Assigned to: Judge J. Michael Seabright; Magistrate Judge Kevin S.C. Chang
ORDER OF SUSPENSION. "Earle A. Partington is suspended from the practice of law before this court for thirty days in accordance with Local Rule 83.4(d). The term of his suspension shall be deemed to have run during the pendency of this case. P artington may apply for reinstatement to practice law before this court. IT IS SO ORDERED" Signed on 10/12/17 by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT, U.S. DISTRICT JUDGE SUSAN OKI MOLLWAY, and U.S. MAGISTRATE JUDGE KEVIN S .C. CHANG.(cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Copy of order will be mailed to Mr. Earle A. Partington at his address of record
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN THE MATTER OF
EARLE A. PARTINGTON
CIVIL NO. 11-00753 SOM
ORDER OF SUSPENSION
ORDER OF SUSPENSION
This case concerns the membership of Earle Partington
in this court’s bar.
On November 18, 2011, the court was
advised that an Order of Suspension had been filed in the
Supreme Court of the State of Hawaii on November 9, 2011,
suspending Partington from the practice of law in Hawaii’s state
courts for thirty days, effective thirty days from the date of
ECF Nos. 1 & 2.
This court, on November 21, 2011,
then issued an Order to Show Cause why Partington should not
also face a reciprocal suspension in this court in accordance
with Local Rule 83.4(d).
ECF No. 3.
This case then was stayed for years as Partington
engaged in disciplinary proceedings in other jurisdictions in
which he was licensed.
Those other proceedings arose from the
same facts as the present case, which appears to be the last or
at least one of the last proceedings remaining.
This court suspends Partington from the practice of
law before this court for thirty days under Local Rule 83.4(d).
Given the years that have passed during the pendency of this
action and Partington’s absence as counsel of record from cases
in this court during those years, the term of his suspension
shall be deemed to have run while the merits of the Order to
Show Cause were being litigated.
Partington may apply for
reinstatement to practice law before this court.
Partington’s suspension from the practice of law stems
from his representation of AM1 Stewart Toles II U.S.N., during a
court-martial proceeding at Pearl Harbor, Hawaii.
to End Stay, Exhibit M, ECF No. 26-7 at 64. 1
included various specifications under 18 U.S.C. § 1801 (video
voyeurism), as well as allegations of disorderly conduct, sexual
harassment, possession of child pornography, and the
manufacturing of child pornography.
See id.; see also id. at
In July 2006, Toles pled guilty to various charges and
specifications pursuant to a pretrial agreement negotiated by
During the plea colloquy, the military
judge initially accepted Toles’s guilty pleas.
See id. at 956-
Exhibit M is a disk that was submitted as part of ECF
No. 26. The disk includes excerpts of the administrative record
from the underlying suspension proceedings before the Office of
the Judge Advocate General of the Navy. The page number
citations in this order for Exhibit M refer to numbered Bates
stamps in the bottom right corner of the documents on the disk.
Following the acceptance of the guilty pleas, the
Government indicated that it would withdraw the charges to which
Toles had not pled guilty.
See id. at 971.
In an unusual move, Partington then moved to dismiss
the specifications under 18 U.S.C. § 1801 for failure to allege
He claimed there was a jurisdictional defect in the
charging document in that it did not allege that the offenses
had occurred within the Special Maritime and Territorial
Jurisdiction of the United States.
See id. at 971, 978.
military judge understandably questioned the timing of
Partington’s motion to dismiss, particularly because, before
Toles had pled guilty, the judge had confirmed that there were
Id. at 971-73.
Partington clarified that his client was still
maintaining his guilty pleas to the offenses under 18 U.S.C.
§ 1801, while at the same time arguing that the offenses should
be dismissed based on a denial of due process.
Id. at 976-78.
The military judge expressed concern about the ethics of the
motion to dismiss.
Without expressly granting or denying the motion to
dismiss, see id. at 999-1000, the military judge focused on
whether Toles’s pleas were “provident.”
Determining that he
could not accept the guilty pleas to the offenses under
18 U.S.C. § 1801, he set those pleas aside.
See id. at 1000-02.
The military judge told the parties that he had “entered
findings of not guilty” for the charges to which pleas had been
Id. at 1001.
As Partington explained to this court during a hearing
on May 15, 2017, the military judge had an off-the-record
discussion in the course of the hearing.
Partington told this
court that the military judge ruled off-the-record that Toles
was not guilty.
In on-the-record proceedings before the military
judge, the Government took the position that Toles could plead
guilty to the lesser-included offense of disorderly conduct
under clauses 1 and 3 of Article 134 of the Uniform Code of
Military Justice without nullifying the pretrial plea agreement.
Id. at 1008.
Partington agreed, stating, “We believe that the
defendant--the accused has already been provident to that, to
the lesser, and the Court can accept the pleas to the lesser
based on what the accused has already stated in his providency.”
Id. at 1009.
Partington also agreed that the pretrial agreement
would be effective.
Id. at 1010.
The military judge ultimately
accepted this revised agreement, and Toles pled guilty to
instances of the lesser-included offense of disorderly conduct.
Id. at 1009-15.
Toles was later sentenced for these instances
of disorderly conduct.
Partington represented Toles in an automatic appeal.
See id. at 507.
The United States Navy-Marine Corps Court of
Criminal Appeals affirmed on October 30, 2007, expressing
concern about Partington’s “unsavory tactics” and stating that
Partington’s appellate brief had contained “disingenuous”
arguments, “misrepresentations of the record,” and “wholly
unsupported allegations of error.”
See id. at 510.
Specifically, in his appellate brief, Partington had
asserted that the military judge had “dismissed” the video
voyeurism charges and “acquitted” Toles, using quotations marks
around the words “dismissed” and “acquitted.”
ECF No. 26-3, PageID # 1611.
See Exhibit I,
In the “Statement of the Case,”
Partington wrote, “As to the video voyeurism specifications of
charge IV to which Toles pled guilty, the military judge only
accepted Toles’ guilty pleas to the included offenses of
disorderly conduct under UCMJ Art. 134, ‘acquitting’ him of the
charged offenses of video voyeurism.”
In the “Statement of
the Facts,” Partington stated, “The military judge then
‘acquitted’ Toles of these specifications because they did not
allege the charged offenses of video voyeurism (Record at 278).”
Id., PageID # 1613.
In the “Summary of the Argument,”
Partington contended that “the military judge dismissed
specifications 2-7, 9-21, and 23 of charge IV and was never
requested to reconsider these dismissals nor did he state that
he was going to reconsider these dismissals.”
PageID #s 1615-16.
In the “Argument” portion, Partington again
repeated that the military judge had “acquitted” Toles and noted
that “Toles had moved for neither an acquittal nor a dismissal
of these specifications.”
Id., PageID # 1617.
explained that “the military judge’s ‘acquittal’ was not an
acquittal for double jeopardy purposes”; instead, “the military
judge dismissed those specifications for failure to allege an
offense, a legal issue.”
