Related open investigation: This event is one component of the ongoing 2015–2022 sequence analysis. See The Information Trail: Open Questions from 2015–2022.
Bosko Petricevic represented the witness at the December 2, 2022 hearing before Judge Wilson M.N. Loo. This article examines what he perceived and understood, and whether Hawaiʻi’s reporting rule required him to act.
Courtroom account: The Nod gives my firsthand account of the December 2, 2022 hearing. This article asks what Petricevic perceived and understood, and what he did afterward. The open letter asks him to give his account.
Hawaiʻi Rule of Professional Conduct 8.3(b) requires a lawyer who knows of a judicial-conduct violation raising a substantial question as to the judge’s fitness for office to inform an appropriate authority. Rule 8.3(c) excludes information protected by Rule 1.6 from required disclosure.1 Whether Petricevic had actual knowledge, whether the conduct met the seriousness threshold, and whether disclosure was permitted determine whether he had a reporting duty. A violation also requires proof that the required report was not made.
I am aware of no report. That does not establish that none was made, particularly through a confidential process. The interruption and sealing matter insofar as evidence connects them to the signal; neither independently establishes the reporting duty.
The Stress Test
The legal stress test assumes that the conduct described in The Nod constituted intentional judicial interference and that Petricevic perceived and understood it. Those are separate propositions to establish, not conclusions supplied by his presence.
On those assumptions, the intentional shaping of sworn testimony presents a serious judicial-fitness question. Whether counsel violated a reporting duty still depends on actual knowledge, Rule 8.3(c), and whether a required report was made. Crediting my visual account does not alone resolve those separate questions.
The Rule Is Limited, But This Report Is Serious
Rule 8.3(b) is intentionally limited. Hawaiʻi’s own comment to Rule 8.3 explains that requiring lawyers to report every rules violation would be unenforceable. The rule reaches only those offenses that a self-regulating profession must vigorously endeavor to prevent, and “substantial” refers to the seriousness of the possible offense, not the amount of evidence available to the lawyer. 1 The ABA commentary to Model Rule 8.3 tracks the same limiting principle. 2
That limitation matters. A lawyer need not report every sharp remark, every impatient ruling, every evidentiary mistake, or every instance of judicial discourtesy. Rule 8.3(b) should not become a weapon for relitigating adverse rulings through bar complaints.
The alleged direction of a sworn answer and interruption of record preservation raise the fitness question. This article examines whether Petricevic knew of that conduct and what duties followed.
The Knowledge Question
Rule 8.3(b) requires actual knowledge. That is a mental-state requirement, but it does not require an ulterior purpose, agreement, intent to conceal, or intent to assist. Presence and line of sight establish an opportunity to perceive; they do not alone establish knowledge. 1
The inquiry is whether Mr. Petricevic perceived the gesture, understood it as communicating a desired answer to the witness, and had actual knowledge of conduct constituting a judicial violation serious enough to raise a substantial question as to fitness for office. A reporting-duty finding does not depend on his admitting that knowledge or reciting a particular rule number. If the alleged signal did not occur, it cannot supply the predicate; if counsel lacked actual knowledge, this reporting theory fails.
The opportunity to perceive documented in The Nod does not establish actual perception. What he heard, where he was looking, and his understanding of the conduct must be assessed together.
Hawaiʻi’s Rule 1.0(f) defines knowledge as actual knowledge that may be inferred from circumstances. The relevant circumstances include the sequence, timing, participants’ positions, the question and answer, and the immediate attempt to describe the gesture on the record. An ordinary sealing request does not itself establish that counsel perceived the signal or intended to conceal misconduct. 1
The argument depends on actual perception and actual understanding shown by surrounding circumstances, not negligence-style “should have known” reasoning or sealing alone. If the surrounding circumstances show actual perception and actual understanding, the rule does not require him to admit that knowledge before the duty can be analyzed.
