Hawaii Bar Journal - December 2020

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION D ECEMBER 2020 $5.00

TABLE O F C ON TE NTS VO LUM E 24 , N U M B E R 12

ARTICLES

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

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by Angela Kuo Min

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YLD OFFICERS President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

2020 Pro Bono Celebration

by Shawn L.M. Benton

President P. Gregory Frey

Treasurer Paul Naso

Providing Access To Justice Through Mediation During A Pandemic

by Tracey Wiltgen

HSBA OFFICERS

President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni

Volunteer Legal Services Hawaii: Celebrating 40 Years of Pro Bono Work

OF NOTE 16

HSBA Happenings

26 20 28 22 30 28 31 30

Case Notes Off the Record Court Briefs Classifieds

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EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

On the cover: Womanly by Tamara Moan. Moan received her art training at the University of Washington, earning a BFA Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50.

Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

in graphic design in 1985. She later received an MA in literature and creative writing from the University of Hawai‛i. She currently lives and works in Kailua, Hawai‛i. Her paintings hang in the collection at Aulani Disney Resort and in the maternity ward at Kapi‛olani Medical Center in Honolulu. You can see more of her work at www.tamaramoan.com and www.fineartassociates.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.

Celebrating 40 Years of Pro Bono Work

By Angela Kuo Min Volunteer Legal Services Hawaii (“Volunteer Legal”) celebrates its 40th anniversary in 2021.

Since its creation, Volunteer Legal has provided over 100,000 Hawaii residents with pro bono legal services.

Last year alone, Volunteer Legal pro bono attorneys donated over 3,200 hours of in-person, telephonic, and virtual legal services valued at over $800,000.

History and Mission of Volunteer Legal Services Hawaii In 1981, leaders from the Hawaii Bar Association’s Young Lawyers Division (“Hawaii Bar”) created a pro bono project, then known as the Hawaii Lawyers Care/Hawaii Lawyer Pro Bono Referral Project (“Pro Bono Project”). At the time, the Hawaii Bar was voluntary and there were no organizations coordinating and/or providing pro bono services to those in need.

The goal of the Pro Bono Project was to refer clients to Hawaii Bar members who were eager to take on pro bono cases.

Within the first year, the Pro Bono Project matched and placed over 100 cases. The Pro Bono Project was well received by the community with room for expansion. By the following year, the Pro Bono Project applied to become its own non-profit and opened an office front in downtown Honolulu. As an

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effort to fund its work in the community, the Pro Bono Project approached the Hawaii Bar with a proposal to add a donation line item on the annual renewal form. The Hawaii Bar approved the Pro Bono Project’s proposal, and since 1982, the Bar Renewal Check-Off donation (“Bar Renewal Donation”) has been an important and integral part of Volunteer Legal’s continued funding and financial support.

Early Pro Bono Project founder, Paul Alston, explains, “The financial support was designed to promote the Hawaii Bar’s member-directed mission to promote delivery of legal services to the poor, and it has been a great success.” Although the Pro Bono Project has evolved into an independent 501(c)(3) entity now known as Volunteer Legal Services Hawaii, its roots as a program of the Hawaii Bar should not be forgotten.

Volunteer Legal’s mission is to increase legal access for those Hawaii residents who cannot afford to hire an attorney due to financial hardships. Chief Justice Mark E. Recktenwald regards Volunteer Legal as a “vital component” in achieving increased access to justice and “their ongoing efforts to adapt to the constantly changing needs of the community have resulted in some very innovative and successful approaches. Their willingness to collaborate with other legal service providers and the Hawaii Judiciary has resulted in important initiatives.”

Mahalo We wholeheartedly thank our esteemed Senior Attorney, P. Gregory Frey, for his tireless, hard work in 2020, as the Hawaii State Bar Association’s President during unprecedented times.

As a litigator in our firm, Greg also continues to be a powerful and passionate advocate for his clients. That being said, Greg truly does “do it all” – deeply entrenched in his heart are his family, friends and colleagues, including all those within the halls of Family Court, as well as his many professional affiliations and endeavors which are dear to him, including, St. Louis High School, St. Louis Alumni Association, Pacific Ink & Art Expo, his namesake firm and the Hawaii State Bar Association.

We appreciate you, Greg!

Volunteer Legal relies primarily on a clinic-based pro bono model with volunteer attorneys to provide legal services.

Volunteer Legal’s staff of seven provides administrative support to volunteer attorneys while also coordinating programs and outreach to the community. Volunteer Legal’s Board President Trever Asam shares, “With Volunteer Legal Services Hawaii’s detailed intake process, clients are paired with specific pro bono attorneys whose skills match their needs, ensuring a positive experience for both parties. Volunteer Legal Services Hawaii’s model has proven successful in both expanding access to the justice system and providing opportunities for members of the Bar to satisfy their pro bono obligations.”

Supreme Court of Hawaii, Hawaii Rules of Professional Conduct, Rule 6.1 provides an aspirational goal that attorneys provide at least fifty hours of pro bono services each year. The reason why Volunteer Legal has been so successful and well received by the community is that its volunteer attorneys do pro bono out of the goodness of their hearts, and not because there are rules making pro bono mandatory. Volunteer Legal’s pro bono attorneys are willing and eager to wake up early on a Saturday morning and drive to Waianae for a legal clinic.

Other attorneys will come and volunteer at Volunteer Legal’s office after working a full day at their own offices. These volunteer attorneys know that Volunteer Legal’s clinics are an essential legal resource and without them, these residents would not have the opportunity to speak to an attorney face-to-face at no charge.

Volunteer Legal’s pool of near two hundred volunteer attorneys provide legal education, advice and counsel, brief services, and full representation cases in family law, estate planning, Chapter 7 bankruptcy, private landlord-tenant, collections, small claims, and veteran benefits.

Volunteer Legal’s pro bono attorneys have a wide range of experience and backgrounds including associates 6 December 2020

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and partners at firms of all sizes, inhouse attorneys, solo practitioners, and government attorneys. Lawyers hold special skills and a privilege to be able to navigate the legal system. Pro bono attorneys continue to be a critical element in filling legal service and advocacy gaps in Hawaii’s community. Attorneys have the tools to help otherwise unrepresented persons navigate through our legal system in an effective way.

Volunteer Legal’s 2020 Pro Bono Celebration Honoree, attorney Clarissa Malinao shares her experience: “Volunteer Legal Services Hawaii makes it easy to volunteer with support from knowledgeable and helpful staff; and offers a wide range of opportunities to help those in need. The clients of Volunteer Legal Services Hawaii are from a segment of our community who cannot afford to retain an attorney of their choosing. I volunteer because it is imperative that all people have equal access to justice.

During this COVID-19 pandemic, they need our help even more than ever before. Volunteer Legal has adapted to new ways to continue providing legal services over the phone and internet. I am able to provide advice and counsel and provide them a better understanding and outcome of their case.”

Who Do We Help?

In 2019, Volunteer Legal qualified over 3,400 individuals for services based on income and legal issue. Volunteer Legal has provided referrals for another thousand individuals who called Volunteer Legal’s office with issues outside their scope of services. Volunteer Legal extensively serves the “gap group” of clients: those who may not qualify for other legal aid services under federal guidelines (which is that group from 125% to 250% of the federal poverty rates). Without Volunteer Legal, the gap group would be left without long established and ongoing legal services. For those individuals that Volunteer Legal has helped: 25% are homeless or at risk of being homeless, 16% of those helped

suffer from domestic violence, 8% of those helped are veterans, 24% of those helped are disabled, and 28% of those helped are seniors (including many of our neighbors living in the Honuakaha Building above Volunteer Legal’s office).

Over 1,500 services were provided through various means, the most popular being Neighborhood Legal Clinics (“Clinics”).

Without Volunteer Legal, these individuals would have been easily overwhelmed by the legal system. Instead, Volunteer Legal was able to provide these individuals with the support and counsel they needed to effectively address their legal needs. Hawaii residents continue to share stories of how Volunteer Legal’s services have improved their lives: “In the past I have struggled with drugs and alcohol and have been in and out of jail and rehab. I am now employed, living in a clean and sober home and thanks to Volunteer Legal Services of Hawaii, I can work towards getting my license back and getting my life back on track. I continue to spread the word around my community so others can get back on track in obtaining their driver’s license.”

– Volunteer Legal Re-Employment & Community Service Client.

“Will and trusts can be very confusing documents to navigate, and getting probate going can be frustrating.

The attorney I spoke to answered all my questions and my follow up questions, I felt like I had a much better idea about what I could do about my issues.” – Volunteer Legal Neighborhood Legal Clinic Client.

