Hawaii Bar Journal - August 2020

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION AUGUST, 2020 $5.00

TABLE O F C ON TE NTS VO LUM E 24 , N U M B E R 8

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin HSBA OFFICERS President P. Gregory Frey President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni Treasurer Paul Naso YLD OFFICERS President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

ARTICLES 44

Report of the 2019 Bench-Bar Conference

19

OF NOTE 24 28

Court Briefs

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Case Notes

39

Classifieds

20 22 28 30 31

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On the cover: Swaying Tribute by: Susie Y. Anderson. Anderson has been described as a “Pacific Colorist” with her own distinctive impressionistic style. She is a devoted oil painter, and passionate about painting on location “en plein air.” Susie is the Fellow for Hawaii for the Pacific Rim Institute of Marine Artists (PRIMA) and a Signature Member of the American Society of Marine Artists (ASMA). Her paintings are found in numerous private and corporate collections worldwide. She has won many honors for her work including being selected for the 17th National ASMA Exhibition. Susie has lived in Hawaii since 1969 and is a graduate of the University of Southern California. She was the medical illustrator for the University of Hawaii School of Medicine, then formed her litigation graphics company Visually Speaking Inc, before beginning her painting career in 1999. To see more of her work visit: www.susieanderson.com

Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

REPORT OF THE Chief Justice Mark Recktenwald

2019

Bench-Bar Conference

I.

INTRODUCTION The Hawaii State Bar Association’s (“HSBA”) Committee on Judicial Administration1 (“Committee”) is composed of Hawaii state judges and practicing attorneys in the fields of civil, criminal, and family practice.

The Committee, among other duties and functions, has held Bench-Bar Conferences at the Hawai‘i State Bar Conventions for a number of years.

The last Bench-Bar Conference took place on October 11, 2019. The meeting of judges and lawyers was separated into the following sub-groups: Civil Circuit Court, Criminal Circuit Court, Civil District Court, Criminal District Court, and Family Court. Each group was given common topics to discuss that could impact the judicial system. The 2019 common topics were as follows: 1. Privacy. The focal point on this topic was the use or misuse of social media to investigate the private lives of any party or individual for the purpose of gaining an advantage in cases.

2. Scheduling, Continuances, and Extensions of Time.

The discussion on this topic centered on requests for extensions and its impact on the court, attorneys, and the parties, and whether there were abuses of such requests.

3. Settlement and Plea Agreements. The focus on this issue was the concept of raising and exploring settlement (or plea agreements in the criminal area) as soon as possible.

(From left) Shauna Cahill, Ann Isobe, Tom Tanimoto, Sara Silverman

4. Succession Planning. The Office of Disciplinary Counsel has had a surge of cases in which solo practitioners did not designate another attorney to wrap up their cases in the event of death or inability to practice law. The question is whether designation of a successor should be required.

Prior to the Conference, each subgroup suggested specific topics relevant to practice.

For example, in the criminal law arena, there were discussions about fast-tracking mental

Circuit Court-Criminal Law Group

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health cases. In the Civil Circuit Court and Civil District Court subgroups, various concerns with the recent implementation of the electronic filing system were discussed.

For the first time, Family Court judges and lawyers participated in a Family Law group at the 2019 Bench-Bar Conference. One of their topics centered on recent Hawaii Supreme Court cases that impacted settlement offers.

The subgroups attempted to arrive at a consensus on the various topics. A number of times, no agreement could be reached.

A. WELCOME Justice Simeon R. Acoba, Jr. (ret.) and Steven J. T. Chow, co-chairs of the Committee, welcomed the participants to the Conference on Friday, October 11, 2019, and thanked Chief Justice Mark E. Recktenwald for his support and commitment in attending the conferences and forums every year. Participants were encouraged to provide comments and candid feedback so that the Judiciary might consider their suggestions and ensure that the judicial system works well for all involved.

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B. OPENING REMARKS Chief Justice Recktenwald thanked the Committee, HSBA, Task Force on Civil Justice Improvements (“Task Force”), Chief Judge Craig H. Nakamura (ret.), Judge Gary W. B. Chang, and the Judiciary for their hard work and support of the Conference, which is the Judiciary’s best source of input and feedback. Chief Justice Recktenwald was also proud to announce that the opening of the Kona courthouse, Keahuolu, was on time and on budget. Keahuolu features a new Access to Justice Room, in honor of Judge Ronald Ibarra (ret.).

II. REPORT OF THE CIRCUIT COURT-CRIMINAL LAW GROUPS A. COMMON TOPICS 1. Privacy The Guidelines of Professional Courtesy and Civility for Hawai’i Lawyers (“Guidelines”) provide that an attorney who manifests professional courtesy and civility:

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(a) Does not inquire into, nor attempt to use, nor threaten reasonable alternative available — for example, in the case to use, facts about the private lives of any party or other indiwhere a client’s cellphone is turned off and the attorney devidual for purpose of gaining an advantage in a case, and sires that the client return the attorney’s call. It was also the where sensitive matters are relevant to an issue, will pursue consensus of the groups that confidential communications such inquiry as narrowly as reasonably possible. should not be sent using social media, as they may raise disThe questions posed for the group were: ciplinary issues concerning confidentiality.

• Is anything found on the Internet fair game?

The final question was whether it would be considered • Should lawyers communicate with clients using social malpractice for an attorney to lack proficiency in the knowlmedia? edge and use of social media in the representation of a • Does a lawyer’s duty of competence under Hawaii client. In other words, does the lack of knowledge and use Rules of Professional Conduct (“HRPC”) Rule 1.12 include of technology jeopardize an attorney’s duty of competence knowledge of social media and how the technology may be under HRPC Rule 1.1? used to influence a case?

The participants believe an attorney must be aware of A majority of the attorneys in the groups have searched what social media has to offer, be proficient enough to use social media posts on witnesses, adversaries, and jurors. the sites productively and avoid violating disciplinary rules.

Most attorneys feel that search of a public account does not However, this means that the attorney should be conscious of present an issue. The use of social media levels the playing the drawbacks of using social media as an investigative tool. field, expecially in the Office of the Public Defender, State of For example, there are some sites, such as LinkedIn that Hawai‘i, because there are limited funds to hire investigators. tracks contacts. Therefore, use of such sites like LinkedIn, Before the advent of social media, public defenders would will create a record of contact with the site. On certain ochire investigators. An attorney’s job is to find information; casions, the question may then arise as to whether an unauthus, it is fair to obtain social media profile information if thorized contact with a represented party has been made. such information is exposed to the public. If such a search After discussion, the consensus of the groups was that complies with fairness and the rules of evidence, then the an attorney should not be required by court rule to become information is fair game. a social media expert and that effective representation does The American Bar Association (“ABA”) has already adnot require the attorney to have a high level of competence dressed the issue of juror research. The ABA has approved and knowledge of social media. such searches if it is only to collect information on the juror.

In Circuit Court-Criminal Group 2, the discussion It is not proper to contact a juror through social media, but turned to monitored prison phones, computer messages, and “Googling” a juror is not classified as any type of misconconversations. The primary purpose of law enforcement is duct. to prevent prison misconduct, but questions arise such as However, the attorneys foresee a problem if an attorwhether defense counsel should have notice of the monitorney: (1) creates a fictitious account or (2) approaches a friend ing taking place and have access to such information; of an individual to obtain access to the social media account whether such information is discoverable; and whether there of that individual. The question should be rules governing the recovthen arose of what the attorney’s reery, storage, use, and discovery of sponsibilities are when a person has such information. If the prosecutors a lawyer or if the person is a juvehave access to these materials, they nile. What is ethical in the context can use it in preparation for trial, i.e., of a search? Sometimes it is not it may reveal how an inmate feels about a witness, whether he/she is necessarily the content that is useful, “on edge,” or reveal a factor that can but subtleties of the persona and personality that can be helpful in assist the prosecutor in fine tuning or preparing for cross-examination. preparation for cross examination.

From the prosecutors’ perspective, Questioning can be just as detrimenthese materials are not in their custal as the content of the social media tody and control and often are never account. The consensus of the (From left) Dennis Chong Kee, Ed Kemper, Judge Hilary reviewed by a prosecutor. Moreover, groups was that any public informa- Gangnes, Teri Nagata if the materials do not contain reletion discovered by an attorney on vant evidence, they are not turned over to the defense. The the internet can be used in a case without any reservations. group decided that this was a discovery issue, and the attorThe next question was whether an attorney should neys were straying from the issue of privacy. Therefore, this communicate with a client through social media. There was “discovery issue” might be a topic for future discussion. a consensus that using social media for non-privileged, public information is acceptable, especially if there is no other

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2. Scheduling, Opportunity Probation with Continuances, and Enforcement (“HOPE”) ProExtensions of Time bation Court. There, clients The Guidelines state that often remain in custody for a lawyer should understand significant periods while awaitand advise a client that civiling urinalysis tests. The conity and courtesy in scheduling sensus was that, in the First meetings, hearings, and disCircuit, there are significant covery are expected and, problems with case scheduling when the legitimate interests and continuances. However, of the client will not be adthere is a split among the versely affected, reasonable group on how best to address requests for extensions of such problems and whether time should be agreed to. taking another look at HRPP The questions for discussion Rule 48 for possible amend(From left) Vlad Devens, Judge Craig Nakamura (ret.), Judge Peter Cahill, ments should be considered. were: Judge Randal Valenciano • Are reasonable efforts made to schedule meetings, hearings, and discovery by agreement whenever possible, 3. Settlement and Plea Agreement considering the scheduling interests of opposing counsel, The Guidelines state that a lawyer should raise and exparties, witnesses, and the court? plore the issue of settlement in every case as soon as the case • Are delay tactics being used in scheduling meetings, can be evaluated. The questions for discussion were: hearings, and discovery?

• Are there attempts to de-escalate the controversy and • Is harassment, delay, or the appearance of being bring the parties together? tough the purpose of seeking continuances or extensions of • What are lawyers’ considerations when arriving at a time? plea agreement?

• If new counsel is substituted for prior counsel, are reIn the First Circuit, plea deals appear to fall on the quests for extensions of time reasonably given? shoulders of defense attorneys. This is problematic because The discussion started with a description of how scheddefense attorneys have no control over the process. Plea deals uling is conducted in the First Circuit and the issues surshould be the product of mutual negotiations. The process rounding Hawai’i Rules of Penal Procedure (“HRPP”) Rule is often confusing because different prosecutors can secure 48. Trials in the First Circuit are typically set with the undeals while others cannot. Defense attorneys are left derstanding that the initial trial date merely acts as a place wondering if a submitted deal can be approved. There is no holder. This presumption becomes frustrating for attorneys, insight for defense attorneys, and there seem to be no as well as parties who need to schedule vacation time only to guidelines. have the matter reset. There is also public frustration when In the Third Circuit, pretrial conferences are informal, matters are continued repeatedly, ultimately being dismissed and judges sit with the parties to discuss the case. When on speedy trial grounds. In other circuits, before trials are appearing at a pretrial conference, the parties are required to set, courts set further proceedings such as status conferences, have authority to make decisions. Prosecutors should have pretrial conferences, and settlement conferences to allow opdiscretion, and they are expected to discuss the strengths and weaknesses of the case with the victims. To resolve a case, portunities for settlement for cases that are not realistically obtain a fair sentence or plea deal, the parties are expected proceeding to trial. This leaves only those cases that are on a trial track to be set with “firmer” trial dates. For example, in to have all relevant information at the pretrial conference.

Judges consider that the ultimate goal is to resolve cases. the Third Circuit, continuances are not allowed for plea neTherefore, it is anticipated that each party should be willing gotiations. Status conferences, however, are freely granted. to compromise.

Continuances are granted only for good cause. In the SecSome attorneys want to see judges provide more senond Circuit, judges differ on how trial weeks are set. Some tencing “inclinations,” which would assist in obtaining more judges set pretrial and trial dates initially, while other judges plea or settlement agreements. There was discussion about set pretrial dates that are continually moved until a trial date how meaningful “inclinations” could be. Some expressed is firmly scheduled. the belief that judges are supposed to be independent.

This scheduling issue was also discussed during the sesTherefore, to certify that a plea is the result of a knowing, sion on expediting case disposition. voluntary, and intelligent waiver of rights, the court should Circuit Court-Criminal Law Group 1 also stated that not be a party to negotiations. This would eliminate the fear problems of lengthy continuances have arisen in Hawaii’s

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of a claim that the plea was the product of misinformation or worse, e.g., coercion. If judges are consistent in their sentencing practices, attorneys should expect similar results in like cases. The group agreed there was no consensus on this topic.

4. Succession Planning The annual registration form asks if the attorney has designated a successor for the attorney’s practice. Out of the 1,300 solo practitioners, only 139 attorneys have identified a designated successor to their law practices. When there is no designated successor or volunteer, the Office of Disciplinary Counsel (“ODC”) appoints and compensates an attorney to act as a trustee under Supreme Court Rule 2.20. The ODC reports that it currently has approximately 45 open cases involving trusteeships. The questions for discussion were: • Should attorneys be required to designate a successor?

• If there is a pending case before a judge, should the judge take any action?

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• Should the successor’s duties be different than the duties enumerated for a trustee appointed in accordance with Supreme Court Rule 2.20(c)?

• If no successor is designated, should the costs of the trustee be covered by a new bar assessment or by an increase in the bar assessment for ODC operations?

Recently, a number of attorneys have passed without designated successors and the ODC has spent hundreds of thousands of dollars hiring successor attorneys to review case files. If a successor attorney is designated, then the ODC does not need to be involved. Additionally, any expense in collecting, sorting, reviewing, and disposing of case files will be passed to the attorney’s estate. According to the ODC, keeping records for six years is only required with respect to an attorney’s financial records. It may not be necessary to maintain all other case files and records, especially since all criminal pleadings are kept as digital records in the Judiciary Electronic Filing and Service System

(“JEFS”) or Judiciary Information Management System.

There should be further discussion on making such a requirement mandatory. In the case of court-appointed attorneys, the courts must intervene to reassign cases.

Bar dues will continue to escalate if the problem persists.

The consensus is that attorneys should consider designating a successor.

B. SPECIFIC TOPICS 1. Expediting Case Dispositions: “Triage” To obtain significant criminal justice reform, stakeholders will be required to reconsider the way cases are treated in the court system. All cases are not the same so procedures used to evaluate and dispose of them should not be of a “cookie-cutter” mode. Appropriate processes and disposition procedures depending on the nature of cases must be reappraised. The considerations for creating different tracks are:

• Type of offense —Crime against person —Crime against property —Drug offense • Discovery • Plea negotiations There is a national movement to fasttrack cases based upon the facts of the specific case to efficiently process cases through the system. Several defense attorneys mentioned ideas such as initiating calls to the prosecutors to openly discuss the possibility of negotiating a plea which defense counsel believes would be effective.

It was also mentioned that there needs to be a tangible benefit in order for a plea bargain to work, such as an advantage for the defendant and the possibility of clearing the case from the prosecutor’s caseload, especially if history shows that there is no enhanced or greater penalty if the matter were to proceed to trial.

The civil courts are undergoing a reform to expedite cases. Different tracks

are being proposed to conserve judicial time and resources. The purpose of this discussion is to determine whether there would be similar benefits to having different tracks for criminal cases, with the hope of conserving resources by expediting the disposition of cases and release of defendants.

This track triage would not necessarily require handling by specialty courts. It would just focus on how different cases may be handled. An example is how COP/DAG cases are managed as opposed to repeat offender cases. There needs to be some way in which the criminal justice system could be reformed to expedite cases. This would be beneficial in terms of establishing consistency from courtroom to courtroom. For instance, in the Fifth Circuit, there is a problem with inconsistent trial dates after arraignment. If cases with simpler issues can be identified and assigned to a faster track, then it would encourage everyone to resolve those cases.