The heart of Partington’s appellate argument relating
to the video voyeurism issue stated:
At no time did the government request
reconsideration of the dismissals of the video
voyeurism specifications nor did the military
judge give notice to any party that he was
reconsidering his dismissals. Therefore, there
were no specifications pending to which the
military judge could accept pleas to included
offenses. The acceptance of Toles’ pleas to
disorderly conduct under dismissed specifications
was a nullity. If the military judge intended to
accept Toles’ pleas to disorderly conduct under
these specifications, he should not have
dismissed them. He should have just accepted the
pleas for disorderly conduct. Further, the court
should have objected to the dismissals if it
wanted to proceed on included offenses, but it
did not. The findings as to these specifications
must be set aside and the government’s failure to
object to the dismissals was a waiver of any
right to proceed further on them.
Id., PageID # 1618; see also id., PageID #s 1625-26.
The Court of Appeals observed that, after Toles had
moved to dismiss the offenses under 18 U.S.C. § 1801, the
“military judge did not dismiss the 18 U.S.C. § 1801 offenses,
did not acquit the appellant as to those offenses prior to the
findings, and did not rule that they failed to state an
See ECF No. 26-7 at 510.
The court said the record
showed that the military judge initially set aside the guilty
pleas to the 18 U.S.C. § 1801 offenses “but then, upon the
recommendation of the parties with the agreement of [Toles] that
he could plead to -- and be found guilty of -- the lesser
included offense, allowed [Toles] to enter guilty pleas to those
lesser included offenses.”
The court further concluded
that the judge had not abused his discretion in finding Toles
not guilty of the offenses under § 1801 but guilty of the
lesser-included offense of disorderly conduct.
Id. at 510-11.
In a footnote, the Court of Appeals instructed the
Clerk of Court to forward the opinion to the Assistant Judge
Advocate General of the Navy for review under JAG Instruction
5803.1C, Professional Conduct of Attorneys Practicing Under the
Cognizance and Supervision of the Judge Advocate General (32
C.F.R. § 776).
See id. at 510.
On October 10, 2008, the Office of the Judge Advocate
General of the Navy (Navy JAG) sent Partington a letter noting
that the appellate judge who had authored the 2007 unpublished
opinion in the Toles case had lodged a “complaint” against
Partington that alleged potential professional responsibility
Id. at 365.
The letter informed Partington that
the JAG Rules Counsel was “conducting an inquiry to determine
whether there is probable cause to believe you have violated any
rules of professional responsibility, in particular, Rules 3.1
through 3.3” of the Navy Judge Advocate General Rules of
Enclosed with the letter was a copy
of the 2007 unpublished opinion.
The letter set forth the
procedures that the Rules Counsel would follow, including
allowing Partington to “provide written comment on the issues
raised in the enclosure . . . within 10 working days of receipt
of this letter.”
On October 26, 2008, Partington wrote to the Navy JAG
to acknowledge receipt of the letter informing him of the
professional responsibility complaint.
Partington noted that
the letter did not set forth any specific allegations, apart
from the text and footnote five in the 2007 unpublished opinion.
Id. at 368.
He argued that the appellate opinion’s assertions
were “false on [their] face.”
Partington claimed that “every
factual and legal assertion [in his appellate brief] is
supported by the record references or case citations and is
Id. at 367.
He also argued that he had
defended Toles ethically and competently and had had no duty to
inform opposing counsel or the military judge about defects in
the charges before Toles pled guilty.
Id. at 369-70.
In early June 2009, Captain William Sprance determined
that there was probable cause to believe that Partington had
made misleading and inaccurate statements in his appellate
Id. at 69.
Thereafter, Captain Morin of the Rules
Counsel appointed Captain Robert Porzeinski to conduct a
preliminary inquiry into the allegations against Partington.
Id. at 308.
On June 29, 2009, Captain Porzeinski mailed a letter
to Partington, informing him that his investigation was
“substantially complete” but that he wanted to afford Partington
an opportunity, as required, to review all the evidence he had
considered in his inquiry and to submit a written statement or
other written material.
Id. at 310.
Captain Porzeinski asked
Partington to submit his written materials no later than July
He also asked Partington to let him know if he
did not intend to submit any material by the same deadline.
On July 1, 2009, Partington sent a letter to Captain
Porzeinski, stating that he had trouble responding because no
one had specifically told him how he had allegedly violated
Id. at 201.
He asked for a “charge sheet.”
On July 30, 2009, Captain Porzeinski explained that,
as he was conducting a preliminary inquiry, no “charge sheet”
Id. at 202.
He directed Partington to review the
unpublished appellate opinion, specifically page four and
footnote five relating to the court’s discussion of Partington’s
use of the terms “dismissal” and “acquittal” in quotation marks.
Captain Porzeinski asked Partington to submit any written
material no later than August 14, 2009.
On August 10, 2009, Partington sent another letter to
Id. at 282-83.
He wrote, “I made all of
the statements in my brief that I am accused of making and all
of them are either correct statements of law or, as facts, are
Id. at 283.
Addressing the use of the word “acquittal,”
Partington explained, “A finding of not guilty is an acquittal!
Acquitted is in quotation marks because, as noted below, the
military judge could not, as a matter of law, [have] acquitted
He acknowledged that “the military judge had
dismissed the specifications rather than acquitted Toles of
Partington further stated that his
statements were true based on the record, that he had not lacked
candor before the court, and that he had not made any
Id. at 284.
At the end of his letter, he
said, “The Court of Criminal Appeals owes me an apology, an
apology I will never get.”
As of August 22, 2009, Partington had neither
submitted any other written material nor raised any other
matters for Captain Porzeinski’s consideration.
id. at 199.
Id. at 69; see
Captain Porzeinski concluded, by a preponderance of
the evidence, that Partington had violated Rule 3.1 and Rule
Id. at 305.
He also concluded that “corrective action
greater than counseling may be warranted,” id., and recommended
an ethics investigation.
Id. at 307.
On October 6, 2009, Captain Morin sent Partington a
letter informing him that an ethics investigation would be
conducted into the allegations against him.
Id. at 111.
letter informed Partington of his procedural rights, including
requesting a hearing, inspecting all evidence, presenting
written or oral statements or materials, calling witnesses,
being assisted by counsel, challenging the investigating officer
for cause, and affirmatively waiving any of these rights.
Enclosed with this letter were Captain Porzeinski’s
preliminary inquiry report, a list of alleged professional
conduct violations, and a letter noting the appointment of
Captain Blazewick as the investigating officer.
Id. at 113-200.
On October 22, 2009, Captain Blazewick sent a letter
to Partington informing him that he was the investigating
officer and that he was extending the deadline for Partington to
request a hearing.
Id. at 212-13.
Captain Blazewick also set
forth the procedures he would follow if Partington were to elect
On October 29, 2009, Partington sent a letter to
Captain Morin, informing him that he was not on Oahu and that
his secretary had requested a hearing without his consent.