“Thank you so much for providing this service to people in need. I have no idea what I would have done if I could not get advice from this site. I have been extremely stressed about things surrounding the death of my grandma. Taking care of her estate being one of them, and the attorney that answered all my questions was very helpful. I went from feeling intimidated about the situation to having more clarity and confidence.”

– Hawaii Online Pro Bono Client.

How You Can Get Involved More than ever before, Volunteer Legal needs and relies on the help of pro bono attorneys for the delivery of legal assistance to low- and moderate-income persons and families in Hawaii. There are over 4,000 active attorneys in Hawaii but fewer than 200 in our volunteer pool (Approximately 5% of Hawaii’s active attorneys). Along with a number of other reasons, having “no time” is the most common basis of attorneys not doing pro bono. However, Volunteer Legal pro bono services are designed to be responsive to the community’s civil legal needs while also being flexible with pro bono attorneys’ time constraints.

Please help those who are less fortunate be able to do the same. Help celebrate Volunteer Legal’s 40th anniversary by showing Hawaii’s communities that Hawaii lawyers care and want to help.

Help Volunteer Legal achieve its goal of doubling their volunteer pool in 2021.

Some of the most popular ways to get involved in pro bono are: NEIGHBORHOOD LEGAL CLINICS: Participants meet with a volunteer attorney for 45 minutes for limited scope services one-on-one.

Clients are pre-screened by Volunteer Legal’s intake staff and then scheduled and matched with a Pro Bono attorney based on the legal issue (family law, estate planning, bankruptcy, district court, etc.). A volunteer attorney may be assigned between 2-4 individuals per clinic and will have the opportunity to run conflict checks and review the case summaries prior to accepting a clinic assignment. The attorney will discuss the case, answer questions, provide legal advice, and review and/or assist in drafting forms for the participant. (Prior to COVID-19, Clinics are held at the Volunteer Legal office on Thursday evenings and Saturday mornings. Currently, due to COVID-19 all Clinics are held over the phone until further notice.)

PRO BONO REFERRALS: If after a participant receives his/her advice and counsel at our Neighborhood Legal Clinic and still needs December 2020

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assistance, pro bono attorneys are needed to assist participants with further “brief services” or “full representation.” The pro bono commitment may range from representing a qualified client from start to finish or assisting with a discrete task such as drafting estate planning documents or negotiating with a creditor or landlord. Attorneys who sign up for the Pro Bono Referral Program can designate the types of cases they are willing to take.

HAWAII ONLINE PRO BONO: Since COVID-19, Hawaii Online Pro Bono (“HOP”) has seen a 40% increase in questions posted and answered. This online based portal allows qualified individuals to electronically post civil legal questions pertaining to the following areas of law: family law, private landlord-tenant, collections, Chapter 7 bankruptcy, estate planning,

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veteran benefits, and immigration.

The questions are made available via the portal for pro bono attorneys to pick and choose to answer. Pro Bono attorneys and community users can utilize the portal at any time and any setting where access to the internet and computer, smart phone, or tablet is available. Sign up to be a HOP attorney volunteer at: https://Hawaii.freelegalanswers.org.

Support for Volunteer Legal Services Hawaii With the ongoing pandemic, demand for legal services by those disenfranchised in Hawaii’s community is rapidly increasing. Volunteer Legal has made necessary adjustments to maintain delivery of legal services. However, Volunteer Legal faces a funding crisis as the demand for our legal services increase. Historically, Volunteer Legal has received approximately one-third of its funding from the State of Hawaii. As a result of the State’s current financial crisis, Volunteer Legal does not anticipate state funding in the coming fiscal years. Further, Volunteer Legal does not receive federal funding. Like years past, Volunteer Legal fundraises to support its programs and services. However, due to the public health threat imposed by COVID-19 and the

priority to keep friends and family safe, Volunteer Legal made the very difficult decision to cancel its annual fundraiser this past spring. Volunteer Legal hopes that it can still hold an event in the future to celebrate its 40th anniversary in 2021.

This remains yet to be seen.

Volunteer Legal very much needs the support of its Bar members, now more than ever, so that it can continue to meet the demands for the legal services provided to Hawaii residents. Due to their long-standing relationship with the Hawaii Bar, Volunteer Legal is the only organization allowed to seek a donation from Bar members on annual Bar Renewal. Volunteer Legal has been very thankful to have received annual donations through this process – which most recently has provided approximately onesixth of our annual budget. Earlier this year, the Hawaii Bar made the unilateral decision to remove the Bar Renewal Donation for Volunteer Legal.

Subsequently, with overwhelming support from the Chief Justice, Judges, early founders of the Pro Bono Project, Past Hawaii Bar Presidents, and fellow members of the Bar, the Hawaii Bar voted to retain the optional donation line but as an “OPT-IN” choice. With this change and the uncertainty of the ongoing pandemic, Volunteer Legal still hopes to count on donations from generous Bar members to support this essential source of funding.

Donations through the annual Bar renewals over the last three decades have provided Volunteer Legal the means to continue and expand its legal programs, clinics, and outreach opportunities across Hawaii. Please help directly support Volunteer Legal by checking the “OPT-IN” donation box on your annual Bar renewal this month. Your donations help ensure equal access to justice for those most in need including your neighbors, veterans, the disabled, and the elderly.

On behalf of the Volunteer Board and the people we serve, thank you to the members of the Bar and our local legal community who continue to support Volunteer Legal. We look forward to bringing our mission to the “new normal” in 2021 for those in our community who need it the most.

Angela Kuo Min is Volunteer Legal Services Hawaii’s Executive Director. She manages Volunteer Legal’s operations, programs, and financials of the organization. She also serves as a commissioner on the Access to Justice Commission, and the Chair of the Committee on Increasing Pro Bono Services.

For more information on volunteering, please see https://www.vlsh.org/getinvolved or e-mail volunteer@vlsh.org.

Please help support our mission by donating today; please see https://www.vlsh.org/ donations. All donations are 100% tax deductible.

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Providing ACCESS TO JUSTICE

Through Mediation During a Pandemic

by Tracey Wiltgen Over the past 25 years, mediation and other dispute processes (hereinafter “mediation”), have become the preferred approach to resolving disputes within judicial systems across the country. Hawaii is no exception. The informality, flexibility, and cost-effectiveness of mediation (as opposed to engaging in costly litigation) has motivated courts to divert their backlog of cases to these processes, as well as develop in-house programs and seamless referral systems to community mediation centers, and private programs that help disputing parties resolve even the most contentious of matters. As a result, private mediation has grown and flourished, and community mediation centers have become a critical resource for increasing access to justice by providing affordable mediation services for the low-income and vulnerable members of the population.

In Resolution Systems Institute’s September 15, 2020 Guide to Program Success: How to Design, Manage, and Evaluate A Court ADR Program, it was noted that: “Courts may see a need for a new ADR program when there is: a backlog in cases; a need for judicial resources in other areas that might be addressed by reducing the demand in the area to be served by ADR; frustration with the narrow range of outcomes available through litigation; and a concern about a slow or contentious litigation process.”1 Hawaii’s courts, like other jurisdictions across the country, have integrated mediation at every level for all of these reasons, as well as the fact that for Hawaii’s culturally diverse population, mediation can be a more comfortable process.

Mediation enables pro se parties, as well as those who are represented, to quickly negotiate creative settlements to a broad variety of issues that they might not otherwise be comfortable or capable of pursuing in court. Such programs available in

Hawaii’s courts include, but are not limited to: mandatory mediation of small claims and summary possession cases at the state District Courts through the Mediation Center of Hawaii community mediation centers (hereinafter “community mediation centers”);2 court-ordered and court-referred mediation of paternity, divorce, post-divorce, child and adult guardianship, and termination of parental rights cases at family court through private mediators, community mediation centers, and special court programs; and real estate, condominium, foreclosure, and other cases at Circuit Court referred or ordered by the court to private mediators and community mediation centers.

Over the years, mediation programs in Hawaii have made a significant difference in reducing the backlog in court calendars, increasing access to justice for low-income and vulnerable populations, and increasing party satisfaction in resolving their disputes.3 In the fiscal year ending in June 30, 2020, the community mediation centers collectively managed 2,961 cases, 1,117 of which were referred directly from the District, Circuit, and Family courts. In addition, the Family Court of the First Circuit’s Volunteer Settlement Master Program managed 69 divorce and paternity cases; the Appellate Mediation Program that is administered by the Judiciary’s Center for Alternative Dispute Resolution, provided mediation for 26 cases on appeal;4 the First Circuit Family Court’s on-site Paternity Mediation Program provided mediation services every Thursday morning at the Family Court in Kapolei; and the Oahu Child Welfare Mediation Program was expanded to provide mediation for all contested issues related to the termination of parental rights, foster custody, and placement of a child or services for parents.