HRPC Rule 8.4(f) separately prohibits knowingly assisting a judge in conduct violating judicial-conduct rules or other law. A sealing request or post-event concealment alone does not establish knowing assistance. 1
Judicial Signaling to a Witness Is a Fitness Problem
The Hawaiʻi Revised Code of Judicial Conduct Rule 1.2 requires conduct promoting confidence in judicial independence, integrity, and impartiality; Rule 2.2 requires fair and impartial performance of judicial duties; and Rule 2.6 protects the right to be heard according to law. A judge who intentionally communicates a desired answer to a sworn witness on a material question would implicate the core duties of impartiality and fairness and present a serious judicial-fitness question. An interruption matters insofar as evidence shows it prevented a lawful attempt to preserve the reported conduct; an interruption alone does not establish such a violation. 3
The Code defines impropriety to include conduct that materially impairs a judge’s independence, integrity, impartiality, temperament, or fitness to fulfill judicial duties. It defines impartiality as the absence of bias or prejudice and the maintenance of an open mind, and it treats knowledge as actual knowledge that may be inferred from circumstances. Judicial signaling to a sworn witness about a material answer, if supported by outside review, would strike directly at those definitions. 3
A judge who intentionally directs a witness’s answer takes part in shaping the evidence. If the cutoff was intended to prevent preservation of the signal, it also bears on interference with review. Intent requires evidence beyond the interruption itself.
The Right to Make the Record
Courts recognize that judicial gestures, tone, and facial expressions can affect fairness without appearing in a transcript. In Butler v. United States, the D.C. Circuit held it was error to prevent defense counsel from particularizing objections to judicial gesticulation and facial expression for the record.4 The case illustrates the value of contemporaneous description; it does not establish a Hawaiʻi rule that every interruption forecloses all later preservation.
A spoken description can preserve an account of visual conduct in audio and a transcript. Other lawful means of supplementing the record may remain available. Here, Loo stopped my immediate attempt.
Nonverbal Witness Coaching Is Legally Cognizable
Nonverbal signaling is not legally meaningless. Courts understand that nods, headshakes, and mouthed words can communicate.
An unpublished, nonprecedential Ninth Circuit table memorandum in United States v. Flint affirmed convictions against a sufficiency challenge where the record permitted an inference that a defendant encouraged perjury through a nod. The disposition proves neither what happened in the December 2, 2022 proceeding nor that every head movement is subornation. It illustrates how the circumstances can give a nod evidentiary meaning. 5
Other witness-coaching cases are merely illustrative, not necessary to the legal argument. In Hernandez v. City of Vancouver, the Ninth Circuit described allegations of witness coaching involving nods, headshakes, and mouthing words during testimony. Although that case involved no judicial misconduct and proves nothing about what happened here, it illustrates that courts do not treat nonverbal signals during testimony as imaginary or categorically irrelevant. 6
For Rule 8.3(b), this is material. A lawyer in the room cannot dismiss judicial signaling as legally trivial merely because it was nonverbal. The law is capable of recognizing nonverbal communication. Judge Loo made the signal. The independent factual inquiries are what Petricevic saw, what he understood, and what other witnesses perceived. What professional duty followed is a separate legal question.
The Sealing Request Restricted Outside Review
Petricevic requested sealing, and the court granted it. The resulting restriction limited outside access to the recorded proceedings. This section examines counsel’s request and its consequences for independent review; The Nod holds the underlying courtroom account.
The request and the court’s ruling raise separate questions: what did Petricevic ask to seal, and why? What did the judge authorize, and what authority and findings supported it? Was narrower protection considered for the question, answer, attempted statement for the record, and interruption? The written or recorded request, docket entries, order, and any findings could supply those answers.
In Grube v. Trader, the Hawaiʻi Supreme Court required specific justification and consideration of narrower alternatives to sealing criminal court records. Public access, it explained, protects against “unfairness, discrimination, undue leniency, favoritism, and incompetence.”7 The case supplies an analogy for this civil hearing, where public access also permits scrutiny of the judge’s conduct.