He requested additional time to respond to whether he
would elect a hearing.
Partington also requested notice of
the charges against him and Captain Blazewick’s curriculum
vitae, questioned the Navy JAG’s jurisdiction over the
proceedings, and said that he could not defend himself without a
waiver by Toles of the attorney-client privilege.
Id. at 239-
He raised concerns about whether he would be afforded due
process in the proceedings and observed that “[t]his matter is
beginning to cross the line between legitimate investigation and
harassment of criminal defense counsel.”
Id. at 240.
On October 30, 2009, Captain Blazewick responded to
Partington’s October 29 letter to Captain Morin, again extending
the deadline for Partington to request a hearing and addressing
his concerns about the Navy JAG’s authority to regulate
professional conduct and to conduct the investigation.
Captain Blazewick reiterated that, regardless of whether
Partington elected a hearing, Captain Blazewick would forward
all materials to be considered in drafting his report and
provide Partington with a reasonable time to respond.
Captain Blazewick attached the allegations of professional
conduct violations and his curriculum vitae.
See id. at 216-20.
On November 2, 2009, Partington wrote to Captain
Blazewick, pointing out that there appeared to be “a major
deficiency in the allegations” against him insofar as they
failed to specify the “falsity contained in each false statement
Id. at 241.
He raised several questions as to who
was representing the Navy, who had the burden of proof, who had
the initial burden of persuasion, and what presumptions would
He again raised the issue that Toles would need to
waive his attorney-client privilege.
Id. at 242.
On November 9, 2009, Partington sent another letter to
Captain Blazewick, noting that Captain Blazewick had not yet
responded to his November 2 letter.
Id. at 243.
stated that he was “entitled to know, in regard to the false
statement allegations, what the truth is alleged to be as to
each allegation” and reiterated that he needed a written waiver
of the attorney-client privilege from Toles.
explained why he used the term “acquitted” in quotation marks
and the difference between “acquitted” and “guilty,” as used by
the military judge.
Id. at 243-44.
On November 16, 2009, Captain Blazewick responded to
Partington’s letters from November 2 and November 9, 2016,
apologizing for the delay because he had been traveling for
Id. at 225.
He noted that Partington had not yet
“made an affirmative election or waiver” of his right to a
Captain Blazewick “presumed” that Partington
would elect to have a hearing “based on the tone and timing” of
Captain Blazewick requested that Partington
contact him to schedule a specific hearing date and repeated how
the investigation would proceed.
to call any witnesses at the hearing.
He said he did not intend
He also attached “a
complete copy of all the evidence” he intended to consider in
producing his report, including a summary of that evidence, and
reiterated that Partington could present evidence, call and
question witnesses, and be assisted by counsel.
Id. at 226.
Captain Blazewick specifically told Partington:
You are accused of violating the Rules of
Professional Conduct by misrepresenting the
record of trial to the NMCCA in your appellate
brief. This is a question of the candor and
merit of your brief and does not involve any
tactical trial decisions.
He also said that he did not believe the accusations
against Partington appeared to involve any privileged
communications between Partington and Toles.
the procedures Partington could follow if Partington still
believed his client’s right to confidentiality would be an
On November 18, 2009, Partington sent Captain
Blazewick a letter, stating, “I gather from what you are telling
me that there is no prescribed procedure for this hearing and
that you are free to make it up as you go or after you go.”
He raised concerns as to his due process rights and a
waiver of his client’s attorney-client privilege.
reiterated that he needed to know what the asserted truth was as
to each false statement allegation against him.
On November 25, 2009, Captain Blazewick sent
Partington a letter giving Partington an additional week to
submit any matters for consideration.
Id. at 229.
Partington what evidence he was relying on.
He also noted
that Partington’s failure to respond to multiple requests to
elect and schedule a hearing was a waiver of the right to a
Captain Blazewick observed that it had been
forty-four days since Partington had been notified of his right
to elect a hearing.
On December 3, 2009, Partington wrote to Captain
Blazewick, noting that Captain Blazewick had not responded to
his “previous letters concerning the alleged truth as to the
‘specifications’ alleging false statements, as well as [his]
Id. at 246.
He informed Captain
Blazewick that Toles would not waive his attorney-client
privilege and again stated that the Navy did not have
jurisdiction over him for these proceedings.
reiterating his concern about the procedures and charges against
him, Partington wrote, “I have no more interest in your
proceeding and could care less what the outcome is.”
He further stated, “Sadly, what happened in the Toles case
is that the government blundered badly and I did my ethical duty
thereby gaining a substantial benefit for my client.
result, the Navy was badly embarrassed.”
On December 8, 2009, Captain Morin responded to
Partington’s December 3 letter.
Id. at 231.
Partington that an ethics investigation hearing was scheduled
for December 21, 2009, and that, absent a showing of good cause,
the hearing would not be rescheduled to a later date.
Captain Morin restated the procedures that would be followed at
the hearing and enclosed the list of professional conduct
allegations against Partington, which had been previously sent
to Partington and had remained unchanged.
On December 9, 2009, Partington sent a letter to
Captain Morin, stating that he did not “see any purpose in
participating in the hearing” if the Navy did not intend to
afford him “basic due process.”
Id. at 248.
He repeated issues
he had previously raised in other letters and noted that he
would not be available for the December 21 hearing date.
He reiterated his belief that the prosecuting trial counsel in
the Toles case had been incompetent, that the Navy JAG did not
have jurisdiction over him, and that the Navy was trying to
blame him, which he said was “not going to work.”
On December 22, 2009, Captain Blazewick responded to
Partington’s December 9 letter to Captain Morin and notified
Partington that his hearing was rescheduled for January 19,
Id. at 233.
On January 6, 2010, Partington sent a letter to
Captain Blazewick expressing his intent not to participate in
the ethics investigation hearing.
Id. at 250.
He repeated his
concerns about the lack of due process and asserted that the
“sole purpose of this proceeding is to intimidate naval service
defense counsel from aggressively and ethically representing
their client in naval service courts-martial.”
On January 11, 2010, Captain Blazewick responded to
Partington’s January 6 letter and confirmed that, even though
Partington had indicated he would not participate, the ethics
investigation hearing would proceed and take place on January
Id. at 237.
On January 20, 2010, Captain Blazewick prepared a
memorandum stating that, although he had been prepared to hold
an ethics investigation hearing, Partington had not shown up and
had not contacted him since January 6.
Id. at 271.
to Captain Blazewick, Partington had not responded to his
telephone calls or emails and had not submitted anything further
for consideration, even after being expressly invited to do so.
Id. at 103.
Captain Blazewick subsequently sent his report to
See id. at 80.
The report concluded that
Partington had violated Rules 3.1 and 3.3 of the Rules of
Id. at 105-09.
On March 31, 2010, Partington acknowledged receipt of
the ethics investigation report, which he characterized as
“laughable if it were not potentially so serious.”
Id. at 74.
Partington said, “The Navy’s refusal to tell me what the alleged
truth was as to these specifications made it impossible for me
to offer a defense.”
