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EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Joseph Dane Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

Estate Planning: An Overview of the Basics and Relevant New Law by Summer G. Shelverton and Janine M. Yim

OF NOTE 24 20

Court Briefs

HSBA Happenings

President Shannon Sheldon

Case Notes

President-Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau

Notice of Transfer to Interim Inactive Status

Classifieds

HSBA OFFICERS

Treasurer Alika Piper YLD OFFICERS President Jasmine Wong Vice President/President-Elect Lisa Yang Secretary Nelisa Asato Treasurer Kelcie Nagata

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An Overview of the Basics and Relevant New Law

We begin with an introduction—or Over the past two years, refresher—on the estate planning various events—from the global basics. That is, what documents do you pandemic to the war in Ukraine— need to have in place to ensure that you have altered our lives. These events and your loved ones are taken care of if have changed the way that we do something happens to you. The next our jobs—from working at home to section provides a brief overview of the attending virtual meetings to conUTC and highlights some of the imporducting hearings over online plattant changes in trust law in Hawai‘i forms. For some of us, they have By Summer G. Shelverton affected by it, which practitioners in also profoundly impacted our and Janine M.Yim Hawai‘i should be aware of—when health or the health of our loved creating your own estate plan, revisiting your estate plan, or ones. They have affected our finances, perhaps changing our talking to clients about estate planning. investments or the assets that we own. The uncertainty of the last few years has also extended to BASIC ESTATE PLANNING DOCUMENTS estate planning laws. Currently, the federal estate tax exempImportance of Having an Estate Plan tion is $12.06 million for an individual ($24.12 million for a Before diving into the basic estate planning documents, it married couple) with inflation adjustment, and the state estate is important to review why you should have an estate plan in tax exemption is $5.49 million for an individual ($10.98 million place. As explained more below, an estate plan does more than for a married couple). While Congress has been unable to pass just give you control over the distribution of your assets at any new laws reducing or affecting the current estate and income tax laws impacting estate planning, it is not for want death. It can also, for instance, direct who will manage your of trying and it is worth keeping a close eye on in the finances and your health in the event that you become incapacitated, or ensure that your privacy is maintained after you pass. coming years. In Hawai‘i, the most noteworthy change in laws governing trusts and estates is the recently adopted Uniform Trust Code (“UTC”), which went into effect on January 1, 2022. In addition to reenacting various pre-existing laws, the UTC alters certain aspects of the state’s trust law. Amidst so much change, this article seeks to highlight for readers (whether new to estate planning or seasoned estateplanning practitioners) both the basics of estate planning that should be considered personally and professionally, while also providing a synopsis of the new UTC, which impacts aspects of trust planning and administration.

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You Direct the Distribution of Your Assets An estate plan allows you to direct how your assets will be distributed at your death. Without an estate plan, your assets will be distributed in accordance with a statutory scheme called intestacy. Intestacy neither considers personal preferences nor allows for special circumstances. It can also be more time consuming and costly for your surviving family members. Planning for Disability During Your Lifetime An estate plan not only says who gets what when you pass, but in the case of the power of attorney and trust, it can help avoid a conservatorship proceeding if you become incapacitated. A conservatorship is a legal proceeding whereby the court appoints a person to manage the finances and assets of another person who is deemed physically, medically, or psychologically unable to care for themselves. Likewise, through an advance health-care directive, you can avoid the need for a guardianship, which—like a conservatorship—is a legal proceeding whereby the court appoints a person to manage the general care of another person who is deemed unable to do so themselves. Both processes—a guardianship and conservatorship—can be long, expensive, and cumbersome. Avoid Probate and Maintain Privacy If your assets do not pass through a revocable trust, are not held in joint tenancy with the right of survivorship, or do not have a beneficiary designation, they will pass through a courtsupervised procedure called probate. For many individuals, probate proceedings are more time-consuming and expensive than creating an estate plan. Probate also requires the disclosure of personal information—including a person’s assets, outstanding debts and expenses, terms of a will (if applicable), and heirs-at-law—in public filings. Asset Protection to Beneficiaries Depending on how the plan is drafted, an estate plan can protect against losing assets to creditors and/or disgruntled or former spouses or your children. This is typically accomplished by holding assets in trust for the benefit of the spouse and/or children, with restrictions on how the funds can be utilized and language to direct that the assets not be considered marital assets or subject to creditor claims, including spendthrift provisions. Guidance Dealing with a death is challenging. If you pass without an estate plan, your surviving family members must figure out how to handle your affairs on their own, often guessing at your preferences. An estate plan allows you to plan in advance to guide your loved ones through this process.

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Basic Estate Planning Documents Everyone needs at least three (and usually four) estate planning documents: (1) a durable power of attorney, (2) an advance health-care directive, (3) a will, and (4) a revocable living trust. The next section provides an overview of each document—what it does and why it is important. Durable Power of Attorney A durable power of attorney designates an individual, who is called your agent, to make decisions regarding your property. Through a durable power of attorney, your agent may act and sign documents on your behalf. That said, your agent only has the powers that you specifically grant them. Such powers can be limited (e.g., allowing control only over specified assets) or broad (e.g., allowing control over all of your assets, or granting the ability to alter your estate plan or make gifts). Your durable power of attorney can be written to be effective immediately or only upon your incapacity (the latter generally being called a “springing power”). Because an agent acting under a broad durable power of attorney can perform most of the functions of a conservator, this instrument can be used to avoid the need for a conservatorship proceeding. In 2010, Hawaii enacted the Uniform Power of Attorney Act (“UPOA”), which includes default provisions and affords protections to third parties in accepting a power of attorney.1 The UPOA also includes a statutory form power of attorney, which can be found at Section 551E-51.2 However, a durable power of attorney does not control assets held in a revocable living trust. Thus, a trust will typically contain provisions that allow a successor trustee to control such assets in the event you are incapacitated. Advance Health-Care Directive An advance health-care directive is used as both a durable power of attorney and a so-called “living will.” As a durable power of attorney, this document can designate agents to make health-care decisions for you if you are no longer able to effectively communicate with your doctors. In turn, you can use this document to avoid the need to appoint a guardian if you become incapacitated. As a “living will,” this document can state whether you want your health-care provider to prolong your life using artificial life-sustaining procedures after you have lost the ability to communicate due to an incurable or irreversible physical or mental condition. You can require that all medical procedures be used to keep you alive, refuse all medical procedures, or customize the amount of medical care to be used. You can also designate whether you would like to donate your organs and specify the uses for such a donation.

