The Reporting Duty

What does HRPC 8.3(b) require when the lawyer best positioned to observe alleged judicial misconduct represents the witness who benefited from it? This article examines actual knowledge, confidentiality, judicial and witness intent, and access to the sealed record.

Reading the Argument

The argument has three separate stages:

1. What happened and what the participants understood: The Nod, Loo’s intent, the witness’s intent, and counsel’s actual knowledge.
2. Whether a reporting duty followed: the three gates—knowledge, seriousness, and permitted disclosure—then the rule’s design problem.
3. How to test the analysis: the authority map, records to retrieve, and strongest innocent reading.

The central claim is about incentives: a rule that depends on an opposing lawyer’s knowledge can leave a contested event unclarified. A finding against any participant still requires the evidence and legal elements examined below.

The Account and the Reporting Question

Courtroom account: The Nod gives my firsthand account of the December 2, 2022 hearing. This article examines participants’ knowledge and intent, confidentiality, and the reporting obligation.¹

Petricevic represented the witness; I had no independent counsel present. His opportunity to perceive the conduct is distinct from what he actually saw and understood. The witness remains redacted because the subject here is the court process and the reporting rule.

Scope and Method

The analysis compares my account and the sealed-record dependencies with the public professional-responsibility rules. It asks what Rule 8.3(b) required if counsel saw and understood the signal. My complaint and other witnesses remain separate routes to review.

My assessment is that the rule can produce an equilibrium of non-clarification: participants may preserve ambiguity while institutions demand proof. This is an incentive model, not a finding that it explains the decisions in this proceeding or a demonstrated pattern across proceedings. The sections below examine that model against intent, confidentiality, and competing factual accounts; records of participants’ knowledge, reports, and reasons for acting would be needed to test its application here.

The Question and the Witness’s Exposure

The LSD question tested the witness’s credibility and raised possible criminal exposure. He could admit furnishing the drug, deny it under oath, invoke the privilege against self-incrimination, or leave the court to address the privilege and relevance questions. The text-message exhibit supported asking the question. It did not by itself establish the underlying drug conduct.

The answer was material to the injunction proceeding: it bore directly on the witness’s credibility, interest, bias, motive to deny conduct carrying possible criminal exposure, and the disputed facts. Invoking the privilege could also raise a question about civil adverse inferences.² A denial could protect both the witness’s position in the hearing and his position concerning the drug allegation. Petricevic had an interest in protecting his client. What either man perceived and understood remains unresolved.

Before the hearing, Petricevic offered a cross-injunction resolution and urged me to accept it. Acceptance would have avoided live testimony and the LSD question, along with the disputed answer and record-preservation problem that followed. The proposal’s purpose is unresolved; correspondence and his explanation could establish why it was made.

The neutrality question concerns a judge directing a pending answer, regardless of whether the witness’s underlying answer was true.

Mens Rea I: Loo

Loo’s intent requires evidence beyond the head movement itself. Timing, line of sight, courtroom layout, the question, exhibit, answer, immediate cutoff, and sealing sequence all bear on that inquiry.

The timing and communicative character described in The Nod are relevant to distinguishing an instruction from an ordinary reaction. My interpretation of familiarity remains an inference; it does not establish prior agreement.

The strongest innocent reading contests communicative intent while leaving the visual observation itself specific and legally meaningful.

Six explanations and indicators bear on Loo’s intent. Their force depends on the timing, direction, communicative content, interruption, and handling of the record:

In my assessment, innocent-movement explanations become harder to sustain against the combined timing, direction, answer, and immediate interruption. That is an inference to test, not a substitute for testimony.

The sealed audio could establish timing and courtroom control; it cannot establish visual conduct or intent. Those questions require eyewitness evidence and assessment of the totality of circumstances.

The distinction matters because judicial discipline and federal criminal law operate at different mens rea thresholds. A judicial-conduct analysis asks whether the conduct violated standards of impartiality, fairness, decorum, and public confidence in the judiciary.³ A federal Section 242 prosecution requires proof of willfulness and the deprivation of a clearly established federal right under color of law.⁴ The same courtroom event can be serious enough to warrant discipline and still fall short of federal criminal proof.

Mens Rea II: The Redacted Witness

The witness’s mental state presents its own analytical branches.

The exposure was immediate rather than abstract. The redacted witness had incentives to avoid admitting drug furnishing, to avoid invoking privilege where invocation would damage the injunction posture, to preserve credibility, to avoid contradiction with the exhibit, and to avoid creating an independent criminal or reputational record. The answer thus selected among exposure paths while assuming the form of testimony.