With a high volume of cases already directed to mediation when the COVID-19 pandemic hit Hawaii, forcing the closure of the courts, and requiring everyone to shelter in place, mediation

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

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

Phone:

808.523-1234

judgefoley2000@hotmail.com

www.dprhawaii.com

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became even more critical. Almost overnight, divorcing couples, some living together in confined quarters with extended family members, could not attend hearings, landlords could not evict tenants due to the moratorium on evictions, and employees were required to work remotely while overseeing their children’s educational progress. With the increased stress of job loss, remote schooling for children, and more, the resolution of ongoing disputes of all types, as well as new issues created by the pandemic, were needed quickly. Mediation was the natural process to turn to, but, the need for social distancing and safety, required mediation programs to immediately pivot their services to remote platforms.

The Good, the Bad, and the Silver Lining of Mediating Remotely Change is always difficult, especially when it is suddenly required without warning. The good news about adapting to remote mediation was the fact that it was not a new concept. Mediator Lou Chang points out in his September 2020 Hawaii Bar Journal article, that “the use of video and telephone technologies for online mediations has been done effectively for many years.”5 This was true for most local mediation programs and private mediators who regularly incorporated remote options for participants who were off island. For example, in 2011, in memory of the late labor mediator Michael Nauyokas, the Mediation Center of the Pacific (“MCP”) created a designated remote mediation room with large screen TV and Skype access, to accommodate off-island participants. When it expanded operations, Dispute Prevention and Resolution Hawaii (“DPR”), installed remote accessible equipment in all mediation rooms. And Hawaii mediator and founder of Virtualmediationlab.com, Giuseppe Leone, gained a national reputation for training mediators in Zoom starting in 2013.

Despite the foresight and progressive steps taken to integrate technology into their services over the years, no mediator or mediation program was prepared to shift

their entire caseload to a virtual mediation process overnight.

To their credit, mediation programs and mediators throughout Hawaii quickly made the shift to offering videoconference and telephone mediation services. The community mediation programs transitioned to “Zoom mediations,” as did many private mediators, including mediators working with DPR, the Hawaii Civil Rights Commission, EPIC Ohana, and various court mediation programs, such as the Oahu Child Welfare Mediation Program, the Appellate Mediation Program, and the First Circuit Family Court Volunteer Settlement Master Program. For some mediators, the shift to remote mediation went smoothly, while others required training, mentoring, coaching, and behind-the-scenes support.

As Ruth Bader Ginsburg once said, “real change, enduring change, happens one step at a time.” Accordingly, MCP methodically approached transitioning its large pool of volunteer mediators from the traditional in-person mediation process, to mediating online. To do so, MCP initially introduced the mediators to videoconference mediation, through a 90minute overview workshop conducted by mediator Giuseppe Leone. Following that first introduction, MCP designed detailed policies and protocols for the videoconference and telephone mediations and then conducted a series of interactive workshops for small groups of mediators, providing them with hands-on practice and coaching on the use of each tool. Every mediator learned to transition the parties from the waiting room to the main room, move parties to breakout rooms, navigate between breakout rooms, incorporate the shared screen and documents from Google drive, and more. While the smaller interactive training gave many of the mediators enough practice to comfortably mediate via Zoom, one-on-one coaching was provided to others.

Through continuous training and coaching, which is still ongoing, approximately 70 mediators now mediate remotely for MCP. The more experienced remote

Solutions Start Here mediators are paired with mediators who are less confident managing the technical aspects of the mediation. In some instances, a mediator with excellent “Zoom skills” serves solely as the “Zoom chauffeur” for an experienced mediator with the subject matter expertise needed to effectively mediate, but has no knowledge or experience on how to manage the Zoom process. As a result of these efforts, MCP now conducts four to six mediation sessions every day.6 With mediation regularly being conducted remotely, the focus then became, how effective is a videoconference mediation? The key tools of a mediator include developing rapport with the parties, active listening, and being attuned and responsive to nonverbal communication. How does this work in a virtual world? After mediating nearly 75 cases by Zoom with “generally good results,” Keith Hunter, mediator and CEO of DPR, concluded that “Zoom and WebEx are not ideal for mediation, but they are functional.”

Hunter additionally observed that “cases with high emotion are far more challenging than business or construction cases. It is very hard to replace or replicate the human factor that often carries the day in mediation.”

Managing high emotions and helping people who are polarized to engage in productive conversations and negotiations is the core work of pro bono mediators for the community mediation centers. With high volumes of divorcing and unmarried couples fighting over time-sharing and co-parenting responsibilities, families disagreeing over the care of an elder family member, parents of children with special needs fighting with schools, and the like, finding new ways of connecting with people through video was critical. Difficult? Yes. Impossible?

No. It’s all about adapting.

Through regular meetings and conversations with one another, modifications, and practice, mediators have learned to integrate technology into the art of mediating. The guiding rule of mediators is now, we are mediators first, managing

Specializing In Resolving Your Challenging Civil Cases For 35 years, Chuck Crumpton has offered quick and flexible mediation and arbitration scheduling customized to your needs, utilizing not only in-person meetings, but videoconference and online platforms as well.

Take advantage of personally tailored mediation and arbitration processes so that you receive cost-effective, innovative, fair and durable resolutions for your clients. Through dialogue focused not only on the legal and factual issues, but also the underlying human concerns and values, Chuck works with you to craft creative, practical, and sustainable solutions that are based on respect and understanding of the parties’ best interests and values, so that they can move forward unburdened by legal disputes. If you have a particularly complex, multi-party case, Chuck offers co-mediation at blended rates with top neutrals.

Crumpton Collaborative Solutions

1251 Heulu St. #1001 Honolulu,HI 96822 Charles Crumpton 808.284.9209 crumpton@chjustice.com s crumptoncollaborativesolutions.com

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the process online is secondary. With this rule in mind, mediators are finding that developing rapport and building trust through active listening and responding to nonverbal communication (although only from the waist up), is possible, remotely.

From the smallest lessons of making eye contact by looking directly at the webcam instead at the person7, properly framing your face in the video, to larger adaptations of making small talk in the beginning of the mediation session when parties first enter the main room, and shortening sessions in private breakout rooms, mediators are learning to work with and assist, even the most challenging of parties in a virtual setting. The key focus of the mediation is on the needs of the parties.8 And the silver lining? Ruth Bader Ginsburg eloquently stated, “so often in life, things that you regard as an impediment turn out to be great, good fortune.”

Today, despite the uncertainty of most aspects of our lives during the pandemic, we now know that mediation is readily available and even more accessible remotely.

Remote mediation, which was once considered an inferior supplement to the inperson process, is now in the forefront for effectively addressing disputes, large and small. For people who are sheltered in place or who have moved away from the islands, the convenience of turning on your computer from your home, and clicking on a link to participate in a mediation, makes it easier for people to engage.

For the community mediation centers working with parents who live in different states and the need to work out time-sharing arrangements for their children, the ease of quickly bringing the couple together via Zoom, reduces some of the anxiety and challenges of typical face-to-face scheduling. And for those high emotion cases in which people want to remain separated and never see each other, parties involved in a remote mediation know that they will never unexpectedly run into the other party in a virtual waiting room.

People generally feel safer working from their own homes and are more likely to open up, once the mediator lays an 14 December 2020

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effective foundation for the virtual process.

In fact, studies have found that some people communicate and interact more effectively through a videoconference platform.9 It was less than a year ago that remote platforms played a secondary role in mediation services. Today, it has become a critical asset. Keith Hunter shared, “I had a recent case that involved nine decision-makers on one side that were scattered throughout the country. I was able to address them on one Zoom screen in real time, and it was very effective and efficient.”

New Issues Stemming from the Pandemic The work of mediators during the pandemic has not only shifted to providing services through online platforms, it has also quickly adapted to addressing new pressing COVID-19 generated issues.

These issues range from parental disputes over previously agreed upon time-sharing arrangements that one parent no longer supports, family conflicts regarding whether an elder family member can safely interact with other family members, landlord-tenant negotiations over payment plans when an eviction moratorium is in place, employee-employer disputes regarding safety in the workplace, and more.

All issues are time-sensitive and emotional, with serious long-term impact if not addressed promptly. Fortunately, remote mediation platforms and flexible mediators have been able to assist.

The community mediation centers have created new programs and initiatives, such as the Rapid Response LandlordTenant mediation program, to help people work through these new issues. Strong partnerships and collaborations with other civil legal service providers including Legal Aid Society of Hawaii, Volunteer Legal Services of Hawaii, Hawaii Appleseed, and many other organizations including Catholic Charities Hawaii and Aloha United Way, have been critical to ensuring people are aware of mediation opportunities and have the information and resources they need to negotiate effective agreements.

