This article serves as the companion legal argument to the open letter to Bosko Petricevic about the December 2, 2022 hearing.
The open letter asks what Mr. Petricevic saw, what he understood, and what he did after the December 2, 2022 First Circuit proceeding before Judge Wilson M.N. Loo. This article addresses the legal and public-interest question behind that letter: if the alleged sequence occurred, and if Mr. Petricevic witnessed it, did Hawaiʻi Rule of Professional Conduct 8.3(b) impose a duty to report Judge Loo to the appropriate authority?
Under those conditions, and absent an applicable Rule 1.6 confidentiality barrier, silence was not ethically neutral.
The case presents a narrow but important professional-responsibility problem: when alleged judicial misconduct is nonverbal and visual, when the proceeding is audio-only, and when the lawyers present may be the only legally trained witnesses, Rule 8.3(b) becomes one of the few remaining safeguards for the integrity of the record itself.
That conclusion can be reached without proving the entire case in public, pretending the sealed audio captures a visual gesture it cannot capture, or saying that Mr. Petricevic was required to become the pro se litigant’s advocate, abandon his client, or litigate the issue in the middle of the hearing.
It requires only a narrower proposition: if Judge Loo made the alleged nonverbal signal to a sworn witness, Mr. Petricevic saw and understood it, and Rule 1.6 did not bar disclosure, Hawaiʻi Rule of Professional Conduct 8.3(b) required more than passive silence. It required taking steps to inform an appropriate authority capable of reviewing judicial misconduct. If Rule 1.6 limited what could be disclosed, then the duty required a real confidentiality analysis—not a silent assumption that no report was possible.
Hawaiʻi Rule of Professional Conduct 8.3(b) provides that a lawyer having knowledge that a judge committed a violation of applicable rules of judicial conduct raising a substantial question as to the judge’s fitness for office “shall inform the appropriate authority.” The same rule preserves the confidentiality limitation: it does not require disclosure of information protected by Rule 1.6. The operative professional-responsibility command is mandatory: “shall.” 1
The reason this matters is structural. The alleged misconduct was nonverbal and visual. The proceeding was audio-only. The litigant attempted to translate the visual event into the record. Judge Loo allegedly stopped him before he could do so. The resulting audio was later sealed. If a lawyer in the room saw the event and understood it, Rule 8.3(b) was among the few remaining mechanisms by which the event could reach an authority outside the courtroom.
This article addresses the antecedent question rather than any adjudicated finding against Mr. Petricevic: whether, on the stated facts, the rule imposed a duty that required action rather than silence.
The public-interest question is narrower than every courtroom irregularity. It concerns whether this specific alleged sequence—judicial signaling to a sworn witness, interruption of the litigant’s immediate attempt to preserve the conduct on an audio-only record, and later sealing of the record at opposing counsel’s request—was serious enough that silence ceased to be ethically neutral.
Assuming the allegations are true, silence crossed that line.
The Rule Is Narrow, But This Allegation Is Not Small
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 therefore 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.
But the allegation here is not that Judge Loo ruled incorrectly.
The allegation is that Judge Loo made a “no” head gesture toward a sworn witness before the witness answered a material question; that the witness then gave an answer inconsistent with a text-message exhibit; that the pro se litigant immediately began, “Let the record show that the judge just—”; that Judge Loo cut off the statement before the conduct could be named; and that the audio-only record was later sealed at Mr. Petricevic’s request.
If true, the allegation reaches beyond a minor judicial-conduct issue, a personality conflict, or ordinary courtroom management. It is alleged judicial interference with testimony from the bench.
That distinction is decisive.
A judge is not just another courtroom participant. A judge controls the proceeding, the record, the witness environment, the opportunity to object, and the later reviewability of what occurred. When a judge’s alleged misconduct happens visually in an audio-only proceeding, the judge’s power over the record becomes even more important. If the event is not spoken into the record, it disappears from the ordinary transcript-based review universe.