He characterized the ethics
investigation as an “unconstitutional proceeding” violating his
due process rights and right to counsel.
He noted that he
might sue the Navy in United States District Court, writing,
“Let me assure you that if this matter goes to federal court, it
will be the Navy and not I that comes away with a black eye.”
On April 5, 2010, Captain Michael Quinn, the acting
Assistant Judge Advocate General for Civil Law, recommended that
Partington be indefinitely suspend from practicing law in
proceedings under the Navy JAG.
Id. at 68; see also id. at 110.
Captain Quinn noted that no mitigating circumstances had been
presented and that “Mr. Partington’s continued dissemblance
regarding his appellate brief, his intemperate statements
regarding NMCCA, and his multiple assertions that the Navy Judge
Advocate General lack jurisdiction in this matter are
Id. at 72.
Captain Quinn further
recommended that notice of Partington’s suspension be provided
to other naval tribunals and to the State Bar licensing
authorities of Hawaii, Oregon, California, and the District of
Id. at 73.
On May 10, 2010, the Navy JAG, Vice Admiral James
Houck, indefinitely suspended Partington from the practice of
law in Navy courts.
See id. at 64.
Based on this suspension,
the United States Court of Appeals for the Armed Forces issued
an order to show cause, see id. at 42-43, and ultimately imposed
reciprocal discipline for a period of one year.
See id. at 13-
Notice of Partington’s suspension was forwarded to the
disciplinary boards of the District of Columbia, California,
Hawaii, Oregon, and the Commonwealth of the Northern Mariana
See id. at 45-54.
Civilian Court Proceedings.
On November 9, 2011, the Hawaii Supreme Court issued
its Order of Suspension (the “November 9, 2011 Order”),
suspending Partington for thirty days.
Office of Disciplinary
Counsel v. Partington, No. SCAD-11-0000162, 2011 WL 5517313, at
*2 (Haw. Nov. 9, 2011) (as corrected Dec. 8, 2011) (unpublished
The Hawaii Supreme Court held that Partington’s
actions in the court-martial appeal violated Rules 3.3(a)(1) and
8.4(a) of the Hawaii Rules of Professional Conduct.
The Hawaii Supreme Court noted that Partington had
apparently “omitted material facts necessary to accurately
portray the court-martial proceedings that were the subject of
the appeal” and “continues to refuse to acknowledge the wrongful
nature of his conduct.”
The majority observed “in
mitigation” that the court-martial record “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.”
Ultimately, the majority said that it was “not convinced that
Partington’s omissions of material facts were done deliberately
with the intent to mislead or deceive the court,” and,
therefore, declined to impose reciprocal discipline of a oneyear suspension.
The Hawaii Supreme Court suspended
Partington for only thirty days, effective thirty days from the
date of its Order.
Partington was reinstated on February
Office of Disciplinary Counsel v. Partington, No.
SCAD-11-0000162, 2012 WL 681227, at *1 (Haw. Feb. 29, 2012)
Two of the five justices dissented,
arguing that a longer suspension was warranted.
On November 21, 2012, this court issued an Order to
Show Cause as to why Partington should not be suspended from
practicing in this court in accordance with Local Rule 83.4(d).
ECF No. 3. 2
While the proceedings in Hawaii were pending,
Partington filed a civil action in the United States District
Court of the District of Columbia alleging various claims
against Navy JAG officials stemming from his discipline.
Partington v. Houck, 840 F. Supp. 2d 236 (D.C. 2012); see also
ECF No. 10; ECF No. 10-2, PageID #s 1346-59.
asserted, among other things, that because he was a civilian
attorney, the Navy JAG lacked statutory authority to discipline
Partington, 840 F. Supp. 2d at 238.
On January 10, 2012,
the district court dismissed all of Partington’s claims.
id. at 245.
With Partington’s appeal in the District of Columbia
pending, this court held a hearing on February 27, 2012.
Partington expressly waived confidentiality and asked that the
hearing be open to the public.
See ECF No. 11.
ordered the hearing and the case file unsealed.
The court then
court asked Partington to provide it with a copy of his
appellate brief in the District of Columbia appeal.
This court subsequently deferred its proceeding pending
That order was vacated on March 6, 2012, pending
completion of related proceedings in the District of Columbia,
but was thereafter reinstated. See ECF No. 43.
completion of Partington’s appeal in Partington v. Houck, Civ.
No. 12-5038 (D.C. Cir.).
ECF No. 12, PageID # 1364.
While Partington’s appeal was pending before the D.C.
Circuit, the District of Columbia Court of Appeals imposed
reciprocal discipline based on the Hawaii Supreme Court’s Order
and suspended Partington for thirty days.
A.3d 161, 162 (D.C. Cir. 2012).
In re Partington, 45
Then, on July 23, 2013, the
D.C. Circuit affirmed the federal district court’s dismissal of
Partington’s claims, concluding that the Navy JAG had had
authority to suspend Partington from practice before Navy courts
and had provided ample due process before indefinitely
See Partington v. Houck, 723 F.3d 280, 282-89
(D.C. Cir. 2013).
On October 17, 2013, the Supreme Court of Oregon
issued a reciprocal discipline order based on the Hawaii Supreme
Court’s discipline and suspended Partington for sixty days.
ECF No. 32.
In the ensuing period, disciplinary proceedings were
ongoing in the State of California.
This court stayed the
present case in the meantime.
On April 28, 2017, Partington notified the court that
the California proceedings had concluded.
ECF No. 29.
Following a hearing and review, the California State Bar Court
imposed reciprocal discipline and suspended Partington for
See In re Partington, Case No. 12-J-10617, 2016 WL
8737404, at *1 (Cal. Bar Ct. Dec. 7, 2016).
State Bar Court found that Partington had failed to establish
that the Navy JAG proceedings violated his due process rights.
That court also found that “the mitigation for Partington’s
lengthy period of discipline-free practice warrants less weight
because of the significant aggravation of his lack of insight.”
This court asked Partington to file “any other orders
from outside this district relating to the same conduct” in this
ECF No. 31, PageID # 1694.
Partington filed a
declaration, noting a stayed proceeding in the Commonwealth of
the Northern Mariana Islands.
ECF No. 32, PageID # 1696.
This court held a hearing on May 15, 2017, during
which Partington referred to the off-the-record conference with
the military judge in the Toles court-martial proceedings and to
testimony before the California State Bar Court relating to the
content of that conference.
See ECF No. 33.
This court invited
Partington to file any excerpts of record relating to the inchambers conference, as well as to file any other material he
wanted this court to consider.
See ECF No. 33.
Partington submitted several supplemental filings.
one of those filings, Partington maintains that Captain
Blazewick had refused to respond to five letters in which he had
asked about the specific charges against him.
PageID # 1707.
See ECF No. 38,
He also says that he had no obligation to offer
evidence in his own defense.
He says that he “had
every right to rely on a complete failure of proof which in fact
Id., PageID # 1708.