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Will A will directs the distribution of your assets at your death. While a will does not avoid probate, it gives you more control over what happens at your death by allowing you to deviate from intestacy.3 In addition, you can use a will to exercise powers of appointment, nominate guardians for children or incapacitated relatives, and even establish trusts to control property in the future. You can modify, amend, or revoke your will at any time prior to your death. Even if you have a revocable trust, you need a will to direct that any assets remaining in your individual name at death be transferred to your trust. A will can also be used to exercise certain rights—such as nominating a guardian for your child—that cannot be exercised through a trust. Revocable Living Trust A revocable living trust (“RLT”) is a very common arrangement that can avoid probate and conservatorship proceedings, while incorporating many tax-savings provisions. An RLT gives the individual greater control over the administration and distribution of their assets and will frequently continue in effect after death. It is normally structured to take advantage of the basic estate-tax savings steps. An RLT is a contract with three parties: a settlor (who sets it up), one or more trustees (who manage and distribute the trust assets), and one or more beneficiaries (who get the benefit of the trust). In many cases, the settlor, trustee, and initial beneficiary are all the same person. A successor trustee is named in the trust to take over if the settlor/trustee dies or becomes incapacitated. Once the settlor dies, the trust normally is distributed to or held for the benefit of family members. While both a will and RLT can direct the distribution of your assets, an RLT has some distinct advantages. As a

contract, an RLT provides privacy (unlike a will, which becomes a public document). Being revocable, it can be amended very easily at any time while the settlor is alive (without the formalities of a will). Because it avoids probate on the assets in the trust (unlike a will), your estate will be settled much more quickly as your assets will be distributed to your beneficiaries without being tied up in probate. Although an RLT normally costs more than a will to establish and takes more effort to transfer assets into the trust’s name, the savings of money and time by the avoidance of conservatorship and probate proceedings and tax planning usually results in significant savings over time. Having these three (or four) estate planning documents in place will ensure that you are protected and that your loved ones are taken care of in the event that something happens to you. Once you have these documents in place, it is important to review them every few years to ensure that they still accurately reflect your wishes and that no amendments are needed in light of changes to estate planning law or in your own personal circumstances. Having gone over the benefits of having a trust, the next section provides an overview of a recent change to estate planning laws in Hawai‘i—the enactment of the UTC. ADOPTION OF THE UNIFORM TRUST CODE Effective January 1, 2022, Hawai‘i joined 34 other states and the District of Columbia in adopting the UTC. The UTC codifies the law of trusts, bringing together various pre-existing statutes, common law principles, and restatement of law concepts under one statutory umbrella. It also repeals existing duplicative

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govern a trust, notice provisions, and rules governing the trust’s principal place of administration. Section 103: Definitions Of particular note in Section 103 is the term “qualified beneficiary”, which is defined as follows:

statutes—the Uniform Trustee’s Powers Act, Uniform Prudent Investors Act, and Article VII (Trust Administration) of the Uniform Probate Code (“UPC”). Importantly, the UTC provides greater clarity and certainty to various areas of trust law. The UTC is primarily a default statute, meaning that—with the exception of certain UTC provisions—the terms of a trust can override the UTC. But where the trust is silent or fails to sufficiently address an issue, the UTC can provide guidance and procedures on that issue. It is important for all practitioners— those who practice in, or in areas ancillary to, trusts and estates, and practitioners who have estate plans—to understand what this new law means going forward in interpreting and administering trusts. Accordingly, in the following sections, we provide a brief overview of each UTC article adopted in Hawai‘i and highlight some key changes to the preexisting Hawai‘i law on trusts.4 ARTICLE 1: GENERAL PROVISIONS AND DEFINITIONS Article 1 of the UTC addresses the scope, definitions, sources of law that

“Qualified beneficiary” means a beneficiary who, on the date the beneficiary’s qualification is determined: (1) Is a distributee or permissible distributee of trust income or principal; (2) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subsection (1) terminated on that date without causing the trust to terminate; or (3) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date. Hawai‘i Revised Statutes (“HRS”) § 554D-103. Thus, the term “qualified beneficiary” includes both current beneficiaries (i.e., beneficiaries who are presently entitled to receive a distribution from the trust) and “first-line” remainder beneficiaries (i.e., beneficiaries who would be eligible to receive a distribution if an event triggering the end of a current beneficiary’s interest or of the trust itself—such as the current beneficiary’s death—were to occur on the date in question). Hawai‘i previously did not have a term that included “first-line” remainder beneficiaries. The definition of a “qualified beneficiary” becomes important as it applies to many later sections of the UTC regarding who is entitled to notice in trust proceedings and otherwise and who must provide consent in certain instances. For example, under Section 554D-705,

“qualified beneficiaries” are entitled to notice when a trustee resigns.5 Section 554D-813 requires a trustee to keep “qualified beneficiaries” informed about the trust’s administration.6 Under Section 554D-417, a trustee must notify “qualified beneficiaries” when a trust is combined or divided.7 Finally, Section 554D-704 provides that “qualified beneficiaries” can appoint a successor trustee by unanimous consent.8 Under prior law, many of these rights with respect to remainder beneficiaries were either unclear or conflicting. Section 105: Default and Mandatory Rules Section 105 is also an important section to be aware of because it provides the types of actions or provisions that cannot be overridden by the terms of the trust. These are: (1) The requirements for creating a trust;

(2) The duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries; (3) The requirement that a trust and its terms be for the benefit of its beneficiaries as their interests are defined by the terms of the trust and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve; (4) The power of the court to modify or terminate a trust under sections 554D-410 through 554D-416; (5) The effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in part V; (6) The power of the court under section 554D-702 to require, dispense with, or modify or terminate a bond; (7) The power of the court under section 554D-708(b) to adjust a trustee’s compensation, specified in the terms of the trust, that is unreasonably low or high; (8) The duty under section 554D-

813(c)(2) and (3) to notify qualified beneficiaries of an irrevocable trust of the existence of the trust, of the identity of the trustee, and of their right to request trustee reports; (9) The duty under section 554D813(b) to respond to the request of a qualified beneficiary of an irrevocable trust for trustee reports and other information reasonably related to the administration of a trust; (10) The effect of an exculpatory term under section 554D-1008; (11) The rights under sections 554D1010 through 554D-1013 of a person other than a trustee or beneficiary; (12) Periods of limitation for commencing a judicial proceeding; (13) The power of the court to take action and exercise jurisdiction as may be necessary in the interests of justice; and (14) The subject matter jurisdiction of the court and venue for commencing a proceeding, as provided in sections 554D-203 and 554D-204. HRS § 554D-105(b). Otherwise, as