If the witness did not see the nod, the denial remains independently analyzable against the text-message exhibit concerning acid, and the case reduces to a conventional problem of credibility and documentary evidence.

If the witness saw the nod and adopted it, the denial supports a coached-answer inference. That inference would still require testing—against line of sight, timing, the witness’s own statement, the sealed audio, and the exhibit. The nod matters in this branch because it appeared at the precise moment the witness confronted the highest-pressure answer choice.

If the witness had already resolved to deny, the nod retains significance. Judicial confirmation can stabilize a false denial, if the denial was false, even where the witness required little encouragement; a judge’s nonverbal agreement can convert a risky denial into the safer answer inside the room.

In this strategic model, silence is attractive to the witness after the hearing. Reopening the answer invites exposure on the drug issue, the denial, the courtroom sequence, and the relationship between the answer and the court-file exhibit. Silence preserves the denial and avoids any new statement. A self-interested denial by the witness would nonetheless constitute evidence; its weight would depend on specificity, consistency with the sealed file, line of sight, and independent corroboration.

Actual Knowledge and Professional Responsibility: Bosko Petricevic

Petricevic presents the central professional-responsibility problem, not a criminal mens rea inquiry. This Article does not accuse him of a crime or of participating in the alleged judicial signaling; it examines his knowledge and any reporting duty arising from it.

The professional-responsibility question is whether Petricevic knew, or could be found to have known, that Loo committed qualifying judicial misconduct by signaling an answer to a sworn witness. That question turns on what Petricevic saw, heard, and understood. Rule 1.6 may protect information relating to the representation even when the lawyer obtained it by observing conduct in open court. Any reporting duty must be assessed with Rule 8.3(c)’s confidentiality limitation. Knowledge of the underlying LSD answer remains a distinct evidentiary issue.

The distinction is essential. Petricevic could recognize the professional-responsibility problem without any personal knowledge that the LSD allegation was true. The reporting obligation would arise from knowledge that a judge signaled an answer to a sworn witness—irrespective of whether Petricevic knew the answer to be false. A lawyer may believe his client had a defensible answer and still recognize that a judge may not signal that answer from the bench. A lawyer may remain a loyal advocate and still confront a professional duty triggered by his own observation of judicial conduct.

Courtroom layout and sightlines can test Petricevic’s opportunity to perceive the gesture. The audio cannot establish where he was looking. The absence of video does not resolve the visual observation.

The Lawyer in the Room examines counsel’s actual knowledge and the limits of the reporting duty. The question here is how that duty operates when the lawyer represents the party who benefited from the reported conduct.

I had no independent counsel in the room. The opposing lawyer with a potential Rule 8.3(b) duty represented the party who benefited from the alleged signal. That left me without my own trained advocate to object, preserve the issue, or assess a reporting duty. It did not eliminate my ability to complain, any reporting channels available to court personnel, or the possibility of later outside investigation.

His client-benefit posture matters because it is the design defect. Rule 8.3(b) conceives of the observing lawyer as a professional officer of the court. The adversary system conceives of him as the advocate for a client whose position benefited from the alleged misconduct. Those conceptions collide where the misconduct favors the client and harms the opposing pro se party.

That is the problem of relying on opposing counsel’s professional duty when the litigant has no independent lawyer present. A neutral lawyer who observes a judge signal a witness in an unrelated case can report without tactical cost to any client. An adversarial lawyer whose client benefits from the signal confronts a different payoff structure entirely. Reporting may undermine the client’s victory, expose the client’s testimony, generate conflict with the client, antagonize the judge or the local bench, and invite professional friction. Silence preserves the result—and can be rationalized through the rule’s own thresholds.

The public record cannot yet resolve what Petricevic saw or understood. Line-of-sight reconstruction, eyewitness testimony, and the surrounding audio sequence must test perception first; if perception is established, the analysis turns to his understanding and the reporting duty.

Loo also cut off my explanation of the stalking, assault, and vehicle attacks; the overview addresses that separate hearing failure.