That is why the alleged cutoff matters as much as the alleged nod.
The Knowledge Question
Rule 8.3(b) requires knowledge. Presence in the courtroom, by itself, is not enough.
A lawyer cannot be said to have violated Rule 8.3(b) for failing to report what he did not see, did not hear, did not understand, or did not actually recognize as judicial misconduct. If Mr. Petricevic did not see the alleged gesture, Rule 8.3(b) was not triggered. If the alleged gesture did not occur, Rule 8.3(b) was not triggered. If he saw some movement but did not actually understand it as communicative or material, and the surrounding circumstances were insufficient to infer actual knowledge, the knowledge element remains contested.
But if the allegations are true—if he was positioned to see the bench, saw Judge Loo signal, saw the witness answer, and heard the immediate attempt to place the conduct on the record—then the knowledge element becomes much stronger.
Hawaiʻi’s rule defines knowledge in the professional-conduct context as actual knowledge, while allowing knowledge to be inferred from the circumstances. That matters because professional responsibility does not require a lawyer to possess a signed confession from a judge before a reporting duty can arise. It asks what the lawyer actually knew; but actual knowledge need not be admitted in words and may be inferred from the sequence, the timing, the participants’ positions, and later conduct such as a request to seal the record containing the immediate audio-confirmable aftermath. 1
The argument does not rest on negligence-style “should have known” reasoning, nor on treating sealing, by itself, as proof of knowledge. It is narrower: 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.
Here, the alleged sequence is not a stray visual impression isolated from everything else. It is alleged to have occurred immediately before the witness’s answer, immediately before the litigant attempted to document the judge’s conduct, and immediately before the judge cut off that documentation attempt.
Those surrounding facts are the kind of circumstances from which knowledge can be inferred—again, assuming the allegations are true and assuming Mr. Petricevic personally perceived the relevant events.
Judicial Signaling to a Witness Is a Fitness Problem
The Hawaiʻi Revised Code of Judicial Conduct requires judges to uphold and promote the independence, integrity, and impartiality of the judiciary; to avoid impropriety and the appearance of impropriety; and to perform judicial duties fairly and impartially. A judge who signals a sworn witness about how to answer a material question would strike at those core obligations. 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 proven, would strike directly at those definitions. 3
A nonverbal signal from a judge to a sworn witness concerning how to answer a material question would reach beyond an appearance problem by placing the judge inside the testimonial act.
That is why this allegation, if true, goes directly to fitness for office.
A judge who signals a witness about how to answer moves from adjudicating the evidence to allegedly shaping it. If the cutoff was directed at preventing the litigant from documenting the signal, the act went beyond brusque courtroom management and became control, or attempted control, over the official memory of the proceeding.
The difference is fundamental. A bad ruling can be appealed. A hostile remark can be transcribed. But an unrecorded visual signal in an audio-only hearing exists in the legal record only if someone is allowed to say what happened.
That is what “Let the record show” is for.
The Right to Make the Record
Courts have long recognized that judicial demeanor, gestures, tone, and facial expressions can matter because they can influence the fairness of proceedings in ways that do not automatically appear in a transcript.
In Butler v. United States, the D.C. Circuit addressed a trial judge’s refusal to let defense counsel identify specific judicial gesticulation and facial expression for the record. The court rejected the idea that counsel had no right to preserve such matters. The point was not that every gesture proves reversible error. The point was that appellate review requires a record, and a record cannot review what a judge prevents from being recorded. 4
That is the structural problem in an audio-only proceeding. Visual conduct is not self-preserving. A transcript captures words. It does not capture a nod, a headshake, a mouthed word, a facial expression, or a gesture unless someone verbalizes it.
The issue reaches beyond courtroom decorum into record integrity. Record integrity is what makes appellate review, disciplinary review, and public accountability possible. When alleged misconduct is nonverbal and visual, the right to verbalize it into the record is not a technicality; it is the mechanism by which the event becomes legally reviewable.