Making Mediation Accessible for All Finally, while remote mediation has risen to the forefront and enables thousands of people to resolve their disputes daily, even during a global pandemic, many people still do not have the equipment, comfort level, or internet capacity, to engage remotely. It is therefore imperative, that mediators, and community mediation centers, in particular, offer mediation options that are accessible for all. For this reason, MCP has equipped all mediation rooms at its building with videoconference equipment that can be used safely and privately, by mediators and parties alike.

While limited in-person mediation sessions are still available, and others opt for mediating via telephone or online, clients without the proper equipment or knowledge for mediating remotely, may participate in a remote mediation session from the comfort of a private room at MCP. The staff initiates the videoconference session for the client and is available as needed for support throughout the process. This way, all the other participants, as well as the mediators, can participate remotely from their home and offices, and the mediation is safely conducted in a virtual room.

Working Together for a Better Future The coronavirus pandemic has created huge challenges for everyone, and there is much work to be done by the collective community to navigate these challenges and any future obstacles faced

by Hawaii’s communities. Together, using mediation remotely, via phone, online, and in-person, to quickly and safely resolve the conflicts that arise along the way, successful new plans will be created to restrengthen the communities and help the diverse individuals who make up those communities.

As Margaret Mead stated, “Never doubt that a small group of thoughtful committed citizens can change the world; indeed, it’s the only thing that ever has.” ___________________

1

See https://www.aboutrsi.org/dme/considerwhy-you-want-a-court-adr-program. The mission of Resolutions Systems Institute is “strengthening access to justice by enhancing court alternative dispute resolution systems.

disputes

Resolving

equitably

2

Mediation Centers of Hawaii, a 501(c)(3) corporation, is comprised of the five community mediation centers located throughout the State including: Kauai Economic Opportunity Mediation Center, Ku`ikahi Mediation Center located in Hilo, Maui Mediation Services, The Mediation Center of the Pacific located on Oahu, and West Hawaii Mediation Center.

Experienced in mediating and deciding complex family law, wills, trusts and probate cases including family business disputes. Also experienced in commercial, corporate, personal injury, HR and business mediations and arbitrations.

3

The fiscal year July 1, 2019 – June 30, 2020, annual report indicated that the combined MCH client satisfaction surveys showed that 60% of the clients were “very satisfied” with the mediation process, and 67% reported that they would “definitely recommend mediation to others.

Michael A. Town Circuit Court Judge (Retired) Trial judge from 1979 to 2010 in Family and Circuit Court. Graduate of Stanford University (A.B), Hastings Law (J.D.) and Yale School of Law (LL.M).

4

During fiscal July 1, 2019 –June 30, 20, 14 volunteer mediators provided mediation services for 26 active cases in the Appellate Mediation program. Of those cases, 17 closed during that period and 9 remained active. The dedicated panel of Appellate Mediation Volunteers contributed 280 hours of time and expertise to help settle appeals in mediation.

523-1234 • 285-2408 Dispute Prevention and Resolution “Let justice be done though heavens may fall”

1003 Bishop St., Suite 1155 • Honolulu, HI 96813

5

Chang, Lou, MEDIATION, Its Roots, and Its Future in a Post-Pandemic World. Hawaii Bar Journal (September 2020)

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In the recently ended fiscal year July 1, 2019 – June 30, 2020, despite moving operations to a new building and immediately needing to pivot services due to the Coronavirus pandemic, MCP served 7,210 people (an increase of 693 people from the prior year) and managed 1,573 cases, including opening 1,436 new cases.

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Ebner, Noam & Thompson, Jeff, @ Face Value?

Nonverbal Communication & Trust Development in Online Video-based Mediation, International Journal of Online Dispute Resolution, 2015.

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Carroll, Eileen, Mediation - Six Tips for Making Emotional Connections in a Virtual Environment, Mediate.com, August 11, 2020.

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Purvanova, K. Radostina, Charlier D. Steven, Reeves J. Cody, & Greco, M. Lindsey, Who Emerges into Virtual Team Leadership Roles? The Role of Achievement and Ascription Antecedents for Leadership Emergence Across the Virtuality Spectrum, Journal of Business and Psychology (2020).

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H SBA HAP PE NIN GS Board Action For your information, the HSBA Board took the following actions at its meeting in September 2020: • Approved the recommendation of the joint HSBA Executive-Finance Committee to send a letter to the Hawaii Supreme Court indicating the HSBA’s support of the proposed 2021 budgets of the Disciplinary Board, the Lawyers’ Fund for Client Protection, and the Attorneys and Judges Assistance Program; • Approved the recommendation of the joint HSBA Executive-Finance Committee to approve the proposed 2021 budgets and dues amounts, including the revised amounts of the Child Law Section and Probate and Estate Planning Section; • Approved the recommendation of the HSBA Executive Committee to submit comments to the Hawaii Supreme Court supporting new proposed Rule 23 that would establish the Commission to Advance Civic Education; and • Approved the recommendation of the HSBA Nominating Committee to reappoint the following individuals to the Hawaii State Board of CLE (aka MCLE Board) to a 3-year term beginning October 2, 2020: Susan Arnett, David Fitzpatrick, and Marie Gavigan.

2021 License Renewal The deadline to renew your license for the 2021 calendar year is December 31, 2020. Go to the HSBA

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website at www.hsba.org to get started on your renewal.

The HSBA recommends that you complete your annual CLE requirement before renewing your license to avoid an automatic compliance audit. You will also need to report compliance with your Ethics CLE requirement during the 2018-2020 period in your 2021 registration form. See RSCH 22(b). Contact CLE at cle@hsba.org for seminar/webinar information.

Status changes made using the online registration form, will be effective January 1, 2021. The online form should not be used if you wish to change your status for the 2020 (current) licensing year. Change of status requests effective in 2020 and CLE requirements must be processed prior to renewing your license for 2021. For 2020 status changes, contact the HSBA at 537-1868 and ask for the ARS department.

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HSBA members just need to enter the special code HSBA20 upon checkout to get the 20% discount. Once your info and the deposit/payment are re-

ceived, Tracy Wright Corvo Photography will email you to confirm the date, time, and all the details for your session.

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Verde Restaurant Verde Restaurant continually strives to celebrate the essence of local food and a vibrant community valuing the support of local farmers, producers and businesses. Verde offers 100% grass-fed Kauai beef, antibiotic-free, hormone-free chicken and pork with gluten-free and vegetarian options. Visit their website at https://bit.ly/34fiHYZ for more information.

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2020 PRO BONO

CELEBRATION

by Shawn L.M. Benton National Pro Bono Celebration week took place across the country in October. As part of the festivities, the Hawaii Access to Justice Commission (“Commission”) celebrated its eighth annual Pro Bono Celebration in a very different way this year. Due to health and safety concerns during the COVID-19 pandemic, instead of an “in-person” event, the Commission partnered with ThinkTech Hawaii to tape and livestream the Celebration.1 In addition, during the weeks leading up to the Celebration, ThinkTech Hawaii hosted four segments focusing on various legal service providers, their honorees, pro bono volunteers, and self-help initiatives.

The annual Celebration allows the Bar to recognize and thank the attorneys and individuals who generously donate their time to assist hundreds of people each year. It also recognizes those volunteers who have gone above and beyond to assist our legal service providers in helping the public and serves to inspire Hawaii’s young people to volunteer. Equally important, the Celebration is a reminder of the importance of pro bono work and helping those in need, especially during the current COVID-19 pandemic. It is only through the efforts of the many individuals who dedicate hundreds of hours of pro bono service that Hawaii continues to increase access to justice for all.

This year’s Pro Bono Celebration was supported by the Hawaii Access to Justice Commission, Hawaii Justice Foundation (“HJF”), the Hawaii State Bar Association (“HSBA”), and the Hawaii State Bar Foundation (“HSBF”). The Celebration honored a number of dedicated organizations and individuals throughout the state—including legal service providers, volunteers, and students.

Chief Justice Mark Recktenwald opened the celebration by recognizing the commitment of the legal service

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providers and volunteer attorneys and the students’ desire to serve their communities: Today’s student and pro bono honorees possess a quality of selflessness that helps to make Hawaii a better place for all. I had the honor of reviewing the finalists for the student essay competition and was touched by their inspiring messages of hope and compassion. Many students expressed that volunteering helped them to build a better sense of community with those whom they were helping or inspired surprising changes in attitude and perspective within themselves. Many also encouraged their peers and siblings to get involved and volunteer. Some noted that because they were home during the pandemic, they had to be creative to find new ways to provide community service and saw the impact that their service had on the lives of others. In many ways the sentiments expressed by the student submissions are universal and remind me of the best attributes of our own Access to Justice Commission members and attorney volunteers. Those attorneys, the pro bono attorneys, who we are recognizing today, along with Hawaii’s dedicated legal service provider staff attorneys, are the heart and soul of our access to justice community and help to inspire hope in those who may be experiencing some of the most challenging times in their lives. The pandemic has made this work even more difficult than ever, but I’ve been amazed by the creative and innovative ways that these folks have found ways to continue to serve—particularly now when so many in our community need greater support than ever.