The Three Gates Before “Shall”

HRPC 8.3(b) provides that a lawyer having knowledge that a judge has committed a judicial-conduct violation raising a substantial question as to the judge’s fitness for office shall inform the appropriate authority.⁵ The mandatory word is “shall.” But the operative power resides in the thresholds that must be crossed before that word activates. Once the predicates are satisfied, the duty is mandatory; the defect lies upstream. The lawyer whose client benefited from the alleged visual event can preserve ambiguity at any of three gates—by denying reportable knowledge, by denying qualifying judicial misconduct, or by denying a substantial question as to fitness.

The Rule’s Own Name

There is a reason Rule 8.3 is sometimes called, even among lawyers, the “snitch rule.” The phrase is informal—it is not Hawaiʻi’s official designation for HRPC 8.3(b), and no doctrine should be constructed upon it. But it constitutes relevant cultural evidence. California legal-ethics commentary describes Rule 8.3 as “sometimes referred to (perhaps derogatorily)” as the “snitch rule.”⁶ Massachusetts disciplinary commentary observes that the nickname “tells us all we need to know” about the popularity of reporting another lawyer’s misconduct, before contrasting that attitude with a professional “code of silence.”⁷ These sources neither establish that Hawaiʻi lawyers use the term identically nor prove Petricevic’s subjective state of mind; what they demonstrate is that the reporting duty carries a recognized national-cultural stigma within the profession.

The nickname matters because HRPC 8.3(b) deploys mandatory language for judicial misconduct as well: a lawyer having knowledge that a judge has committed a qualifying judicial-conduct violation “shall inform the appropriate authority.”⁵ The comments reinforce the obligation: self-regulation requires lawyers to initiate disciplinary investigation when they know of misconduct, and lawyers bear a similar obligation with respect to judicial misconduct.⁵⁸

To call a report “snitching” is to reframe a lawyer’s duty to the court and the public as betrayal. The pressure need never be made explicit. In a small legal community, lawyers may absorb the lesson indirectly: reporting serious misconduct is mandatory in the rulebook and socially dangerous in the room. “Shall” commands one thing. The nickname warns against it.

Gate one is knowledge. Hawaii’s professional rules preserve the actual-knowledge requirement, though actual knowledge may be inferred from circumstances.⁹ The distinction is consequential. Actual knowledge does not mean confessed subjective certainty, and “I was not certain” ought not defeat the rule where the surrounding facts support an inference that the lawyer knew what he saw and understood its significance. Yet actual knowledge remains a demanding threshold where the act is visual, fleeting, nonverbal, and beneficial to the lawyer’s client. A lawyer may characterize a witnessed signal as mere movement. He may characterize a facial expression as noncommunicative. He may acknowledge hearing the attempted record statement without crediting the underlying visual claim. Each position preserves ambiguity.

A serious counterargument exists here, and it deserves a direct answer. Knowledge under the rules “may be inferred from circumstances,” and persuasive professional-responsibility authority from other jurisdictions construes the reporting trigger objectively rather than subjectively. In In re Riehlmann, the Louisiana Supreme Court held that a lawyer possesses reportable knowledge when “a reasonable lawyer under the circumstances would form a firm belief that the conduct in question had more likely than not occurred,” and stated expressly that the standard is “measured by an objective standard that is not tied to the subjective beliefs of the lawyer in question.”¹⁰ In In re Himmel, the Illinois Supreme Court suspended a lawyer for one year for failing to report another lawyer’s known, unprivileged misconduct, holding the duty mandatory notwithstanding the client’s preference for silence, after finding the information unprivileged.¹¹ Both decisions arose under the lawyer-on-lawyer branch of the reporting rule rather than the judicial branch; they are analogies, not Hawaii law. Riehlmann, moreover, arose from an explicit verbal confession retained for years, so its analogy to a fleeting visual courtroom event carries substantial factual-posture limits and leaves Hawaii’s knowledge standard in control. Yet if the circumstances described in The Nod support an inference of actual perception and understanding, the out-of-state reasoning renders the “I could not be sure” position considerably harder to maintain—even as HRPC continues to require actual knowledge or knowledge inferred from circumstances. The escape hatch may be smaller than a purely subjective account suggests. What props it open in this fact pattern is the combined effect of a visual-only act, a conflicted observer, an audio-only record, and a seal: the very circumstances from which an outside reviewer would infer knowledge are the circumstances the seal removes from outside review.

The question and its documentary basis bear on what a trained observer could understand from a “no” signal immediately before the answer. They do not resolve whether Petricevic perceived it or had the actual knowledge the rule requires.

