Hawaii Bar Journal - January 2021

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BAR JOURNAL A N O FFICIAL P UBLICATION

OF THE

H AWAII S TATE BAR A SSOCIATION JANUARY, 2021 $5.00

Interview with

Levi K. Hookano 2021 HSBA President

TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 1

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

ARTICLES 44

Interview of HSBA President Levi K. Hookano

by Ed Kemper

14 19

Election Contests in Hawaii

by Lance Collins

22 24

Lawyer Impairment and Related Ethical Considerations

by Lennes N. Omuro

HSBA OFFICERS President Levi Hookano President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni

OF NOTE 19

HSBA Happenings

27 20 30

Court Briefs

Treasurer Alika Piper YLD OFFICERS

22 31

Classifieds

President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

Case Notes

28 30 31

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On the cover: Photo by Brett Pruitt, Grass Shack Productions. Brett has been doing commercial photography for over 35 years and has photographed every HSBA president since 1991. With a fully equipped studio in downtown Honolulu, Grass Shack Productions can provide photographic services from headshots to annual reports. Brett@grassshack.net 808-521-1929 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.

Levi K. Hookano INTERVIEW OF HSBA PRESIDENT

importance of honor from Please give my grandfaus your thers. I feel background blessed to have and your such a supeducational portive family history. and extended I was born family. and raised in Growing Pauoa Valley, up I attended on the island of both public Oahu. I would and private not be where I schools, where am today if not I met lifelong for the love and friends and support of my learned life lesfamily. My sons. Looking mom sup2011 YLD Board - Year back, home I was YLD President ported every economics, endeavor that I typing, and JROTC wanted to undertake, were all such important whether it was band, classes to instill life, riflery, or deciding to professional, and go to college on the leadership skills; I mainland. She highly recommend never told me I today’s youth take those could not do classes, as well as any something (well, class that develops within reason). critical thinking.

My dad made I was fortunate to be sure I knew accepted to, and graduwhat it meant ate from Kamehameha to work hard and Schools in Kalihi. I am Fishing in Alaska with Jeff Lau, Captain Kenji Yamada, Mike Dahilig, and Dad John to help others when forever indebted to they needed it, then go a Princess Pauahi for her little bit further for them. My vision to educate so many siblings taught me humility, as Hawaiian children. siblings tend to do. And my grandparents taught me just about After high school, I decided everything about “real life.” They are from the greatest generato venture to the mainland for college, but not too far. I attended tion and experienced some tragic events, with my grandfathers Loyola Marymount University in Los Angeles where I majored both fighting in World War II, one in the Pacific Theater and the in psychology. I made some great friends there, and we formed a other with the famed 442nd Regimental Combat Team in Eukanikapila group, Kulana Kai. We played at the annual luau and rope. I learned compassion from my grandmothers and the even had an opportunity to open for the Makaha Sons (with

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Sistah Robi, Darlene Ahuna, Infantry Division for almost and Sean Naauao) in Refour years, and spent time dondo Beach. I also learned advising the garrison comhow to play taiko with the mander on Kwajalein Atoll of group Kanarazu Daiko and the Republic of the Marshall how to play craps and blackIslands. Most recently, I have jack during a monthly drive served as the Trial Defense from L.A. to Las Vegas.

Counsel for the HIARNG, asAfter graduating from sisting soldiers who are facing college, I returned home to adverse actions. I was proHonolulu and attended the moted to the rank of Major University of Hawaii to earn in the summer of 2019.

Hawaii Army National Guard JAGs, Levi, Dave Lopina, Gerald Takase, a Master’s of Public After a few election cyWinston Ling, Kurt Sherwood and Wife Mayumi Administration. There cles, I left Hilo to return was a part of the proto Honolulu, and worked gram focused on the for the Law School as law. Until that motheir Professional Develment, I never really opment Director, assisting gave law school much students prepare themthought. After speakselves for the “non-acadeing with my financial mic” side of post-law aid counselor, she recschool life. Former Assoommended I take the ciate Dean Laurie LSAT and apply to Tochiki just so happened law school. The rest to need someone to help, is history. so I told her that I would I took the plunge be able to assist before she and applied to only one retired.

CJ’s Kids law school . . . the Around that time, the William S. Richardson new executive director of I began my legal career by serving as School of Law. It was either there, or the HSBA, Pat Mau-Shimizu, reached out the legal specialist for the Office of the nowhere. Amazingly, they accepted my to me and asked if I would like to join the County Clerk on the Big Island. The application and I entered in 2003, the first HSBA Ohana as the Director of ProClerk at the time, Casey Jarman, was also year that Avi Soifer served as Dean. This grams, helping to organize CLEs, the bar my former administrative law professor, was truly one of the best decisions I have convention, and annual dinner. As a staff and I guess she saw something in me made. In 2006, I received my law degree member of the HSBA, you really get to when I took her class. You never know from the William S. Richardson School of know how much time and effort they all when, where, and how opportunities will Law and passed the bar. put in to make sure the members are well present themselves. This opportunity alinformed, how seriously judicial nominalowed me to serve as the attorney for the Please describe your legal career tions are approached, and how many county’s decennial charter commission. for our readers and, if you have a extra hours they put in for our members.