Justice Simeon Acoba (ret.), former Chair of the Commission, also discussed the history of the

Commission and some of its accomplishments over the last ten years, noting: [D]uring the great recession in 2008, the Commission formulated and recommended a court-initiated mediation program in mortgage foreclosure cases. The Supreme Court adopted this program and, on the Big Island, this project successfully covered close to six hundred cases. Second, the Commission helped to initiate the Access to Justice Room program … and, in this program, the Judiciary, the Legal Aid Society, and the [HSBA] partnered to provide free legal service and/or information at the courthouses on every island. Third, beginning in 2014, the Commission partnered with the [HSBA] to initiate a pro bono appellate project in which attorneys provide free legal representation in certain appellate cases. This program was permanently approved by the Hawaii Supreme Court in 2017. As a fourth matter, in 2018, the Supreme Court approved a Commission-proposed court navigator system for Maui, where Judge [Joseph] Cardoza resides … in which volunteer laypersons are trained to provide in-person assistance at the courthouse for unrepresented litigants regarding court forms, procedures, and hearings. And finally, … the Commission coordinated two national grants of one hundred thousand dollars each that resulted in a community navigator program which trains trusted leaders in different communities to provide assistance to persons in need and a government roundtable program that brings agencies together to promote the effective delivery of legal services.

Finally, Judge Joseph Cardoza (ret.), Chair of the Commission, addressed the continuing challenges the Commission will face as a result of the COVID-19 pandemic and the commitment necessary to provide access to justice to meet the critical needs in the community: Access to justice requires a system-wide collaborative effort involving the judiciary, many individuals, agencies, and the community itself. The coronavirus pandemic has challenged our ability to fully engage in that collaborative endeavor. At the same time, the pandemic has resulted in the needs of the community dramatically increasing in number, complexity, and urgency. Effectively meeting these needs through an ongoing system-wide collaborative effort is both a challenge and an opportunity. We are fortunate in Hawaii to have individuals and agencies who consistently place service above self and a judiciary that places the highest priority on service. This Pro Bono Celebration is a confirmation of the commitment of those involved in access to justice. The challenge to meet the critical needs of Hawaii in these difficult and unprecedented times will be with us for some time to come and may become even more challenging. However, we will emerge from this period having embraced the challenge. This will make us stronger, more innovative, and responsive to the needs of our community as well as the individuals and agencies that provide the critical services for those in our community.

Pro Bono Honorees Legal service providers play a key role in increasing access to justice in Hawaii. The dedicated attorneys throughout the islands who provided pro bono services are vital in assisting these legal service providers These individuals were honored at the Pro Bono Celebration.

The Mediation Center of the Pacific The Mediation Center of the Pacific (“MCP”) is a non-profit community service organization that provides affordable and accessible mediation to the local community. MCP brings people together to facilitate conversations between each other and help them negotiate agreements that work for them. According to Tracey Wiltgen, MCP’s Executive Director, MCP’s services are important because they allow the parties to be creative and to come up with their own solutions on how best to resolve a dispute.

Wiltgen explained that MCP services close to 1,800 individuals through mediation each year. MCP’s volunteer mediators also volunteer thousands of hours each year and attend training and continuing education to ensure that they are providing quality service.

MCP honored Samantha “Sam” Kasnetz. A passionate, high-energy personality, Kasnetz quickly became a regular mediator following her participation in MCP’s Mediation Training in April 2016. Since that time, she has mediated over 328 cases, primarily in the domestic arena, involving 432 sessions and over 1,161 hours. In addition to mediating some of the most challenging cases, Kasnetz regularly assists with MCP’s trainings, as well as at various government, private, and non-profit businesses throughout Oahu. Last year, Kasnetz assisted with trainings for the Honolulu Police Department, the Department of Education, the Department of Labor, and more. She also helped with outreach and education at various conferences and pop-up events coordinated by MCP in Honolulu, Wahiawa, Waianae, and other communities throughout the island. Kasnetz’s “can-do” attitude and willingness to help whenever and wherever she is needed has been an inspiration to MCP staff, mediators, and clients alike.

When asked why she volunteers for MCP, Kasnetz responded: It feeds my soul. I love meeting new people. It is an amazing feeling to be able to help people move on with their lives, to get an apology that’s been sought after for years. People come to us, they bare their souls, they tell us very, very intimate details about themselves, about their lives, their children, their spouses. … it’s very humbling that people come and share their lives with us the way they do and being given the opportunity to help somebody resolve something so they can move on with their lives and look forward, instead of back, it’s an honor and it’s very humbling and I’m very grateful and for me personally, I learn and grow every single time I mediate.

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Volunteer Legal Services of Hawaii Volunteer Legal Services of Hawaii (“VLSH”) initially started as a project by the HSBA Young Lawyers Division to provide pro bono legal services to the community and it has been providing free legal services for the low to moderate income community for almost forty years. VLSH also provides education and outreach to individuals so they have the knowledge of the type of services available to assist them in their time of need. There are approximately two hundred individual attorneys and law firms that currently volunteer their time with VLSH to assist with services.

According to Angela Kuo Min, Executive Director for VLSH, “Pro Bono work shows that we are part of and care about the community. Providing free legal services is especially important and critical during these unprecedented times. VLSH pro bono attorneys are the backbone of the organization, without whom access to justice could not be achieved in Hawaii.”

VLSH honored Oahu attorney, Clarissa Malinao. Malinao is one of VLSH’s regular Neighborhood Legal Clinic volunteer attorneys, assisting those with family law matters. Additionally, Malinao volunteered and represented numerous VLSH Re-Employment and Community Services Work Program clients prior to her appointment as a per diem judge for the District Court of the First Circuit in August of 2019. Since her appointment, she continues to recruit additional volunteers for VLSH and volunteers for VLSH’s monthly family law clinic. Malinao also joined Judge Melanie May in leading a training program for new volunteer attorneys. Malinao explained why pro bono services are important, saying, “People generally just need to know where to begin. They need someone to listen to their needs of what they’re feeling in that moment and to be able to commit to that is so rewarding.”

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Legal Aid Society of Hawaii The Legal Aid Society of Hawaii (“LASH”) provides free legal services for civil matters to individuals who meet certain income criteria. LASH’s mission is to address critical legal needs in Hawaii through high quality legal advocacy, outreach, and education in the pursuit of fairness and justice. LASH also partners with the Judiciary and the HSBA to maintain the Access to Justice Rooms and selfhelp centers available in the courthouses across the state.

This year, LASH honored Maui attorney, Benjamin Acob. Acob has been a longtime supporter and volunteer with the Maui Self-Help Center, dedicating countless hours to assist the people of Maui with their needs, ever since the Center opened in Wailuku in 2012. In 2016, Acob was recognized by Chief Justice Recktenwald at an event for Self-Help Center volunteers, for going above and beyond in his volunteer work at the Center, taking on representation of a family, who had limited English proficiency, and who were facing eviction from low-income housing. Over the past year, Acob signed up for more shifts at the Maui Self-Help Center than any other volunteer. Beyond this, Acob would often stop by the Center if he were at the courthouse and would end up taking shifts spontaneously if it was short-staffed that day. For every pro se litigant he assisted, Acob would take the time to listen with care, no matter how long it took.

Both customers and those who worked with Acob alike have expressed admiration and appreciation over not only his legal expertise but also the way he is able to deliver legal services in a manner that is compassionate and with dignity. This year alone, Acob has helped hundreds of those in need who have come to the Maui SelfHelp Center and has proved indispensable in increasing access to justice for those without legal representation.

University of Hawai‘i Elder Law Program The University of Hawaii Elder Law Program’s (“UHELP”) is celebrating over thirty years of service to the local community. UHELP plays a vital role in educating students and in providing qualified legal services to older people and their caregivers in our community. UHELP’s goal is to enhance, protect and preserve the autonomy and independence of older persons through education, training, and direct legal services. UHELP places particular emphasis on assisting older persons with limited assets and income. Jim Pietsch, Director of UHELP, emphasized the need for serving the elderly because of the significant impact of aging, such as diminished capacity, abuse, neglect, exploitation, and disappointment at the end of life, especially during the current COVID-19 pandemic.

UHELP honored Christy Matsuba.