Gate two is a violation of the applicable judicial-conduct rules. The Hawaii Revised Code of Judicial Conduct requires judges to promote public confidence in judicial independence, integrity, and impartiality; to perform their duties fairly and impartially; to afford parties a fair opportunity to be heard; to maintain decorum; to avoid improper ex parte communications; and to refrain from statements that impair fairness.³ A judge who nonverbally signals an answer to a sworn witness during a pending material question would strike at judicial neutrality, fairness, and public confidence at their foundation. The legal question is whether the observed act can be proven and whether the reporting thresholds were triggered. A respondent may still attempt to classify the movement as generic courtroom reaction, disbelief, or body language. That characterization leaves my account of the no-nod intact; it merely relocates the defense along the mens rea scale and makes the cutoff relevant to the evaluation of intent.

Gate three is a substantial question as to fitness. The HRPC comment makes the seriousness of the possible offense the touchstone, ahead of the quantum of evidence.⁵ That principle cuts in favor of reporting where the alleged conduct is severe, and a judge signaling a witness about a sworn answer is serious by category. Yet the same comment explains why the rule is limited: mandatory reporting of every violation would prove unenforceable, so the rule demands professional judgment. And that judgment affords the conflicted lawyer room to conclude that the event was too ambiguous, or insufficiently fitness-implicating, to report.

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; observation in open court does not automatically exempt it.⁵ The question is what an appropriate report would disclose and whether client consent, an applicable exception, or other authority permitted disclosure.

Confidentiality also requires an actual analysis of the information at issue. The existence of protected information does not answer whether a report could be made without revealing it. A confidential disciplinary recipient does not itself authorize disclosure. Petricevic’s perception, understanding, and any lawful basis for reporting remain unresolved.

ABA Formal Opinion 522 supplies post-event advisory ethics support. It addresses the disclosure of information bearing on judicial disqualification or recusal under ABA Model Rule 8.4(d), subject to Model Rule 1.6 confidentiality limits.¹² Its value here is as adjacent model-rule support: known facts bearing on tribunal impartiality can generate duties lying outside ordinary adversarial silence, even as confidentiality continues to require careful Rule 1.6 analysis.

The crosswalk matters. Hawaii’s HRPC 8.4(d) is reserved, so the Hawaii-specific post-event lawyer-conduct analysis cannot rest on that subsection.¹³ Depending on what the lawyer saw, understood, later represented, preserved, relied upon, or concealed, the Hawaii analysis would have to proceed through HRPC 8.4(f), HRPC 8.4(c), HRPC 8.4(a), 3.3, 3.4, and 8.3(b). HRPC 8.3(b)’s knowledge predicates remain controlling for the reporting-duty analysis.

The defect, stated plainly, is this: “shall” appears mandatory, yet knowledge, qualifying violation, and substantial fitness all depend upon self-assessment by the very lawyer whose client benefited from the ambiguity.

The Rule Functions Most Cleanly When the Reporter Is Neutral

Mandatory reporting regimes function best when the reporter’s professional incentives diverge from concealment. The design succeeds precisely because the reporter gains nothing from silence.

HRPC 8.3(b) operates most cleanly under that assumption: the reporter derives no benefit from the conduct remaining concealed. A lawyer who incidentally learns that a judge fabricated citations in an unrelated matter has no stake in concealment. There the rule performs real work, and “shall” means something close to what it says.

But the rule’s reach extends beyond neutral witnesses. It applies the identical mandatory verb to a lawyer seated at counsel table representing the party whose position the alleged misconduct assisted. That lawyer is differently situated from a disinterested officer of the court who happened to observe something across the room. If the visual act I report is credited, that lawyer’s client benefited from the very act the rule would require him to report. Disclosure unwinds the benefit; silence preserves it. The rule supplies the same word for both lawyers while leaving sufficient interior doctrinal space that the adversarial beneficiary can arrive at non-disclosure through ordinary professional reasoning.

A lawyer who would prefer not to report can proceed through a series of individually defensible steps:

• I am not certain I saw it.
• I saw a movement, but not a signal.
• I saw a signal, but I did not read it as misconduct.
• I treated it as courtroom management.
• I did not think it rose to a substantial question of fitness.
• I invoked Rule 1.6 as a blanket barrier without examining what information a proposed report would disclose or whether disclosure was authorized.
• I assumed the court already knew, because it happened in open court.
• I assumed the pro se litigant could complain for himself.