Historically, the “bottom line” is that

due to the workload for both the State and the defense, the parties are not going to work on matters until deadlines are nearing. The parties need to prioritize.

Triage/tracks may help to move parties along.

There was a discussion about lowering the severity of certain crimes to petty misdemeanors so it would take the demand for jury trials out of the equation and hopefully make the caseloads more manageable for all parties. The counterpoint on this issue is whether, in doing so, a defendant’s constitutional rights are being violated for judicial expediency. Another query is whether pretrial diversions should be considered for first offenses. In the First Circuit, these types of dispositions are not allowed while the other state judicial circuits have used deferred prosecutions in certain cases.

There was further discussion in not using the descriptor “tracks.” That term already has been used to delineate the differing paths in specialty courts. The group

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wanted to emphasize that there needs to be flexibility in taking There is the additional belief that attorneys should the various cases and factors into consideration when contemtriage their own cases. Attorneys should know when to plating how to resolve and dispose of cases. The group was enter into plea agreements earlier in particular cases so that open to coining another term which might better describe they can focus on their other cases. Judges should be able to the procedural path of the differing cases. rely on attorneys to do that. Fruitful discussions may occur There was a consensus in Circuit Court-Criminal Law with the court’s help. Even if only one pretrial conference is Group 2 that there should be different tracks for different scheduled, discussions are helpful because they allow types of criminal cases and that consideration be given as to attorneys to grasp what judges are thinking and compel the custody status, early acceptance of responsibility, witness, imattorneys in the case to speak with each other face-to-face to migration issues, and the like. There needs to be flexibility in resolve issues. considering the impact of these various factors in the schedIt is helpful when the pretrial conferences are not uling of cases. rigidly structured. Expeditious resolution of civil cases may Circuit Court-Criminal Group 1 had several significant be specific to civil cases and not helpful in criminal cases. concerns with the concept of triage and tracks. Several Uniformity helps everyone understand what the deadlines judges and attorneys were opare. Different courts with difposed to the concept of ferent deadlines make the different tracks. One argucases more difficult to manment against tracks: “Why age. should people be treated The consensus in Cirdifferently based on the nature cuit Court-Criminal Law of the crime? Look to the Group 1 was that the triage community perspective, and model will not work, noting public policy. If you are a (1) the triage model based on victim of a crime you should the type of case is not feasible; not be treated any differently (2) the client and client’s based on the nature of the record should determine pricrime.” Additionally, an attorority; and (3) the courts can ney voiced concern that defenrecognize the cases that may dants will be complaining take longer preparation time about “unequal justice” and grant the necessary among defendants, i.e. “why is (From left) Roy Chang, Brenda Morris, Steven Chow, Judge Keith continuances. his justice shorter than mine.” Hiraoka, Judge Kathleen Watanabe, Judge Craig Nakamura (ret.)

In triaging cases, naIn the Second Circuit, a tionwide, jurisdictions segre“Pre-indictment calendar” was tried. This was an experigate the more serious cases from the less serious ones and ment for a short time, undertaking mass sentencing hearings, handle the cases differently. The intent is to maximize reup to 15 at a time. The problem was that public defenders sources and save time to more efficiently manage the work of had difficulty contacting clients. It was suggested that a prethe courts. The group was not enthusiastic about specialized indictment calendar be tried for drug cases. courts being the solution to dispose of heavy caseloads.

There were many in this group opposed to establishing The Hawai’i Correctional System Oversight Commistracks because they believe that more hearings will ensue. sion was created by the 2019 legislature to consider making the criminal justice system more rehabilitative than punitive.

They believe that setting cases earlier will lead to more In that light, a combination of programs and support mechmotions to continue and additional hearings. Different tracks are not the remedy; the judges exercising flexibility in anisms is necessary for such a rehabilitative system to work.

Also, reclassifying certain criminal offenses as misdemeanors setting differing trial dates is the better procedure. Murder and lesser offenses may have an impact on expediting resolucases should not be set in the same manner as other cases. tion of cases. The problem is a dynamic one and fixing one The bigger issue is bail reform. If bail is truly reformed then part of the perceived problem (expedited case processing) it becomes less of an issue as to whether an Unauthorized may be counterproductive to obtaining the legislative goal of Control of a Propelled Vehicle trial is set nine weeks out. creating a new rehabilitative system.

Tracks are not necessary and would complicate matters. AnThere was a robust discussion about downgrading and other example is that habitual property crimes mostly inreclassifying certain offenses to aid in plea bargaining, while volve homeless people. Homeless persons cannot afford bail, increasing the penalty for multiple offenders. For example, if and hence remain incarcerated. The practical impact of the a drug possession charge was reduced to a misdemeanor and habitual property crime law is clearly not what the legislaa defendant is a three-time offender, then any subsequent ture intended.

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offense would be charged as a felony. Circuit Court-Criminal Law Group 1 suggested consideration of pre-indictment resolution of drug cases. These clients should be in treatment and receiving help. For a majority of these clients, treatment may be lengthy, and most of them only want to go to treatment when in custody. Once out of custody they no longer desire treatment. Thus, trying to motivate these clients with a “get out of jail card” for treatment does not always work.

In Circuit Court-Criminal Law Group 2, there was a lengthy discussion of the problems of expungement of records. Questions arose about the length of the waiting period for expungement orders, as well as removal of records in “no action” cases. Routine expungement procedures for those “no action” types of cases need to be addressed.

After an extended discussion, there was consensus in Circuit Court-Criminal Group 2 that the sentencing and penalty structures should be examined for possible reforms.

There was also a consensus that reclassification of certain drug and class C felony offenses should be explored. There was further agreement that a request be made to Chief Justice Recktenwald to establish a committee to make a presentation before the 2020 Criminal Law Forum about declassification of offenses, expungement issues, and treatment programs. It was also the consensus of this group to adopt a one-step process for expungement of all records, including arrest records, where no action was taken by the prosecutors, and all JEFS case information has been removed.

2. Fast-tracking Mental Health Cases Mental health cases are often burdened with lengthy information-gathering problems, examiner report issues, and transition and contested case issues. Stakeholders in the process should consider reforming the case management procedures to expedite the process. The questions for discussion were: • Is there a benefit to developing a system to “fast-track” mental health/Hawaii Revised Statutes, Chapter 704 cases (“704 cases”)?

• If so, what types of mental health/704 cases should qualify?

• What criteria should be applied?

• Can the process be streamlined by: —Expediting the gathering of information for examiners?

—Creating a process for attorneys to obtain information from facilities regarding the mental health of clients?

—Expediting the transition of clients to hospitals?

—Faster return of examiner’s reports?

—Faster resolution of contested issues?

There is definitely a benefit to fast-tracking mental health cases. For example, if there are people on suicide watch at the Oahu Community Correctional Center

(“OCCC”), that is not the appropriate place for them to be housed. If a person is not well, prompt transfer to a hospital is necessary to keep him/her safe.

The concern in 704 cases is that there is a lack of doctors, and practicing doctors are overloaded with cases. Thus, there is a delay in receiving a timely mental examination.

Frequently, a motion for a mental examination in capital cases, is readily granted by judges. Further, two examinations are required, one for fitness and one to determine mental capacity (responsibility), unless there is a stipulation limiting the examination. The time-consuming process of these motions adds to the delay in the system. Training for the doctors is “spotty” and typically there are no templates to enable doctors to produce uniform reports. Therefore, reports are inconsistent, some are detailed and others terse.

There was also discussion regarding whether a change in the law should be considered to permit more clinical psychologists on three-member panels and to expand the use of one-member panels. Many ideas were proffered, but no feasible solutions. The question was raised whether variations in the number of panelists should be based on different types of offenses rather than premised on whether the charge is a felony or a misdemeanor.

Circuit Court-Criminal Law Group 1 suggested that attorneys can call and advance three-panel hearings when all opinion letters are received from the panelists. Concern was voiced about the Third Circuit cases. There, the court contracts with outside examiners, and hearings are held on different days for different parts of the island. If the court believes a person may be a present danger to himself or others, the person will be hospitalized. If a person is in custody while awaiting examination, the client will be transferred to Honolulu where new examiners must be appointed. In that situation, the client’s examination will be delayed, thereby extending his/her time in custody. It was suggested that before moving for a 704 case examination, the parties determine whether the defendant is having mental issues or whether he/she is undergoing withdrawal symptoms from drugs.

Haw. Rev. Stat., Chap. 704 allows a judge discretion to transfer a defendant from custody to the hospital. In the First Circuit, if there is a request to place a defendant in the hospital pending examination, a motion is filed and a hearing is set. If there is a factual basis for examination and the Attorney General’s office does not provide the court with census numbers and reasons for denial, then the court will usually grant the request. Courts often experience resistance to transfer from hospitals.

Also, in the First Circuit there has been a concerted effort to overhaul the Department of Health (“DOH”) policies in this area. There were weekly meetings in preparation for a “Mental Health Summit.” The DOH is actively recruiting more examiners and working to establish a certification process for the examiners.

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There was a consensus that a way of fast-tracking “fitness” determinations in 704 cases must be developed. Often, judges order fitness and responsibility reports at the same time for what seems to be efficiency reasons; however, one Conference attendees cannot obtain a responsibility evaluation unless the fitness determination is made first. To determine criminal responsibility, doctors need to understand that assessment of the facts of the case requires more time. Accordingly, it would seem to be a more efficient use of resources to fast-track or perform the fitness determination first. The discussion was still ongoing; however, due to time constraints, Circuit Court-Criminal Law Group 2’s session ended with the notion that the matter would need to be deferred to next year’s Criminal Law Forum.

Circuit Court-Criminal Law Group 1 found the DOH and Judiciary are asking the same questions: How can we streamline and improve the process? Should some cases be assigned to a competency track? In some states, fitness is not a concern in misdemeanor cases. New York does not seek competency determinations. It clearly makes no sense to keep clients in OCCC for low level offenses when they will receive a short sentence. A system is needed in which clients can be examined quickly to determine if they meet civil commitment criteria and, if not, to release them and secure services for them. A system that seeks to provide outpatient crisis care so clients are not sitting in OCCC or in a hospital is preferable. The First Circuit has a jail diversion program, but it is rarely used.

There is a need for a middle ground between civil commitment and a change of plea proceeding. In the First Circuit, jail diversion is an option only if it is voluntary, the defendant is found fit, and the prosecutor agrees. Diversion is only for misdemeanors. Idaho was the first state to look at these issues. Hawaii is working on putting together a similar model. The objective is to establish new procedures involving lower level offenses. Hawaii seeks to develop procedures where one can be deemed unfit yet be able to continue proceedings to receive treatment/crisis care.

In the Third Circuit, a 704 case client does not qualify for jail diversion. Defense attorneys are advised to consider whether a client may be better off seeking jail diversion. If so, defense attorneys communicate this to the prosecutors and the court. Thereafter, supervised release is sought to obtain treatment for the defendants.

Hawaii needs to consider a two-prong model. If the

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client is fit, jail diversion is an option. A client needs an initial assessment with a court-based clinician and a hearing to establish his/her level.

For the unfit, should the prosecutor weigh in for crisis care? In Miami, the parties accomplish crisis care by memorandum of agreement. New York has a statute covering the matter and requires that a decision be made within seven to ten days.

There is also a need to determine if any other state has a similar program for felonies. Consideration must be given to whether there are any felony offenses that may be appropriate for such a program.

Additionally, consideration should be given to the diversion of certain clients, so they do not need to go through the 704 case process. Pretrial bail reports could flag fitness issues and possible jail diversion candidates. This would require 704 case/jail diversion criteria in pretrial bail reports and in clinician reviews. There are different stages of a case where a person with 704 case issues or jail diversion can be identified. However, not many are accepted into jail diversion because there is no guarantee of dismissal. Therefore, jail diversion numbers in the First Circuit District Court are extremely low. The District Court only accepts such cases from the courts and corrections divisions. However, the cases appear to have the same inherent problems. Accordingly, everyone must agree to a new system, unless there are statutory changes that provide judges the discretion to make those calls.

Families whose relatives have 704 case related problems often turn to the criminal justice system for assistance. However, this approach does not appear to be successful. A viable alternative has been employed in Arizona through “crisis response centers.” Arizona has 14 such centers that accept individuals who would otherwise be placed in the criminal system. For example, rather than taking a person with mental issues to a hospital emergency room or into custody, the police in Arizona may take an individual to a crisis center for treatment that takes place outside of the criminal law system.

This allows the police to promptly refer the case for treatment and the individual to avoid unnecessary involvement with the criminal law process.

This is the time to explore initiatives like that in Arizona here in Hawaii. Mental health issues are inextricably tied to the homeless crisis, and the Legislature could be open to such initiatives in formulating its strategies for resolving homelessness. Relatedly, a summit on mental health issues

was scheduled for November 6, 2020, at the Hawaii Supreme Court.

A significant issue is ascertaining the relative cost of new programs in relation to resulting savings to the Judiciary, the public defender, and the prosecutors. Additionally, data would need to be gathered on the cost of present services. For instance, data might be collected in district court on the number of offenses typically committed in relation to savings resulting from shorter commitments for mental health evaluations and treatment.

The consensus was that there should be a type of diversion, so the clients do not have to submit to a 704 case process. Diversion makes it easier to fast-track a case because there is no reliance on or utilization of so many other entities.

3. Taking a Fresh Look at Drug Cases Certain jurisdictions have recognized the collateral harm caused by felony drug convictions and the importance of targeting limited correctional resources more efficiently. Accordingly, those jurisdictions have sought wholesale changes in the way drug offenses are charged, prosecuted, and resolved. Questions discussed included the following: • Should a closer look be taken at reclassification of certain types of drug offenses?

• Should felony to misdemeanor adjustments be made for certain types of possession offenses such as reclassifying as a felony after a third misdemeanor offense?

• Should drug possession offenses ineligible for jail time be subject to jail time after the third offense?

• Should expungement and/or record sealing be available for certain classes of drug offenses?

This discussion was partly touched upon in section 1 above by Circuit CourtCriminal Law Group 2. See discussion notes above.

Circuit Court-Criminal Law Group 1 added the following discussion: There have been a number of studies, which show the harmful ramifications for persons with a felony record. Due to this, many jurisdictions have been changing how they deal with drug cases.

For instance, in the Fifth Circuit, pleas are allowed on offenses from promoting dangerous drugs in the fourth degree to promoting harmful drugs in the fourth degree.

In a case with a measurable amount of residue or mitigating circumstances, the statute does not differentiate among weights of the drug that may be possessed.

That is where the groups believe the discussion should start, positing that perhaps the same model as used in the habitual DUI case would work as a compromise for drug cases.

More funding may be needed for specialty courts and drug courts. If possession offenses are downgraded to misdemeanors, probation may not permit enough time to monitor and actually help the defendant. One solution may be more funding for the drug court program so that more people can be intensively supervised.

There is a need to have increased monitoring and/or an available sanction. Some believe that the “misdemeanor fix” is only a “band-aid answer.” Sometimes averting legal consequences may not help in the

long run.

A two-year probation model may also make sense. There is a judge in the First Circuit who is sentencing Promotion of Dangerous Drugs in the Third Degree to a two-year probationary term. Of major concern is a felony record. The first question that should be asked is “Should all drug cases be considered felonies?” The amount of the drug possessed should be seriously considered in determining the level of the offense.

The rules of admission to the drug court program should also be revamped.