The Commission’s Jurisdictional Endpoint
For alleged judicial misconduct, the Commission on Judicial Conduct was an appropriate authority while it retained jurisdiction. This article does not resolve whether a report to another authority could also satisfy Rule 8.3(b).
That matters because Hawaiʻi’s disciplinary system covers full-time and part-time judges, and RSCH Rule 8.2(b) provides that the Commission’s jurisdiction extends to reported conduct only if the conduct is reported no later than 90 days after the judge leaves office. 8
The ninety-day period runs from departure from office, not from the December 2022 hearing. Rule 8.3 itself states no fixed number of days for a lawyer to report; the Commission’s jurisdictional endpoint is not a separate attorney disciplinary deadline. 1 8
The later expiration of jurisdiction does not establish that Mr. Petricevic failed to report or caused the closure. Those conclusions would require evidence about whether reports were made and what review would otherwise have remained available.
The “lawyer in the room” matters because a pro se litigant may not know the disciplinary architecture. A member of the public may not know the deadline. But a Hawaiʻi lawyer is an officer of the court operating inside the professional system. Rule 8.3(b) exists because lawyers are expected to act when they know judicial misconduct has crossed the line from ordinary error into a substantial fitness question.
The Confidentiality Limitation
Rule 8.3(c) excludes information protected by Rule 1.6 from required disclosure. Rule 1.6 reaches information relating to the representation, whatever its source, and is broader than attorney-client privilege. It may protect information about conduct observed in open court if disclosure would reveal protected information relating to the representation. 1
The confidentiality of a disciplinary recipient does not itself authorize disclosure. The inquiry requires identifying what information was protected and whether client consent, an applicable exception, or other legal authority permitted disclosure. Hawaiʻi’s Rule 8.3 comment encourages lawyers to seek client consent where reporting would not substantially prejudice the client’s interests. 1
If Rule 1.6 barred disclosure, Rule 8.3 does not require a report revealing that information. The existence of some protected information does not itself answer whether a report could have been made without revealing that information; that too depends on the facts and Rule 1.6. If a lawful basis for disclosure existed, the knowledge and substantial-fitness requirements still determine whether reporting was mandatory. Public materials do not resolve those questions here.
Neither Rule 8.3 nor Rule 1.6 imposes a requirement to create or publicly disclose a written ethics analysis. Rule 1.6 permits disclosure as necessary to obtain legal advice about compliance with the Rules. The absence of a publicly produced memorandum or an answer to the open letter does not establish a reporting violation. 1
ABA Formal Opinion 522: Noncontrolling Guidance
ABA Formal Opinion 522 discusses Model Rule 8.3(b)’s knowledge and seriousness requirements and Rule 1.6 confidentiality.9 It is nonbinding guidance and does not decide whether anyone in this hearing violated Hawaiʻi’s rules. The Reporting Duty examines its relationship to the Hawaiʻi rules in detail.
Why Lawyers Should Care
The reported hearing and possible nonreporting raise a larger question about the conditions under which professional self-regulation means anything.
Rule 8.3(b) exists because the legal profession cannot depend entirely on injured litigants to police judicial misconduct. A pro se party may not know the reporting architecture. A transcript may not capture visual misconduct. A sealed record may prevent public scrutiny. And a judge who controls the courtroom may also control whether the reported misconduct ever becomes reviewable.
Hawaiʻi’s own comment to Rule 8.3 recognizes that reporting is especially important where the victim is unlikely to discover the offense. 1 By analogy, the same institutional concern is implicated where alleged misconduct is discovered but the record structure makes external review unusually difficult.
That is precisely when the lawyer’s role matters.
The lawyer is a partisan advocate and an officer of the court operating inside a self-regulating profession. That status does not require him to disclose information protected by Rule 1.6 or become counsel for the opposing party. When a lawyer has actual knowledge of qualifying judicial misconduct and Rule 8.3(c) does not exclude the information from required disclosure, client advocacy does not excuse nonreporting.