Some of these positions can be asserted in good faith in some cases. Stacked together, they can convert a mandatory rule into one that functions as discretionary. The Rule 1.6 rung stands apart: confidentiality cannot serve as an unexamined blanket excuse. The lawyer must identify how the proposed disclosure relates to protected representation information and assess whether disclosure is authorized. A neutral witness has no reason to climb this ladder. The adversarial beneficiary has every reason to climb it—and the rule’s threshold structure supplies most of the rungs.

The Design Defect in HRPC 8.3(b)

The failure mode of HRPC 8.3(b) in this fact pattern is a function of the rule’s design. The rule appears mandatory; its coverage is limited by design. That selectivity serves legitimate ends: it forestalls frivolous reporting, tactical bar complaints, and the conversion of every courtroom disagreement into a discipline file. But the same selectivity can shelter non-reporting where the misconduct is visual, nonverbal, unrecorded, sealed, and useful to one side.

The deeper pattern is that the rule operates best where it is needed least, and worst where it is needed most. A judge who fabricates a citation in a published opinion leaves a documentary record: the knowledge element is objective, the violation is legible, and the fitness question nearly answers itself. A judge whose financial conflict goes undisclosed leaves a disclosure trail. A judge who berates a witness aloud leaves a transcript. But a judge who signals a sworn witness with a glance and a no-nod leaves only perception, timing, and context—and where the litigant lacks independent counsel and the opposing lawyer with a potential reporting duty represents the party who gained from it, the rule’s own thresholds become the mechanism of silence rather than its cure. Documentary misconduct manufactures its own evidence. Behavioral misconduct manufactures only witnesses, and this rule permits the best-positioned witness to decline to be one. The institutional comfort zone emerges where conduct obvious inside the room becomes non-reviewable outside it, because the record is audio-only and the trained observer bearing the clearest professional duty is simultaneously the adversarial beneficiary.

The LSD question intensifies the defect. A visual signal during casual testimony might be buried beneath claims of demeanor. A visual signal preceding a material exposure question tied to a court-file exhibit has a specific referent. Yet the rule still permits the lawyer who benefited from the answer to control the threshold analysis.

The rule leaves several gaps. It contains no express requirement to report suspected judicial conduct, to preserve contemporaneous notes of a serious visual courtroom event, to distinguish neutral witnesses from lawyers whose clients benefit from the misconduct, to create a special category for nonverbal witness signaling, to remedy audio-only record failure, or to afford a pro se litigant any mechanism for compelling the trained lawyer in the room to declare what he saw.

The consequence is that every subsequent institution can point to a gap:

• no knowledge,
• no admitted understanding,
• no video,
• no transcript of the visual act,
• no public record,
• no available forum for renewed judicial-discipline review after the jurisdictional window closed,
• no proof of Rule 8.3(b) triggering,
• no public finding.

Rule 8.3(b) is mandatory once its predicates are satisfied. In operation, those predicates render the duty vulnerable, because the lawyer controls the threshold analysis. The rule presupposes that professional self-regulation will convert serious known misconduct into a report. In this fact pattern, self-regulation asks the lawyer who benefited from the ambiguity to create the very record that could destroy the benefit.

The design failure is straightforward: a rule calibrated to prevent over-reporting can underperform when the person asked to report is an adversarial beneficiary of the conduct.

What a Rule Without This Defect Would Require

This section diagnoses a failure mode; rulemakers would still bear the burden of drafting precise text. Any repair must answer three predictable objections. Judges require latitude to manage courtrooms without every facial expression becoming a discipline file. An objective trigger can sweep too broadly if it treats ambiguous movement as reportable misconduct. And a preservation duty can become a tactical weapon if lawyers deploy it to brand ordinary rulings as ethics events.

As a matter of reform, a repaired rule would establish a rebuttable serious-conduct category for judge-to-witness nonverbal communication during testimony, particularly where the communication occurs during a pending material answer. That category would leave HRPC 8.3(b)’s existing knowledge trigger in place while limiting the capacity to dissolve the substantial-question gate through characterization alone.

The rule would define judge-to-witness nonverbal communication during a pending material answer as presumptively serious where materiality, witness-facing conduct, timing, line of sight, and contemporaneous preservation support the claim.

As a proposed reform, it would authorize narrowly limited reporting to the appropriate disciplinary authority of a judge’s observed nonverbal communication to a witness, subject to minimum-necessary disclosure and safeguards for other protected client information. That would change the existing interaction of Rules 1.6 and 8.3(c); it is not a description of current law.