There is significant frustration with the drug court program in the First Circuit since the prosecutor’s office solely determines who is admitted into the program.

Additionally, there are different tracks.

Only track II allows clients to have their records expunged, and all of that depends on the prosecutor’s agreement. There is a definite desire to abolish that model.

Deferrals, Act 44, and other laws that aim to eliminate criminal records only work if clients complete the gauntlet set

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before them.

There is a need to recognize that many drug addicts will violate conditions of probation (especially drug/alcohol prohibitions) (From left) Gary Okuda, Allan Okubo, Kenneth Lau, David Chee, Robert Triantos but not commit other new crimes. These individuals do not need to go to Halawa prison and be branded with a felony on their record. Even though there are ways to keep offenses off of their record, reducing these charges to misdemeanors should be considered nonetheless. Some take issue with this suggestion because there is a belief that, if a case is reduced to a misdemeanor, the deterrent effect of a possible felony record to assure compliance is lost.

Persons who pose a high-risk of recidivism and engage in a high use of drugs need to be identified because that is the population that requires the most resources. Some believe that, with high-use and high-risk persons, only the prosecutors are in the best position to be making dispositive decisions.

There was discussion about success on regular probation versus drug court probation. Some believe that, if the defendants cannot succeed on probation, they will not succeed in the drug court program. Others believe defendants can succeed in the program and have succeeded.

The majority of clients in drug court are high-risk and high need. The difference between persons whose drug problem causes crimes (high-risk) and those who are unable to “kick” their drug problem (high-need) must be considered.

Attitudes are distinctly changing because now people living in the suburbs are becoming addicted to opioids. Thus, it is not necessarily a criminal issue but instead a human issue. It clearly does not serve any purpose to keep drug abusers and addicts imprisoned. HOPE probation seeks to work with those individuals, but the model presently being used does not address this issue. There is a need to find out through early screening if the defendant is high-risk or high- need.

There are many clients who are sincere about wanting to keep their children and to stay out of jail; unfortunately, addiction overcomes them. California passed a law that allows for expungement for any drug offense following good behavior for a specific amount of time. Should Hawai’i also consider such a law?

The real question is: “Should individuals be sentenced to Halawa prison on a drug possession charge?” If individuals are committing other crimes, they will be adjudicated on

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those crimes. The reality is that people are imprisoned at Halawa for five years for a drug charge. Inevitably, this is due to continual non-compliance on probation or in drug court.

Individuals need the opportunity to obtain treatment. If a defendant cannot commit to the drug court program, then he or she is sentenced to prison. But is it worthwhile to incarcerate them for five years? The law allows a minimum of one year up to five years imprisonment. The way the parole board operates is that defendants will usually be fast-tracked and be able to timely parole out. If, however, the commitment is to Halawa with a history of failing drug court and/or probation, the defendant will be there for three to five years.

Courts in the Third Circuit will initially sentence defendants to one year of imprisonment, and if they fail with compliance, then the courts impose another year. This is done in an attempt to give the defendants “chances” instead of sending them immediately to prison. There is a belief that perhaps defendants are not being treated therapeutically. In the Third Circuit, violations result in sentencing to Sand Island, Habilitat, and other residential programs. Opportunities for treatment are afforded but at some point, incarceration must be imposed.

Are the treatment programs not addressing the problem? Should efforts be abandoned, and should it be concluded that nothing can be done? There is a serious need to examine the types of programs being used and then to ask whether defendants are being set up for failure. There was no consensus on this issue.

III. REPORT OF THE DISTRICT COURTCRIMINAL LAW GROUP A. COMMON TOPICS 1. Privacy In response to whether “Is anything you find on the internet fair game,” the consensus of the District Court Criminal Group was, if the information is public and does not concern a person’s private life, it is fair game. The information should be relevant to the case, including possible conflicts of interest. There were concerns that the use of deception to obtain information, such as using an alias to “friend” someone on Facebook, is inappropriate; however, it was noted that law enforcement may use deception in investigations. Using deception may violate HRPC Rule 4.1. If a page that was originally public is made private, the information contained on that page when it was public should be available for use.

Courts and attorneys may not know the foundational requirements for admitting social media evidence, which include authentication, establishing who an account belongs to, and hearsay.

2. Scheduling, Continuances, and Extensions of Time Two concerns in the First Circuit were discussed: (1) ex parte motions to continue, and (2) continuances of trial.

Regarding ex parte motions to continue, opposing parties are sometimes unaware of the motion before it is granted, resulting in defendants and witnesses needlessly appearing at court and the loss of opportunity to object. It was noted that many ex parte motions to continue are filed in operating a vehicle under the influence of an intoxicant cases (“OVUII”). Some courts do not grant ex parte motions to continue if it is within 48 hours of the proceeding.

There were isolated incidents of deputy prosecutors requesting that the period of the continuance under HRPP Rule 48, be excluded due to the unavailability of a witness. Courts have struck such requests.

The preferable approach is to have a hearing on a request to exclude the period of continuance from the Rule 48 calculation.

Deputy prosecutors have been encouraged to contact defense attorneys and consult on their requests to continue.

The second concern was that trials are begun and sometimes continued for too long, such that witnesses’ memories may be impaired. Courts want to set continued trials as soon as possible but the calendar of private defense counsel sometimes prevents that. Per diem judges’ calendars must also be accommodated in setting continued trials. This is a problem in the OVUII overflow court.

Suggestions to address these concerns include: (1) limit when ex parte motions to continue may be filed vis-à-vis the proceeding sought to be continued, allow opportunity to object before granting the motion, and prohibit requests to exclude the period of the continuance under Rule 48, and (2) limit the number of continued trials by not commencing trials that will need to be continued.

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3. Settlement and Plea Agreements The practice on neighbor islands is to negotiate early. There, deputy prosecutors sometimes include a plea offer with discovery. The different culture on Oahu may be due to the volume of cases, and defense

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attorneys want to know if the State will be ready for trial before negotiating a plea. Pre-trial conferences are conducted on the neighbor islands, which provide opportunities to discuss plea negotiations, but are not held on Oahu. From the courts’ perspective, plea offers, and negotiations depend on the personalities of the deputy prosecutors and defense attorneys involved. Some judges participate in plea negotiations.

On Oahu, OVUII and driving without a license cases are usually not negotiated, the relationship of the parties and the defendant’s record are a consideration in assault and harassment cases, and a supervisor’s approval is not needed if a defendant pleads as charged, and in that circumstance, the sentence can be negotiated by the deputy prosecutor. The group recommends that prosecutors, public defenders, and the courts facilitate plea negotiations in advance of court appearances.

Problems with pleading in absentia were raised. Defendants who waive their physical presence and submit pleas via form may be unaware of the consequences of a conviction for offenses more serious than violations. There was a request that the judiciary clarify when “FaceTime” is required when a plea is entered in absentia.

4. Succession Planning Private criminal defense counsel should consider designating a successor attorney. Suggestions include permitting retired inactive attorneys to function as successors and requesting the administrative courts to assist with transferring cases when a court-appointed attorney or privately retained attorney is unable or unavailable to represent a defendant.

The Judiciary needs to inform trial courts that when a notice of appeal is filed, the trial court is divested of jurisdiction, including hearing motions to withdraw as counsel.

B. SPECIFIC TOPICS 1. Expediting Case Dispositions: “Triage” Private defense counsel should be allowed to make their appearance at arraignment through electronic filing (“efiling”). Concerns with this proposal include setting court dates that differ from the normal schedule, amendment of charges that occur in court, whether a bench warrant could be issued if a defendant fails to appear at trial, and the optics from the viewpoint of public defender clients who are present in court. In response to these concerns: 1. Dates for court proceedings could be set via efiling; 2. Bench warrants may still issue as defense counsel are obligated to inform their clients when they must appear in court; and 3. As for the optics, presently, private defense counsel are taken first on the court’s calendar and waive the presence of their client. If they were allowed to electronically file their appearance, neither counsel nor their clients would appear; as such, there would not be a problem with optics.

There are already different tracks for cases in district court, including traffic, “weed and seed,” and OVUII.

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Diverting cases from court and deferring prosecution for subsequent dismissal if a defendant abides by conditions were discussed as options rather than different tracks for cases. Diversion and deferred prosecution programs that were discussed included domestic violence intervention, law enforcement assisted diversion, crisis team intervention, Hawaii County’s restorative justice program, and teen court in the Fifth Circuit. The consensus was for the Judiciary, prosecutors, and defense attorneys to further discuss diversion, deferred prosecution, and other ways to keep cases out of court.

The process to expunge cases should be made easier and references to expunged material should not be publicly available. Automatic expungement for some cases or offenses should be explored.

2. Fast-Tracking Mental Health Cases Reports on a defendant’s fitness to proceed are usually due within 30 days; however, extensions are routinely sought and granted. Defendants may be released after 30 days and fail to show up for their next appearance, resulting in the issuance of bench warrants. Expediting examinations should be investigated to reduce bench warrants and the time defendants spend in custody.

Defendants with mental health issues who are released from custody on supervised release may not contact the public defender’s office and/or not appear for their next court date. A recommendation is to explore some form of intermediate placement other than either OCCC or supervised release.

A possible means to reduce the number of cases involving mental health issues is for law enforcement to divert suspects to services instead of prosecution. Fitness examinations could be expedited through a statutory change that permits students at the John A. Burns School of Medicine to perform those exams. Other solutions to reducing mental health cases and expediting examinations may be sought by looking at what other jurisdictions are doing.

IV. REPORT OF THE CIRCUIT COURT-CIVIL LAW GROUPS A. REMARKS BY JUDGE GARY CHANG RE: EFILING Judge Chang explained that the criminal and appellate courts have been efiling documents for years and that all circuit court civil cases will begin efiling on October 28, 2019.

All attorneys will need a JEFS identification number/account, and efiling will be mandatory. Attorneys must add themselves as a party to the case or they will not receive notices of electronic filings. Judge Chang encouraged everyone to familiarize themselves with the Hawaii Electronic Filing and Service Rules and Hawaii Court Records Rules, including Rule 9, regarding the filing of confidential/personal information.

Circuit court documents filed before October 28, 2019, will remain in paper form and will not be viewable online.

Any new filings after October 28, 2019, should be available.

Ecourt Kokua will replace Hoohiki.

JEFS will not be available Mondays through Saturdays from midnight to 4:00 a.m., or on Sundays from 12:00 a.m. to 12 p.m. Documents can be filed until 11:59 p.m., but it is not advisable to wait until the last minute. Attorneys are advised to check the Hawaii Rules of Civil Procedure and the Rules of Circuit Court to make sure they comply with all filing deadlines.

To obtain a hearing date in the Second, Third, and Fifth Circuit, attorneys must call the court and request a hearing date and time prior to filing their hearing motion.

In the First Circuit, attorneys should email the court to request a hearing date and time, attaching the motion to the email. Attorneys and judges will be permitted to use electronic signatures. If a document requires certification, certified copies are available online for a fee. However, if a document requires a stamp or embossment, this must be obtained in-person at the clerk’s office.

More information, including the user manual, FAQ webpage, and training videos, is available on the judiciary website.

rule or statute that tolls deadlines when a lawyer passes away and has no succession plan.

Some participants were concerned that a practitioner might designate a successor without obtaining consent, or that the designated successor’s circumstances could change making him/her unable to serve as a successor. To avoid this problem, some participants suggested imposing a requirement that attorneys obtain an annual consent form from his/her designated successor. Others thought that mandating a successor and suspending licenses would unfairly penalize attorneys practicing in remote areas who may not be able to find a successor, despite his/her best efforts.

Another issue that arose is the enforceability of the successor designation. Who, if anyone, can compel the successor to do the work?

Another point of discussion involved the duties of the trustee. As is, the rules only allow the trustee to (1) inventory the files and (2) contact clients. Should the trustees’ duties be expanded? If so, will that lead to further malpractice claims if the trustee inadvertently misses important deadlines? One participant suggested that the HSBA and/or ODC could explore obtaining insurance for these situations.

One participant suggested approaching the Legislature about drafting a statute to toll deadlines for a certain B. COMMON TOPICS period immediately following the (From left) Steve Guttman, Arlette Harada, Dan Oyasato death of an attorney with active 1. Trustees and Succession Planning cases. Another participant suggested When a practitioner unexpectedly passes, he or she that the ODC could hire an attorney who focuses solely on leaves behind cases that must be handled. If no successor this type of work. It may be appropriate to increase bar fees has been appointed, the ODC is tasked with assigning a to do so. trustee. In 2019, ODC spent approximately $100,000 on The consensus in one group was that a fee assessment trustee cases and budgeted $150,000 for 2020. The should be imposed on all members of the bar so that everymandatory fees of the Disciplinary Board are $250. This is one shares the burden and cost. There was also a consensus a big expense for all HSBA members. Additionally, when that solo practitioners on neighbor islands or in remote areas the Hawaii Supreme Court suspends an attorney’s license, should not be suspended if he or she cannot find a successor. the Court requires that attorney to take certain steps to reThe consensus in another group was that the HSBA and/or ODC should research what other jurisdictions are turn to practice. If that attorney fails to take those steps, doing to deal with the same issue and consider adopting ODC must distribute and handle the attorney’s cases, which is also funded by the bar. those models if they are proving to be successful.

The groups discussed options to address this issue, in2. Privacy and Access to Social Media cluding mandating or requiring practitioners to designate a Should attorneys use social media to gain information successor on the HSBA registration form, suspending a pracabout a case? Should attorneys be required to search social titioner’s license if he or she does not designate a successor, media to be considered competent? Are there ethical issues and/or creating a fund that practitioners without successors that arise when attorneys use social media as a tool to access can contribute to. information about parties, clients, or others involved in their Some thought attorneys should be required to designate cases? What type of advice should attorneys give their a successor. One participant who was currently serving as a clients regarding their social media accounts? Does a spoliatrustee explained that legal malpractice issues can arise if no tion claim arise when someone deletes information from successor is designated because it takes time for a trustee to become appointed and obtain the case files, which can result his/her social media accounts? in missing deadlines or statutes of limitations. There is no

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There was a consensus that anything available in the public domain can be researched and used, but attorneys should not purposely gain access to privately posted media or “friend request” others to gain information that is not public to everyone. One participant commented that the federal rules now explicitly prevent attorneys from “friending” potential jurors.

There was also a consensus that deleting relevant information from the internet, without preserving a copy, does constitute spoliation of evidence. Attorneys should preserve the information and disclose it when necessary, but do not necessarily need to advise clients to keep everything posted online ad infinitum for fear of a potential spoliation claim.

However, it was also noted that there are some gray areas, for example, when a witness or opposing party has a private page but also has a shared friend in common. The friend shares or reposts information of the witness or opposing party, and opposing counsel happens to see it. A factual analysis is required to evaluate each circumstance to assess whether that information was obtained properly and/or whether a party should be allowed to use or refer to it.

There was also discussion whether attorneys should use social media to create an online presence that is favorable to their client, including posting pictures of a client on social media. Is it similar to a press conference? Should a judge be involved? Participants agreed that it depends on the circumstances of each case.

Additional discussion involved whether an attorney can be deemed competent, or to have committed malpractice, because of his/her failure to investigate social media. Is it simply a matter of the attorney’s due diligence and responsibility? One participant thought that anyone who does not take advantage of the technology, including Instagram, Twitter, and Facebook, indeed exposes him/herself to a malpractice claim. Attorneys should know how to use basic technologies. Some participants expressed concerns regarding the scope of online investigations, including whether private investigators should be allowed to use software that is not available to the public. Others had questions about the admissibility of social media. Some participants noted that social media information, including pictures and written statements, can be obtained through traditional discovery methods, via interrogatory and production of documents requests, so the attorneys themselves do not have to be fully versed in social media technology.

