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Office of Disciplinary Counsel v. Au6/7/2005
of Disciplinary Counsel v. Breiner, 89 Hawaii 167, 171, 969 P.2d 1285, 1289 (1999) (citation and internal quotation signals omitted).
III. DISCUSSION
The hearing committee did not err when it denied Au's motion for the recusal or disqualification of Chairperson Alston, and the record supports the hearing committee's findings of fact and conclusions of law. However, with respect to the discipline for Au's misconduct, we conclude that it is appropriate to suspend Au from the practice of law for five years.
A. The Hearing Committee Did Not Err By Denying Au's Motion for the Recusal or Disqualification of Chairperson Alston
Rule 2.5(a) of the Rules of the Supreme Court of the State of Hawaii (RSCH) requires that " earing committee members and officers shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain." RSCH Rule 2.5(a). In turn, "the codes of professional responsibility and judicial conduct direct judges to avoid even the appearance of impropriety." In re Ferguson, 74 Haw. 394, 407, 846 P.2d 894, 900-901 (1993). For example, Canon 3(E)(1)(c) of the Hawaii Code of Judicial Conduct (HCJC) provides that
judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding[.]
HCJC Canon 3(E)(1)(c) (emphasis added). Furthermore, at the time when Au moved the hearing committee to disqualify Chairperson Alston, Hawaii law provided that " o person shall sit as a judge in any case in which the judge's relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, any pecuniary interest[.]" HRS ยง 601-7(a) (1993) (emphases added). Although a mere appearance of impropriety warrants a judge's recusal, "CJC Canon 3(E)(1) limits recusal to situations where the judge's impartiality might reasonably be questioned[.]" State v. Ross, 89 Hawaii 371, 380, 974 P.2d 11, 20 (1999) (internal quotation marks omitted). " he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired[.]" Id. (citation and internal quotation marks omitted). Therefore, "the test for disqualification due to the appearance of impropriety is an objective one, based not on the beliefs of the petitioner or the judge, but on the assessment of a reasonable impartial onlooker apprised of all the facts." Id.
1. With Respect to the Conflict of Interest Arising Out of the Alteka Matter, Au's Motion for the Recusal or Disqualification of Chairperson Alston Was Not Timely
The record shows that Chairperson Alton's and Au's conflicting pecuniary interests in the Alteka Matter would create in reasonable minds a perception that Chairperson Alston's ability to carry out his quasi-judicial responsibilities in Au's disciplinary proceedings with integrity, impartiality, and competence was impaired. Consequently, Au had a colorable claim that an appearance of impropriety warranted Chairperson Alston's recusal or
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