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previously noted, the UTC is a default statute and, where the terms of a trust depart from the UTC, the terms of the trust generally control. Section 111: Nonjudicial Settlement Agreements The UTC also codifies nonjudicial settlement agreements (previously nonexistent under Hawai‘i law), allowing for such agreements if they do not violate a material purpose of the trust and would otherwise be properly approved by a court. HRS § 554D-111(a)-(b). The UTC contains a non-exhaustive list of various matters that may be resolved by a nonjudicial settlement agreement, including, but not limited to: (1) The interpretation or construction of the terms of the trust; (2) The approval of a trustee’s report or accounting; (3) Direction to a trustee to refrain

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from performing a particular act or the grant to a trustee of any necessary or desirable power; (4) The resignation or appointment of a trustee and the determination of a trustee’s compensation; (5) Transfer of a trust’s principal place of administration; and (6) Liability of a trustee for an action relating to the trust. HRS § 554D-111(c). Article 2: Judicial Proceedings Article 2 of the UTC contains the rules governing court proceedings regarding trusts, such as issues of personal and subject matter jurisdiction. This article repeals and replaces Article VII (Trust Administration) of the UPC. Article 3: Representation Article 3 of the UTC concerns the representation of beneficiaries, either through fiduciaries or virtually through

other third parties. Section 303 is of particular note. Under this section, where there is no material conflict of interest, a trustee may represent and bind the beneficiaries of a trust (Section 554D-303(4)); a personal representative of an estate may bind persons with an interest in the estate (Section 554D-302); and parents may bind their minor children (Section 554D-303(6)). The latter provides a clear mechanism to determine which parent may represent and bind a minor child: A parent may represent and bind the parent’s minor or unborn child if a conservator or guardian for the child has not been appointed. The parent entitled to represent and bind the child is determined in the following order of priority: (A) The parent who is a lineal descendant of a settlor;

(B) The parent who is a beneficiary of the trust that is the subject of the representation; (C) The parent with legal custody of the child; and (D) If one parent cannot be determined pursuant to the preceding criteria and if a disagreement arises between the parties seeking to represent the same child, a guardian ad litem shall be appointed to represent the minor child[.] HRS § 554D-303(6). Such a mechanism was missing from prior Hawai‘i law. Article 4: Creation, Validity, Modification, and Termination of Trust Article 4 covers the requirements for creating, amending, and terminating trusts. Notable in this Article are Sections 407, 411 and 413.

Section 407: Evidence of Oral Trust (and also Missing Trusts) Section 407 governs requirements to prove the existence of oral trusts. Consistent with Hawai‘i common law, subsection (a) provides that a person may create and establish an oral trust by clear and convincing evidence.9 HRS § 554D407(a). Section 407 also provides a mechanism to establish a missing trust and its terms—an issue not previously addressed by any existing Hawai‘i statute or case law. Under subsection (b), a person may establish a missing trust and its terms by clear and convincing evidence, or in the absence of such evidence, by court order.10 HRS § 554D-407(b). Section 411: Modification or Termination of Noncharitable Irrevocable Trust by Consent Historically, the probate court has considered requests to modify or terminate

irrevocable trusts, but no Hawai‘i statute expressly permitted such modifications or terminations. Section 411 fills this gap. Under subsection (a), an “irrevocable trust may be modified or terminated upon consent of the settlor and all beneficiaries even if the modification or termination is inconsistent with a material purpose.” HRS § 554D-411(a). Under subsection (b), the court can approve a modification or termination of an irrevocable trust “upon consent of all of the beneficiaries,” provided that the modification or termination “is not inconsistent with a material purpose of the trust.” HRS § 554D-411(b). Subsection (e) provides a mechanism for the court to approve the termination of a trust if less than all beneficiaries agree: If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection

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(a) or (b), the modification or termination may be approved by the court if the court is satisfied that:

HRS § 554D-413(c); HRS § 554D-413 cmt. (2022).

(1) If all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and

Article 5: Creditor’s Claims; Spendthrift and Discretionary Trusts Article 5 confirms the validity of spendthrift provisions and exceptions to those provisions in trusts. Spendthrift clauses are provisions commonly incorporated in trusts that prevent a trust beneficiary from using a future distribution or interest as collateral to secure credit. Sections 502-505 are briefly discussed below.

(2) The interests of a beneficiary who does not consent will be adequately protected. HRS § 554D-411(e). Finally, subsection (c) clarifies that a spendthrift provision could be a material purpose of the trust by making this issue a “question of fact.” HRS § 554D-411(c). According to the Hawai‘i Committee, which helped draft the version of the UTC Hawai‘i adopted, this subsection aims to preserve and protect the settlor’s intent notwithstanding the beneficiaries’ desires. HRS § 554D-411 cmt. (2022). Section 413: Cy Pres Section 413 concerns a court’s authority to apply the cy pres doctrine. The cy pres doctrine is a principle of law that courts use to save a charitable trust from failing when a charitable objective becomes impracticable or impossible to fulfill as written. The UTC adopted in Hawai‘i contains an additional exception to the application of cy pres: cy pres does not apply where the trust “expressly provides an alternate disposition.” HRS § 554D-413 cmt. (2022). Moreover, this section clarifies that “[a] general residuary disposition by trust” is not “an express provision for an alternate disposition.” HRS § 5543D-413; HRS § 554D-413 cmt. (2022). Consistent with Hawai‘i common law, this section also makes clear that the court may not apply cy pres until all alternate dispositions have failed. Id. Finally, subsection (c) codifies the Hawai‘i common law requirement that the attorney general “be notified and given an opportunity to be heard” in all cy pres proceedings.

