A pending Big Island civil case that was sealed this year may soon be reopened following a challenge by two newspapers calling the sealing an unprecedented violation of the public's right of access to court cases.

One of the lawyers involved in the case said an agreement is being circulated among the parties to unseal the case that would make the challenge to the Hawai'i Supreme Court "moot."

But Jeffrey Portnoy, attorney for The Hawaii Tribune-Herald and West Hawaii Today, which filed the petition protesting the sealing, said the practice of closing court cases and wiping out any public record of their existence is so egregious that he'll ask the high court justices to notify all lawyers and judges that the practice is "absolutely wrongful."

The court case was sealed on April 11.

It involves a malpractice lawsuit by George Miyashiro against Roehrig, Roehrig, Wilson & Hara, a Big Island law firm that represented him in a previous court proceeding. Glenn Hara, one of the firm's partners, has since left the firm and is now a Big Island circuit judge.

The challenge filed by Portnoy last month is yet another in a series filed over the years by Hawai'i's news media, including The Honolulu Advertiser, challenging the sealing of court documents and the closure of court proceedings.

But Portnoy said as far as he knows, the Big Island case was the first time he learned of the sealing of an entire court file.

Court files generally contain documents describing the parties and outlining the allegations, the responses, the judge's pretrial rulings, legal briefs and other papers tracking the progress and outcome of the case.

Portnoy said the sealing without giving anyone outside of the parties a chance to object violates the U.S. and state constitutions and decisions by the U.S. Supreme Court as well as the Hawai'i Supreme Court.

In his challenge filed July 26, Portnoy cited a landmark 1978 Hawai'i Supreme Court case that quoted a U.S. Supreme Court decision a year earlier. "Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges ... " Portnoy's petition said.

Portnoy added, "It is unfathomable how a legal malpractice action could justify the broad cloak of secrecy that has been draped over the sealed case."

Circuit Judge George Masuoka of Kaua'i is handling the case because of Hara's current role as a Big Island judge.

Masuoka's office said the judge does not want to comment on the ongoing case.

The lawyers for Hara, the Roehrig law firm and its lawyer Stanley Roehrig responded to the high court that they do not oppose Portnoy's challenge in connection with matters involving the three. They said Hara and the firm were dismissed from the case last year.

Brian De Lima, Big Island attorney for Roehrig, said his client is the only civil defendant left in the case.

De Lima said the sealing was only supposed to be temporary because the case involved matters from a previously sealed case brought by Jack's Tours against Miyashiro. The Roehrig firm represented Miyashiro in the earlier case, prompting the current malpractice suit against Roehrig, according to lawyers in the case.

That earlier case has been settled, but remains under seal, De Lima said.

The sealing of the current case was supposed to expire after a hearing on May 31 involving matters from the earlier case, but the sealing has not yet been lifted, De Lima said.

De Lima said his client supports the unsealing. "We want everybody to know what's going on," De Lima said. "Mr. Roehrig didn't do anything wrong."

De Lima said the impetus for the sealings came from Jack's Tours, which is represented by attorney Shelby Floyd. Floyd did not respond to requests for comment.

Honolulu lawyer David Gierlach, a lawyer for Miyashiro, also filed a response to the high court saying his client does not oppose the unsealing but only as it "pertains to matters solely and strictly concerning himself."

He told The Advertiser he signed an agreement circulating among the parties to unseal the case. When that happens, Portnoy's challenge will be "moot," Gierlach said.

But Portnoy said even if the case is reopened, the high court should still issue a ruling to notify judges, lawyers and parties that they cannot seal a case without at least holding a hearing to give the public a chance to object.

He said the public would not even know about the case if West Hawaii Today did not receive a tip.

In researching the issue, he said it was also learned that the prior case involving Jack's Tours had been sealed.

The sealings, he said, indicate there may be a "pattern and practice" of keeping entire cases confidential and there wouldn't be any way for the public to know about them.

"The conduct here is so blatantly unconstitutional that I would hope and expect the state Supreme Court to use this case to issue strict guidelines and warnings to those who would try to engage in the same type of conduct," Portnoy said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.