A legal debate over a Kaua‘i lawyer’s 2018 “sleazy” remarks finally ended at the state Supreme Court Monday.
Seven years ago, Mark Zenger, an attorney since 1983, was representing a husband in a Kaua‘i divorce case that had turned acrimonious, particularly regarding the future of the former couple’s home.
Amid a legal back-and-forth between Zenger and his opposite number, attorney Stacey Joroff, Zenger filed a heated memorandum, describing the wife’s legal tactics as “sneaky, sleazy things [done] as part and parcel of an evil and intentional plan,” and a “hissy fit.” In a subsequent hearing, Zenger also called Joroff’s and her client’s actions “slimy” and used profanities such as “horseshit” and “bullshit.”
These remarks became the basis of a disciplinary investigation that lasted for years. After Joroff filed a complaint with the state Office of Disciplinary Counsel, the matter would go to multiple disciplinary hearings — one of which lasted six days — in 2020 and 2021, both of which found no fault in Zenger’s conduct.
Despite this, in 2023, the ODC board rejected the findings of the hearings, leading Zenger to appeal the matter to the Supreme Court.
“It’s fairly rare for these things to go to the Supreme Court,” Roy Kong, chief disciplinary counsel at ODC, told Aloha State Daily. “It’s also rare for them to come before the ODC board at all.”
Kong said public disciplinary hearings are held when an ODC investigation has determined that an attorney’s conduct warrants some sort of public penalty, which he said could range from a public admonition to suspension to disbarment. He estimated that less than 20% of all disciplinary cases go to public hearings, while even fewer go to multiple hearings and still fewer go to the Supreme Court.
In Zenger’s case, the ODC had requested he be publicly reprimanded for his conduct, which Kong said entails a public notice that an attorney has been found to violate a specific provision of the Hawai‘i Rules of Professional Conduct (HRPC).
At question was whether Zenger’s word choices — “sleazy,” “sneaky,” “evil”, “hissy fit” — violated HRPC civility rules, which Zenger denied. During the hearings, Zenger said he had “at worst, engaged in rhetorical hyperbole, which is … fully protected by the First Amendment.”
Ultimately, on Monday, the Supreme Court found Zenger had violated no rules, putting an end to the matter after seven years.
Associate Justice Todd Eddins wrote in the opinion of the court that, under the circumstances of the divorce case, Zenger’s language was understandable: the wife had made false statements to the court about the husband’s intentions, and served Zenger by mail for a hearing scheduled a week later, giving him little time to respond.
As such, Eddins wrote that Zenger’s word choice, “though ill-mannered, … expressed Zenger’s reasonable complaints.”
Other complaints by Joroff that Zenger had “loomed over her” during a court hearing were determined to have not happened.
“Because we do not believe this court should reprimand attorneys for not meeting aspirational goals … we do not address whether seven dirty words — ‘sneaky,’ ‘slimy,’ ‘sleazy,’ ‘evil,’ ‘hissy fit,’ ‘horseshit,’ and ‘bullshit’ — violate [the HRPC],” Eddins wrote.
ASD reached out to Zenger for comment.