Partington also gave this court Declarations of Anita
Scott and Karl Mueller, who were his military co-counsel in the
According to Partington, he had discussed the
motion to dismiss based on a jurisdictional defect with Mueller
and Scott before Toles pled guilty.
See Response to Order to
Show Cause, ECF No. 5, PageID #s 31-32.
In their declarations,
Mueller and Scott corroborate Partington’s recollection of
discussions about how to handle the jurisdictional issue.
ECF No. 41, PageID # 1766; Declaration of Anita Scott, ECF No.
38-2, PageID #s 1713-14.
They say that they had concluded that
they were “legally, professionally, and ethically obligated” to
raise the jurisdictional defect only after Toles pled guilty.
See ECF No. 5, PageID # 32; see also ECF No. 38-2,
PageID #s 1713-14; ECF No. 41, PageID #s 1766-67.
Mueller, “The defense team was somewhat surprised when the
military judge ‘entered findings of not guilty’ as to the video
voyeurism specifications (Petty Officer Toles Transcript at page
278) but did not believe the Military Judge was misspeaking.”
ECF No. 41, PageID # 1767.
Both Scott and Mueller recalled that, in the off-therecord conference, the military judge had explained that he had
entered findings of not guilty as to the video voyeurism
specifications because trial counsel had failed to properly
allege those offenses.
41, PageID # 1767.
See ECF No. 38-2, PageID # 1714; ECF No.
Both co-counsel also remembered the military
judge telling the prosecutor that he had been “out sharked” by
See ECF No. 38-2, PageID # 1714; ECF No. 41,
PageID #s 1767-68.
Scott and Mueller said that Partington had
sent both of them drafts of his appellate brief, which they had
See ECF No. 38-2, PageID # 1715; ECF No. 41, PageID
According to Scott, she had not seen any misstatement
of fact, factual error, or unmeritorious legal argument.
ECF No. 38-2, PageID #s 1715-16.
in his review.
Mueller also found no mistake
ECF No. 41, PageID # 1769.
rereading the brief, he noted that on page 8 there was a
statement that “Toles had moved for neither an acquittal nor a
dismissal of these specifications.”
He reasoned, “While
perhaps not obvious to a third party without the benefit of the
defense theory during discussions amongst counsel, I believe
‘these specifications’ reasonably refers to the disorderly
conduct offenses and not the video voyeurism offense.”
Both Scott and Mueller conceded that the record might be
confusing, but they agreed that Partington’s “relevant
statements and accompanying arguments were sound and appear to
have been wholly misunderstood.”
ECF No. 38-2, PageID # 1716;
ECF No. 41, PageID # 1769.
STANDARD OF REVIEW.
Local Rule 83.4(d) provides:
Whenever it comes to the attention of the court
that any member of the bar of this court has been
disbarred or suspended from practice by any court
. . . a notice shall be mailed to such member at
the member’s last known residence and office
addresses, requiring the member to show cause
within fourteen (14) days after the mailing of
such notice why the member should not be
disbarred or suspended from practice before this
court. Upon the member’s failure to respond or
upon a response to said notice, the court may, as
in the opinion of the court the circumstances
warrant, disbar or suspend the member from
practice before this court.
The Ninth Circuit, in In re Kramer, 282 F.3d 721, 724
(9th Cir. 2002), stated that “a federal court’s imposition of
reciprocal discipline on a member of its bar based on a state’s
disciplinary adjudication is proper unless an independent review
of the record reveals:
(1) a deprivation of due process; (2)
insufficient proof of misconduct; or (3) grave injustice which
would result from imposition of such discipline.”
disciplined attorney has the burden of demonstrating one of the
three deficiencies by clear and convincing evidence.
court presumes the correctness of a state bar court’s factual
See Gadda v. Ashcroft, 377 F.3d 934, 943 (9th Cir.
Notwithstanding that presumption, this court has
conducted an independent review of the record, as evidenced in
the preceding pages.
This court appointed a three-judge panel to address
Partington’s opposition to its OSC.
proceedings are relatively infrequent, and this court
consequently has no standing committee of lawyers to reply to a
subject attorney’s contentions.
Although this court may
occasionally request assistance in that regard from the United
States Attorney’s Office, it typically considers the subject
attorney’s written and oral presentations without receiving
submissions from an opposing source.
In the present case,
Partington faced no opposition and this court looked only to
whether he himself had met his burden of showing a defect in the
underlying discipline by clear and convincing evidence.
Partington’s legal arguments before this court are as
confusing as the factual record is.
arguments is persuasive.
In the end, none of those
Although this court considers the
proper focus of its analysis to be the constitutionality of the
Hawaii Supreme Court’s Order, this court begins with an
examination of the military proceedings that are the
underpinning for that Order and that Partington has relentlessly
challenged in this and other courts.
Partington Suffered No Deprivation of Due Process
in the Underlying Military Proceedings.
The Military Properly Exercised Jurisdiction
Over Partington’s Right to Practice in
Military Court Proceedings.
This court begins with addressing Partington’s
jurisdictional challenge to the military’s disciplinary
proceedings, which culminated in his indefinite suspension from
the practice of law in Navy courts and a reciprocal one-year
suspension in the United States Court of Appeals for the Armed
His argument in that regard is that the Navy JAG had no
authority to challenge a civilian attorney’s ability to
represent a client in Navy courts.
ECF No. 5, PageID #s 46-51.
Notably, this was not an argument that Partington
fully fleshed out in the original military disciplinary
In fact, despite mentioning this issue in
letters, he opted not to submit a brief on the matter or to even
ask for a hearing in that context.
This delay is reminiscent of
his decision to raise a jurisdictional challenge to the charges
against Toles only after Toles had pled guilty.
The issue of whether the military may discipline a
civilian attorney was thoroughly litigated in the civil case
Partington filed in the District of Columbia.
court rejected Partington’s argument, pointing to Article 36 of
the Uniform Code of Military Justice, which authorizes the
President to prescribe procedural rules for courts-martial
Partington v. Houck, 840 F. Supp. 2d 236, 240-41
(D.D.C. Jan. 10, 2012).
The district court observed that the
Manual for Courts-Martial includes rules authorizing the Navy to
discipline “other lawyers,” a term that the district court read
as encompassing civilian defense counsel such as Partington.
The D.C. Circuit affirmed.
See Partington v. Houck, 723
F.3d 280, 285-87 (D.C. Cir. 2013).
Partington appears to be asking this court to revisit
this issue, but he provides no analysis as to why he escapes the
effect of a ruling that he himself sought in the District of
Collateral estoppel principles preclude this court
from proceeding as if the issue has not been decided.
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1021 (9th
Cir. 2012) (“Issue preclusion bars relitigation of issues
adjudicated in an earlier proceeding if three requirements are
met: ‘(1) the issue necessarily decided at the previous
proceeding is identical to the one which is sought to be
relitigated; (2) the first proceeding ended with a final
judgment on the merits; and (3) the party against whom
collateral estoppel is asserted was a party or in privity with a
party at the first proceeding.’” (citation omitted)); United
States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1170
(9th Cir. 2010) (discussing when collateral estoppel attaches).