Nonreporting, if established, would therefore be a professional violation when those conditions are met. Some forms of judicial misconduct implicate the integrity of the legal system beyond the tactical interests of the parties; the reporting rule addresses that concern while preserving its express confidentiality limitation.
Rule 8.3(b) matters most when reported judicial misconduct is fleeting, nonverbal, visual, beneficial to one side, and procedurally buried before review can occur.
If the reporting rule has force anywhere, it has force there.
The Scope of the Duty
The potential duty was specific: to inform an appropriate authority if Mr. Petricevic had actual knowledge of judicial misconduct raising a substantial question as to fitness and Rule 8.3(c) did not exclude the information from required disclosure. That is a reporting obligation, not a separate duty to produce a written account of his ethics deliberations.
That scope matters. Mr. Petricevic was not required to become opposing counsel to his own client. He was not required to concede his client lied. He was not required to accuse the judge in open court without first evaluating his duties. He was not required to prove a federal crime. He was not required to solve the institutional failures of Hawaiʻi judicial discipline by himself.
The question is whether a lawyer who actually witnessed judicial signaling to a sworn witness could later treat that event as merely advantageous litigation noise. Rule 8.3(b) exists because some misconduct belongs to the legal system, not merely to the parties.
That means the legally relevant question turns on whether the rule was triggered, not whether reporting would have been comfortable or tactically useful to his client.
If the evidence establishes the judicial signaling, Mr. Petricevic’s actual knowledge of qualifying judicial misconduct, and no Rule 8.3(c) barrier to the necessary disclosure, the reporting duty was triggered.
Records Needed
The reporting-duty analysis depends on what counsel saw and understood and whether Rule 1.6 barred an appropriate report. Public materials alone leave unresolved whether Mr. Petricevic saw the gesture, understood it as judicial signaling, had knowledge sufficient to trigger Rule 8.3(b), or could report without violating Rule 1.6. The analysis rests on the courtroom sequence, not on Mr. Petricevic’s biography, employment history, or professional proximity to anyone else.
Public-Record Employment Timeline: Hawaiʻi Deputy Attorney General (2013–2019)
Public records—including Mr. Petricevic’s curriculum vitae on file with the Hawaiʻi Labor Relations Board—establish that Bosko Petricevic served as a Deputy Attorney General in the Employment Law Division of the Hawaiʻi Department of the Attorney General from June 2013 to March 2019.
He had moved to private practice before the December 2, 2022 hearing before Judge Wilson Loo. These employment dates do not establish knowledge of the earlier prosecution or of the reported courtroom signal, and supply no independent element of this reporting-duty theory.
Evidence that could materially weaken or defeat the reporting-duty theory includes sealed-record review showing a materially different audio sequence; court-file review showing absence of the described exhibit or a materially different exhibit; a full record showing an uninterrupted attempted record statement; contrary courtroom testimony supporting absence of the gesture, blocked line of sight, or lack of contextual understanding; evidence that Rule 1.6 barred the necessary disclosure; or evidence that a report satisfying Rule 8.3(b) was made to an appropriate authority. All eyewitness accounts, including mine, should be evaluated for specificity, opportunity to observe and line of sight, consistency with the audio and court file, and independent support.
These are ways to test the investigative theory, not a burden on counsel to disprove it. A finding that Rule 8.3(b) was violated would require sufficient evidence of qualifying judicial misconduct, Mr. Petricevic’s actual knowledge, a reporting obligation consistent with Rule 8.3(c), and failure to make the required report.
Why This Is a Public-Accountability Issue
A litigant without counsel may depend on someone else in the room to recognize and report serious judicial misconduct. Here, the potentially duty-bound lawyer represented the opposing party. The Reporting Duty examines that conflict in the reporting system. This article asks the narrower question: what did Petricevic perceive, what could he lawfully disclose, and was a required report made?