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Section 502: Spendthrift Provision Section 502 confirms a settlor’s ability to use a spendthrift provision to prevent a beneficiary from transferring their interest to another. HRS § 554D-502(a). A spendthrift provision must restrain both voluntary transfers (e.g., assignments) and involuntary transfers (e.g., creditor claims) of a beneficiary’s interest. Id. In this way, this provision can be used to prohibit a beneficiary’s creditor from attaching or compelling a distribution of the trust assets to satisfy the creditor’s claim. HRS § 554D-502(a), (c). Section 503: Exception to Spendthrift Provision and Section 504: Discretionary Trusts; Effect of Standard Sections 503 and 504 codify exceptions to spendthrift protection for (1) a court order for the support and maintenance of a beneficiary’s child, spouse, or former spouse; (2) a beneficiary’s judgment creditor, who has provided services to protect the beneficiary’s interest in the trust; and (3) a claim of the state or federal government. HRS §§ 554D-503 – 554D-504. Section 505: Creditor’s Claim against Settlor Under subsection (a)(3), a trust that was revocable until the settlors’ death is

subject to claims of the settlor’s creditors even if the trust includes a spendthrift provision. HRS § 554D-505(a)(3). Previously, Hawai‘i statutory law had not explicitly stated this. Article 6: Revocable Trusts Although Article 6 is relatively short, it is significant in that it addresses issues surrounding revocable trusts that were not settled (and in some cases not even addressed) under prior law. Among other things, Article 6: (a) specifies a standard of capacity in order to revoke, amend, and create a revocable trust; (b) establishes presumptions regarding revocability or irrevocability; (c) provides a procedure for revocation or amendment; (d) addresses the rights of beneficiaries while the settlor is alive; and (e) provides ultimate time limits on contesting the terms of a revocable trust after the settlor’s death. Sections 601 and 604 are discussed below. Section 601: Capacity of Settlor of Revocable Trust Not every state that adopted the UTC adopted Section 601. In Hawai‘i, this section was adopted with modifications and states as follows: The capacity required to create or add property to a revocable trust is the same as that required to make a will. Unless otherwise altered by the terms of the trust pursuant to section 554D-602(c), the capacity required to amend, revoke, or direct the actions of the trustee of a revocable trust is also the same as that required to make a will. HRS § 554D-601. Thus, consistent with Hawai‘i common law, the same capacity required to make a will is required to make a trust. HRS § 554D-601. This section also makes clear that the capacity required to create and add property to a revocable trust may differ from the capacity

required to amend, revoke, or direct the actions of the trustee of a revocable trust. HRS § 554D-601 cmt. (2022). For example, if, in the terms of the trust, a settlor wishes to require a higher level of capacity to amend or revoke the trust or to direct the actions of the trustee, those terms will control. Id. Section 604: Revocation or Amendment of Revocable Trust Section 604 is especially significant in that it—for the first time—establishes a statute of limitations for contesting the validity of a revocable trust: five years from the settlor’s death or 90 days after being provided a copy of the trust instrument, whichever occurs first. HRS § 554D-604(a). This statute of limitations is consistent with that of will contests under HRS § 560:3-108. HRS § 554D-604 cmt. (2022). Article 7: Office of Trustee Article 7 provides the process for getting a trustee into office, the duties of co-trustees, the appointment of successor trustees, and the removal of trustees.

DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES

The Department of the Prosecuting Attorney, City and County of Honolulu, is looking to fill vacant deputy prosecuting attorney positions at all experience levels. Applicants must be licensed to practice law in the State of Hawaii and in good standing before the Hawaii Supreme Court at the time of hire. Those waiting for bar exam results are encouraged to apply. The ideal applicant should have strong analytical skills, be comfortable with both oral and written communications, exhibit high ethical standards, and show a commitment to public safety. Salaries start at $75,588. Great benefits package including pension, health coverage, and defined-contribution plans.

The Department is also recruiting law clerks who intend to take the bar exam in February 2022. Law clerks would be in excellent position to be hired as deputy prosecuting attorneys upon passage of the bar exam. Salary is $50,880. Position comes with full benefits.

To apply, please visit our website at: https://www.honoluluprosecutor.org/employment-opportunities.

Section 703: Co-trustees Subsubsection (a) allows co-trustees to “act by majority decision” if they “are unable to reach a unanimous decision after consultation.” HRS § 554D-703(a). By requiring “consultation,” this subsection prevents the majority of co-trustees from acting without informing the minority. HRS §554D-703 cmt. (2020). Notably, subsubsection (e) allows a co-trustee to recuse him or herself from a transaction if the co-trustee has a conflict of interest and permits the other cotrustees to act on behalf of the trust with respect to the conflicted transaction. HRS § 554D-703(e). Hawai‘i statutes did not previously address this situation. Section 709: Reimbursement of Expenses Subsection (a) states as follows: A trustee or designated trustee who acts in good faith is entitled to

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reimbursement out of the trust property, with interest as appropriate, for: (1) Expenses that were properly incurred in the administration of the trust, including the defense or prosecution of any action, whether successful or not, unless the trustee is determined to have wil[l]fully or wantonly committed a material breach of trust; or (2) To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust. HRS § 554D-709(a). This subsection allows trustees—and “designated” trustees—to be reimbursed if they “act[] in good faith.” Id. In other words, a designated trustee, who acts to benefit the beneficiaries, is entitled to reimbursement, regardless of whether he or she later become trustee. HRS § 554D-709 cmt. (2022). Subsubsection (a)(1) modifies the Intermediate Court of Appeal’s holding in Estate of Camacho, 140 Haw. 404, 400 P.3d 605 (Ct. App. 2017). In that case, the court held that nominated personal representatives were not entitled to attorneys’ fees in a will contest where they were unsuccessful because their attorney had been retained on a contingency fee basis. Camacho, 140 Haw. at 412, 400 P.3d at 613. Under this subsubsection, a trustee, who “acts in good faith” and does not “wil[l]fully or wantonly commit[] a material breach of trust,” may be reimbursed for expenses incurred while defending or prosecuting an action to protect the trust estate, regardless of the success of the action. See HRS § 554D709(a)(1). According to the Hawai‘i Committee, this subsection prevents trustees from “suffer[ing] a hardship simply for zealously protecting the settlor’s intent and the trust estate.” HRS § 554D-709 cmt. (2022).