Matsuba has been volunteering with UHELP since she graduated from the William S. Richardson School of Law in 2007. During law school, she worked as the senior law student legal clerk for UHELP. Matsuba has always made herself available to help when UHELP needed assistance and participates in a wide range of activities from assisting with major conferences, to making presentations in the community, to mentoring, and going on outreach with elder law clinic students.

Having a depth of legal knowledge developed in a range of legal settings, Matsuba is particularly helpful to law students on issues relating to estate planning, including, wills, trusts, and probate. She is a valued volunteer with UHELP and always exhibits the highest levels of competence, confidence, civility, and cheerfulness.

Kapolei Access to Justice Room The Kapolei Access to Justice Room (“KAJR”) provides limited legal advice regarding family law matters by volunteer

attorneys. The volunteer attorneys for KAJR offer their time, expertise, and guidance to individuals on a variety of family court civil issues, including divorce, paternity, custody/visitation, child support, adoptions, and guardianships.

In talking about the KAJR volunteers, Judge Brian Costa noted: Pro bono means for the public good.

It’s a Latin phrase for professional work undertaken voluntarily and without payment…[The KAJR volunteer attorneys’] time and expertise is invaluable and they provide these individuals with a level of comfort as to the process and as to what’s coming up next.

Judge Costa acknowledged the individuals who volunteered at KAJR including: Kevin Adaniya, Caitlyn Axe, Leslie Ching Allen, Richard Diehl, Shelby Ferrer, Noah Gibson, Shannon Hackett, Thomas Haia, Jill Hasegawa, Steve Hioki, Ann Isobe, Mari Kishimoto Doi, Lynnae Lee,

Marianita Lopez, Elsa McGehee, Dyan Mitsuyama, Juan Montalbano, Courtney Naso, Gemma-Rose Poland Soon, Ellen Politano, Tom Tanimoto, Jackie Thurston, Carol Tribbey, and Cheryl Yamaki.

Volunteer Settlement Master Program The Volunteer Settlement Master (“VSM”) Program was established in 2004 to assist divorcing spouses and unmarried couples with children to resolve their custody and financial issues by making fair and workable agreements with each other, as an alternative to litigating those issues before the Family Court. The VSM Program is a collaboration between the Family Court, the HSBA Family Law Section, and MCP. Licensed family law attorneys are appointed by the Senior Judge of the Family Court to serve as VSMs. A VSM will typically be appointed by the Family Court following a conference conducted in response to a request by one divorcing spouse to set the case for trial. The Family

Court may also assign a VSM to address pre-divorce, post-divorce, and paternity issues.

Judge Costa thanked the VSM Program volunteer attorneys including: Kevin Adaniya, Marrionette Andrews, Cheryl Arakaki, Sara Jo Buehler, Jennifer Chan, Bradley Chong, Tom Crowley, Nicole Cummings, Everett Cuskaden, William Darrah, Richard Diehl, Gavin Doi, Huilin Dong, Thomas Farrell, Shelby Ferrer, P. Gregory Frey, Stacey Fukuhara-Barclay, Noah Gibson, Christian (Christy) Gray, Donna Davis Green, Geoff Hamilton, Seth Harris, Steve Hartley, Jill Hasegawa, Denise Havicon, Stephen Hioki, Debbie Jew, Curtis Kam, Kevin Kimura, Charles Kleintop, Erin Kobayashi, Jackie Kong, Ed Lebb, Lynnae Lee, Kendal Luke, Katherine Lukela, Tim Luria, Michael McEnerny, Elsa McGehee, Lynne McGivern, Dyan Mitsuyama, Naoko Miyamoto, Juan Montalbano, Courtney Naso, Blake Okimoto, Maria Penn, Anthony Perrault, Ellen Politano, Pablo

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Quiban, Alethea Rebman, Stephanie Rezents, Candra Rivers, Gregg Ryan, Judith Schevtchuck, John Schmidtke, Scott Schmidtke, Isaac Smith, Gemma-Rose Poland Soon, Justin Sturdivant, Jo-Ann Takara, Tom Tanimoto, Christopher Thomas, Carol Tribbey, Paul Tomar, Molly Turpin, Mitchell Wong, Sheila Vierra, Trina Yamada, and Craig Yim. Honolulu District Court Access to Justice Room The Honolulu District Court Access to Justice Room provides free legal advice to unrepresented litigants involved in civil cases. Self-represented litigants are able to ask questions and get free legal advice about landlord-tenant matters, credit card and debt collection cases, contract cases, such as personal loans, car repairs, and personal service cases, tort cases, and temporary restraining orders. Judge Melanie May discussed how the shift from in-person to remote legal services presented new and improved ways for attorneys to provide legal advice and for the public to receive legal assistance. This shift also provided additional access for attorneys to be able to volunteer from their homes or offices.

Judge May thanked the Honolulu District Court Access to Justice Room volunteer law firms and organizations including: Bronster Fujichaku Robbins; Cades Schutte; Carlsmith Ball; Case Lombardi & Pettit; Chun Kerr; Damon Key Leong Kupchak Hastert; Filipino Lawyers Association; Goodsill Anderson Quinn & Stifel; Hawaii Association of Justice; Hawaii Women Lawyers; Marr Jones & Wang; McCorriston Miller Mukai MacKinnon; Office of Disciplinary Counsel; Schlack Ito; and Yamamoto Caliboso.

Judge May also recognized individual volunteer attorneys including: William Bagasol, Cassie Bagay, Thomas Berger, 22 December 2020

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Ben Creps, Gilbert Doles, Ben Fisher, Mike Goodman, Arlette Harada, Walter Hebblethwaite, Nathaniel Higa, Naomi Iwabuchi, Daniel Kim, Matthew Kollinger, Christina Ohira, Megumi Sakae, Katherine Vessels, and Bryant Zane.

When asked about volunteering with the Honolulu District Court Access to Justice Room, longtime attorney volunteer, Bryant Zane, stated: “I’m really fortunate that in my paid job and in my volunteer job I help people who would otherwise not have access to an attorney and that is quite gratifying. So, I’m quite fortunate that those are the people that I work with.”

Appellate Pro Bono Program The Appellate Pro Bono Program is a joint effort of the Judiciary, the HSBA Appellate Section, and VLSH to match volunteer attorneys with self-represented litigants who are parties to an appeal.

Cases in the program are limited to noncriminal appeals in the following civil matters: foreclosure, summary possession, employment discrimination, worker’s compensation, wrongful termination, denial of unemployment benefits, state tax appeals, probate matters, and paternity and nonmarried custody case.

Justice Michael Wilson noted that the volunteer attorneys participate in cases that have been in the system for an extended length of time because the

cases either involve intractable problems or have great social importance.

He also acknowledged that “attorneys volunteer their extremely valuable skill set of appellate legal advocacy to represent citizens for free who cannot afford an attorney but who nonetheless have pursued their cases through our court system to oral argument before our appellate courts.”

Justice Wilson thanked the Appellate Pro Bono volunteer attorneys including: Sharla Manley, Richard Mitchell, Robert H. Thomas, and Joanna C. Zeigler.

Appellate Mediation Program The Appellate Mediation Program started in 1995 to offer an alternative to litigation on appeal and for individuals to work with experienced mediators to look at options that might not have been thought of to resolve cases without the cost of litigation on appeal. The program settles an average of 53% of cases each year.

Judge Wilson described the volunteers as “among the finest, most experienced lawyers and retired judges in Hawaii.”

Anne Smoke, Appellate Mediation Program Administrator, also explained that the pro bono mediators “really do feel a commitment to the community and a commitment to the courts and having been in the court system and part of that institution they see the value of taking some of these cases out of appeal and settling them to reserve the time for the cases that have to stay on appeal.”

Justice Wilson thanked the volunteer mediators including: Judge Ricki May Amano, Judge Joel August, Judge Karen Blondin, Professor Addison Bowman, Robin Campaniano, Corlis Chang, Louis Chang, Chuck Crumpton, Justice James Duffy, Jaqueline Earle, Judge Max Graham, Diane Hastert, Diane Hifo, Kenneth Hipp, Judge Colleen Hirai, James Hoenig, Judge Walter Ikeda, Elizabeth Kent, Judge

Walter Kirimitsu, Justice Robert G. Klein, Ralph La Fountaine, Roz Loomis, Ivan Lui-Kwan, Judge Vicky Marks, Georgia McMillen, Douglas McNish, Judge Marie Milks, Chief Justice Ronald Moon, Richard Mosher, Judge Gail Nakatani, Patricia Park, Judge Shackley Raffetto, Judge Frank Rothschild, Judge Nancy Ryan, Judge Sandra Simms, Judge Leeland Spencer, Thomas Stirling, Judge Allene Suemori, Owen Tamaoka, Judge Michael A. Town, Judge Diane Warrington, Arne Werchick, Judge Andrew Wilson, and Judge Patrick Yim. The High School Student Essay Award Recipients Each year, the Commission sponsors a high school essay contest in order to promote understanding and awareness of the importance of volunteerism in the community. This year’s theme: “Standing Together, Six Feet Apart: How Did You Serve the Community During the COVID-19 Pandemic?”, asked students to describe their volunteer experiences during the COVID-19 pandemic. The Commission received essay submissions from public and private high school students throughout the State in grades 10 through 12, with the top three winners from Oahu, and an entrant from Kaua‘i, Maui, and West Hawaii, all receiving the top student awards. Each student awardee received a $500 cash prize, and an additional $100 award for educational purposes was given to a teacher named by the student awardee. The law firms sponsoring this year’s essay contest were: Case Lombardi & Pettit; Chong, Nishimoto, Sia, Nakamura & Goya; Damon Key Leong Kupchak Hastert; Ota & Hara; Schlueter Kwiat & Kennedy; and Tateishi & Tanaka.