It was noted that ABA Model Rule 1.1 regarding competence does not mention social media and only provides in the comments that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” It does not define or create a standard with respect to competency and social media.

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The consensus among the group was that there should not be a rule about competency and social media because technology is constantly evolving. Standards of care should not be created from the discussions held at this Conference.

3. Scheduling, Continuances and Extensions There was a consensus in one group that the bar was not experiencing difficulties reaching agreements regarding scheduling or requests for continuances and extensions.

4. Settlement and Alternative Dispute Resolution There was a consensus in one group that bar members were not experiencing any issues regarding settlement negotiations and/or alternative dispute resolution.

B. SPECIFIC TOPICS: CIVIL JUSTICE IMPROVEMENTS On June 19, 2018, Chief Justice Recktenwald created the Task Force on Civil Justice Improvements (“Task Force”).

The Task Force was comprised of eight current and retired judges and nineteen lawyers. The goal of the Task Force was to look for ways to reduce costs and delays in civil litigation and to streamline the litigation process in Hawaii’s circuit courts. The Task Force formed four committees as follows: (1) case triage/tiering, (2) case management, (3) discovery, and (4) expedited trials and other innovations. The Final Report of the Task Force was submitted to the Chief Justice on July 24, 2019, and the Supreme Court set December 2, 2019, as the deadline for public comments on the recommendations contained in the Final Report.

The Task Force proposed a two-tier system, separating cases at the scheduling conference into one of two tiers based on the characteristics and complexity of each case, considering factors including the amount in controversy, number of parties, extent of necessary discovery, and readiness of the case for resolution. Straightforward cases would be designated into tier 1, and all other cases would be designated into tier 2. Cases in tier 1 would be fast-tracked with limited discovery and an early trial date set within approximately one year of the service of the complaint. While the parties’ agreement on a tier designation can be expected to carry significant weight, the judge will have the final say.

Parties may, based upon a showing of good cause, request that their case be re-assigned to the other tier. The Task Force proposed rules that require the parties to confer with each other and meet with the court significantly earlier than the rules currently require.

The Task Force proposed the adoption of the proportionality standard to require that discovery be proportional to the needs of the case. Adopting the proportionality standard will serve to reduce the cost of litigation by preventing excessive, disproportionate discovery costs.

The Task Force recommended setting a trial date within nine months of the early scheduling conference for tier 1 cases and within twelve to eighteen months for tier 2 cases.

1. Tiering System, Expedited Trials Tier 1 was designed for straightforward and simple cases. Discovery would be limited, and trial would be set within one year after the service of the complaint. Continuances would only be granted in extraordinary circumstances.

For tier 2, no additional discovery limitations beyond those contained in other discovery rules would be imposed, and continuances can be granted for good cause.

Some participants were concerned that the tiering system appears to limit the judges’ discretion to handle cases, prioritizing early trial dates, rather than focusing on the overall resolution of cases. Perhaps the rules and tiers should be focused on resolution instead of scheduling trials.

Some participants disliked the tiering system and questioned whether it was necessary. These participants felt that the tiering system will result in more work for attorneys and judges, who inevitably will be forced to rush through discovery and prepare for trial with significantly less time to settle.

If an expedited process is not necessary, then adding the tiering system will make everything more complicated, especially when tier 1 seems to be similar to the Court Annexed Arbitration Program (“CAAP”), which is already working well for smaller, simpler cases. Perhaps federal magistrate judges should be consulted for their view on the tiering system. Others expressed a similar concern that tier 1 and CAAP appear to be duplicative. Would CAAP be part of tier 1 or would it be a separate tier? It was noted that the Task Force exempted CAAP cases from the tiering system and that the existing CAAP would continue to operate. The Task Force did recommend that the Judicial Arbitration Commission that is responsible for the CAAP evaluate the current condition of the CAAP and develop recommendations on how the program can be improved.

Others questioned whether the tiering system would burden or overwhelm the courts’ calendars. Would the tiering system result in an increase in trials, and are the courts equipped and/or willing to handle an exponential increase in trials?

Members of the Task Force explained that the proposed rule changes were designed to increase efficiency and effectiveness in resolving cases. Shortened trial deadlines, along with early case management, were designed to increase early participation in resolving cases while also providing consistency among the circuit courts by outlining criteria on how cases are to be handled irrespective of who the assigned judge is. It was noted that many parties resolve their cases immediately prior to their trial date. Some settle during their trial. By setting an early trial date, the parties are forced to think of a resolution sooner, rather than spending time conducting excessive discovery.

Some participants noted that, due to limited resources, solo and small firm practitioners might have difficulty preparing for trial set within twelve months of the service of the complaint. It was also noted that plaintiffs’ counsel may very well have their cases for as much as two years before defense counsel even know about the case and questioned

whether the short deadlines were feasible. It was further noted that cases filed in federal court are different than the types of cases filed in circuit court and comparing these simpler cases to how the federal judges handle their cases may not be prudent.

Other participants felt that the tiering system would give clearer guidelines to courts while providing some flexibility too. Others said that the tiering system could help reduce the negative public perception that the judicial system is too slow and too expensive. Members of the Task Force also commented that tier 1 would only be for certain types of cases, such as cases with lower potential damages or less complicated legal issues. The Task Force wanted to give parties an option to save money, cost, and time. Tier 1 would not apply to all cases that get filed, just the relatively straightforward cases that would benefit from limited discovery and an early trial date. Tier 1 would address the concerns of attorneys who are seeking an earlier trial date and are not able to obtain a trial date for two years or more.

One of the two groups was unable to reach a consensus on whether to adopt the tiering system. Ten participants opposed the tiering system, while twelve approved it. Additionally, if the rules were to be adopted, thirteen participants would like to keep the extraordinary circumstances standard for tier 1, while nine participants thought the good cause standard should be used in both tier 1 and tier 2. It was noted that the extraordinary circumstances standard could result in even more litigation costs preparing for trial, when the case could otherwise be resolved through settlement.

Furthermore, some courts are busier than others, especially neighbor island courts that are also tasked with presiding over criminal trials. Adopting the extraordinary circumstances standard could impose an unanticipated burden on the courts’ schedule, as well as the parties’ and attorneys’ schedules.

Although there were a number of concerns raised, the second group of participants reached a general consensus that the tiering system should be implemented to see if it would result in reducing the cost, expense, and time to disposition of cases.

2. Early Scheduling Conferences While many participants had favorable opinions of the rule proposing early scheduling conferences, they were also concerned that the proposed deadline, as is, might be too short. If plaintiffs are required to file a notice requesting the scheduling conference within 14 days of serving the complaint, then the scheduling conference could be set before defendants have a chance to retain counsel. It was also noted that serving foreign companies can take up to six to nine months, and there should be flexibility in the rules for those situations.

It was also noted that if the scheduling conference is continuously extended, the purpose of having an early

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scheduling conference would be defeated, so there needs to be a balance.

Federal courts have staff who automatically set the scheduling conference, but because state courts have more limited resources, the Task Force proposed that the plaintiffs file a notice requesting the scheduling conference. Under the proposed rule, the judge can extend the scheduling conference date, and the parties can also request a continuance, but plaintiffs must submit the request and a date must be set by the court.

It was also noted that CAAP cases would be exempt from these requirements. Once a party appeals a CAAP decision, the case would be placed in either tier 1 or 2, and a scheduling conference would be set at that time. Administrative appeals, foreclosures, and certain other cases would also be exempt from the early scheduling conference process.

It was also noted that First Circuit court judges receive up to 22 new cases per month. It would be important for judges to have a simple form or template to increase efficiency and reduce potential errors. The neighbor island judges have dual civil and criminal calendars, and it may be challenging to find the time for all the scheduling conferences. However, one neighbor island judge said that getting involved early, setting dates, and going over the scope of discovery at the outset of the case would be helpful, so she would be willing to make the accommodations for early scheduling conferences. Members of the Task Force confirmed that they considered possible burdens on judges in developing the early scheduling conference proposal. Some participants felt that it would be illogical to have a scheduling conference when all parties are not present, and that the scheduling conference should only be set after all the parties are able to file an answer. Similarly, others felt that if a defendant files a motion to dismiss, the resolution of the motion could limit issues or even end the case entirely, so scheduling conferences should be set after the hearing on a motion to dismiss.

There was a consensus in both groups to adopt the rule requiring early scheduling conferences, provided that the judges and attorneys are allowed flexibility in continuing the early scheduling conference and/or trial dates when necessary. For example, flexibility may be appropriate when there are multiple defendants and only some of them have been served, or when motions to dismiss are filed in lieu of answers.

3. Discovery and the Proportionality Standard Most participants felt that adopting the proportionality standard was a promising idea and that the amount of discovery allowed should be proportional to the needs of the case and the amount in controversy. This is a marked change from the current standard, but most likely a positive one that reduces cost and discovery disputes. One participant noted that the bench and bar should treat the change as

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a culture/mindset change in how we think about discovery.

One group reached a unanimous consensus to adopt the standard.

4. Other Innovations, i.e., Experts’ Reports, Initial Disclosures, Settlement Conferences, Pretrial Statements, and Letter Briefs One of the proposed rule changes include the imposition of deadlines to exchange experts’ reports. Experts’ reports supporting affirmative claims would be due 120 days before trial. Experts’ reports supporting defensive claims would be due 90 days before trial and rebuttal reports would be due 60 days before trial. The rule would also allow parties to agree to, and the court to establish, different deadlines pursuant to stipulation or court order. Most participants thought the proposed rule on expert report deadlines was a good idea, and the recommendation should be adopted.

Another recommendation included adopting a rule for initial disclosures, similar to the initial disclosure rule in federal court. Attorneys would be required to confer in the early stages of the case to disclose certain information and discuss a plan for discovery. If discovery disputes arise, both sides know about the dispute early in the case and the dispute can be brought up at the scheduling conference. Some participants thought that this process worked well in federal court. Others thought that it would fail to be effective if attorneys failed to meaningfully discuss the issues. A view expressed was that the rule should be strict and specific, or it should not be adopted at all. One member of the Task Force commented that writing the rule is only one part of its effectiveness and that the rule will only be as effective as we make it through our implementation and enforcement. The consensus, at least in one group, was that this rule should be implemented.

To enhance the effectiveness of settlement conferences, the Task Force proposed staggering the exchange of bona fide offers of settlement prior to settlement conferences, with the plaintiffs’ offer generally required to be made prior to the defendants’ offer. This rule is aimed at ensuring that all parties are prepared at the settlement conference. It would also allow the defense more time to evaluate a demand and make a counteroffer. This rule also aims to provide uniformity among the judges and circuits. The consensus in one group was that plaintiffs’ demand should be due 60 days prior to the settlement conference and defendants’ response/counteroffer should be due 30 days prior to the settlement conference. One participant felt that the settlement conference should be set within 90 days of the scheduling conference.

In federal court, the magistrate judge can limit discovery and set a settlement conference within 90 days of the scheduling conference, which helps some parties reach a resolution.

Setting a settlement conference at the ninth, twelfth or eighteenth month does not help settle some cases because the parties have already incurred costs and attorneys’ fees.

Solutions Start Here However, another view is that each case is different, and the courts should have flexibility in deciding when to set the settlement conference because some cases require a certain amount of discovery and investigation before settlement is even possible. It was also noted that settlement conferences take time and judges should ideally set aside approximately five to six hours for settlement conferences. If an early settlement will be productive, the parties should inform the court at the scheduling conference. The consensus in both groups was that, whenever a settlement conference is set, offers should be exchanged far in advance of the settlement conference date.

One participant had concerns about the current rule that allows judges to sanction parties for failing to bring a person with full settlement authority to the settlement conference. Sometimes, the defense has evaluated a case and based on that evaluation, they believe that they have brought someone with sufficient authority.

However, if the plaintiff or the judge has a higher evaluation of the case, they may feel that the defense has failed to bring someone with proper authority. In other words, the defendant gets penalized for not having someone there with an infinite amount of authority. On the other hand, some plaintiff attorneys have experienced instances where the defendant’s insurance company brings an adjuster with an unreasonably low amount of settlement authority, far below any reasonable evaluation of the case. That is why sanctions are necessary. It was noted that the Task Force did not modify the current provision on sanctions, which leaves the option for sanctions in the discretion of the court.

The Task Force proposed a rule which moves the deadline for filing pretrial statements much closer to the trial date but requires the parties to include more substantive information. The pretrial statement deadline would be seven days before any final pretrial conference scheduled by the court, or if no such conference has been set, fourteen days before trial.

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about their case, and accordingly, the pretrial statement will be more meaningful and substantive. Many participants felt that current pretrial and responsive pretrial statement requirements were not effective and favored this proposal.

Finally, the Task Force recommended that circuit courts adopt streamlined discovery processes for judges to settle discovery disputes through the quicker, less formal means of letter briefing. Some judges were concerned that this would be a burden on the courts and that parties would get upset if the courts could not address the letter briefs quickly. However, the Task Force made it clear that letter briefs should only be utilized when the courts permit it and that letter briefing was simply intended to be an additional tool for judges and parties to use, when it was appropriate. It was also noted that letter briefs would not be appropriate for all disputes, but that it could save time and litigation expense for some. Nearly all the judges and practitioners believed that letter briefs were a good idea, provided they were employed as an optional tool, rather than a requirement.

In summary, the groups’ consensus was to adopt the proposals regarding experts’ reports, initial disclosures, staggered exchanges of bona fide offers of settlement, pretrial statements, and the option for courts to utilize letter briefs for discovery disputes.

V. REPORT OF THE DISTRICT COURT-CIVIL LAW GROUP A. COMMON TOPICS 1. Privacy Participants described the ways in which online information and communication are parts of our way of life now.

For example, sometimes clients make initial contacts with lawyers through social media, or criminal lawyers are limited to communicating with their clients through social media messaging services. This type of communication does not seem problematic if no privileged information is being shared. Sometimes online research may reveal an article written by or about a party or witness, or it may reveal information that affects the party’s or witness’s credibility or position.

There is, however, good reason to be cautious about online information and communication. Judges must be careful when using social media. Participants agreed that recordkeeping is easier when information is communicated by email rather than by text message. The participants discussed a potential need for future regulation to ensure that online information and communication are not used as weapons. Until then, lawyers and parties should protect themselves by taking affirmative action to prevent online information or communication from being used against them.

2. Scheduling, Continuances, and Extensions of Time

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Participants agreed that disagreements between lawyers regarding scheduling, continuances, and extensions of time are limited in District Court for two reasons: in many cases one party is represented, and the other party is pro se, and proceedings move quickly in District Court.

Judges’ willingness to grant continuances depends on the issue. In summary possession matters, judges will be more lenient in granting continuances if the issue is collection rather than possession. When possession is at issue, judges are willing to grant a tenant’s request for a continuance so long as a rent trust fund is also ordered. Rent trust funds are particularly important on the neighbor islands, where the timing of return days, pretrial conferences, and trials can result in tenants’ remaining in possession for up to three months after a landlord wishes to regain possession. The judges in attendance agreed that they will allow oral motions for rent trust funds and may raise the issue themselves.

3. Settlement and Alternative Dispute Resolution Participants agreed that settlement and alternative dispute resolution are more regularly explored in District Court than in Circuit Court. In District Court, mediators will assist the parties in resolving residential and commercial landlordtenant cases. On the neighbor islands and in the First Circuit District Courts other than Honolulu and Ewa, mediators will also assist the parties in resolving small claims matters. In the Second Circuit, many District Court cases are resolved through mediation, which is encouraged but no longer required.