And it would impose an affirmative preservation duty: a lawyer who observes potential judicial misconduct during a proceeding should make and retain a contemporaneous note, regardless of whether the reporting duty is ultimately triggered—so that the question of what the lawyer saw cannot later be dissolved by the passage of time and the sealing of the record.

A contemporaneous-preservation duty would accomplish more than preserving access. It would preserve evidence bearing on intent, knowledge, timing, line of sight, perceived communicative content, uncertainty, and the observer’s immediate understanding. That matters because later institutions cannot fairly assess intent if the only trained observer’s memory is permitted to dissolve into ambiguity after the audio has been sealed.

My interrupted attempt at contemporaneous preservation, documented in The Nod, is the case-specific premise for an independent preservation mechanism.

The objections are real, and they point toward guardrails rather than abandonment. The category should turn on materiality, witness-facing conduct, timing during a pending answer, line of sight, and contemporaneous preservation facts. A calendar-call grimace, a ruling from the bench, or ordinary courtroom friction with counsel remains outside the category. A judge turning toward a witness and delivering a no-nod before a pending answer belongs to a different class. Reports can be confidential, confined to observed courtroom conduct, routed to an appropriate authority, and screened for bad faith. Contemporaneous preservation can record uncertainty as uncertainty. The answer to the weaponization risk is disciplined intake, confidentiality, and sanctions for bad-faith use.

HRPC 8.3(b) as written contains none of these features. Those missing safeguards leave the incentives for non-clarification in place.

The Incentive to Preserve Ambiguity

The proposed equilibrium arises when preserving ambiguity appears safer to each participant than clarifying the event. It describes how separate incentives could converge without an agreement. Whether those incentives actually drove the choices in this proceeding remains a question for evidence.

Research on employee silence identifies fear of negative labeling and damage to valued relationships as reasons insiders may avoid raising concerns.¹⁴ That research supplies a possible mechanism; it does not establish what Petricevic observed or knew, whether he reported a concern, or whether the mandatory reporting rule applied.

In this model, no coordination is necessary. A judge could avoid clarifying communicative intent, a witness could avoid reopening an answer, and counsel could avoid examining a client-beneficial ambiguity. An audio-only record and limited public access could then make those choices harder to test. These possible responses are not findings about what any participant chose or why.

The structure could persist through ordinary institutional explanations: ambiguous gesture, insufficient knowledge, no substantial fitness question, confidentiality, sealed record, no jurisdiction, no public finding. Some are legal limits; others would require factual support in the particular case. Their combined effect could obstruct review even when each institution acts independently.

The record-access problem is concrete. The equilibrium is a proposed explanation of how that problem could persist. Testing it requires participant accounts, any preserved notes or reports, the sealed spoken sequence, and the reasons for the relevant institutional decisions. The same evidence could support ordinary evidentiary or jurisdictional explanations. Establishing a systemic pattern would require comparison with other proceedings.

The Sealed Audio Records the Spoken Sequence

The sealed audio is the central evidence.

The audio can test the timing of my attempted preservation, the court’s response, final remarks, my opportunity to answer, and the sealing request. It cannot capture the visual signal. The yes-or-no question makes contemporaneous timing relevant to whether my response concerned the pending testimony. The Nod supplies the account against which those records should be compared.

Sealing converts that witness into an institutional black box. The sealed record permits every actor to demand proof while foreclosing public review of the proof-adjacent sequence. The public cannot inspect the answer, the attempted record statement, the cutoff, or the sealing request. The disciplinary bodies can characterize the absence of a public record as a review problem. The lawyer can characterize the absence of visible proof as a knowledge problem. The judge can characterize the visual act as a litigant’s characterization.

Hawaii law recognizes a public right of access to court records and proceedings, subject to procedural and substantive safeguards governing sealing. In Grube v. Trader, the Hawaii Supreme Court held that sealing requires more than conclusory justification and that an individual may assert a personal right of access pro se.¹⁵ The procedural posture there differed from this case, but the principle endures: public access performs its highest function when the record concerns the court’s own conduct.

Press-Enterprise II supplies the federal access test.¹⁶ Its application to this sealed audio depends on the record type, the proceeding type, the privacy interests at stake, Hawaii’s court-record rules, whether transcript access and audio access receive different treatment, and whether less restrictive alternatives could protect legitimate interests. The point pressed here is focused: public access performs its highest function when the sealed record bears on the court’s own conduct, and any continued seal should be justified by record-specific reasons rather than conclusory confidentiality.