The preliminary judges for the essay contest included: Judge Todd Eddins, Judge Shirley Kawamura, Judge Catherine Remigio, Judge Rowena Sommerville, Judge Kevin Souza, Judge Rebecca Copeland, Judge Dyan Medeiros, Judge Kristine Yoo, and Judge Natalie Shaw.

The finalist judges for the essay contest were: Chief Justice Recktenwald, Judge December 2020

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Greg Nakamura (ret.), and 2020 HSBA President P. Gregory Frey.

The 2020 essay award recipients were: Mariah Ramo (Waipahu High School), Josiah Richards (Makua Lani Christian Academy), Emily Tom (‘Iolani School), Kaitlin Kitagawa (King Kekaulike High School), Valor Ahn (Kaimuki Christian School), and Kai Mottley (Kaua‘i High School).

In recognizing one of the student awardees, Mariah Ramo, Chief Justice Recktenwald thanked Mariah for selflessly giving her time to help others in need.

Mariah wrote about her efforts to fundraise for children in her hometown of Bacarra, Ilocos Norte, Philippines, to ensure that they have a stable Wi-Fi connection and technology to be able to continue their education during the pandemic. She also talked about her efforts to assist her peers at Waipahu High School with distance learning, including creating short video tutorials on various google suite applications. Mariah noted, “If we miss educating students for one whole year it can cause catastrophic ripples in a decade or more.”

Chief Justice Recktenwald also thanked Kailua-Kona student, Josiah Richards, for helping to spread compassion and a spirit of volunteerism throughout the community. Josiah volunteered with his local university’s kitchen, to ensure that students trapped in quarantine had access to food. In his essay, Josiah noted, “[w]orking [at the local university’s kitchen] was truly an eye-opening experience to see what togetherness looked like in nearly its purest form. I was confounded by how well the final result of each day turned out when we had to rely on each other so much. It put into perspective how much people can get done if they simply work together as one body.”

Judge Nakamura recognized student Emily Tom for her essay and dedication to the issue of healthcare access. Emily volunteered with Americans for Democratic Action, where she researched healthcare systems throughout the country and world, and compiled her findings in a report, 24 December 2020

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which included a section on suggested best reforms. In her essay, Emily commented, “[a]s bleak as the future may seem, the best possible takeaway from COVID-19 is lasting reform. Learning about the successes and failures of our current policy and searching for ways to improve not only provides us with the power to bring change, but it also fulfills our civic duty as Americans. Although I am only one person, the time I spent over the summer pushing for change was time well spent. I have contributed to a larger conversation that, hopefully, will encourage policymakers to address the root of the problem and create a better future for our islands.”

Judge Nakamura noted that Emily has the potential to make the changes she suggested in her essay and should be encouraged to pursue her ideas.

Judge Nakamura also congratulated King Kekaulike High School student, Kaitlin Kitagawa, for her service to her local upcountry Maui community. Kaitlin participated in food distribution events in her community, cleaning, sorting, and packing hundreds of pounds of locally donated produce. While she was preparing the food packets, she engaged in discussions with other volunteers about the legislative process and elections, and the importance to keep informed and be engaged on the issues that affect her community. Of her volunteer experience, Kaitlin noted: “My summer was restricted much more than in past years, but I still found ways to positively contribute to my community from a safe distance. Although times are tough, there are still ways to serve as a contributing, informed, and masked member of the community.”

Frey recognized the important volunteer work that Kaimuki Christian School student Valor Ahn did during the COVID19 pandemic. Valor volunteered with the Salvation Army hotline, responding to voicemail messages left by people needing assistance, including many left unemployed or homeless by the COVID-19 pandemic.

To many who needed assistance, Valor provided a sympathetic ear, when it was needed. When talking about one particu-

lar experience he had while volunteering, Valor noted, “That summer day [when speaking to one of the people], I felt deeply humbled and my eyes were open to this fact: everyone has a story, and some just need a listening ear.”

Frey also congratulated Kauai High School student, Kai Mottley, for his service to the community. During the COVID-19 pandemic, Kai could not escape hearing about all the needless deaths and the emotional toll that it was having on his local community, especially with mental health issues. While he didn’t have any medical training, Kai heard about the urgent need for face shields for first responders. Kai recognized that with his 3D printer and computer-aided design skills, he could help, and reached out to offer his assistance. Over the next few months, Kai turned his garage into a factory, producing face shields one after another, from 6 a.m. to midnight, providing valuable equipment for our front-line medical professionals.

Kai noted of his efforts, “Just like ‘Rosie the Riveter’ during World War II, you don’t have to be a fighter on the frontline to make a difference.”

The Commission is grateful to everyone who supported and participated in the 2020 Pro Bono Celebration. A special thank you to the Pro Bono Initiatives Task Force for planning the Celebration.2 ——————— 1

Due to time constraints, the Pro Bono Celebration was taped live on October 9, 2020, prior to National Pro Bono Celebration Week. However, the Pro Bono Celebration is available for viewing on YouTube and Vimeo, as well as the Thinktech Hawaii website.

2 The Pro Bono Celebration is coordinated by the Pro Bono Initiatives Task Force comprised of Judge Brian Costa, Co-Chair, Tracey S. Wiltgen, Co-Chair, Justice Simeon Acoba, Justice Michael Wilson, Judge Ronald Ibarra, Judge Melanie May, Judge Trish Morikawa, Shawn L.M. Benton, Marie Gavigan, Jill Hasegawa, Regan Iwao, Angela Kuo Min, and Trisha Nakamura.

Shawn L.M. Benton is Senior Counsel at Cox, Wootton, Lerner, Griffin & Hansen LLP. She is also a member of the Pro Bono Initiatives Task Force Committee.

CASE NOTES Appeal Pointer Transcripts that are requested for purposes of appeal and are completed after the record has been transmitted to the appellate clerk, and findings of fact and conclusions of law entered after the record on appeal has been transmitted to the appellate clerk, shall be transmitted by the clerk of the court as a supplemental record without further order of the appellate court. HRAP 11(b)(1). Nevertheless, if the transcripts or findings of fact and conclusions of law are not transmitted, the parties may need to file a motion to supplement the record in order to remind the clerk.

Supreme Court Civil Procedure

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HAWAII BAR JOURNAL

Pennymac Corp. v. Godinez, No. SCWC19-0000185, October 8, 2020, (Recktenwald, C.J.). This case required the Hawaii Supreme Court to determine whether res judicata precluded a Hawaii Rules of Civil Procedure Rule 60(b) motion for relief from judgment in a foreclosure proceeding. The Hawaii Supreme Court concluded that it did not. In 2017, the circuit court found Lewanna Godinez in default on her mortgage and granted summary judgment in favor of Respondent/Plaintiff PennyMac Corp., issuing a decree of foreclosure and entering final judgment. Before a foreclosure sale took place, Godinez filed a Haw. R. Civ. P. Rule 60(b) motion, raising the issue of PennyMac’s standing to bring a foreclosure action against her. The circuit court denied the motion, and Godinez appealed. The ICA affirmed the circuit court’s denial, holding that res judicata barred Godinez’s Haw. R. Civ. P. Rule 60(b) challenge to standing, citing to the Hawaii Supreme Court’s decision in Mortgage Electronic Registration Systems v. Wise, 130 Hawaii 11, 17, 304 P.3d 1192, 1198 (2013). The Hawaii Supreme Court held that res judicata did not preclude Godinez’s post-judgment Haw. R. Civ. P. Rule 60(b) motion and that Wise was inapplicable under these circumstances.

Nevertheless, the Hawaii Supreme Court agreed with the ICA that the circuit court did not abuse its discretion in denying Godinez’s Haw. R. Civ. P. Rule 60(b) motion.