So when a pro se litigant begins, “Let the record show that the judge just—” the sentence is not idle commentary. It is the bridge between the visual event and the legal record.
Cutting that sentence off before the conduct is named destroys the bridge.
Nonverbal Witness Coaching Is Legally Cognizable
Nonverbal signaling is not legally meaningless. Courts understand that nods, headshakes, and mouthed words can communicate.
In United States v. Flint, the Ninth Circuit held that evidence supported the inference that a defendant encouraged perjury through a nod. The case proves neither what happened in the December 2, 2022 proceeding nor that every head movement is subornation. It establishes the key legal premise: a nod can be communicative, and a nod can matter in the context of sworn testimony. 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
That matters for Rule 8.3(b). A lawyer in the room cannot dismiss alleged judicial signaling as legally trivial merely because it was nonverbal. The law is capable of recognizing nonverbal communication. The question becomes factual: did it happen, who saw it, what did it mean, and what did the lawyer know?
The Sealing Request Made the Silence More Consequential
The open letter alleges that the record was sealed at Mr. Petricevic’s request. Standing alone, that allegation proves no misconduct. Lawyers request sealing for many reasons, some legitimate. Courts grant sealing in some circumstances.
Sealing takes on different significance when the sealed material includes the only audio record surrounding an alleged attempt to document judicial misconduct.
The concern is the interaction between a sealing request and a record that allegedly contained the only audio-confirmable aftermath of judicial misconduct.
The Hawaiʻi Supreme Court’s decision in Grube v. Trader is important here. The court emphasized that public access to court proceedings and records protects against “unfairness, discrimination, undue leniency, favoritism, and incompetence” in the administration of justice. It required procedural and substantive safeguards before court records can be sealed. 7
Although Grube involved a different procedural posture, its public-access logic applies with special force where, as alleged here, the sealed record concerns alleged conduct by the court itself. Public access serves its highest function when it permits scrutiny of the judiciary. A sealed record may protect privacy or legitimate interests in some cases. When sealing closes the record around alleged judicial misconduct, however, the public-interest balance changes. In this fact pattern, the seal restricts access to the only audio-confirmable aftermath of alleged misconduct by the court itself.
Mr. Petricevic’s role matters for that reason. If he witnessed the alleged judicial signal and then requested sealing of the record containing the immediate audio-confirmable aftermath, the reporting question becomes sharper. The seal made outside review harder. If Mr. Petricevic witnessed the alleged judicial signal, understood its significance, later sought sealing of the audio record containing the interrupted “Let the record show” sequence, and made no report to an appropriate authority—or no apparent confidentiality basis explaining why Rule 1.6 prevented one—the combination would make the silence materially more consequential.
The Ninety-Day Window Made the Reporting Path Time-Sensitive
For judicial misconduct in Hawaiʻi, the Commission on Judicial Conduct was the most institutionally direct “appropriate authority,” because it was the body structured to receive and evaluate complaints against judges while jurisdiction remained open. Rule 8.3(b) does not appear to limit reporting only to the Commission.
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 deadline matters because Rule 8.3(b) concerns more than abstract morality; it preserves the ability of an authority to investigate while jurisdiction still exists.
Whether or not anyone could predict the precise date Judge Loo would leave service, the disciplinary pathway was time-sensitive. The point is that Mr. Petricevic did not need to know the future date of Judge Loo’s departure for delay to matter. The disciplinary path was jurisdictional, and delay could convert a reviewable judicial-misconduct question into a procedurally barred one. Silence, if the reporting duty was triggered and no confidentiality rule barred disclosure, could therefore have practical consequences: it could permanently foreclose the very review the rule was designed to trigger.
That is why the “lawyer in the room” matters so much. A pro se litigant may not know the disciplinary architecture. A member of the public may not know the deadline. But a Hawaiʻi lawyer, especially one with significant government and litigation experience, 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 Caveat Does Not Erase the Duty
The strongest technical caveat is Rule 8.3(c), which provides that the reporting rule does not require disclosure of information protected by Rule 1.6. 1
That caveat should be respected. A lawyer’s duty to a client is real. A lawyer should not casually disclose protected information merely because disclosure would be rhetorically satisfying.