Sealing also interacts with time in a manner that can prove decisive. Commission jurisdiction over a judge’s conduct can lapse once the judge leaves the bench; Hawaii’s rules tie the Commission’s reach over a former judge to a report made within ninety days after the judge leaves office.¹⁷ In a per diem context, the relevant “leaves office” date may require appointment or service-status records to identify; the point is not that each assignment restarts the clock, but that a sealed record can consume time before a complainant can know, frame, and file. The accountability problem is sequential. First, the audio is sealed, foreclosing ordinary review of the only objective record of the aftermath. Then RSCH Rule 8.2(b)’s former-judge jurisdiction window can expire before a pro se complainant can obtain, interpret, and present the sealed material. In combination, the seal and the clock can transform an evidentiary problem into a jurisdictional ending.

The sealed audio should be unsealed, or independently preserved by an authority competent to review it. The record should identify who moved to seal, what grounds were offered, what portions were sealed, whether less restrictive alternatives were considered, and whether the sealed material includes the attempted preservation of judicial misconduct.

In an audio-only courtroom, a visual act cannot be preserved in the audio record unless someone is permitted to describe it aloud. The sealed audio can show whether I tried.

Federal Outer Ring: Section 242, Witness Exposure, and Investigability

The federal layer belongs at the outer ring of the analysis. Its function is to demonstrate why the case is investigable without pretending that criminal liability has been established.

Section 242 reaches willful deprivations of federal rights under color of law, including deprivations occurring outside criminal trials.⁴ The proceeding’s civil posture bears instead on the constitutional-rights analysis. Although Webb, Napue, and Giglio arise from criminal prosecutions, they identify constitutional baselines: judicial noninterference with witness testimony, state-actor noncorruption of testimony, and disclosure of credibility-altering benefits. The question is whether those baselines apply with equal or sufficient force in a civil injunction proceeding in which court-enforced restraints, movement restrictions, reputational consequences, and possible criminal enforcement for violation of an injunction were at stake.^18192021

A Section 242 inquiry would be obliged to hold five questions separate:

Under Lanier, fair warning may exist without a prior case involving an identical no-nod, but the alleged conduct must still violate a clearly established right.²² Webb supplies the witness-interference baseline; Caperton supplies the neutral-tribunal baseline; and Napue assists in framing the due-process baseline against state-actor corruption or knowing tolerance of false testimony.¹⁸²³¹⁹ Giglio remains conditional unless investigation establishes an undisclosed benefit, protection arrangement, cooperation status, federal relationship, inducement, or non-prosecution understanding bearing on the witness’s credibility or motive.²⁰

The signal I observed, if credited, would bear on both the act and willfulness, because accidental movement does not ordinarily map onto a pending binary answer with that degree of precision. Willfulness would nonetheless have to be proven from the totality: timing, line of sight, courtroom layout, the question, the answer, the attempted record statement, the cutoff, the sealing sequence, and the testimony of those present in the room.

Because Section 242 analysis depends on proof that degrades with time, the investigability question is time-sensitive. For a December 2, 2022 event, a default five-year limitations analysis would point toward December 2027, subject to the charged theory, tolling, and other legal questions.²⁴ That horizon reinforces the imperative to preserve the sealed audio, sightline evidence, witness accounts, and contemporaneous notes now, rather than after the evidentiary record has gone stale.

21 U.S.C. Section 841 supplies the witness-leverage context: LSD is a Schedule I controlled substance, and federal law reaches the distribution of controlled substances.²⁵ The alleged prior LSD furnishing explains why the witness’s answer carried exposure risk. The courtroom sequence remains the focus.

The witness-facing investigative path remains straightforward: ask the witness about the drug predicate, then ask whether Loo nodded “no” before the denial. The answers would not, standing alone, conclude the investigation. They would permit investigators to compare testimony against the sealed audio, the court-file exhibit, the lines of sight, any federal-relationship or benefit evidence, any pre-trial law-enforcement intake records, and the accounts of others present.

Case Law and Authority Map

The authority map supports a limited proposition: courts and ethics rules already recognize every ingredient of the problem, yet no single doctrine compels the visual event into reviewable fact.

The cases supply the legal context surrounding judicial demeanor, nonverbal communication, witness interference, record preservation, sealed-record access, and reporting duties. The gap is practical rather than doctrinal: a visual event in an audio-only, sealed proceeding can reach review only through witnesses and institutional will.