OFF THE RECORD

Mediator, Arbitrator, Re-

ceiver, and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. Successful in high stakes mediations for clients of most of Hawaii’s major law firms.

• 43 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, Arbitration, 2018, and Mediation, 2020.

• Mr. Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies.

• Mr. Hiatt has also served as a court appointed Receiver in complex commercial matters.

For ADR work, please contact

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 937-4179. Resume and references at www.hiattlaw.com.

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HAWAII BAR JOURNAL

Gov. David Ige appointed Cathy Betts as director of the Department of Human Services (“DHS”). She served as deputy director at DHS since October 2017. She previously held positions as executive director for the State Commission on the Status of Women, deputy attorney general with the Hawaii Department of the Attorney General, law clerk in the First Circuit Court, and community outreach worker/education coordinator for The Sex Abuse Treatment Center at Kapiolani Medical Center.

Caitlin Axe joined the Knauf Santos law firm in Seattle, Washington as an associate attorney. She practices in the area of family law.

Steven Howard joined the Fiskars Group (based in Finland) in a new position as first and only senior legal counsel for Asia and the Pacific. He is based in Tokyo.

Steven K.S. Chung received the ABA Military Pro Bono Project Outstanding Services Award earlier this year from the ABA Standing Committee on Legal Assistance for Military Personnel.

Ron Heller received a 2020 Pookela award from the Hawaii State Theatre Council, as Director of a Play, for The Mountaintop at The Actor’s Group. The show was presented in February/March of 2020 and is an imagined version of the last night in the life of Dr. Martin Luther King, Jr. Ted H.S. Hong was presented with the Peacemaker Award at a recognition event sponsored by the Kuikahi Mediation Center and the Hawaii County Bar Association.

Professor John Barkai recently updated the Hawaii Rules of Evidence Handbook with Common Objections & Evidentiary Foundations, available at cost on Amazon as a public service to Hawaii lawyers. This

handbook expands on his 2018 evidence handbook with examples of foundations for introducing electronic evidence from email, text messages, voice mail, social media, and the internet as well as more traditional evidence foundations for refreshing memory, impeachment, past recollection recorder, business records, learned treatises, and expert witnesses.

The book is available on Amazon for $5.31, but you can download an online version at no cost at: https://tinyurl.com/y57mjah8 Professor Barkai also published a new cartoon book on Humor in Negotiations & ADR: Cartoon Contest Caption Winners from the ABA Dispute Resolution Magazine. His book contains over 500 “winning” captions for more than 50 cartoons used in cartoon caption contests from 1997 to 2011 in the American Bar Association’s (“ABA”) Dispute Resolution Magazine, a quarterly publication of the ABA’s Section on Dispute Resolution. Barkai coordinated and edited the magazine’s contest for 14 years in its section, “The Lighter Side.”

The book is available on Amazon for $4.55, but you can download an online version at no cost at: https://tinyurl.com/y2f5l8t8 He says he “hopes mainly to get the cartoons and captions into the hands of ADR teachers and trainers and to entertain anyone interested in a humorous look at dispute resolution.”

News for “Off the Record” Please send in information about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K. Muranaka at carol.k.muranaka@gmail.com or Cynthia M. Johiro at Cynthia.M.Johiro@ hawaii.gov.

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HAWAII BAR JOURNAL

29

C O URT BR IEF S First Circuit Chief Judge R. Mark Browning Named 2019 Jurist of the Year

the COVID-19 pandemic. Judge Browning’s leadership style of grace, gratitude, and courage has enabled him to address unprecedented challenges with a clear and sensible approach, building trust and confidence among fellow judges, employees, and the bar, and bringing them together to collaboratively solve problems. He has been a strong supporter of innovative programs such as Community Outreach Court, and a mentor to countless other judges,” he added.

The Jurist of the Year is selected annually by the Chief Justice from nominations submitted by Hawaii attorneys and Judiciary personnel. The award recognizes a full-time trial judge, who exhibits exceptional judicial competence, evidenced by decisional quality, significant extra-judicial contributions to the administration of justice, and active participation in public service to the community at large.

Per Diem Judge Announcements Photo courtesy of Grass Shack Productions First Circuit Chief Judge R. Mark Browning was presented with the 2020 Jurist of the Year Award by Chief Justice Mark E. Recktenwald at the Hawaii State Judiciary’s Statewide Incentive Awards Ceremony on October 21. Chief Judge Browning first joined the Judiciary in 1995 as a per diem judge. In June 1997, he was appointed as a District Family Court Judge, and in May 2010 as a Circuit Court Judge. In March 2011 he became the Deputy Chief Judge of the Family Court. He has been the Chief Judge of the First Circuit since April 2017.

“Judge Browning has displayed exceptional judicial competence in many different ways” said Chief Justice Recktenwald. “As a probate judge, he utilizes both his vast knowledge of the law and his understanding of the underlying emotional and family dynamics, effectively resolving complex disputes.

“He has been an outstanding leader of the First Circuit, especially in response to the challenges posed by

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HAWAII BAR JOURNAL

Jill M. Hasegawa was recently appointed as per diem judge of the District Court of the Third Circuit and designated to preside in District Family Court. Her term is from October 9, 2020 to October 8, 2021.

Clarence A. Pacarro was appointed as per diem judge of the District Court of the First Circuit. His term is from October 15, 2020 to October 14, 2021.

Michelle N. Comeau was reappointed as per diem judge of the District Court of the First Circuit. Her term will be from October 23, 2020 to October 22, 2024.

Yoo Assigned to the First Circuit District Court First Circuit District Family Judge Kristine Y. Yoo was recently designated to act as Judge of the District Court of the First Circuit, effective October 30, 2020, until further ordered.

ATTORNEY WANTED ASSOCIATE ATTORNEY (Civil Litigation) Established downtown law firm is seeking a litigation associate attorney. 3-6 years civil litigation experience preferred; Admission to Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Please submit resume and writing samples in confidence to: Recruiting Committee/HR Case Lombardi & Pettit, A Law Corporation 737 Bishop Street, Suite 2600 Honolulu, HI 96813 Email: recruitingdirector@caselombardi.com KLEINTOP & LURIA, LLP is seeking an associate attorney to join its family law practice. Ideal applicants will have one or more years of legal experience and possess strong communication, research, and writing skills. Salary will be commensurate with experience. Benefits include medical, dental, and vision insurance, 401(k) plan, parking, life and disability insurance, paid vacation and sick days, and bar association dues. Please send resume and writing sample to: KL@hifamlaw.com. All inquiries will be held in confidence.

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.

LOCAL COUNSEL WANTED Mid-west regional law firm seeking an attorney with experience in selling real estate at auction for a local counsel relationship. Experience in nonjudicial foreclosure a plus. Please e-mail Michael at mec@manleydeas.com with Subject: HI Local Counsel.

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.

O’CONNOR PLAYDON GUBEN & INOUYE LLP, is looking for an Associate Attorney in litigation. One year of litigation experience is desired. Must be licensed to practice in Hawaii. Salary is commensurate with experience. Benefits include: vacation/sick leave, medical, dental, vision, 401(k), parking, life and LTD insurance. gmp@opgilaw.com.

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

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PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spikedenis@hawaii.rr.com Tel:808.224.4559 REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development

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December 2020

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29

Depositions & Arbitrations during the

Pandemic

At Ralph Rosenberg Court Reporters we have a whole new range of options to provide depositions and arbitrations that are Safe, Secure, and Seamless.

Oral Depositions & Arbitrations:

Can be accomplished in a variety of ways depending on the situation. Remote depositions via video conferencing can be easy even for the techno challenged.

In conjuction with Certified Legal Video, everything is set up beforehand and each party receives a link.

We are also offering attorneys free training sessions to make sure everyone is comfortable with video conferencing. If an attorney has a question or concern, our experts can assist. All of our reporters have recently received extensive training on conducting remote video depositions. The only requirement is that participants have a computer, laptop, or phone with a camera and access to the internet.

If attorneys are more comfortable with in-person depositions, our conference rooms can be properly set up to comply with current social distancing directives. We can arrange for a mix of in-person and remote participation.

Records Depositions: The Records Department

continues to follow-up regarding the status of subpoenaed business and medical records. Our team is out there picking up records and preparing transcripts for electronic delivery to attorneys and their staffs.

While we all face changes during this time, one thing stays the same: our commitment to our clients and their needs. Regardless of the challenges this pandemic presents, we’ll be there for you!

RALPH ROSENBERG COURT REPORTERS, INC. A Full-Service Court Reporting Firm Tel: 808-524-2090 • Web: www.hawaiicourtreporters.com • Email: 32 December 2020 HAWAII BAR JOURNAL

courtreporters@hawaii.rr.com