This caveat does not convert “shall report” into “may ignore.” The confidentiality caveat may affect the contents, timing, and channel of any report. It may also mean reporting through a confidential disciplinary channel rather than through public accusation. It may require client consultation, informed consent, ethics advice, or a narrowly framed report that identifies the judge’s conduct without disclosing protected client information.
The threshold professional-responsibility question remains. A lawyer who personally observed serious judicial misconduct in open court could not simply assume Rule 8.3(b) was nonexistent. He would have to identify whether Rule 1.6 actually barred disclosure, whether client consent could be sought, and whether any exception or independent duty permitted or required action.
The public act of a judge in a courtroom, witnessed during a proceeding, is not automatically insulated from Rule 8.3(b) analysis merely because one party benefited from it. Rule 1.6 may still matter, because Hawaiʻi’s confidentiality rule is broad, but it must be analyzed rather than invoked as a blanket escape hatch. The relevant question would be whether a genuine Rule 1.6 barrier existed, apart from inconvenience, embarrassment, or client advantage.
The ABA’s Recent Recusal Guidance Supports the Same Principle
ABA Formal Opinion 522 addresses recusal rather than witness-signaling, and it rests principally on Model Rule 8.4(d)’s duty not to engage in conduct prejudicial to the administration of justice, not on Rule 8.3(b) alone. Its relevance here is narrower but important: it confirms that a lawyer’s adversarial role does not automatically excuse silence about known facts bearing on judicial neutrality, and that any disclosure obligation must be analyzed alongside Rule 1.6 confidentiality. 9
That caution strengthens the article’s narrow framing. The problem here concerns alleged real-time judicial interference with sworn testimony and alleged suppression of the attempt to preserve that interference on an audio-only record.
Its value is confirmatory: recent ethics guidance treats known facts bearing on judicial neutrality as structural integrity facts requiring affirmative professional analysis. The opinion leaves the Rule 8.3(b) question here undecided, while supporting the same professional-responsibility premise: when a lawyer has actual knowledge of serious facts bearing on judicial neutrality, the lawyer must confront an affirmative duty question rather than treat silence as the default.
If the alleged courtroom sequence is true, the concern reaches beyond appearance to whether the judge remained a neutral adjudicator or became a participant in the testimony.
Why Lawyers Should Care
One hearing and one lawyer’s silence 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 alleged 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; the same logic applies where the victim discovers the offense but the official record structure prevents the offense from being preserved, reviewed, or meaningfully acted upon.
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 sacrifice client confidences or become counsel for the opposing party. It means that when a lawyer has actual knowledge of judicial misconduct serious enough to raise a substantial question about fitness, the rules do not permit him to treat silence as ordinary advocacy.
Adversarial loyalty does not include a license to benefit silently from judicial misconduct if the lawyer has actual knowledge that the misconduct occurred and if no confidentiality rule bars reporting. The duty to report requires a real Rule 1.6 analysis and, where possible, a channel and scope of disclosure consistent with both duties. It requires recognition that some forms of judicial misconduct are institutional events inside the legal system, beyond tactical events inside a case.
Rule 8.3(b) matters most when alleged 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 duty was specific. Mr. Petricevic had to confront Rule 8.3(b) if he knew that Judge Loo had signaled a sworn witness and then cut off the attempt to preserve that conduct on the record. That duty required a real analysis of Rule 1.6, the available reporting channels, and the scope of disclosure that could be made consistently with client-confidentiality obligations.
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, tactically useful to his client, or rewarded by the local legal culture.
If the allegations are true, and if no Rule 1.6 confidentiality barrier prevented disclosure, it was.
Why This Is a Public-Accountability Issue
For the public, one attorney’s silence matters because of what it reveals about access to judicial accountability.
