Confidentiality allows Bar members to speak freely

One of my law partners sits on the Judicial Selection Commission (JSC), which submitted Circuit Judge Michael Wilson as qualified for nomination to the Hawaii Supreme Court.

Another sits on the board of directors of the Hawaii State Bar Association (HSBA), which thereafter voted Wilson "unqualified" for the position.

I submit that nothing is inconsistent in these two steps, and hope to correct what I believe has been unsatisfactory and inadequate coverage of the process.

In reporting the HSBA vote, the Star-Advertiser’s headline was "Legal hui slams circuit judge" (March 6). The vote was neither a slam of Wilson as a Circuit Court judge nor the action of a "legal hui." It was the HSBA itself, acting through its board. The headline was inaccurate and politically charged.

The JSC receives and considers applications for judicial vacancies. It does not publish the names of its applicants. There is no process to solicit input about those applicants from members of the Bar or public. The JSC therefore is not likely to hear negative input.

By contrast, the HSBA reviews candidates after public announcement of the appointment and after asking its 5,000-plus members for input, pro and con. This is the only time in the process during which every attorney can submit input to the Bar about a nominee and the first time that one could expect to receive negative review.

Much has been written about the lack of "due process" in the HSBA review. This is misleading.

HSBA’s review is advisory only. It has no force of law. It is up to the governor or state Senate to consider it, if and to the extent they desire. My experience has been that HSBA reviews are followed only when it suits the Senate’s purposes and is unlikely to change.

The review is done by each HSBA board member, based upon their experiences, knowledge and input. The reliability and relevance of that input is considered by the very people whose profession it is to properly weigh such matters.

The HSBA has decided that, on balance, it is more important to keep members’ submissions confidential so as to encourage open discussion.

The proposition that lawyers should not personally fear retribution for speaking against a nominee is shockingly naive, but only part of the issue. It is the lawyer’s clients that are at risk. Lawyers have ethical duties to represent the interests of their clients to the best of their abilities. Can one publicly speak out against a nominee upon whom one’s clients are relying to dispense a fair ruling? Can we assure clients that there will be no consequences to them if we speak against a nomination? Can lawyers provide input without getting their client’s consent if there is a risk that such input will be directly attributed to them?

The JSC and the HSBA are but two steps in a process. I trust that Judge Wilson, when confirmed, will serve our court with the highest dignity and integrity. I say this not because I know him — I do not — but because I know that he will not be seated without first having been vetted — each in their own ways according to their own practices — by the JSC, the HSBA, the governor and the Senate.

Most importantly, he will never be forced to reckon, consciously or not, with the question of whether someone appearing before him, or their client, may have at first thought him unsuited for his position — nor will his decisions ever be called into question on that basis, either.