard A. Williams, Honolulu (Hyman M. Greenstein, Honolulu, with him of the brief, Greenstein & Cowan, Honolulu, of counsel) for Sheldon Schorr.
Dennis E. W. O'Connor, Honolulu, Anthony & Waddoups, Honolulu, of counsel for Thomas S. White.
Edward Y. C. Chun (Clinton R. Ashford, Honolulu, with him on the brief) for Bar Association of Hawaii, amicus curiae.
Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
Sheldon Schorr wrote a letter to the Chief Justice of this court concerning the 'Rule 16 Committee on Ethical Practices'. The letter complained that Allen Wong, an attorney, had conducted himself in an unethical manner, the details of which are not here material. Schorr's friend Lt. Col. Thomas S. White also wrote a letter to the Chief Justice, corroborating some of the allegations made by Schorr. White sent a copy of his letter to the Bar Association Ethics Committee. No other or further publication is alleged.
Wong sued both Schorr and White, alleging that 'said publications were false and defamatory and were made intentionally and maliciously and with knowledge of the falsity thereof' and that they caused injury to his professional reputation.
The First Circuit Court granted both defendants' motions to dismiss on the ground of absolute privilege.
There are reasons why absolute immunity should be accorded statements made to the Rule 16 Commission. Members of the public are sometimes quite afraid to initiate any proceeding to the detriment of an attorney, and might well be dissuaded from doing so by the threat of a defamation suit. To protect the public from unethical practices, we should encourage citizens to air their grievances against attorneys to the Rule 16 Commission. Rule 16(c)(12) provides:
We believe this secrecy achieves a proper balance between an attorney's protection from defamation and the public's protection from unethical conduct by attorneys.
Therefore the trial court's grant of Schorr's motion to dismiss is affirmed. Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 A.L.R.2d 481 (1959); Wiener v. Weintraub, 22 N.Y.2d 330, 292 N.Y.S.2d 667, 239 N.E.2d 540 (1968); Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671, 52 A.L.R.2d 1208 (1955).
A more difficult question is presented as to White because he sent a copy of his letter to the Bar Association Ethics Committee. The Bar Association filed an amicus brief in this case, but it does not mention any rules by which the Ethics Committee operates. 1 There appears to be no obligation of secrecy in proceedings of the Bar Ethics Committee. Also the Bar Association's Canons of Professional and Judicial Ethics may not be the same as those which this court has adopted. 2
The Bar Ethics Committee lacks both the subpoena power and the contempt power. Testimony given the Rule 16 Commission could be the basis of a perjury prosecution, not so testimony to the Bar Committee. These factors are commonly regarded as essential to a fair hearing. The Bar also has significantly less power to impose sanctions upon attorneys whom it determines have violated its canons.
For these reasons we are somewhat reluctant to extend absolute privilege to statements made to the Bar Ethics Committee. However, we affirm the trial court's grant of White's motion to dismiss because the overriding requirement that must be served is the protection of the public from unethical practices of attorneys. There are cases which have done so by reasoning that the bar committee serves 'as an arm' of the court. Wiener v. Weintraub, 22 N.Y.2d 330 at 332, 292 N.Y.S.2d 667 at 669, 239 N.E.2d 540 at 541 (1968). 3
It appears that a large segment of the public is absolutely unaware of the existence of the court's Rule 16 Commission. We can also envision many circumstances where persons who are in disagreement over an attorney's ethical obligations might prefer to have their differences settled by the Bar, just as there are many businessmen who prefer arbitration to the judicial process. These are...
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