Rule 8.3(b) is supposed to be one of the few mechanisms by which judicial misconduct witnessed inside a courtroom can reach an authority outside that courtroom. That mechanism is especially important when the harmed party is pro se, when the proceeding is audio-only, when the alleged misconduct is nonverbal and visual, and when the judge allegedly prevents the visual event from being translated into the record.
In that environment, the represented lawyer who saw the event may be the only legally trained witness with professional standing, institutional knowledge, and an independent rule-based duty to act.
If that lawyer remains silent, the system defaults to institutional self-protection. The pro se litigant’s statement is truncated. The audio is sealed. The visual conduct is absent from the transcript. And because judicial-discipline jurisdiction is time-limited after a judge leaves office, delay can close the Commission’s ordinary review path entirely. The record exists, but review becomes procedurally obstructed.
That result is more than an accident of paperwork. It is the accountability failure Rule 8.3(b) is supposed to prevent.
The Narrow Conclusion
This analysis rests on conditions.
The duty turns on whether the alleged gesture occurred, whether Mr. Petricevic saw and understood it, whether the surrounding circumstances support actual knowledge, and whether Rule 1.6 permitted some form of disclosure.
If those conditions are met, the reporting duty was mandatory. The appropriate authority was, at minimum, an authority capable of reviewing judicial misconduct while jurisdiction remained open. The rule says “shall.” The alleged conduct went to the heart of judicial fitness. The later sealing and time-limited disciplinary pathway made silence consequential.
That is the public-interest case.
The open letter asks Mr. Petricevic what he saw.
This article states the professional consequence if he saw it.
Sources and Notes
Hawaii State Courts, “Hawaiʻi Rules of Professional Conduct,” Rule 1.0(f), Rule 1.6, Rule 8.3, and Rule 8.3 comments. External: https://www.courts.state.hi.us/wp-content/uploads/2024/09/hrpcond_ada.htm. Retrieved 2026-05-10. ↩︎ ↩︎ ↩︎ ↩︎
American Bar Association, “Rule 8.3: Reporting Professional Misconduct,” Model Rules of Professional Conduct commentary. External: https://www.americanbar.org/groups/professional_responsibility/policy/ethics_2000_commission/e2k_rule83/. Retrieved 2026-05-10. ↩︎
Hawaii State Courts, “Hawaiʻi Revised Code of Judicial Conduct” (PDF), Canon 1, Rule 1.2, Rule 2.2, and terminology definitions. External: https://www.courts.state.hi.us/wp-content/uploads/2025/07/rcjc_ada.pdf. Retrieved 2026-05-10. ↩︎ ↩︎
Butler v. United States, 188 F.2d 24 (D.C. Cir. 1951), via Justia. External: https://law.justia.com/cases/federal/appellate-courts/F2/188/24/65624/. Retrieved 2026-05-10. ↩︎
United States v. Flint, 993 F.2d 885 (9th Cir. 1993), via Justia. External: https://law.justia.com/cases/federal/appellate-courts/F2/993/885/310361/. Retrieved 2026-05-10. ↩︎
Hernandez v. City of Vancouver, No. 13-35131 (9th Cir.), via CaseMine. External: https://www.casemine.com/judgement/us/59145ae8add7b049341db093. Retrieved 2026-05-10. ↩︎
Grube v. Trader, Supreme Court of Hawaiʻi, via Justia. External: https://law.justia.com/cases/hawaii/supreme-court/2018/scpw-17-0000927.html. Retrieved 2026-05-10. ↩︎
Hawaii State Courts, “Commission on Judicial Conduct”; Rules of the Supreme Court of the State of Hawaiʻi, RSCH Rule 8.2(b). External: https://www.courts.state.hi.us/courts/judicial_conduct/commission_on_judicial_conduct; https://www.courts.state.hi.us/wp-content/uploads/2025/10/rsch.htm. Retrieved 2026-05-10. ↩︎
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). PDF: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-522.pdf. Retrieved 2026-05-10. ↩︎