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Article 8: Duties and Powers of Trustee Article 8 concerns the fundamental duties and powers of a trustee, such as the duty of loyalty and the duty to account to the trust beneficiaries. This Article repeals and replaces the Uniform Prudent Investors Act and thus it should be reviewed in its entirety. In the interest of brevity, however, only Section 813 is discussed below. Section 813: Duty to Inform and Report Consistent with Hawai‘i law, Section 813 confirms that, during a settlor’s lifetime, a trustee has no duty to inform or report to contingent remainder beneficiaries, whose interests do not vest until the settlor’s death. HRS § 554D-813 cmt. (2022). This duty is owed solely to the settlor. HRS § 554D-813(a). If, however, the settlor becomes incapacitated, the trustee may provide information and

reports to certain individuals on the settlor’s behalf. Id. These individuals are listed in order of preference in subsubsection (a): (1) The person or persons designated by the settlor in the trust to receive information and reports on the settlor’s behalf; (2) The settlor’s conservator; (3) The settlor’s guardian; (4) The settlor’s agent under durable power of attorney; or (5) The settlor’s spouse; provided that the spouse is a beneficiary under the trust. HRS § 554D-813(a)(1)-(5). The Hawai‘i Committee adopted this subsection, recognizing that an incapacitated settlor would lack the ability to effectively monitor the actions of the successor trustee. HRS § 554D-813 cmt. (2022). Additionally, under subsection (d), a trustee only has a duty to account to

qualified beneficiaries—not more remote beneficiaries—after the settlor’s death. HRS § 554D-813(b). Subsection (f) clarifies that a trustee may charge a reasonable fee for providing information requested by a qualified beneficiary. HRS § 554D-813 cmt. (2022). Finally, subsections (g) and (f) repeal and replace Section 554-4, covering requirements for filing periodic accountings with the court where the court or trust requires such accountings. Id. Article 9: Uniform Prudent Investor Act Hawai‘i previously enacted the Uniform Prudent Investor Act under HRS Chapter 554C. The Hawai‘i Committee repealed this act and reenacted the Uniform Law Commission’s version of this act in Article 9. Article 10: Liability of Trustees and Rights of Persons Dealing with Trustee Article 10 governs remedies for breaches of trust, the determination of damages, awards of attorneys’ fees, and potential defenses. The provisions under this article give the court broad discretion to determine whether and to what extent a trustee’s breach of trust warrants an award of damages. This article also provides for a new truncated version of the trust (called a Certification of Trust) to be provided to third parties in lieu of providing the entire trust document. Sections 1004, 1005, and 1013 are discussed below. Section 1004: Attorneys’ Fees and Costs Under Section 1004, the court has discretion to award attorneys’ fees and costs to “any party” in a trust proceeding “who has acted in the best interest of the trust as a whole”—even if that party does not ultimately prevail. HRS § 554D1004(a). Consistent with Section 709, this modifies the holding of Camacho and allows a trustee or nominated trustee, who

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acted in good faith when bringing or defending an action, to collect reasonable attorneys’ fees and costs even if counsel was engaged on a contingency basis and regardless of the success of the action. HRS § 554D-1004 cmt. (2022). While this section departs from current Hawai‘i case law, it ensures that beneficiaries are able to retain counsel in what may become prolonged litigation. Id. Section 1005: Limitations on Action Against Trustee Before the adoption of the UTC, there was no statute of limitations for actions against trustees. HRS § 554D-1005 cmt. (2022). Section 1005 fills this gap. If the trustee provides a report to the beneficiary that adequately discloses the facts giving rise to the potential claim, then the beneficiary must file the breach of trust claim within one year or the claim is barred. HRS § 554D-1005(a). If no such report is provided, then the beneficiary has three years from either the resignation of the trustee, the termination of the beneficiary’s interest, or the termination of the trust itself, whichever occurs first, to bring the claim. HRS § 554D-1005(c). Section 1013: Certification of Trust Under the UTC, a trustee may provide a certification of trust, in lieu of a complete copy of the trust instrument, to third persons other than the beneficiaries (e.g., financial institutions). HRS § 554D1013(a). The certification of trust contains the basic information of the trust. See id. It essentially takes the place of the short form trust. See id. However, unlike the short form trust, the certification of trust limits the liability of persons acting in reliance on this certification: (f) A person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect shall not be liable to any person for so acting and may assume without inquiry

the existence of the facts contained in the certification. Knowledge of the terms of the trust shall not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying upon the certification.

may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair rights of any beneficiary or adversely affect achievement of the purposes of the trust.” HRS § 554D-417 states (emphasis added). 8

(g) A person who in good faith enters into a transaction in reliance upon a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct. HRS § 554D-1013(f)-(g). CONCLUSION A lot has changed during these last few years, and a lot seems uncertain moving forward. This article provides guidance on the recent changes to trust law in Hawai‘i and on what estate planning documents to have in place to prevent unpleasant surprises. ___________________ 1

Hawai‘i Revised Statute (“HRS”) Chapter 551E. 2 HRS § 551E-51. 3 For a more detailed overview of intestacy and the probate process generally, see HRS § 560:2101 to HRS § 560:3-1215. 4 Please note that this article is not meant to provide an exhaustive summary of all the provisions of the UTC or changes to Hawai‘i law on trusts (such an endeavor would not be possible given the constraints of this article), but rather highlight certain sections the authors felt were particular relevant or helpful for the readers to know. 5 “A trustee may resign: For an irrevocable trust, upon at least thirty days’ notice to the qualified beneficiaries, the settlor, if living, and all cotrustees or, if none, to the designated successor trustee or trustees[.]” HRS § 554D-705(a)(2) (emphasis added). 6 After the settlor’s death, a trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a qualified beneficiary’s request for information related to the administration of the trust.” HRS § 554D-813(b) (emphases added). 7

“A vacancy in a trusteeship of a noncharitable trust that is required to be filled shall be filled in the following order of priority: By a person selected by unanimous agreement of the qualified beneficiaries[.]” HRS § 554D-704(c)(2) (emphasis added). 9 “Except as required by law other than this chapter, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms, including any amendments thereto, may be established only by clear and convincing evidence.” HRS § 554D-407(a). 10

Except as required by law other than this chapter, a trust need not be evidenced by a trust instrument, but the establishment of a missing trust and its terms may be established by clear and convincing evidence. In the absence of clear and convincing evidence to establish the existence or terms and provisions of a missing trust, the existence of or the terms and provisions of a missing trust may be established by court order; provided that, in the circumstances and upon appropriate notice, it would be fair and equitable to do so. This section does not preclude a court from ordering relief otherwise allowed by law.

HRS §554D-407(b).