In addition to encouraging voluntary mediation, all District Courts judges may order mediation and/or settlement conferences when appropriate.

4. Succession Planning Participants discussed the problems that arise when attorneys pass away or become incapacitated without identifying a successor to inventory and return client files. The ODC currently rents commercial space to store such files.

To address the problems, ODC has proposed either encouraging attorneys to identify successors, or requiring the identification of a successor as a condition of attorneys’ licenses.

Participants agreed that it would be good to provide training to attorneys, particularly solo practitioners. For example, having solo practitioners fill out a form with their passwords would make it easier for successors or trustees to handle their files. It would also be useful to provide more guidance on withdrawing funds from client trust accounts and retaining client files for appropriate time periods.

Participants discussed whether malpractice insurance companies or estate planning attorneys could assist attorneys in keeping records of their passwords and making plans for contingencies.

B. SPECIFIC TOPICS 1. Small Claims Calendar/Hearing Dates Under Rule 3 Participants discussed a potential rule change to Small Claims Rule 3(b) that would allow the Court to set the Family Law Group hearing date more than 30 days after the date of filing. This flexibility would be helpful if, for example, service was not made immediately, or trial was unnecessary.

On Maui, hearing dates are set close to the current maximum of 30 days after filing. The Court’s view is that setting the hearing date based on the date of filing (rather than the date of service) creates additional work for the plaintiff and Court staff when service has not been promptly made. The proposed rule change would address some of the inconvenience.

2. District Court Jurisdictional Limit Participants discussed a previous increase of the District Court jurisdictional limit from $20,000 to $40,000 and asked whether further increase was desirable.

Participants considered whether the Circuit Court was addressing some of the difference between Circuit Court and District Court by allowing expedited proceedings in cases with lower amounts in controversy.

The consensus among participants was that it would be beneficial to raise the jurisdictional limit from $40,000 to $100,000.

3. Rent Trust Funds Participants discussed issues with inconsistency and inequity in ordering rent trust funds in landlord-tenant cases.

In the Second Circuit, for example, data shows that rent trust funds may be ordered for the entire rent amount demanded in the complaint rather than for the rent amount that will become due. In addition, rent trust funds may be ordered for the full amount of rent demanded even if the tenant is paying only a portion of the rent and the remainder is being subsidized and paid.

Participants agreed that this appeared to be a training issue for the bench and bar. The prevailing views appeared to be that rent trust funds should be ordered only for rent as it becomes due and only if there will be a significant delay in resolving the issue of possession. The bench and bar also should be aware that rent trust issues are different if rent is subsidized because the U.S. Department of Housing and Urban Development will continue to pay the subsidy directly

to the landlord during summary possession proceedings.

4.

Use of Verified Complaints Participants discussed improvements by the bench and bar in requiring and providing the evidence necessary to support demands for relief. Attorneys are no longer signing declarations to support the amount demanded in debt collection cases, and the bench has been more uniformly requiring declarations showing that the declarant has personal knowledge and that documentation supports the amount demanded.

Participants discussed the benefits of providing properly supported complaints. The process of getting to judgment is important. Defendants may agree that they owe the amount demanded if they receive a properly supported complaint, and the Court will demand proper support in any event.

5. Filings of Returns of Service Participants discussed changes for efiling returns of service. Sheriffs will be allowed to efile returns of service if they are JEFS users connected to the case. Otherwise, attorneys will be required to file the returns of service.

6. Credit Card Filing Fees Participants discussed the additional charge incurred when the filing fee for a complaint is paid online by credit card. This charge can be avoided by paying the filing fee by check submitted to the clerk’s office. Alternatively, the additional charge likely can be added to any costs that may be awarded to the prevailing party.

7. Additional Concerns Related to the Implementation of Electronic Filing Proposed orders: Participants were informed that they should file a cover sheet attached to the proposed order.

Once the order is signed, the cover sheet will be removed, and the signed order will be electronically filed.

Paper copies: Participants were informed that there was no need to submit paper copies of motions or exhibits unless the paper copies were specifically requested by the judge.

Hearing dates: Participants were informed that they may call the District Court clerks for a hearing date.

Attorneys’ fees: Participants discussed the possibility of increasing the amount of attorneys’ fees that may be claimed without documentation from $500 to $750. Any increase would require judicial approval.

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8. District Court Adoption of Any Proposed Changes to Procedures in Circuit Court Participants agreed that many of the proposed changes to Circuit Court procedures were unnecessary in District Court because District Court proceedings move quickly.

VI. REPORT OF THE FAMILY COURT GROUP A. COMMON TOPICS 1. Privacy What information about a person’s private life is “fair game” for use in a case? What duties does an attorney have regarding the use of social media and technology?

This topic was the subject of lively discussion as the use of social media in Family Court can produce additional trauma and drama to an already highly emotional event in one’s life.

The issues discussed were: 1) private versus public accounts; 2) the attorney’s duty to be familiar with new technology and websites; 3) the attorney’s duty to limit/censor access to explicit postings; and 4) the attorney’s duty to monitor a client’s social media use or view the other party’s accounts.

The participants discussed whether the particular information, e.g., picture, recording, statement, was relevant or was being presented to embarrass the other party, and if it was relevant, whether such information should be granted equal weight as the other evidence provided.

The consensus was there is no expectation of privacy when it comes to the use of social media. Therefore, attorneys should familiarize themselves with social media applications, sites, and their use, and should be mindful of only using what is relevant and consider keeping the subject matter confidential, if appropriate.

There was also discussion regarding the appropriateness of having clients as “friends” on an attorney’s personal and/or professional social media accounts. The consensus was that it was fine to have a client as a “friend,” but communication with a client on social media regarding the case should be avoided.

2. Scheduling, Continuances and Extensions of Time The group overwhelmingly agreed that attorneys should discuss continuances and extensions on deadlines before seeking court assistance or intervention. However, agreeing to continue a hearing or trial depends on when the court may schedule the new date. In the First Circuit, due to lack of staffing, it is not possible to have information regarding hearing dates readily available. In the other circuits, one can easily call and find out the next available hearing and/or trial dates.

The participants discussed the remedies available when opposing counsel does not stipulate to a continuance or to extend deadlines. Possible remedies include requesting Rule 16 conferences or filing motions to continue.

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3. Settlement and Alternative Dispute Resolution The participants acknowledged that their duties are to families. The consensus was that litigation is harmful to children, and settlement is always the best option. The Family Court has encouraged and implemented alternative dispute resolution methods both inside and outside of the courtroom.

The First Circuit Court’s Volunteer Settlement Master program (“VSM”) is one example of both the judges’ and attorneys’ commitment to reach resolution without litigation.

There was much discussion about the ability to expand the program to other calendars, e.g. paternity, in the First Circuit, and to the other judicial circuits. Ways to improve the already successful VSM were also discussed, including when to assign a case to the program and the length of time a case should be in the program.

The group was supportive of expanding mediation programs and considering ideas to facilitate settlement.

4. Succession Planning Should attorneys be required to designate a successor?

If there is a pending case before a judge, should the judge act? Should there be different duties for a successor as opposed to a trustee? If there is no successor, should the cost of the trustee be covered by a new bar assessment or by an increase in the bar assessment for ODC operations?

The group’s discussion was vast and varied as there were members who were solo practitioners, former solo practitioners, neighbor island practitioners, partners in larger practices, members of the HSBA board of directors, and members who had personal experiences with friends and colleagues who have passed on. The group discussed the importance of having a succession plan, which may include designating a successor now, purging unnecessary documents and files throughout one’s practice, and mentoring younger attorneys for possibly taking over a practice.

Attorneys were encouraged to discard files that were not necessary as the successor attorney must go through every file and try to contact each client which may not be necessary as a case may have been closed years ago. A good practice tip is to set automatic delete dates on old files, both paper and electronic.

The neighbor island practitioners discussed the difficulty of naming someone as the number of attorneys who practice family law is small.

There was concern about any type of penalty imposed for failing to name a successor, such as suspension of one’s law license. Duties of a successor were discussed and how such a role would impact an attorney’s own law practice.

The consensus was that it is a best practice to develop and maintain a succession plan in the event of an untimely emergency or event that causes attorneys to be unavailable for their clients. However, the group strongly opposed any draconian penalties such as suspension. The group felt that

possibly ODC should be responsible for the costs through assessments from the attorneys after first trying to recover costs from the deceased attorney’s estate.

B. SPECIFIC TOPICS 1. Uniformity Where, when, can or should uniformity be required throughout the judicial circuits? Should forms be standardized? Should court proceedings be standardized?

The discussion regarding uniformity among the circuits was two-fold: forms and procedures.

Regarding the issue of standardizing forms, overwhelmingly the group said “yes.” The First Circuit seems to have the most comprehensive set of forms, and the other circuits’ forms should be used, especially where these forms cover areas the First Circuit forms do not.

Judges from the other circuits acknowledged using some of the First Circuit forms where appropriate because their own circuits lacked a necessary form. Standardizing forms would promote access to justice particularly, for pro se litigants. The non-profit legal service providers and volunteers reported it is difficult not having forms for the pro se litigants to use as the Family Court process can be difficult to explain and understand.

The consensus was to standardize forms and to look to the First Circuit to lead the way – taking its forms and revising them, if necessary, for a particular circuit. Concern was expressed about standardizing the forms to be compliant with the upcoming efiling of Family Court documents.

Standardizing the family law practice in all circuits was also discussed. For example, in the case of a Motion for PreDecree Relief, the First Circuit requires the parties to be prepared for an evidentiary hearing at the initial return hearing The other circuits treat the initial return hearing date as a hearing where no evidence or testimony is taken.

Currently, it appears that standardizing procedures is not possible because each circuit differs as to the volume of cases, the number of judges, the number of courtrooms, and the number of staff.

Improving communication among the bench, the bar, and the public in general was discussed. Several strategies may be memoranda from the court about expectations in the courtroom, a brochure for pro se litigants explaining procedures, and possibly a webpage.

The group recommended a committee be created to work on standardizing forms statewide. The group further suggested that a committee be formed to work on creating a flyer or brochure and/or webpage/video with information on “what to expect” for a return hearing, evidentiary hearing, TRO hearing, trial, and the like for dissemination to or access by pro se litigants.

2. Judicial Economy and Efficiency Are there ways in which the Judiciary and the bar can

streamline the judicial process to maximize the limited resources and time the court has? How should attorneys/the court deal with scheduling conflicts? Discovery? Settlement? Alternative Dispute Resolution (“ADR”)? a. Scheduling Conflicts Scheduling conflicts appeared to be an issue for those practicing in the First Circuit, and the attorneys reported that the judges on the neighbor islands have been accommodating. In the Second, Third, and Fifth Circuits, the process of securing a court date from the courts prior to filing a motion helps to avoid scheduling conflicts.

Best practices require an attorney with scheduling conflicts or overscheduling problems to contact opposing counsel beforehand and to determine if issues can be resolved or continuances can be agreed upon in advance.

The consensus was communication is key in avoiding scheduling conflicts. If a conflict is unavoidable, further communication with opposing counsel or the court should be undertaken to avoid sanctions. b. Discovery Often cases are scheduled before the court without the parties having either engaged in ADR or conducted proper discovery.

The group believed best practices include doing informal initial discovery liberally. Practitioners should be mindful to ask for only what is needed. Cases that are more difficult or complex may require formal discovery.

The group discussed the requirement to “meet and confer” prior to filing a motion to compel. The judges reminded the bar that the attempts to confer need to be sincere and reasonable. The consensus was a meeting was required in-person or by phone, not by writing a letter. c. HFCR 68 In Brutsch v. Brutsch, 390 P.3d. 1260 (Haw. 2017) and Cox v. Cox, 138 Haw. 476, 382 P.3d 288 (Haw. 2016),3 the Hawaii Supreme Court held that HFCR Rule 684 did not apply to family court cases governed by Haw. Rev. Stat. § 580-47.5 Are offers of settlement still possible in light of these cases?

The group asked whether the courts contemplate awards of attorney’s fees if one party takes an unreasonable position and whether it is even feasible to make settlement offers. From the attorneys’ perspective, without HFCR 68, settlement offers have diminished. There seems to be more litigation.

The consensus was there should be a committee to discuss possible revision of Haw. Rev. Stat. § 580-47 to allow for settlement offers to be contemplated and considered, otherwise attorney’s fees would be imposed.

3. Access to Justice in Family Court Should volunteers be recruited to assist pro se parties in drafting court orders? Should the Kapolei Access to Justice Room be expanded to a regular one-day session in Honolulu?

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The First Circuit shared that it has started a program to expand the Kapolei Access to Justice program by having volunteer attorneys assist pro se litigants with drafting orders that result from hearings on pre- or post-decree matters.

Legal Aid Society of Hawaii provides a few volunteers regularly, and there were a few private attorneys who volunteered their time to this program.

The First Circuit also shared that it would expand its Kapolei Access to Justice Room to downtown Honolulu in December 2019. The Supreme Court Library has donated space and supplies to make this happen. Volunteers were quick to donate their time at the new location.

The Second Circuit shared the success of its Volunteer Court Navigator program, and the group discussed possibly adapting a similar program for the family courts of the First and Third Circuits.

CONFERENCE PARTICIPANTS The Committee on Judicial Administration: Co-Chairs: Simeon R. Acoba Jr., Associate Justice, Supreme Court of Hawaii (Ret.), Steven J. T. Chow Members: Hawaii Supreme Court Associate Justice Richard W. Pollack, Judge Joel August (Ret.), Second Circuit Court, Judge Ronald Ibarra (Ret.), Third Circuit Court, Big Island Drug Court – Kona, Judge Randal G. B. Valenciano, Fifth Circuit Court, Judge Brian Costa, Family District Court, First Circuit, Judge Melvin H. Fujino, Family Court, Third Circuit, Judge Rowena Somerville, First Circuit Court, Hayley Y.C. Cheng, Dennis Chong Kee, Kahikino Noa Dettweiler, Vladimir Devens, Kirsha Durante, William A. Harrison, Edward C. Kemper, Dyan Mitsuyama, Carol K. Muranaka, Kyleigh F. K. Nakasone, Lester D. Oshiro, Audrey L. E. Stanley, Kevin T. Takata.

The appellate judges and Administration included: Chief Justice Mark E. Recktenwald, Hawai‘i Supreme Court, Associate Justice Michael Wilson, Hawai‘i Supreme Court, Chief Judge, Lisa M. Ginoza, Intermediate Court of Appeals, Judge Keith K. Hiraoka, Intermediate Court of Appeals, Daylin-Rose Heather, Special Assistant to the Administrative Director of the Courts, Michelle Acosta, Special Assistant to the Administrative Director of the Courts.

The participants in the Circuit Court–Civil Law Group 1 were: Lead Judges: Judge Craig Nakamura (Ret.), Judge Jeanette Castagnetti, Common Topics Lead: Steven J.T. Chow, Lead Attorney: Cynthia Wong, Reporter: Steven J.T. Chow, Recorders: Kyleigh F.K. Nakasone, Kahikino Noa Detweiller-Pavia, Judge Keith K. Hiraoka, Judge James Ashford, Judge Rhonda Nishimura (Ret.), Judge Kathleen Watanabe, Judge John Tonaki, Judge Bert Ayabe, Nadine Y. Ando, Paul S. Aoki, Lisa Bail, Claire Wong Black, Roy Chang, Wesley H.H. Ching, Michael R. Cruise, Amalia Fenton, Marie M.