Conclusion
This analysis rests on stated conditions.
The duty turns on whether the judge intentionally communicated a desired answer to the sworn witness, whether Mr. Petricevic had actual knowledge of qualifying judicial misconduct, and whether Rule 8.3(c) excluded the information from required disclosure. A reporting violation also requires proof that the required report was not made.
If the conditions triggering Rule 8.3(b) were met, the reporting duty was mandatory. The rule says “shall.” The Commission was a direct avenue for judicial-discipline review while jurisdiction remained open. Sealing restricted outside access, and departure from office limited that avenue’s duration; neither establishes counsel’s actual knowledge, nonreporting, or intent to conceal.
That is the public-interest case.
The open letter asks Mr. Petricevic what he saw.
This article states the professional consequence if the knowledge, seriousness, and disclosure conditions were met and no required report was made.
Sources and Notes
Hawaii State Judiciary, Hawaiʻi Rules of Professional Conduct, Rules 1.0(f), 1.6, 8.3, 8.4(f), and Rule 8.3 comments. The knowledge, confidentiality, and reporting provisions relied on here were operative on December 2, 2022 and remain materially unchanged in the current text. Compare the June 25, 2013 adoption order and attached rules, effective January 1, 2014; the 2022 amendment index lists no amendments to Rules 1.0, 1.6, or 8.3, and the current rule-specific histories record no intervening amendments to those provisions. (archival copy) (archival copy — 2022 amendment index) ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎
American Bar Association, Rule 8.3: Reporting Professional Misconduct, Model Rules of Professional Conduct commentary. ↩︎
Hawaii State Judiciary, Hawaiʻi Revised Code of Judicial Conduct, Canon 1, Rules 1.2, 2.2, 2.6, and terminology definitions. The operative duties cited here were already present in the December 17, 2008 order and attached Code, effective January 1, 2009, and remain materially unchanged from those applicable on December 2, 2022. The current rule-specific histories place the amendments to Rules 2.2 and 2.6 before that event; the 2022 amendment index lists no RCJC amendments. (archival copy) (archival copy — 2022 amendment index) ↩︎ ↩︎
Butler v. United States, 188 F.2d 24 (D.C. Cir. 1951), available through Justia. ↩︎
United States v. Flint, 993 F.2d 885 (Table) (9th Cir. 1993) (unpublished memorandum disposition), available through Justia. The Justia copy labels the disposition as a Ninth Circuit memorandum and includes the Rule 36-3 nonpublication notice. Current Ninth Circuit Rule 36-3 treats unpublished dispositions and orders as nonprecedential and limits citation of pre-2007 unpublished dispositions in courts of the circuit. Cited here only as a nonprecedential factual illustration that nonverbal conduct can carry evidentiary meaning in context. (archival copy) (archival copy — Ninth Circuit rules) ↩︎
Hernandez v. City of Vancouver, No. 13-35131 (9th Cir.), available through CaseMine. ↩︎
Supreme Court of Hawaiʻi, Grube v. Trader, 142 Hawaiʻi 412, 420 P.3d 343 (2018). The court required procedural safeguards, specific findings supporting closure, and consideration of less restrictive alternatives when sealing criminal court records. Its application to this civil hearing requires separate analysis. (archival opinion through Justia) ↩︎
Hawaii State Judiciary, Commission on Judicial Conduct and Rules of the Supreme Court of the State of Hawaiʻi, Rule 8.2(b), concerning Commission jurisdiction over conduct reported no later than ninety days after a judge leaves office. The Commission investigates judicial misconduct and may recommend discipline; it is not a trial or appellate court. (archival copy — Commission page) (archival copy — rules) ↩︎ ↩︎
American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 522, “Lawyer’s Obligation to Disclose Information About Grounds for a Judge’s Disqualification” (Apr. 8, 2026). (archival copy) ↩︎