In re Hawaii Telephone Co.

Per Curiam: The chief justice called to the attention of counsel the possibility of his disqualification to take any part in the determination of this case. The facts, as stated by the chief justice and his former partner, Mr. A. G-. Smith, are these: Early in January, 1922, during the absence of Mr. Peters on the mainland, the public utilities commission of the Territory of Hawaii addressed a letter to Mr. Smith whereby it employed him as the attorney of the commission, the employment to take effect on February 1, 1922. A regular monthly retainer ivas agreed upon. Under this agreement the amount of the retainer was to be compensation for routine consultations and advice but the attorney was to be at liberty to make additional charges for his services in judicial proceedings and perhaps in certain other extraordinary matters. The partnership of Peters & Smith was dissolved on March 31, 1922. Under the terms of the partnership agreement all law business coming to either member of the firm was to be deemed to be the business of the firm and all employments of either member as attorney were to be deemed to be employments of the firm. The practice during the whole period of the partnership was in accordance with this agreement. [406] Tbe public utilities commission appears to be a party in interest in tbe above entitled cause. A brief in its behalf, on tbe present appeal to tbis court, was filed on March 18, 1922, and was signed by Messrs. Watson, Clemons & Hite, tbe former attorneys for tbe commission, and Mr. Smith, as its attorneys. A stipulation filed in tbis cause on February 9, 1922, bears the signature of tbe firm of Peters & Smith, as well as that of Messrs. Watson, Clemons & Hite, as attorneys for tbe commission. Tbe commission’s brief now on file, although prepared by Mr. Clemons, was examined by Mr. Smith before it was filed; and it is the intention of Mr. Smith to attend tbe argument of tbis appeal, at least by way of watching tbe proceedings. Mr. Peters took no part whatever in the preparation or management of this case and did not discuss it with tbe clients or with bis partner. While be received a share of tbe general retainer for tbe months of February and March be received no compensation in connection with tbis case and, under tbe arrangements with bis partner, is not entitled to receive any. Tbe question is whether, under these circumstances, tbe chief justice is disqualified. We think that be is. Section 84 of tbe Organic Act provides that “no person shall sit as a judge in any case in which be has been of counsel.” Tbe employment by tbe commission of Mr. Smith must be regarded as having been made subject to and in consonance with tbe obligations and understanding of tbe members of tbe firm of Peters & Smith to and with each other. Tbe firm itself becamé tbe attorneys of tbe commission, Avith tbe duty in Mr. Smith to give bis personal attention to all legal business of tbe commission. We feel compelled to find that Mr. Peters Avas “of counsel” in tbis case. Tbe fact that be took no part in tbe case and bad no knowledge of its issues does not alter [407] liis status. The inhibition of the Organic Act still applies. See Magoon v. Lord-Young Eng. Co., 22 Haw. 245, 246. W. F. Frear for the applicant. A. C. Smith for the Public Utilities Commission. The chief justice will not participate in the hearing or the determination of this appeal.