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Gavigan, Gary G. Grimmer, Edmund W.K. Haitsuka, Leighton Hara, C. Michael Heihre, Karin Holma, Lerisa Heroldt, Robin M. Kishi, Derek R. Kobayashi, Sunny Lee, Sharon V. Lovejoy, April Luria, Brenda Morris, Mark G. Valencia.

The participants in the Circuit Court-Civil Law Group 2 were: Lead Judges: Judge Randal Valenciano, Judge Peter Cahill, Common Topics Lead: Vladimir P. Devens, Lead Attorney: David Louie, Reporter: Vladimir P. Devens, Recorder: Audrey Stanley, Judge Jeffrey P. Crabtree, Judge Dean E. Ochiai, Judge Gary Chang, Judge Joel August (Ret.), Kurt I. Kagawa, Leslie R. Kop, William M. McKeon, David J. Minkin, Melvyn M. Miyagi, Traci Rei G. Morita, Lisa Munger, Zale T. Okazaki, Brad S. Petrus, Stefan Reinke, Kenneth S. Robbins, Jeffrey H.K. Sia, Woody Soldner, Jennifer R. Sugita, Kevin P.H. Sumida, Stephanie E.W. Thompson, Brian W. Tilker, Lynne T.T. Toyofuku, Allen Williams, Deborah K.Wright, Reginald K.T. Yee, Elijah Yip, Nathan H. Yoshimoto, Calvin Young.

The participants in the Circuit Court–Criminal Law Group 1 were: Lead Judge: Judge Rowena A. Somerville, Lead Attorney: Kirsha K. M. Durante, Reporter: Jessica Domingo, Judge Melvin H. Fujino, Judge Shirley Kawamura, William M. Bento, Adrian Dhakhwa, Sat Freedman, Stephen Frye, Tracy Jones, Andrew Kennedy, Justin F. Kollar, Chad M. Kumagai, Emmanuel V. Tipon, Howard Luke, Clarissa Y. Malinao, Lesley Maloian, Thomas Michener, Thomas Otake, Richard H.S. Sing, Myron Takemoto.

The participants in the Circuit Court-Criminal Law Group 2 were: Lead Judge: Judge Ronald Ibarra (Ret.), Lead Attorney: William A. Harrison, Reporter: Lester D. Oshiro, Judge Todd W. Eddins, Judge Greg K. Nakamura, Kenji Akamu, William C. Bagasol, J. Victor Bakke, David Bettencourt, Jason R. Burks, Lynn B.K. Costales, Ann S. Datta, Kyle T. Dowd, David M. Hayakawa, Megan K. Kau, Alan J.T. Komagome, Roy H. Kwon, Jason Kwiat, Landon Murata, Jeffrey Ng, Steven Nichols, Michelle M.L. Puu, Keith Shigetomi, James S. Tabe, Kimberly A. Torigoe, Kelden B.A. Waltjen.

The participants in the District Court–Criminal Law Group were: Lead Judge: Judge Summer Kupau-Odo, Lead Attorney: Hayley Y.C. Cheng, Reporter: Kevin Takata, Judge Michelle Kanani Laubach, Judge Kenneth J. Shimozono, Susan L. Arnett, Elizabeth Bailey, Katherine Caswell, Gilbert C. Doles, Darcia Forester, Diamond Grace, Matthew M. Kajiura, Alen M.K. Kaneshiro, Daniel Kawamoto, Marcus Landsberg, IV, Antoinette Lilley, Mica Metter, Robert K. Olson, Andrew T. Park, Adrienne Shergill, Daylan Kealii Takahashi, Pearl Tamayo, Jerry A. Villanueva.

The participants in the District Court-Civil Law Group were: Lead Judge: Judge Hilary Benson Gangnes,

Lead Attorney: Dennis W. Chong Kee, Reporters: Edward C. Kemper, Teri-Ann Nagata, Judge Kelsey T. Kawano, Nicole Y.C.L. Altman, Scott C. Arakaki, Russ S. Awakuni, David W.H. Chee, Renee M. Furuta-Barnum, Steven Guttman, Catherine Hall, Arlette S. Harada, Kenneth K.S. Lau, Ann McIntire, Cheryl A. Nakamura, Kirk Neste, Allan Y. Okubo, Gary Y. Okuda, Dan O’Meara, Dan C. Oyasato, William J. Plum, Alana Rask, Shannon Sheldon, Dawn Sugihara, Yuriko J. Sugimura, Robert D. Triantos, Guy C. Zukeran.

The participants in the Family Law Group were: Lead Judge: Judge Brian A. Costa, Lead Attorneys: Dyan Mitsuyama, Steven Hartley, Reporter: Jill Hasegawa, Judge Wendy DeWeese, Judge Adrianne Heely, Judge Christine Kuriyama, Judge Dyan M. Medeiros, Judge Paul T. Murakami, Judge Darien Nagata, Sara Buehler, Shauna Cahill, P. Gregory Frey, Geoffrey Hamilton, Geraldine Hasegawa, Ann Isobe, Kevin Kimura, Mari Kishimoto Doi, Carol Kitaoka, Tim Luria, Makia Manerbi, Angela Kuo Min, Juan Montalbano, Michelle Moorhead, Stephanie Rezents, John Schmidtke, Sara Silverman, Tom Tanimoto, Kimberly Taniyama, Brianne Wong Leong. ________________________ The Committee in 2019 was comprised of the following co-chairs and members: Hawaii Supreme Court Associate Justice Simeon R. Acoba, Jr. (ret.), co-chair; Steven J. T. Chow, co-chair; Hawaii Supreme Court Associate Justice Richard W. Pollack, Second Circuit Court Judge Joel E. August (ret.), Third Circuit Court Judge Ronald Ibarra (ret.), Third Circuit Court Judge Melvin H. Fujino, First Circuit Court Judge Rowena A. Somerville, Fifth Circuit Court Judge Randal G. B. Valenciano, Family Court District Judge Brian Costa, Hayley Y. C. Cheng, Dennis W. Chong Kee, Kahikino Noa Dettweiler-Pavia, Vladimir Devens, Kirsha Durante, William A. Harrison, Edward C. Kemper, Carol K. Muranaka, Kyleigh F. K. Nakasone, Lester D. Oshiro, Audrey Stanley, and Kevin K. Takata.

As described in the HSBA Board Policy Manual, the Committee:

declined the offer. The case was tried and the parties’ marital assets were divided. After an unsuccessful appeal by the wife, the husband sought post-offer attorney’s fees and costs under HRCR 68. The family court granted the motion as to the post-offer trials and costs and denied the appellate fees and costs. The Intermediate Court of Appeals (“ICA”) ruled that the appellate fees were recoverable under Rule 68. The Supreme Court vacated the ICA’s judgment, holding that the 2006 and 2015 versions of Rule 68 did not apply to family court cases governed by Haw. Rev. Stat. § 580-47 and therefore, the husband was not entitled to appellate attorney’s fees under Rule 68.

4

At any time more than 20 days before any contested hearing held pursuant to HRS sections 571-11 to 14 (excluding law violations, criminal matters, and child protection matters) is scheduled to begin, any party may serve upon the adverse party an offer to allow a judgment to be entered to the effect specified in the offer. Such offer may be made as to all or some of the issues, such as custody and visitation. Such offer shall not be filed with the court, unless it is accepted. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, any party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall treat those issues as uncontested. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible, except in a proceeding to determine costs and attorney’s fees. If the judgment in its entirety finally obtained by the offeree is patently not more favorable than the offer, the offeree must pay the costs, including reasonable attorney’s fees incurred after the making of the offer, unless the court shall specifically determine that such would be inequitable.

1

Maintains a close relationship with the judiciary on matters of mutual concern to the bench and bar, monitors and formulates recommendations to the Board concerning legislation affecting the judiciary, studies and reports on subjects of judicial conduct and discipline, and coordinated activities of the HSBA relating to improvement of the judiciary and administration of justice.

2

HRPC Rule 1.1 provides, in relevant part, as follows:

HFCR 68, Offer of Settlement, provides as follows:

5

Haw. Rev. Stat. § 580-47, provides, in pertinent part, as follows: (f) Attorney’s fees and costs. The court hearing any motion for orders either revising an order for the custody, support, maintenance, and education of the children of the parties, or an order for the support and maintenance of one party by the other, or a motion for an order to enforce any such order or any order made under subsection (a) of this section, may make such orders requiring either party to pay or contribute to the payment of the attorney’s fees, costs, and expenses of the other party relating to such motion and hearing as shall appear just and equitable after consideration of the respective merits of the parties, the relative abilities of the parties, the economic condition of each party at the time of the hearing, the burdens imposed upon either party for the benefit of the children of the parties, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

3

In Cox v. Cox, 138 Haw. 476, 382 P.3d 288 (Haw. 2016), the husband tendered a settlement offer to the wife, and she

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C O URT BR IEF S Drug Court Graduations in the Pandemic Era Crises creates innovation and the Drug Court program has responded by conducting its graduation ceremonies to ensure enthusiastic recognition in a safe manner. The First Circuit Drug Court commemorated a milestone in March: more than 1,000 graduates since the program’s inception in 1996. With cases of COVID-19 on the rise, the graduation was held with limited access to the public. Since then, court staff have combined technology and other protective measures to create opportunities for greater participation in these important events.

On June 15, the court celebrated the accomplishments of 16 graduates with a ceremony that incorporated proper social distancing and masks for all attendees. The drug court prosecutor, public defender, private and court appointed attorneys, and families of the graduates were also able to enjoy the proceedings, albeit remotely. One graduate who could not attend in person was still able to participate, thanks to the video connection.

Fifth Circuit Deputy Chief Judge Michael K. Soong and 10 Kauai Drug Court graduates.

Dignitaries who have traditionally participated in the celebrations found innovative ways to be there. One of those was Kauai County Mayor Derek Kawakami, who sent a heartfelt and inspiring congratulatory message by video, which was played for the 11 members of the Kauai Drug Court’s 35th graduating class.

Larson Reappointed Per Diem Judge Congratulations to Bruce Alan Larson on being reappointed as per diem judge of the District Court of the Third Circuit, and designated to preside in District Family Court. His term is from June 13, 2020, to August 12, 2024.

Ka Imi Pono: Threats to the Native Populace First Circuit Drug Court Judge Matthew J. Viola, Drug Court staff Lei Kumagai, Christopher Conley, Jeff Galon, Stephen Holbrook, Ana Ochoa, and Stanford Puahi, with the graduates.

Similar efforts took place on Kauai where Fifth Circuit Deputy Chief Judge Michael K. Soong presided over Kauai’s first Drug Court graduation ceremony during the pandemic. The May 29 courtroom celebration was attended by only the graduates, prosecutor, and court staff to ensure public health and safety. Proper social distancing was observed, and masks were required.

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Since the early 19th century, Hawaii’s government has used law to prevent the spread of disease and protect the health and safety of its community. Ka Imi Pono: Threats to the Native Populace explores the scope and impact various diseases have had across the islands. The exhibit includes more than 25 captivating archival photographs and a historical timeline on Epidemics and Public Policy in Hawaii.

The King Kamehameha V Judiciary History Center invites you to take the virtual tour at: https://www.jhchawaii.net/ka-imi-pono/.

CAS E NOTES Hawaii Supreme Court Civil Procedure Erum v. LLego, No. SCWC-170000762, June 18, 2020 (Pollack, J.; Nakayama, J. dissenting, joined by Recktenwald, C.J.). This appeal challenged the granting by the circuit court of a defendant’s ex parte oral motion to dismiss a case with prejudice. The case involved a personal injury claim brought by a pro se litigant, who did not attend the pretrial conference at which the oral motion to dismiss was made and granted. The Hawaii Supreme Court held that the circuit court abused its discretion in granting the defendant’s oral motion to dismiss with prejudice because the record did not provide a valid basis for the dismissal order, and the court failed to make the requisite findings of fact that would be required to support such an order.

Estate Admin. Servs. v. Mohulamu, No. SCWC-19-0000050, June 19, 2020 (McKenna, J.; with Recktenwald, C.J., dissenting, with whom Nakayama, J., joins). Tigilau filed two motions to proceed in forma pauperis (“IFP”) to the ICA. The first motion provided little information regarding Tigilau’s financial status, but the second motion provided much greater detail. In denying both motions, the ICA ordered Tigilau to follow the portion of Haw. R. App. P. (“HRAP”) Rule 24(a) stating that “[a] motion for leave to proceed on appeal [IFP] . . . shall ordinarily be made in the first instance to the court . . . appealed from.” After Tigilau did not file an IFP motion or pay filing fees within ten days of the second order, the ICA dismissed Tigilau’s appeal. The Hawaii Supreme Court held that the ICA abused its discretion in ordering Tigilau to file IFP motions in the district court, in denying Tigilau’s second IFP motion based on Haw. Rev. Stat. § 607-3 and HRAP Rule 24, and then in dismissing her appeal.

The Hawaii Supreme Court further held

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Appeal Pointer A motion to consolidate a newly docketed appeal with an appeal for which briefing is almost complete will normally be denied without prejudice to seeking consolidation after the completion of briefing in the newly docketed appeal. that, consistent with the fundamental tenet of Hawaii law that submissions of self-represented litigants should be interpreted liberally, when courts have discretion in applying court rules or statutes, they must consider the access to justice principle of reducing barriers to the civil justice system for self-represented litigants.

Criminal State v. Baker, No. SCWC-160000115, June 18, 2020 (Pollack, J., with Recktenwald, C.J., concurring and dissenting, and Nakayama, J., dissenting).

This appeal involved the admission at trial of a confession given by the defendant during the course of a custodial interrogation. Because the Hawaii Supreme Court found that the tactics used by the interrogating police officer were so coercive that they rendered the defendant’s statement involuntary, the Hawaii Supreme Court held that it should not have been admitted against him at trial.

State v. Beaudot-Close, No. SCWC-170000701, June 24, 2020 (Nakayama, J.).

This case explored whether a suspect’s refusal to reenact the incident for which the suspect is being interviewed invoked the right to remain silent and if the prosecution’s reference to the suspect’s refusal at trial violated that right.

Appellant Anthony G. Beaudet-Close was involved in an altercation. BeaudetClose was charged with Attempted Murder in the Second Degree and Assault in the First Degree. At trial, the State played for the jury a video of a detective

interviewing Beaudet-Close. The police interview video concluded with BeaudetClose declining the detective’s request that Beaudet-Close reenact the altercation. Beaudet-Close filed a motion for a mistrial after the jury viewed the police interview video, arguing that it was an impermissible comment on his invocation of his right to remain silent. The circuit court denied Beaudet-Close’s motion and trial continued. In his application for writ of certiorari, Beaudet-Close argued that he invoked his right to remain silent when he refused to participate in a reenactment and that the prosecutor’s decision to play a video of that refusal was an improper comment on his invocation of that right. The Hawaii Supreme Court agreed with Beaudet-Close.

State v. Bright, No. SCWC-160000833, June 3, 2020 (Recktenwald, J.).

Justin K. Bright was convicted of violation of a protective order for coming within 100 feet of the complainant (“the protected party”) while at his place of work. The order for protection prohibited Bright from coming within 100 feet of the protected party at a “neutral location.” This case required the Hawaii Supreme Court to determine whether Bright’s place of work was a “neutral location.” The Hawaii Supreme Court held that it was not because, in the context of this order for protection, “neutral location” meant a place that is unaffiliated with either party. As Bright’s place of employment was not a neutral location, he did not violate the order for protection.