Even if this court were free to address the
jurisdictional question anew, Partington has not persuaded this
court that it should come to a conclusion different from that
reached in the District of Columbia.
This court views
Partington as having been subject to the military disciplinary
The Military Proceedings Were Conducted in
Accordance With Due Process Requirements.
The Navy suspension of May 7, 2010, and the Hawaii
Supreme Court’s Order of Suspension of November 9, 2011, both
relied on the same basic facts (of which Partington had notice)
in finding that Partington should be suspended.
7 at 13-14, 64-67.
See ECF No. 26-
Specifically, the military disposition
found, by clear and convincing evidence, that Partington had
violated Rule 3.1 (Meritorious Claims and Contentions) and Rule
3.3 (Candor and Obligation Toward the Tribunal) of the Rules of
Professional Conduct under JAGINST 5803.1C.
Rule 3.1 states,
A covered attorney shall not bring or defend a
proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so
that is not frivolous, which includes a good
faith argument for an extension, modification, or
reversal of existing law. A covered attorney
representing an accused in a criminal proceeding
or the respondent in an administrative proceeding
that could result in incarceration, discharge
from the naval service, or other adverse
personnel action, may nevertheless defend the
client at the proceeding as to require that every
element of the case is established.
ECF No. 26-7 at 358.
The comment to this rule provides, “The
covered attorney has a duty to use legal procedure for the
fullest benefit of the client’s cause, but also has a duty not
to abuse legal procedure.”
Id. at 358-59.
Rule 3.3(a) states,
A covered attorney shall not knowingly:
(1) make a false statement of material fact or
law to a tribunal;
(2) fail to disclose a material fact to a
tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the
(3) fail to disclose to the tribunal legal
authority in the controlling jurisdiction known
to the covered attorney to be directly adverse to
the position of the client and not disclosed to
(4) offer evidence that the covered attorney
knows to be false. If a covered attorney has
offered material evidence and comes to know of
its falsity, the covered attorney shall take
reasonable remedial measures; or
(5) disobey an order imposed by a tribunal unless
done openly before the tribunal in a good faith
assertion that no valid order should exist.
Id. at 360.
The comment to this rule provides that, while an
attorney should present a client’s case “with persuasive force,”
the attorney’s “[p]erformance of that duty while maintaining
confidences of the client is qualified by the covered attorney’s
duty of candor to the tribunal.”
Id. at 361.
The Navy JAG summarized Partington’s professional
misconduct as follows:
I find that you took two misstatements by the
military judge when he said he was entering a
“finding of not guilty” with respect to certain
specifications and, in turn, grossly exaggerated
those misstatements in your appellate brief to
the point that you intentionally misrepresented
the posture of the case by claiming the military
judge dismissed and/or acquitted your client of
the offenses at issue. . . .
I find that you filed an appellate brief
with NMCCA that contained statements you knew to
be both false and misleading, specifically: that
the appellant had never moved for dismissal of
specifications at the trial; that the military
judge had dismissed the specifications at trial;
that the military judge had acquitted the accused
of the specifications at trial; and that the
military judge had ruled that the specifications
failed to allege an offense at trial.
Id. at 65-66.
The Navy JAG concluded that Partington had
deliberately and intentionally misled the court in the appellate
Partington argues that the Navy disciplinary
proceedings deprived him of his due process rights.
PageID #s 59-68.
ECF No. 5,
This court disagrees.
In attorney disciplinary proceedings, the Supreme
Court has stated that “notice should be given to the attorney of
the charges made and opportunity afforded him for explanation
In re Ruffalo, 390 U.S. 544, 550 (1968) (quoting
Randall v. Brigham, 74 U.S. 523, 540 (1868)).
facing a punishment or penalty must have fair notice of the
Id. at 550.
Because disciplinary proceedings are of a
“quasi-criminal nature,” the charge against an attorney “must be
known before the proceedings commence.”
Id. at 551.
This court turns to each of Partington’s due process
complaints as to the Navy disciplinary proceedings.
First, Partington questions whether the Navy
disciplinary proceedings were properly initiated, asserting that
the Naval Court of Appeals’ opinion could not have served as a
ECF No. 5, PageID #s 59-60.
However, the Naval
Court of Appeals expressly asked that the Navy conduct an
investigation into Partington’s actions and included specific
references to Partington’s alleged misconduct in a footnote to
See ECF No. 26-7 at 510.
Staff followed up on
behalf of the appellate panel in ensuring that the opinion was
transmitted to the appropriate Navy ethics investigating
See id. at 318.
A referral by a military appellate
panel, rather than military co-counsel or a military trial
judge, does not render the proceedings against Partington
Partington cites no authority stating that concerns
expressed in an appellate decision may not serve to initiate a
military disciplinary investigation.
Second, Partington asserts that, even if the
proceedings were properly commenced, the Navy failed to give him
fair notice of the charges against him because the Navy never
told him how the statements in issue were false.
There is no
dispute that the Navy provided him with a list of fourteen
specifications detailing which of his statements were allegedly
ECF No. 5, PageID # 62.
Partington insists that many of
the alleged false statements were in fact legal arguments that
could not have been true or false, and that the burden was on
the Navy to show what made any factual statement false.
essence, Partington contends that there is insufficient proof of
During the preliminary inquiry, Captain Porzeinski
told Partington that there was not yet any “charge sheet.”
ECF No. 26-7 at 202.
Captain Blazewick and Captain Morin then
sent Partington the list of fourteen specifications.
id. at 113-200, 231.
Partington was given an opportunity to
address the charges against him at an evidentiary hearing.
id. at 231, 233-34, 237.
Quite apart from the opportunities Partington had to
respond to any allegation of falsity, there were multiple
instances in which Partington’s statements in his appellate
brief were in fact on their face far from forthcoming.
the declarations of Mueller and Scott assist this court in
better understanding what transpired before the military trial
judge in the Toles case, the record is quite confusing and
Partington’s appellate brief was, at best, his interpretation of
the record unaccompanied by any explanation that clarified the
bases for his interpretation.
That his appellate brief, viewed charitably, required
clarification is evident from Partington’s most recent
submissions to this court.
For some reason, he has waited years
to provide additional context and explanation for his allegedly
He concedes that the statement set forth in
Specification 1, stating that Toles had neither moved for a
dismissal nor an acquittal, was inaccurate due to an “editing
error” but was not a deliberate attempt to mislead the court.
ECF No. 5, PageID #s 51-52.
To the extent the alleged false
statements in Specifications 2 through 13, all relating to the
“acquittal” of the video voyeurism specifications, do not refer
to statements of fact, Partington says that they are legal
argument, which can neither be true nor false.
PageID #s 52-58.
To the extent those specifications allege that
Partington knowingly made a false statement of fact, he contends
that those facts are true.