Summer G. Shelverton is a partner at Cades Schutte. She concentrates her practice in the areas of estate planning, probate and trust administration, conservatorship and guardianship proceedings, and trust and estate disputes. She regularly speaks on emerging laws and was part of the drafting committee for Hawai‘i’s new Uniform Trust Code. Janine M. Yim is an associate in the firm’s Trusts & Estates and Litigation departments. Before joining Cades Schutte, she clerked for the Honorable Chief Justice Recktenwald of the Hawai‘i Supreme Court. She earned her law degree from the University of California, Berkeley, School of Law.

“After notice to the qualified beneficiaries, a trustee

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COURT B RIEF S A Place of Hope and Promise: Affordable Housing, Juvenile Services at Hale Kalele

Supreme Court of Japan Associate Justice at the Hawaii Supreme Court

Hawaii Supreme Court Chief Justice Mark Recktenwald joined Governor David Ige, Senator Sharon Moriwaki, Honolulu City Councilmember Carol Fukunaga, representatives from the Kobayashi Group, and special guests on May 5 to celebrate the grand opening of Hale Kalele. “When we broke ground here several years ago, the property had fallen into disrepair. Now, it is a place of hope and promise,” said Chief Justice Recktenwald. Built on the site of the former Alder Street Juvenile Detention Center, the new mixed-use facility serves two vital community needs. The first is to provide probation services and shelter for at-risk youth to keep them out of the justice system and assist them in becoming productive citizens. The second is the creation of 200 much-needed affordable rental housing units in the urban core, which serve families earning no more than 60 percent of the area median income. The project is the result of a partnership between the Hawaii State Judiciary and the Hawaii Housing Finance and Development Corporation to maximize public benefit from scarce government-owned land. On the Alder Street side of the facility is Hale Hilinai, which will be home to Youth Treatment Courts that provide intensive treatment and assistance and serve as a temporary, but stable home for youth who need shelter and support services. Additionally, the center will provide space for programs such as tutoring and counseling. Kobayashi Group representatives B.J. Kobayashi, Patrick Kobayashi, Bert Kobayashi Sr., and Alana Kobayashi Pakkala assisted Governor Ige, First Lady Dawn Amano-Ige, Chief Justice Mark Recktenwald, and Kahu Kordell Kekoa with untying the lei to open the building.

The Hawaii Supreme Court hosted a special presentation featuring the Honorable Katsuya Uga, Associate Justice of the Supreme Court of Japan, on May 3. The event was part of the court’s ongoing partnership with the University of Hawaii William S. Richardson School of Law Jurist-in-Residence Program, which provides unique opportunities for law school students and faculty to engage with judges from around the world. Justice Uga, the program’s 2022 Bright International Jurist-in-Residence, participated in the event from Japan. He held a question-and-answer session with Hawaii State Bar Association (HSBA) International Law Section representative Rex Fujichaku, Pacific-Asian Legal Studies Program Director Mark Levin, Consul Aya Kamakura, Associate Justice Todd W. Eddins, Chief Justice Mark Recktenwald, Associate Justice Sabrina S. McKenna, William S. Richardson School of Law Dean Camille Nelson, Consul General Yutaka Aoki of the Consulate General of Japan in Honolulu, and Associate Justice Michael D. Wilson. They discussed current events, legal education, and legal practices in Japan and Hawaii. The public was invited to the Hawaii Supreme Court courtroom for Justice Uga’s presentation on the system of justice in Japan. University of Hawaii law students, HSBA members, including the International Law Section, and court staff took advantage of this opportunity to enhance their understanding of Japan’s legal system.

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H SBA HAP PE NIN GS 2023 HSBA Board Nominees In accordance with Article VII, Section 3, of the HSBA Constitution and Bylaws, a committee has made nominations for officer and director positions of the HSBA Board and publishes its list of nominees below. Ballots will be distributed in early to mid-September, and the election results will be announced in mid-October. HSBA members of active status may also be nominated by written petition signed by at least 20 regular members and submitted to the HSBA Board Secretary at 1100 Alakea Street, Suite 1000, Honolulu, HI 96813, or elections@hsba.org, within fifteen days of the publication date (i.e., the date this issue is received at the HSBA office). Vice President Mark M. Murakami Secretary Lanson Kupau Treasurer Alika Piper Director: East Hawaii Geraldine Hasegawa Director: Maui (1) Naomi Kusachi Jacob Lowenthal Director: Oahu (6) Steven Chow Vladimir Devens Ronette Kawakami Erin Kobayashi Paul Naso Zale Okazaki Ellen Swick

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Naomi Masuno for business matters at (808) 694-8332 and Amy Miller for consumer matters at (808) 694-4716. Central Pacific Bank Central Pacific Bank is pleased to offer HSBA members exclusive status as a client of the Specialized Markets team. This team specializes in servicing specific industries and works in partnership with clients to help them succeed by combining financial expertise with industry knowledge and insights. For specialized service tailored to your needs from a team ready to work for you, call (808) 544-3602 or email specializedmarkets@centralpacificbank.com. Hawaii State Federal Credit Union HSBA members are eligible for membership with Hawaii State Federal Credit Union. Hawaii State FCU offers low rates on business loans and lines of credit, mortgages, home equity lines of credit, auto loans, and personal loans. Additional services include free EChecking accounts, surcharge-free access to over 400 ATMs statewide, free online and mobile banking, and much more. Call (808) 587-2700 or (888) 5861056 (toll free) for more information. Honolulu Payroll Honolulu Payroll LLC was founded to provide local service and support to small business owners. Honolulu Payroll does all that is required as a business with employees to maintain 100% compliance. From labor laws to taxes and making sure your employees are paid on time, Honolulu Payroll can do it all with a single-point-of-contact approach. They are excited to team up with HSBA (Continued on page 29)