State v. Engelby, No. SCWC-150000724, June 12, 2020 (Recktenwald, C.J., with Wilson, J. dissenting, joined by Pollack, J.). Jason Engelby was found guilty of two counts of Sexual Assault in the First Degree. On certiorari, the Hawaii Supreme Court assessed whether Engelby’s claim that Dr. Alexander Bivens, the State’s expert witness in child

sexual assault dynamics, impermissibly bolstered Child’s credibility. The testimony that Engelby sought to challenge was not introduced during the State’s case-in-chief. Rather, during its cross-examination of Dr. Bivens, the defense initiated a discussion about the credibility of alleged victims of child sexual assault, apparently to develop a theory that Child’s memories of the alleged assaults may have been suggested to her by someone else. The State further developed that testimony on re-direct examination, without any objection by the defense. Having used Dr. Bivens’ testimony on children’s general credibility to his own advantage, and having failed to object when the State elicited further testimony on re-direct examination, the Hawaii Supreme Court concluded that Engelby should not now be able to challenge that testimony.

State v. Enos, No. SCWC-180000407, May 27, 2020 (Recktenwald, C.J.). A police officer discovered Frank Enos sleeping below a freeway and arrested him for Criminal Trespass onto State Lands. Nearby, the officer found a pipe and plastic bag, from which the police later recovered an aggregate .005 grams of substances containing methamphetamine. Enos was subsequently charged with Promotion of a Dangerous Drug. Enos moved to dismiss the charge as de minimis pursuant to Haw. Rev. Stat. § 702-236. The State opposed, arguing that .005 grams of methamphetamine was sufficient to produce a physiological effect and therefore not de minimis. In addition, the State asserted that Criminal Trespass onto State Lands is a property crime. The circuit court granted the motion, concluding that Enos’s conduct did not “warrant the condemnation of conviction.” While the circuit court credited expert testimony that .005 grams of methamphetamine could affect the body, and it therefore concluded the amount possessed was not de minimis, the other attendant circumstances weighed in favor of dismissal. The circuit court determined that Criminal Trespass onto State Lands was not a property crime.

The Hawaii Supreme Court held that it was within the circuit court’s discretion to dismiss the charge against Enos as de minimis. While Criminal Trespass onto State Lands is a property crime, it is not the type of property crime that motivated the legislature to criminalize possession of any amount of a dangerous drug. Moreover, although the amount of methamphetamine Enos possessed was capable of producing some effect on the body, quantity is one of many factors a court must consider when deciding a de minimis motion on a drug charge.

State v. Ernes, No. SCWC-170000507, June 17, 2020 (McKenna, J.; Recktenwald, C.J. dissenting with whom Nakayama, J. joins). Erik Ernes was convicted of assault against a law enforcement officer, in violation of Haw. Rev. Stat. § 707-712.6. Ernes fell asleep while riding the bus home from work.

After making several unsuccessful attempts to wake Ernes, who appeared intoxicated, representatives of the bus company called the Honolulu Police Department (“HPD”) to request assistance.

An HPD officer responded to the scene and succeeded in waking Ernes through sternum rubs. Apparently startled, Ernes then punched the HPD officer in the face with his fist. He was arrested, charged, and convicted. On certiorari, Ernes questioned whether the ICA gravely erred in finding that the District Court did not reversibly err in failing to obtain a valid on-the-record waiver of Ernes’ constitutional right to a jury trial.

The Hawaii Supreme Court held that the record did not reflect an on-therecord exchange sufficient to constitute the true colloquy required to establish a knowing and intelligent waiver of Ernes’s constitutional right to a jury trial.

State v. Ikimaka, No. SCWC-160000003, June 9, 2020 (McKenna, J.).

Kauai Police Department (“KPD”) received a 911 call from Cheri Numazawa alleging Larry Ikimaka had hit her, taken her purse, and driven off in a gold Chevy truck. Officer Hansen Hsu responded to the call. Officer Hsu saw a

gold Chevy truck and initiated a traffic stop. Officer Hsu approached the truck, observed Ikimaka in the driver’s seat and Liane Henderson in the passenger’s seat, and he had Ikimaka and Henderson exit the truck and sit on the side of the road. Meanwhile, KPD officers Creighton Tamagawa and Mason Telles attempted to locate Numazawa to get a statement. Officer Hsu learned through dispatch that Numazawa had been located and contacted Sergeant Colin Nesbitt. Officer Hsu and Sergeant Nesbitt determined they had probable cause to seize the truck for theft on the grounds it contained Numazawa’s purse. Officer Hsu informed Ikimaka and Henderson that KPD was impounding the truck, but that they were not being arrested and were free to go. Henderson left the scene, but Ikimaka chose to stay, and Officer Roldan Agbayani, then read Ikimaka his Miranda rights. Ikimaka indicated he did not want to make a statement. The truck was towed to the KPD evidence warehouse, and Sergeant Nesbitt requested a drug-detecting dog to sniff the outside of the truck. The dog alerted to the presence of drugs.

Based on the dog sniff, Officer Hsu obtained a warrant to search the truck for Numazawa’s purse and for drugs. Officer Hsu executed the search warrant and found three purses in the truck, all of which contained illegal drugs. Ikimaka, Henderson, and Numazawa were then arrested and charged for possession of the drugs. No other charges were filed against Ikimaka. Ikimaka filed a motion to suppress, arguing the warrantless seizure of the truck was unreasonable and the dog sniff was a prohibited general exploratory search. The circuit court denied the motion to suppress.

The Hawaii Supreme Court noticed plain error affecting substantial rights with respect to the circuit court’s denial of Ikimaka’s motion to suppress. As the dog sniff conducted by KPD was unrelated to the initial stop and seizure of the truck as evidence of the alleged theft of Numazawa’s purse and KPD did not have independent reasonable suspicion to believe the truck driven by Ikimaka contained drugs, the dog sniff violated

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Ikimaka’s constitutional right against unreasonable searches.

State v. Kato, No. SCWC-150000329, June 18, 2020 (Pollack, J.; Nakayama, J., dissenting with whom Recktenwald, C.J., joins). The circuit court in this case precluded the defendant from presenting third-party culpability evidence because it determined that the proffered evidence failed to establish a “legitimate tendency” that the third party committed the crime. The Hawaii Supreme Court concluded that admissibility of third-party culpability evidence is properly governed by Haw. R. Evid. Rules 401 and 403, without having to also satisfy a legitimate tendency test.

State v. Lora, No. SCWC-180000548, June 16, 2020 (Pollack, J. with Recktenwald, C.J., dissenting with whom Nakayama, J., joined). The defendant in this case was convicted after a jury trial that turned on the credibility of the complaining witness’s testimony. The issue was whether a portion of that testimony was properly admitted for the purpose of bolstering the credibility of the witness’s account of the incident. The Hawaii Supreme Court concluded that the adduced testimony was not relevant to the witness’s credibility.

State v. Miranda No. SCWC-170000660, June 4, 2020, (Pollack, J.). The defendant argued that his right to crossexamine a witness for potential bias or motive was violated when the circuit court prevented defense counsel from cross-examining the complainant about disciplinary action the complainant might have faced. The Hawaii Supreme Court concluded that, because the defense was precluded from questioning the complainant about this potential source of bias, the jury did not have sufficient information from which to make an informed appraisal of the complainant’s motives or bias.

State v. Naeole, No. SCWC-180000381, June 22, 2020 (Wilson, J.).

The Hawaii Supreme Court considered

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whether the Honolulu Police Department (“HPD”) gave Petitioner/Defendant-Appellee Dawn Naeole a reasonable amount of time to respond to their demand for entry when they executed a search warrant at her home.

Naeole, who was suspected of illegal drug activity, had the front door of her home broken down after the police knocked, announced their presence, and demanded entry four times within the span of twenty-five seconds. A police officer heard a female voice inside the house after the third “knock-and-announce,” but the HPD officers had no reason to believe that Naeole was fleeing or that any evidence was being destroyed. Under these circumstances, the Hawaii Supreme Court held that the amount of time afforded to Naeole to respond to the demand for entry was not reasonable.

State v. Salavea, No. SCWC-160000386, June 19, 2020 (Pollack, J.; with Nakayama, J., dissenting, with whom Recktenwald, C.J. joins). The defendant contended that she was denied the right to effective counsel because her trial counsel failed to adduce critical evidence impeaching the credibility of the State’s key witness. The Hawaii Supreme Court concluded that the failure to adduce this evidence had no obvious tactical benefit to the defendant’s case and that the adequacy of counsel’s representation, when viewed as whole, was not in the range of competence required of attorneys’ in criminal cases. Therefore, the Hawaii Supreme Court concluded that defendant was denied the right to the effective assistance of counsel.

State v. Stone, No. SCWC-170000078, June 15, 2020 (McKenna, J.).

Kentaru Kristopher Stone was convicted by a jury on the charge of promoting a dangerous drug in the third degree.

Stone was approached by HPD Officer Douglas Korenic II. Stone was seated on a picnic table with various items strewn around him, including one or more identification cards (“IDs”). Based on discovery provided by the State, Officer Korenic’s testimony was anticipated

to be that he approached Stone for a park closure or rules violation; that Stone would not provide information regarding his identity; and that Stone then threw a small “baggie” containing methamphetamine, which landed on the picnic table. Defense counsel’s theory of the case was that, because the only found property report related to an iPhone, the other items on the picnic table belonged to Stone and included Stone’s ID. Defense counsel theorized that Officer Korenic’s testimony that he had been unable to ascertain Stone’s identity would therefore be untruthful.

The defense theory was also that Officer Korenic had searched Stone’s bag and had strewn Stone’s belongings all over the table; that Officer Korenic must have planted the methamphetamine baggie after rifling through Stone’s bag or that the methamphetamine baggie was already there but did not belong to Stone; and that Officer Korenic did not seek a search warrant for the bag because, based on his search, he already knew there was no drug paraphernalia therein. During trial, however, Officer Korenic, who was the only witness to Stone’s alleged methamphetamine possession, testified that, in addition to the found property report regarding the iPhone, he had generated additional found property reports as to the other miscellaneous items on the picnic table, including other people’s IDs. He also testified the IDs and other items on the picnic table did not belong to Stone.

The circuit court therefore called a midtrial recess. The State procured and the defense reviewed additional police reports referenced in Officer Korenic’s incident report that had not been produced in discovery. The additional reports referenced in the incident report were, however, completely unrelated to Stone’s case. Yet, in his resumed testimony, Officer Korenic persisted in his testimony that additional found property reports existed pertaining to Stone’s case. The jury found Stone guilty of promoting a dangerous drug in the third degree. Stone moved for a new trial pursuant to Hawaii Rules of Penal Procedure Rule 33, arguing he was deprived

of a fair trial. The Hawaii Supreme Court held the ICA erred in affirming the circuit court’s denial of the motion for new trial because Stone satisfied the Teves test. The Hawaii Supreme Court also held Stone’s right to a fair trial was violated because Officer Korenic testified falsely concerning the existence of other found property reports.

State v. Su, No. SCWC-18-0000692, June 15, 2020 (McKenna, J.). Samuel Joo Rim Su was convicted of Operating a Vehicle under the Influence of an Intoxicant (“OVUII”). At trial, his counsel sought to impeach the credibility of one of the State’s witness, HPD Officer Jared Spiker. Defense counsel contended that the “specific instances of conduct” evincing Officer Spiker’s untruthfulness were contained in transcripts from three other proceedings in which Officer Spiker was a witness for the State. The district court did not allow defense counsel to cross-examine Officer Spiker concerning these proceedings, ruling that none were probative of Officer Spiker’s untruthfulness. The Hawaii Supreme Court clarified that admissibility of evidence under Haw. R. Evid. Rule 608(b) involved a two-step inquiry: (1) whether the specific conduct evidence proffered for the “purpose of attacking the witness’[s] credibility” is “probative of untruthfulness,” and, if so, (2) whether the probative value of the specific conduct is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence pursuant to Haw. R. Evid. Rule 403.

Mediator, Arbitrator,

Receiver, and Special Master Services, Employment Investigations

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• 41 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, and Arbitration, 2018.

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State v. Texeira, No. SCAP-180000632, June 19, 2020 (Pollack, J., with Nakayama, J. concurring and dissenting with whom Recktenwald, C.J. joins).

The defendant in this case was convicted of murder in the second degree. At trial, he sought to introduce evidence tending to show that a third-party committed the offense, but the trial court excluded the evidence. This appeal contended that the evidence was improperly excluded.

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The defendant also challenged the trial court’s admission into evidence of a confession letter allegedly written by him because of its late disclosure to the defense, arguing that the State had control over the letter through a cooperating co-defendant nine months before the disclosure was made. Lastly, the defendant argued that DNA results showing his presence at the crime scene were improperly admitted at trial, because the State failed to show that the instruments used to conduct the DNA analyses were operated in compliance with the manufacturer’s recommendations. The Hawaii Supreme Court held that the timing of the State’s disclosure did not require the exclusion of the letter at trial. The Hawaii Supreme Court also concluded that a sufficient foundation to admit the results of the DNA analyses was established to allow their admission into evidence. Finally, the Hawaii Supreme Court held that third-party culpability evidence was erroneously excluded, but the error was harmless beyond a reasonable doubt under the circumstances of this case.

State v. Williams, No. SCWC-130001285, June 15, 2020 (Wilson, J. with Nakayama, J., dissenting with whom Recktenwald, C.J. joined).

Petitioner/Defendant-Appellant Joshua R.D. Williams was charged with the attempted murder in the second degree of David Quindt, Jr. On certiorari, the Hawaii Supreme Court concluded the circuit court erred by precluding Williams from testifying to the jury about what he believed Quindt said to him that caused him to act in self-defense. By so doing, the circuit court prohibited Williams from presenting state of mind evidence relevant to his self-defense claim, thus violating his due process right.

State v. Zowail, No. SCWC-180000777, June 15, 2020 (Recktenwald, C.J.). Mohammad A. Zowail set up a table at the edge of the sidewalk to showcase his art for sale and perform a painting demonstration. As he worked, a sizeable crowd formed to watch, and

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some pedestrians had to detour around the spectators. Police charged him with violating Revised Ordinances of Honolulu (ROH) § 29-5.1. The district court convicted Zowail, finding that the size of the crowd meant that his operation tended to impede or inconvenience the public. The issue was whether “operation” in ROH § 29-5.1 encompasses bystanders who have stopped to watch a performance, but are otherwise unconnected to the business operation. Zowail argued that the district court erred by including the spectators as part of his operation because “it would be manifestly unjust to hold Zowail penally responsible for the actions of other persons that were beyond his control.” He further claimed that if “operation” in ROH § 29-5.1(a) included spectators, the statute would be unconstitutionally vague because the ordinance gives no guidance as to when the size of a crowd crosses the threshold to become a violation of ROH § 29-5.1. The Hawaii Supreme Court agreed.

Estates and Trusts In the Matter of the Elaine Emma Short Revocable Living Trust Dated July 17, 1984, as Amended, No. SCWC-15-0000960, June 18, 2020 (Pollack, J. with Recktenwald, C.J. dissenting in part, with whom Nakayama, J. joins). In this case, the Hawaii Supreme Court considered whether the ICA properly upheld an order and judgment that modified a trust provision regarding the distribution of trust principal without issuing findings of fact to explain or support its ruling. The Hawaii Supreme Court also addressed whether the terms of a trust may override a trustee’s statutory requirement to provide accounts information to contingent beneficiaries. The Hawaii Supreme Court concluded that the absence of factual findings by the probate court did not enable the ICA to meaningfully review the basis of the probate court order and that the ICA’s reliance on selective extrinsic evidence was improper. The Hawaii Supreme Court further held that the ICA erred when it concluded that

the terms of a trust could supersede the trustee’s statutory duty to provide accounts information to contingent beneficiaries of the trust.