What has always been clear even without any of the
recently supplied explanations or evidence is that Toles, having
been advised by Partington, pled guilty to lesser-included
charges of disorderly conduct.
filed Toles’s appeal.
Following sentencing, Partington
In his opening brief, Partington
contended that Toles had been “acquitted.”
He repeatedly used
quotation marks around the word “acquittal,” apparently
conscious that his word choice involved an interpretation of the
record rather than actual fact.
The brief that Partington filed
for Toles would have been more helpful to any tribunal had
Partington himself been more direct and avoided using code words
like “acquittal” without explaining them.
Partington would have
served Toles better had he acknowledged forthrightly that Toles
was only belatedly claiming that he could not have actually pled
guilty at all to anything given the jurisdictional flaw in the
If Partington thought he was being clever by
using words in quotation marks, his tactic backfired for reasons
that were entirely avoidable by him.
The record reflects that the Navy had reason to
The Navy was not required to provide
anything more to Partington than it did, including the list of
fourteen specifications, an opportunity to be heard in person at
an evidentiary hearing, and all evidence that was eventually
considered in determining that Partington had misrepresented the
Third, Partington grumbles that he was “unable to
fashion an adequate response, as he could not know what level of
response would be required to rebut the specifications” without
knowing what presumptions would be applied and who bore the
burden of proof and persuasion.
ECF No. 5, PageID # 61.
claims that, even though he was offered a hearing, he had
presumed that the hearing would suffer from “gross procedural
ECF No. 5, PageID # 61; see also id., PageID # 67.
He points to the alleged failure of the Navy to interview other
military co-counsel and the military judge, to obtain sworn
affidavits, and to gather statements from relevant material
Id., PageID # 64.
Contrary to his assertions, Partington was informed
several times about the applicable procedures.
No. 26-7 at 111-12, 212-13, 225-26.
See, e.g., ECF
Both Captain Porzeinski and
Captain Blazewick informed Partington of the procedures,
provided him with the evidence that they would consider, and
gave him multiple opportunities to submit any written material
rebutting the charges against him.
Captain Blazewick told Partington that the evidentiary hearing
would be “nonadversarial” and that he himself did not intend to
call any witnesses, although Partington could call witnesses
See id. at 225.
If Partington felt “disadvantaged,”
he could have expressed that more thoroughly at the evidentiary
hearing or in writing.
He also could have asked for more time
to prepare a response rebutting the charges, as the record
reflects that the Navy officers gave him multiple time
extensions of the deadline for requesting a hearing.
chose to accuse without providing analysis and then not to show
up at the hearing or provide substantive written responses to
the allegations against him, even after multiple opportunities
to do so.
See, e.g., id. at 69, 103, 199, 310.
Fourth, Partington complains about the qualifications
and background of Captain Blazewick, asserting that he was not a
“neutral arbiter, but was, in fact, prosecutor and judge.”
ECF No. 5, PageID # 61.
Partington claims that Captain
Blazewick suffered from “an actual or apparent conflict of
interest” because he was the Commanding Officer of the Navy
Trial Service, which was the office that had initially brought
the case against Toles.
Id., PageID # 64.
He also says that
Captain Blazewick had a conflict of interest because no other of
his military defense co-counsel was investigated for the alleged
false statements in the Toles appellate brief, meaning that
Partington was singled out as civilian defense counsel.
PageID # 62.
Partington did not raise his concerns about the
impartiality of Captain Blazewick during the military
It appears that he waived his right to challenge
Captain Blazewick for cause, even though he had been informed
that he had a right to raise such a challenge.
See ECF No. 26-7
at 112-12, 212-13.
In fact, Partington had received Captain
Blazewick’s curriculum vitae.
See id. at 216-20, 241.
always clear that Captain Blazewick was the investigating
officer, that Captain Morin would review his report, that
Captain Quinn would review the recommendation of the Rules
Counsel, and that Vice Admiral Houck would review Captain
Quinn’s recommendation and determine whether or not to
Contrary to Partington’s contention,
Captain Blazewick acted only as the investigator, not as both
“prosecutor and judge.”
Partington’s complaints as to Captain
Blazewick are untimely, and Partington provides no reason for
Finally, Partington characterizes the Navy’s
disciplinary actions as “arbitrary and capricious.”
5, PageID # 63.
See ECF No.
Collateral estoppel may apply to this issue,
which Partington chose to litigate in the civil action he
voluntarily commenced in the District of Columbia.
Skilstaf, Inc., 669 F.3d at 1021 (stating when issue preclusion
The D.C. Circuit determined that Partington had
received notice and an opportunity to be heard, noting that the
“record [wa]s replete with communications between the JAG and
Partington in which the JAG gave Partington notice it was
pursuing an ethics investigation against him and gave Partington
an opportunity to be heard.”
Partington, 723 F.3d at 288.
court detailed instances in which the Navy communicated to
Partington the allegations against him and how and when he could
submit material for consideration as part of the investigation.
Id. at 288-89.
The court concluded that Partington had received
“ample” due process but had waived his opportunity to be heard.
Id. at 289.
The court went on to say that the Navy’s conclusion
that Partington had knowingly misrepresented the military trial
judge’s statements in his Toles appellate brief “was supported
by substantial evidence” and that the Navy had articulated a
“rational connection between the facts found and the choice
Id. at 291.
Accordingly, the court rejected
Partington’s claim that the Navy had acted arbitrarily and
Even if collateral estoppel does not apply, Partington
presents no new argument or evidence to this court as to why it
should depart from the D.C. Circuit’s conclusion.
In sum, this
court’s independent review of the record reveals that the Navy
afforded Partington substantial due process.
The Navy conducted
a preliminary inquiry, gave Partington a detailed recitation of
his alleged misconduct, investigated the charges, and offered
Partington opportunities to respond in writing, as well as an
opportunity to respond and participate in an evidentiary hearing
before the investigating officer.
At the hearing before this
court on the Order to Show Cause, this court questioned
Partington as to why he had not attended the military hearing.
Partington said that attending the hearing would have been
The record shows no such thing.
Instead, the record
establishes that Partington made poor choices during the
military’s disciplinary proceedings.
He adopted a cavalier
attitude, even saying, “I have no more interest in your
proceeding and could care less what the outcome is.”
26-7 at 247.
Partington’s ill-advised choices do not render him a
victim of a due process violation.
Partington must now live
with the consequences of his actions and decisions.
The Hawaii Supreme Court Did Not Deprive
Partington of Due Process.
Partington contends that, apart from any defect in the
underlying military proceedings, the Hawaii Supreme Court
deprived him of due process by failing to provide him with fair
notice that he would be disciplined for something different from
what the military disciplined him for.
ECF No. 5, PageID #s 25-
Noting that the Hawaii Supreme Court ruled that he had
omitted material facts, he says the Hawaii Supreme Court found
“him not guilty with what he was originally charged (deliberate
false statements) and guilty of something with which he was not
ECF No. 5, PageID # 25.