Records That Would Clarify

The path to clarification is procedurally ordinary:

1. Unseal the December 2, 2022 audio, or preserve it for independent review by an authority with jurisdiction.
2. Identify who moved to seal the audio and on what grounds.
3. Identify what findings supported sealing.
4. Review the text-message exhibit concerning acid.
5. Compare the exhibit to the witness’s denial.
6. Reconstruct courtroom layout and line of sight: bench, witness, Petricevic, me, and any courtroom staff.
7. Ask the redacted witness, under proper authority, whether he saw Loo nod “no” before the denial.
8. Ask Petricevic, under proper authority, what he saw and understood.
9. Ask whether Petricevic performed an HRPC 8.3(b) analysis.
10. Ask whether any report was made.
11. Ask Loo what the movement was and why he cut off the attempted record statement.
12. Identify whether the Commission on Judicial Conduct, ODC, any court administrator, or any law-enforcement body ever reviewed the sealed audio.
13. Produce written reasons for any declination that state which primary records were reviewed.
14. Document and preserve the specific context, date, audience, and exact wording of the redacted witness’s reported pre-trial statement referencing a federal contact.
15. Determine whether DEA and HPD narco/vice intake records exist from the pre-trial drug-activity reports.
16. Determine whether any undisclosed federal relationship, protection arrangement, cooperation status, benefit, inducement, or non-prosecution understanding existed concerning the redacted witness.
17. Determine whether any such relationship or benefit was known to, attributable to, or discoverable by a government actor.
18. Determine whether any post-event representation relied on the contested testimony or the sealed record in a way that could matter under HRPC 8.4(f), 8.4(c), or 8.4(a).
19. Determine whether Petricevic made or retained any contemporaneous note of what he saw and understood.
20. Determine whether any post-event professional duty arose under HRPC 3.3, 3.4, 8.3(b), 8.4(f), 8.4(c), or 8.4(a), based on what Petricevic saw, understood, later represented, and whether any preservation or report would disclose protected client information.
21. Obtain any reports, contemporaneous correspondence, and witness accounts documenting a professionally recognized concern, whether it was communicated, and the reasons given for communicating it or remaining silent, subject to the applicable confidentiality analysis.

Those records would clarify the dispute without requiring the public to accept my visual account on faith. They would also prevent the sealed audio from functioning simultaneously as evidence and as barrier.

The Strongest Innocent Reading

A fair analysis must state the best version of the opposing position. The strongest version can accept my perception of the room without reducing it to generic confusion—I saw what I saw—and it concentrates instead on intent and institutional caution.

As to intent, the most favorable account available to Loo is generic courtroom reaction without communicative purpose. That explanation must address the timing, direction, and expression documented in The Nod and examined in Mens Rea I. Those circumstances make the innocent account harder to sustain in my assessment; they do not themselves establish corrupt intent.

As to caution, a lawyer who reports a sitting judge on a contested allegation places at risk his client’s interests, his standing before the local bench, and his exposure to sanction for a frivolous or weaponized complaint. The limited scope of Rule 8.3(b) exists precisely to prevent every adverse gesture from becoming a discipline file. Rule 1.6 requires examination of the information a report would disclose and any lawful basis for disclosure. None of this should be waved away.

But the innocent reading leaves the problem intact—and locates it. It explains why a single actor, consulting only his own incentives, might decline to act. What it leaves unexplained is why every record capable of testing the competing accounts is unavailable. Genuine doubt about a judge’s intent counsels examination of the evidence, not its sealing. Independent review of the sealed audio and the courtroom sequence would strengthen an innocent explanation. The innocent reading and the accountability demand thus converge on the same remedy: produce the audio, reconstruct the room, and examine under oath the people who were in it. The pattern is troubling even without proof of bad faith by any single actor, because an open record is at once the one outcome the process design forecloses and the one outcome capable of vindicating any of them.

The Professional Duty to Convert Ambiguity

HRPC 8.3(b) exists to interrupt institutional silence by moving qualifying knowledge of serious misconduct into process. This fact pattern raises a possible weakness: where the best-positioned lawyer represents the beneficiary of disputed conduct, professional obligations and client-facing incentives may pull in different directions. Establishing how counsel resolved that tension here requires evidence of what he perceived, knew, and did.

The rule says “shall” when its requirements are met. The incentive model asks what could discourage participants from clarifying whether they are met. Independent review of the sealed audio and participant accounts is how that question can be tested.

Sources and Notes