Foreclosure Malabe v. Association of Apartment Owners of Executive Cent., No. SCWC-170000745, June 17, 2020 (McKenna, J.; Recktenwald, C.J. dissenting with whom Nakayama, J. joins). The association of apartment owners nonjudicially foreclosed on a unit which was then sold by their association for substantially less than fair market value, leaving the owners not only without their home, but also with mortgage liability. Gilbert V. Malabe and Daisy D. Malabe then filed a complaint in the circuit court against the Association of Apartment Owners of Executive Centre, by and through its Board of Directors (“AOAO”). The complaint asserted claims for wrongful foreclosure and unfair or deceptive acts or practices (“UDAP”) based on the AOAO’s nonjudicial foreclosure and public sale of the Malabes’ condominium apartment. The circuit court granted the AOAO’s Haw. R. Civ. P. Rule 12(b)(6) motion. On certiorari, the AOAO asserted the ICA erred in vacating the circuit court’s dismissal of the wrongful foreclosure claim. The Malabes asserted the ICA erred in affirming the circuit court’s dismissal of the UDAP claim. The Hawaii Supreme Court held the ICA did not err in reinstating Count I, the Malabes’ wrongful foreclosure claim, based on its ruling in Sakal. The Hawaii Supreme Court further held Act 282 of 2019 did not affect this holding, as the statutory changes therein did not affect the Malabes’ claims. The Hawaii Supreme Court further held the ICA erred in affirming the circuit court’s dismissal of Count II by deeming the Malabes’ UDAP claim time-barred.

Sakal v. Association of Apt. Owners of the Hawaiian Monarch, No. SCWC-150000529, June 18, 2020 (Pollack, J., with

Recktenwald, C.J., dissenting in part and concurring in part, joined by Nakayama, J.). There was a nonjudicial foreclosure of the petitioner’s apartment by the apartment owners’ association. After the sale was conducted, petitioner filed a complaint against the association and the purchaser of the property for wrongful foreclosure. On certiorari, the Hawaii Supreme Court concluded that because the petitioner’s claim to title of the property was not limited by Haw. Rev. Stat. chapter 667 and that its provisions did not bar a common law claim of wrongful foreclosure based on the lack of a power of sale, the complaint did state a claim against both the association and the purchaser of the apartment.

Public Utilities In the Matter of the Application of The Gas Co., LLC dba Haw. Gas for Approval of Rate Increases and Revised Rate Schedules and Rules, No. SCOT-19-0000044, June 9, 2020 (McKenna, J.). Appellants Life of the Land (“LOL”) and Hui Aloha Aina o Ka Lei Maile Alii (“KLM”) challenged whether the Public Utilities Commission (“PUC”) fulfilled its statutory and constitutional obligations in reviewing an application for a rate increase submitted by Hawaii Gas (“HG”). HG sought to pass on to its customers the costs of its two recently established liquid natural gas (“LNG”) projects. Concerned about LNG’s effects on climate change, as well as climate change’s impact upon native Hawaiians, LOL and KLM moved to intervene in HG’s rate case. The PUC decided that LOL and KLM were allowed to address only “whether the [PUC] should disallow as unreasonable [HG’s] LNG costs due to the effects of [HG’s] use of imported LNG on the State’s reliance on fossil fuels and greenhouse gas emissions” (“GHG emissions”). The PUC approved HG’s rate increase. It adopted HG’s representation that the two LNG projects would decrease GHG emissions in-state. The issues raised were:

A. Which standing test applied, and whether the Appellants had standing under the applicable test. Resolution: The two-part test for standing applies, in which the Appellants must show that they are “persons aggrieved” who “participated” in the contested case.

Appellants met this test, because they demonstrated their members’ right to a clean and healthful environment was specially, personally and adversely affected.

B. Whether the PUC fulfilled its obligations under Haw. Rev. Stat. § 2696(b). Resolution: The PUC did not fulfill its obligations because its Decision and Order simply reiterated HG’s representations that its LNG projects would decrease GHG emissions. Further, the PUC’s geographic limitation demonstrated that the PUC did not intend to consider GHG emissions from production, development, and transportation of LNG occurring outside of the state.

Without that information, however, the PUC could not have explicitly considered the hidden and long-term costs of the state’s reliance on fossil fuels.

C. Whether the PUC violated the Appellants’ due process rights by not affording the Appellants a meaningful opportunity to be heard concerning GHG emissions. Resolution: The PUC violated the Appellants’ due process rights because the substantive limitations on their participation rendered meaningless any opportunity to be heard on the GHG emissions issue.

D. Whether the PUC abused its discretion in developing a policy on measuring GHG emissions through adjudication rather than rule-making.

Resolution: The PUC did not abuse its discretion in proceeding through adjudication in this case.

E. Whether the PUC fulfilled its affirmative constitutional obligation to protect native Hawaiian traditional and customary practices. The record was not sufficiently developed for the Hawaii Supreme Court to address this issue.

Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

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F. Whether the PUC fulfilled its affirmative constitutional obligation as trustee over natural resources within the State’s public trust. Again, because the PUC improperly curtailed Appellants’ substantive participation, the record was not sufficiently developed.

Taxation Ocean Resort Villas Vacation Owners Ass’n, No. SCAP-18-0000578, June 19, 2020 (McKenna, J.; with Recktenwald, C.J., concurring and dissenting with whom Nakayama, J. joins). Taxpayer challenged the timeshare real property tax classification created by the County of Maui and Maui County Council (collectively the “County”) in 2004. Plaintiffs-Appellees are timeshare owners of Westin Kaanapali Ocean Resort Villas (“ORV”) and Ocean Resort Villas North (“ORVN”) (collectively, “Taxpayers”).

Taxpayers initially filed a Complaint in 2013 and First Amended Complaint (“FAC”) in 2014 seeking declaratory relief pursuant to Haw. Rev. Stat. § 632-1.

In preparing its defense to the initial Complaint, the County discovered it had not assessed Taxpayers over $10 million in timeshare real property taxes before 2009. The County then issued “amended assessments” to the Taxpayers for tax years 2006, 2007, and 2008 for ORV, and 2008 for ORVN. Taxpayers paid the taxes under protest and appealed to the Maui County Board of Review (“BOR”), then to the Tax Appeal Court (“TAC”). The Taxpayers then also filed a Second Amended Complaint (“SAC”) alleging the County issued the “amended assessments” in retaliation for the Taxpayers’ lawsuit.

The SAC added Counts V through VII again seeking declaratory relief pursuant to Haw. Rev. Stat. § 632-1 alleging illegality and unconstitutionality as well as seeking damages and attorneys’ fees pursuant to 42 U.S.C. §§ 1983 and 1988.

The circuit court voided the timeshare real property tax classification as illegal, and it ordered the County to refund the Taxpayers the over $10 million in

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“amended assessments” plus general excise tax and interest, as well as approximately $83,000 in fees paid to the County BOR, and $111,000 in appeal fees paid to the TAC. The circuit court also awarded the Taxpayers over $455,000 in attorneys’ fees and over $18,000 in costs. The County raised seven points of error: (1) the circuit court improperly exercised subject matter jurisdiction over the case, as exclusive subject matter jurisdiction lay with the TAC; (2) the voiding of the timeshare real property tax classification violated the separation of powers doctrine; (3) the circuit court’s ruling that the timeshare real property tax classification may only be established through “actual use” of the property was contrary to the Maui County real property tax code; (4) the circuit court’s ruling that the Taxpayers were entitled to tax refunds threatened the County’s fiscal health; (5) the circuit court was incorrect in ruling that the “amended assessments” were illegal and retaliatory; (6) the circuit court’s order for a refund of the “amended assessments” and related tax appeal fees was an abuse of discretion; and (7) the circuit court’s award of attorney’s fees and costs was an abuse of discretion. The Hawaii Supreme Court noted that the first point of error, challenging the circuit court’s subject matter jurisdiction, was dispositive in its review of the circuit court decisions. The Hawaii Supreme Court held that the circuit court was without subject matter jurisdiction over Counts I and V through VII of the Taxpayers’ SAC. Although there is a right to jury trial for declaratory judgment actions under Haw. Rev. Stat. § 632-1, Taxpayers sought declaratory relief in those counts pursuant to Haw. Rev. Stat. § 632-1, which explicitly provides that “declaratory relief may not be obtained . . . in any controversy with respect to taxes[.]” The partial ruling as to Count I and the final judgment as to Counts V through VII certified for interlocutory appeal were based on declaratory rulings regarding such

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“controvers[ies] with respect to taxes.”

With respect to those counts, the Taxpayers were required to challenge the legality and constitutionality of Maui County’s real property timeshare classification and rates through the procedures set forth in Haw. Rev. Stat. chapter 232 and Maui County Code chapter 3.48.

With respect to the final judgment for Count VIII, the circuit court’s judgment was dependent on the federal constitutional violations declared by the circuit court to have existed in counts over which it lacked subject matter jurisdiction.

UIPA In the Matter of the Off. of Info. Prac.

Opinion Letter No. F16-01, No. SCWC-160000568, June 16, 2020 (McKenna, J.).

Self-represented litigant James R. Smith’s brought a “Complaint to Initiate Special Proceeding” (sometimes referred to as “Complaint”). The circuit court granted the Office of Information Practices (“OIP”)’s motion concluding that (1) it did not have jurisdiction to hear Smith’s “appeal,” and (2) Smith’s remedies lay in Haw. Rev. Stat. § 92-12.

Smith asked two questions that the Hawaii Supreme Court restated: 1. Did the ICA err in affirming the circuit court’s judgment based on lack of appellate jurisdiction? 2. Can an individual name OIP as a party in a lawsuit brought under Haw. Rev. Stat. § 9212(c)? With respect to the first question, the issue was whether Smith’s “Complaint” was a permissible original Sunshine Law lawsuit under Haw. Rev. Stat. § 92-12(c) or an impermissible Uniform Information Practices Act appeal. Although Smith at times referred to his Complaint as a Haw. Rev. Stat. § 92F-43 appeal, it was also entitled “Complaint to Initiate Special Proceedings,” and contained numerous references to Haw. Rev. Stat. Chapter 92, the Sunshine Law at issue in the OIP Opinion. Hence, the circuit court should have construed Smith’s Complaint as an original action

under Haw. Rev. Stat. § 92-12(c). The Hawaii Supreme Court also held that the ICA erred by ruling that Smith was not permitted to name OIP as a defendant.

Intermediate Court of Appeals Criminal State v. Weber, No. CAAP-180000478, June 8, 2020 (Hiraoka, J.). Appellant was convicted of excessive speeding. The ICA held that the trial court did not err when it: (1) overruled Appellant’s objections to preliminary questions that laid the foundation for admission of the radar measurement of the speed of Appellant’s vehicle; or (2) admitted the speed measurement into evidence.

ATTORNEY WANTED ASSOCIATE ATTORNEY (Downtown Honolulu) Established mid-sized firm is seeking an experienced Associate Attorney, licensed in Hawaii, to join our team. We are looking for someone with 5+ years of litigation experience, and is looking to gain more experience in a wide variety of areas of law. We hope to find someone with excellent writing skills, strong research skills, written and verbal communication skills, and who is able to multi-task. We need to add another team player to our already outstanding team. We offer a very competitive salary and benefits package. Please email your resume and writing sample for immediate consideration or mail to: BRONSTER FUJICHAKU ROBBINS, Attn: Administrator. 1003 Bishop Street Suite 2300 Honolulu, Hawaii 96813. pbraun@bfrhawaii.com. All inquiries are held in strict confidence.

BIG ISLAND personal injury firm seeking an associate attorney for Hilo office. Must be an active Hawaii Bar member in good standing.

Three years of experience preferred but willing to consider someone with a commitment to personal injury trial and arbitration practices.

Competitive salary depending on experience.

Please send resume, writing samples, and three references to : Robert P. Marx, 688 Kinoole Street #105, Hilo, Hawaii, 96720. or email: ouroffice@marx-law.com.

LITIGATION ASSOCIATE Bays Lung Rose & Holma has a need for a litigation associate.

Position is open to graduating law students or candidates with 1-2 years of legal experience, including clerkships. Candidates must have strong research and writing skills.

Competitive benefits, including medical insurance; bar association dues; parking; vacation annually; and sick leave. All inquiries will be held in strict confidence. Please submit resume, transcript, and recent writing sample to Hiring Partner at mail@legalhawaii.com.

LITIGATION DEPARTMENT of Honolulu boutique law firm that has served Hawaii for more than 25 years seeks a talented, conscientious associate. Practice areas include maritime defense and insurance, insurance coverage, commercial, products liability, and insurance defense litigation. Candidate must have strong academic credentials and welldeveloped research and writing skills. Will have direct client contact, so strong verbal and written communication skills are a must.

Experience with Microsoft Office, including Word, Excel, and Outlook a plus. Expected to work independently, but in a team-based environment. Candidates must already be licensed to practice in the State of Hawaii at

time of application. Competitive salary commensurate with experience and excellent benefits that include: Medical/Dental/Vision insurance, parking, vacation and sick leave, 12 holidays per year, and enrollment in company retirement/401(k) plan after one year.

Please reply to this ad by sending your cover letter, resume, and writing sample to info@ macdonaldrudy.com. No phone calls please. All submissions will be held in strict confidence.

LYONS, BRANDT, COOK & HIRAMATSU seeks civil litigation attorney to join and grow our team of lawyers. Responsibilities include all aspects of case investigation and discovery, legal research and writing, court appearances and oral arguments, trial preparation and participation, and appellate briefing and arguments. Preferred applicants have litigation experience, excellent verbal and written communication and advocacy skills, are highly detail oriented and organized, have solid judgment and strong integrity, and are able to work independently and as part of a team. Applicants must be licensed to practice law in Hawaii and in good standing. Salary commensurate with experience. Benefits offered. Please send letter of interest and resume to hr@lbchlaw.com.

MORIHARA LAU & FONG LLP seeks a lateral attorney with at least 5 years of real estate development/land use experience. Candidates must be licensed to practice in Hawaii, and should be a team player and possess excellent writing, strategic and organizational skills.

Interested candidates should submit their resume, salary history and writing sample to: khiga@moriharagroup.com.

DOMAIN NAME FOR SALE HAWAIILAW.COM (comes with the rights to hawaiilaw.co, hawaiilaw.info and hawaiilaw. lawyer domains). Interested parties please contact John at lawyer@hawaiilaw.com or by telephone at (808) 387-3835.

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150.

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REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

LEGAL CONSULTING LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case.

Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com

LEGAL WRITING /RESEARCH EXPERIENCED ATTORNEY will provide legal writing services. Motions, memos, complaints, appellate briefs, and other writing assignments.

Reasonable rates. Writing samples, and references provided on request. Call (808) 7358701 or (808) 227-2141.

OFFICE SPACE 2 office spaces in the Historic Hawaii Times Bldg 928 Nu’uanu Ave. 1- 130 sq ft with shared reception area & kitchen. Furnished.

2-290 sq ft furnished, separate entrance.

Available July 1. 808-534-1040 jslawsky@1stallied.com AVAILABLE -Immediately. Located in Waterfront Plaza, Executive Suite. Two window offices (1 or both). 2 secretary carrels, storage closet available too. Includes use of conference room, kitchen, reception area.

Shared law/CPA office. Ample parking. Call Scott @ 295-9577.

RECRUITING / TEMP STAFFING HiEmployment is Hawaii's best choice for finding top legal talent. Professional recruiting and temp staffing services available.

695-3974. email: info@hi-employment.com August 2020

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