CAS E NOTES Supreme Court Criminal State v. Jardine, No. SCWC-200000153, April 29, 2022, (Nakayama, J.). The Hawaii Supreme Court determined whether a charging document alleging that a defendant committed second-degree assault by intentionally, knowingly, or recklessly causing substantial bodily injury must provide the defendant with the statutory definition of “substantial bodily injury.” Where the definition of an offense includes generic terms, it must state the species and descend to particulars. Here, the term “substantial bodily injury” is a generic term. A charging document must therefore identify the species of “substantial bodily injury” alleged and provide a defendant with particulars. The ICA therefore correctly determined that the State of Hawaii should have provided the statutory definition of “substantial bodily injury” in the charging document at issue. Election Hicks v. The 2021 Hawaii Reapportionment Commission and Its Members, No. SCPW-22-0000078, May 9, 2022, (Eddins, J. with McKenna, J. concurring separately and dissenting, with whom Wilson, J., joins; and Wilson J., also dissenting separately). Article IV of the Hawaii Constitution concerns reapportionment, the process through which the state’s legislators are distributed and its political districts redrawn. It provides that every ten years a nine-member reapportionment commission (the “commission”) shall determine the total number of state representatives to which each basic island unit is entitled. Haw. Const. art. IV, §§ 1, 2 & 4. This determination is made “using the total number of permanent residents in each of the basic island units” and with the “method of equal proportions.” Id. Once the commission determines how many representatives

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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. each basic island unit is entitled to, it must apportion those representatives within the basic island units. Id. at § 6. If there have been population shifts in the decade since the last reapportionment, the commission must redraw district lines to ensure that the “number of permanent residents per member in each district is as nearly equal to the average for the basic island unit as practicable.” Id. The commission is also tasked with redrawing congressional district lines. Id. at § 9. Article IV, section 6 provides eight criteria that the commission “shall be guided by” in effecting redistricting. The sixth is that: “[w]here practicable, [state] representative districts shall be wholly included within [state] senatorial districts” (the constitutional district within district guideline). Id. at § 6. Hawaii Revised Statutes § 25-2(b)(5) (Supp. 2021) (the statutory district within district guideline) similarly requires that “[w]here practicable, state legislative [representative and senatorial] districts shall be wholly included within [U.S.] congressional districts.” On January 28, 2022, the 2021 Hawaii commission approved the 2021 Final Legislative Reapportionment Plan (“the Plan”). The Plan places 33 of 51 house districts (64.7%) into two or more senate districts. It also places four Oahu house districts and five Oahu senate districts into both U.S. congressional districts. Petitioners, who are registered voters in the State of Hawaii, argued that the Plan was invalid because it does not give adequate effect to article

I, section 6’s guidance that “[w]here practicable, representative districts shall be wholly included within senatorial districts.” See Haw. Const. art. IV, § 6. They also argued that the Plan violated Haw. Rev. Stat. § 25-2(b)(5) by placing nine Oahu legislative districts into both congressional districts. Petitioners said they submitted two plans to the commission that not only complied with the district within district guidelines, but also had a lower average per-district population deviation than the Plan. Petitioners said the Commission could have complied with Article IV, Section 6 and Haw. Rev. Stat. § 25-2(b)(5), it just did not want to. Petitioners also argued that less than perfect compliance with one of the district within district guidelines may only be justified by the need to comply with the other constitutional and statutory guidelines that govern reapportionment. The commission said it satisfied its obligations under Article IV, Section 6 and Haw. Rev. Stat. § 25-2(b) by considering the constitutional and statutory district within district guidelines (collectively the district within district guidelines) in developing the Plan. It said Petitioners did not demonstrate that the commission abused its discretion in discharging its duties and adopting the Plan. The Hawaii Supreme Court agreed. The constitution and Haw. Rev. Stat. § 252(b) mandate that, in redistricting, the commission “shall be guided” by certain enumerated criteria, among them the district within district guidelines. The commission is not required to give the district within district guidelines any particular effect. Nor is it required to disregard factors other than the criteria enumerated in Article IV, Section 6 or Haw. Rev. Stat. § 25-2(b) in redrawing district lines. So the Commission discharged its obligations under Article IV, Section 6 and Haw. Rev. Stat. § 25-2(b)

by considering the district within district guidelines alongside other policy objectives. And, by extension, the Plan was valid. McKenna, J. concurred and dissented, with whom Wilson, J. joined. McKenna, J. stated that Article IV, Section 6 provides that the commission “shall be guided by” eight enumerated criteria; four are mandatory in all circumstances and four, including the “district within district” provision, are to be applied when “practicable.” The majority endorsed the commission’s approach that all it had to do was “consider” the four non-mandatory criteria and it was not required to effectuate the “district within district” criterion even “where practicable.” The “shall be guided by” preface to the Article IV, Section 6 criteria, however, applies to all eight criteria, including the four criteria the majority acknowledges are mandatory. And the constitution requires that Article IV, Section 6 be effectuated “where practicable.” Hence, in ruling that the commission did not violate constitutional requirements, the majority failed to enforce the constitution’s plain language. It also failed to properly apply other well-established principles of constitutional interpretation. In this opinion, McKenna, J. set out how she believed future reapportionment commissions should construe and apply Article IV, Section 6. Nothing in the majority opinion prohibits future commissions from adopting the approach provided. UIPA Honolulu Civil Beat Inc. v. Department of Att’y Gen., No. SCAP-21-0000057, April 26, 2022, (Eddins, J., with Rectenwald, C.J. concurring in part and dissenting in part, with whom McKenna, J., joins). In 2016, the Department of the Attorney General produced an explosive 555-page report documenting incompetence, deceptive practices, and workplace bullying in the Office of the Auditor (the “Report”). Honolulu Civil Beat, an investigative news organization, had been trying

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Solutions Start Here to get its hands on a copy of that report for over five years. The Hawaii Supreme Court decided whether Hawaii’s public information law—the Uniform Information Practices Act (UIPA)—required the State Attorney General to release the Report to Civil Beat. By and large, it does. Though there are significant privacy interests in the Report as a “personnel-related” record, these interests are mostly outweighed by the public’s overwhelming With the equipmentThere in interest in the Report’s disclosure. p are summaries of formal personnel records, discussions of minor policy inThey could easily and insafely fractions, and remarks about medical p formation in the Report that are exempt from the UIPA’s disclosure requirements. They may be redacted. The names of T rank-and-file employees of the Office of the Auditor and other interviewees may The number of court alsor be redacted. But everything else is fair game for Civil Beat: a smattering of redactions within a government record cannot shield the entire thing from the UIPA’s disclosure requirements. Recktenwald, C.J. concurred in part and dissented in part, joined Because theby annual McKenna, J. Recktenwald, C.J. agreed f with much of the Majority’s analysis, but would accord greater weight to the privacy interests of non-supervisory employees at the Office of the Auditor. Although Recktenwald, C.J. would disclose the bulk of the Department of the Attorney General’s (“DAG”) report, he reached this conclusion only after balancing the significant privacy interests of the employees who, through no fault of their own, were caught up in its investigation. In short, Recktenwald, C.J. agreed with the Majority that the public has a compelling interest in the DAG’s report on the Office of the Auditor to the extent that it sheds light on the DAG’s investigation and the Auditor’s performance of its statutoryTand constitutional duties. However, Recktenwald, C.J. departed from the Majority inasmuch as he concluded that employee-witnesses who were interviewed—that is, those who were not