In making this argument, Partington cites In re
Ruffalo, 390 U.S. 544 (1968).
Ruffalo holds that disbarment may
not be based on conduct not clearly charged in advance.
The attorney in that case had handled many Federal
Employers’ Liability Act cases.
Id. at 546.
He was charged
with twelve counts of misconduct, some of which were related to
having allegedly solicited clients through a railroad employee.
At the disciplinary hearings before the Ohio Board of
Commissioners on Grievances and Discipline, the Board learned
that the attorney had not hired the railroad employee to solicit
clients at all.
Instead, the railroad employee was hired
to investigate and gather information, including information
about the employee’s employer.
An additional professional
misconduct charge was then added based on the attorney’s hiring
of a railroad employee to investigate his own employer.
the time this charge was added, the attorney and the railroad
employee had already testified during disbarment hearings.
The addition of the new charge was based entirely on
Id. at 547, 549.
The attorney was given additional time to respond to
the new charge, but the attorney’s motion to strike the new
charge was denied.
Id. at 546-47.
The attorney was found to
have committed seven counts of misconduct, including the one
that had been added post-testimony.
On review, the Ohio
Supreme Court found sufficient evidence to support only the
added charge and one other charge.
The attorney was then
suspended indefinitely from the practice of law in Ohio’s state
Reciprocal discipline proceedings based on the Ohio
Supreme Court’s suspension order followed in the federal
district court and in the Sixth Circuit.
Id. at 547-48.
Sixth Circuit, relying solely on the Ohio Supreme Court’s record
and findings, concluded that only the added charge justified the
attorney’s disbarment before the federal courts.
The Supreme Court, reversing the Sixth Circuit, held
that the attorney had been deprived of procedural due process
given the “absence of fair notice as to the reach of the
grievance procedure and the precise nature of the charges.”
The Court said that the attorney had no notice that his
employment of the railroad employee “would be considered a
disbarment offense until after both he and [the employee] had
testified at length on all the material facts pertaining to this
phase of the case.”
Id. at 550-51.
The Court stated that
disbarment proceedings “become a trap when, after they are
underway, the charges are amended on the basis of the testimony
of the accused.”
Id. at 551.
At that point, an attorney “can
then be given no opportunity to expunge the earlier statements
and start afresh.”
The Court observed that the attorney
“may well have been lulled ‘into a false sense of security’”
that he could rebut some of the charges by proving that the
hired railroad employee had in fact been an investigator, not a
solicitor of clients, as originally charged.
(internal citation omitted).
Id. at 551 n.4
The Court stated, “[The attorney
had] ‘no reason even to suspect’ that in doing so he would be,
by his own testimony, irrevocably assuring his disbarment under
charges not yet made.”
Id. (internal citation omitted).
In re Ruffalo is inapplicable here.
independent review of the record, the Hawaii Supreme Court
determined that Partington had omitted material facts and
suspended him for thirty days.
See Partington, No. SCAD-11-
0000162, 2011 WL 5517313, at *2 (stating that Partington
“omitted material facts necessary to accurately portray the
court-martial proceedings that were the subject of the appeal”).
Although the Navy found no mitigating circumstances and,
instead, considered multiple aggravating factors, see ECF No.
26-7 at 66, the Hawaii Supreme Court noted that the record in
the court-martial proceedings 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.”
0000162, 2011 WL 5517313, at *2.
Partington, No. SCAD-11-
These mitigating factors led
the Hawaii Supreme Court to conclude that, although Partington
had engaged in professional misconduct by omitting material
facts, he had demonstrated that his misconduct warranted only a
short period of discipline.
In contrast to the Board in Ruffalo, the Hawaii
Supreme Court did not compile any new factual record.
existing record that the court reviewed was restricted to the
Navy disciplinary record.
That Navy disciplinary record in
itself was also limited, given Partington’s decision not to
provide any new material to rebut the charges against him or to
attend an evidentiary hearing.
The Hawaii Supreme Court thus
did not “add” a charge alleging Partington had omitted material
facts based on any new evidence, much less any testimony from an
Instead, the Hawaii Supreme Court, having
reviewed the existing fixed record, recognized that the record
was unclear and confusing and said that it was not convinced
that Partington had deliberately made false statements.
The Hawaii Supreme Court could not be said to have
“lulled” Partington into “a false sense of security.”
Partington identify any statement that he was induced into
making, or any statement that he would not have made had he
known in advance that the Hawaii Supreme Court was focusing on
his omission of material facts.
Partington claims, “If [he] had testified, he would
have had his own testimony used to establish supposed misconduct
for which he had no notice just as the Supreme Court of Hawaii
ECF No. 5, PageID # 29 n.3.
This conclusory statement is
seemingly included only to advance Partington’s contention that
Ruffalo bars this court from imposing reciprocal discipline
based on the Hawaii Supreme Court’s Order of Suspension.
id., PageID #s 51-58.
This court does not think this position
is entitled to any consideration at all.
not a hint of what such hypothetically prejudicial testimony
might have been.
This court notes that the essential difference
between a deliberate falsehood and a material omission is that
the former requires intent to deceive.
A material omission may
render a statement false or misleading, but the omission may not
have reflected an intent to deceive.
This is akin to a lesser-
included offense; a deliberate falsehood requires proof of an
element not necessary to a material omission.
This situation is
not analogous to the difference between hiring someone to
solicit clients and hiring someone to investigate his own
Partington benefitted from the Hawaii Supreme Court
majority’s charitable interpretation of the record and its
finding of mitigating factors.
See In re Kramer, 282 F.3d at
727 (noting that in a reciprocal disbarment proceeding, the
court focuses on “whether the punishment imposed by another
disciplinary authority or court was so ill-fitted to an
attorney’s adjudicated misconduct that reciprocal disbarment
would result in grave injustice”).
This court is similarly
giving Partington the benefit of the doubt.
The recently submitted Scott and Mueller declarations
attempt to explain what Partington may have intended to convey
in his appellate brief.
They are consistent with the Hawaii
Supreme Court’s reading of the record and decision to suspend
Partington for only thirty days.
But the declarations do
highlight how belatedly Partington is endeavoring to clarify the
Nothing in the record suggests that
Partington faced any impediment to a more timely clarification.
Luckily for Partington, the Hawaii Supreme Court, even without
the recently filed declarations, read the record very
This court concludes that Partington fails to meet his
burden of establishing by clear and convincing evidence that the
Hawaii Supreme Court either deprived Partington of procedural
due process or otherwise acted improperly.
This court therefore
reciprocally suspends Partington for thirty days.
Earle A. Partington is suspended from the practice of
law before this court for thirty days in accordance with Local
The term of his suspension shall be deemed to
have run during the pendency of this case.
Partington may apply
for reinstatement to practice law before this court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 12, 2017.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
/s/ Kevin S.C. Chang
Kevin S.C. Chang
United States Magistrate Judge
In the Matter of Earle A. Partington, Civ. No. 11-00753 SOM, Order of
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