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subjects of the investigation - had significant privacy interests in the Report’s contents. The Majority’s holding to the contrary is inconsistent with the plain language and purposes of the Uniform Information Practices Act. Recktenwald, C.J. could not agree that employees have only an insignificant interest in personnel-related matters—especially, as here, where those matters are caught up in an employment-misconduct investigation. Because Recktenwald, C.J. concluded that the employee-witnesses have significant privacy interests in the Report, he would balance those interests against the public’s interest in disclosure. See Hawaii Revised Statutes § 92F-14(a) (2012); Org. of Police Officers v. City & Cnty. of Honolulu, 149 Hawaii 492, 505, 494 P.3d 1225, 1238 (2021). There are significant portions of the Report which contain notes of interviews with the employee-witnesses —the details of which are often personal or embarrassing to the individuals discussed. Because the public has only a slight interest in knowing the identity of these individuals, Recktenwald, C.J. would protect their privacy by redacting their positions and professional backgrounds in addition to their names. But given the strong public interest in the substance of what they said, he would otherwise disclose the notes. In sum, the Majority and Recktenwald, C.J. end up in much the same place, but take very different paths in getting there.

“crime” used in the expungement statute has an ordinary meaning, or, whether the Hawaii Penal Code (“Penal Code or Code”) provision in Haw. Rev. Stat. § 701-107(5) that “[a] violation does not constitute a crime,” applied. PlaintiffAppellant Phillip J. Barker (“Barker”) appealed from the (1) Judgment; and (2) Order Denying Plaintiff ’s Motion for Summary Judgment and Granting Defendant’s Motion for Summary Judgment (“Order Granting Summary Judgment”), both entered and filed on March 1, 2021 by the circuit court. On appeal, Barker contends that the circuit court erred in granting Defendant-Appellee Hawaii Criminal Justice Data Center’s (“HCJDC”) Motion for Summary Judgment, in which HCJDC argued that its denial of Barker’s expungement application where Barker was convicted of a violation, was appropriate as a matter of law. The ICA held that based on Barker’s conviction for a disorderly conduct violation, Barker was convicted of a “crime” under Haw. Rev. Stat. § 8313.2(a); Barker was thus ineligible for expungement, and the circuit court did not err in denying Barker’s expungement application. The ICA concluded that the legislative history of the word “crime” in the expungement statute shows that the term was intended to have an ordinary meaning that does include “violations,” even though the terms “crime” and “violation” are separate and distinct under the Penal Code.

Intermediate Court of Appeals Criminal Barker v. Young, No. CAAP-210000098, May 11, 2022, (Nakasone, J.). This appeal considered the application of the expungement statute to a person convicted of a violation. The pertinent statute, Haw. Rev. Stat. § 831-3.2(a) provides that “a person arrested for, or charged with but not convicted of a crime,” is entitled to have his or her arrest record expunged (“expungement statute”). At issue was whether the word

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State v. Lafoga, No. CAAP-200000175, consolidated with State v. Ines, No. CAAP-20-0000589, April 27, 2022, (Nakasone, J.). This consolidated appeal arose out of an underlying September 16, 2015 incident where the complainant Kele Stout (“Stout”) was pistol-whipped, forced to drive at gunpoint, had his phone and wallet taken, then repeatedly beaten, including with a baseball bat, and shot in the face, torso, and buttock. Stout managed to escape and drive himself to

Waianae Comprehensive Health Center, where he received treatment and survived. Plaintiff-Appellee State charged Defendant-Appellant Brandon Fetu Lafoga (“Lafoga”) via a July 20, 2016 Indictment with Attempted Murder in the Second Degree (“Attempted Murder”) in Count 2; Criminal Conspiracy to Commit Murder in the Second Degree (“Conspiracy to Commit Murder”) in Count 3; Carrying or Use of Firearm in the Commission of a Separate Felony (“Use of Firearm in Separate Felony”) in Count 4; Kidnapping in Count 6; and Ownership or Possession Prohibited of any Firearm or Ammunition by a Person Convicted of Certain Crimes (“Felon in Possession”) in Count 8. The State charged DefendantAppellant Ranier Ines (“Ines”) with Accomplice to Attempted Murder in Count 1; Conspiracy to Commit Murder in Count 3; Kidnapping in Count 5; and Robbery in the First Degree in Count 7. Following a jury trial, Lafoga was convicted of Attempted Murder in Count 2, Use of Firearm in Separate Felony in Count 4, and Felon in Possession in Count 8. Ines was convicted of Accomplice to Attempted Murder in Count 1. Following an extended term sentencing jury trial, Lafoga was sentenced to consecutive and extended terms in all counts, including a term of life imprisonment without the possibility of parole. Ines was also sentenced to an extended term of life without parole. The ICA held that the Circuit Court’s modified jury selection procedure of referring to the jurors by number and not by name, and of withholding the jurors’ names and information from the defendants but not from their counsels, did not constitute plain error under the circumstances of this case. The ICA also concluded that the extended sentencing statute, Haw. Rev. Stat. § 706-661(1), applied to Attempted Murder in the Second Degree. As to all other challenges raised by both defendants, the ICA concluded there was no error.

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Notice of Transfer to Interim Inactive Status On May 18, 2022, the Hawai‘i Supreme Court transferred Honolulu attorney Preston A. Gima (Hawai‘i bar number 2710) to inactive status due to incapacity pursuant to the Rules of the Supreme Court of Hawai‘i, Rule 2.19(b) and (c) as he is suffering from an infirmity that prevents him from adequately defending himself in a pending disciplinary matter. Gima is no longer able to act as an attorney for any of his clients, and those clients must seek legal advice elsewhere. Gima, age 69, was admitted to the Hawai‘i bar in 1980 and is a graduate of the University of Hawai‘i, William S. Richardson School of Law.

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ANALYST WANTED OFFICE OF THE STATE AUDITOR is seeking qualified individuals to conduct performance audits and analyses of state agencies and programs. For more information and job description visit: auditor.hawaii.gov

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