While in Hilo, I met another county specific area of practice.

After a brief three-year stint on active attorney, Gerald Takase, who was also the My legal career is a series of fortuduty with the 25th Infantry Division and Staff Judge Advocate for the Hawaii itous opportunities that arose at the right at Kwajalein Atoll, the Division Staff Army National Guard. After speaking times. I believe it is mostly being able to Judge Advocate team asked me if I would build relationships with people, since I was with Gerald, I decided to commission as a be interested in working with them as a judge advocate with the Hawaii Army not an academically exceptional standout civilian, which is where I am currently National Guard (“HIARNG”) in 2009 student. For our younger members, I alemployed. I started as their Chief of and have been serving with the HIARNG ways advise it is extremely important to Claims, handling their tort claims cases in since then. The “military side” of my cabuild relationships, especially in such a 2018 and have since been promoted to reer has allowed me to serve with some of small legal community where everyone their Chief of Client Services, supervising talks to everyone, and the coconut wireless the finest women and men in Hawaii. I the Legal Assistance Office, Special served on active duty with the 25th is faster than 5G speeds.

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Victims’ Counsel Program, and the Tort Claims Office.

If you have been involved with the HSBA for number of years, what has been your various roles and experiences with the HSBA? My involvement with the Hawaii State Bar Association (“HSBA”) began while I was still a law student. I could see how much smarter my classmates were than I was, so I focused on building relationships within the legal community. I got involved by volunteering for events and projects, meeting then executive director Lyn Flanigan, and as many attorneys and community members as I could.

After graduation, people on the Young Lawyers Division board knew who I was, so they appointed me to a vacant seat on the YLD board. I served on that board as an Oahu director and as a director for the Big Island. Eventually I was elected and served as President of the YLD in 2011, exactly 10 years ago. One of the proudest moments of my YLD presidency was getting an amendment to the Laws that allows a law student from Richardson to serve as a non-voting member to the YLD Board, to help bridge the gap from student to lawyer in our community. If I remember correctly, [now Hawaii] Senator Jarrett Keohokalole was the first student to hold that position.

I have also served on the Government Lawyers’ Section board, and briefly as the Chair, on the Access to Justice Commission Law School Committee, and participated in the HSBA strategic planning meeting held several years ago. All of this ultimately led to working for the HSBA and now having the opportunity to serve our members as President.

Please let us know the background for your sudden elevation to the President of the HSBA when you were slated to be the Vice President for 2021.

The exciting news that Judge Karin Holma, the HSBA President-elect, received the nomination to the bench precipitated my sudden elevation to HSBA January 2021

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President this year. We are all extremely proud of her accomplishment. Luckily, I have been involved with the HSBA for many years and have seen many different Presidents and board members navigate their duties on the board, so I feel that even though I have to take on the position a year earlier, many people have unknowingly helped me prepare for the role.

Are there any special programs or features of the HSBA that you want to modify or work on or highlight?

I would like to highlight the work of the HSBA Programs Department. They have been working tremendously hard during the COVID pandemic to continue putting on CLEs and member benefits.

They leveraged technology to reach as many members as possible, ensuring that we continue to get high-quality CLEs at extremely affordable prices. I would also like to highlight the work Addison Bonner did as YLD President last year by keeping his members informed of volunteer opportunities and programs to assist the community, especially by keeping the Legal Lines program running and assisting our communities with their legal questions. I know Christopher St. Sure, this year’s YLD President, will continue building on the success of his predecessors.

The Young Lawyers Division is such a vital part of our legal community, often serving as the “community outreach” arm of the HSBA. Their programs embody the HSBA’s mission statement “to unite and inspire Hawaii’s lawyers to promote justice, serve the public, and improve the legal profession.” I encourage all members to become involved and volunteer for the YLD’s programs, including the high school mock-trial program, Junior Judges, or Legal Lines to name a few. If you are unable to volunteer with the YLD, the Senior Counsel Division, the sections, and other law-related organizations all could use our help in their missions to help others.

I also want to highlight and emphasize the HSBA’s Leadership Institute

8 January 2021

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Program. I am a COVID-19 will likely proud graduate of the continue to prevent first class in 2009, and large gatherings of peothe President-Elect, ple for the foreseeable Shannon Sheldon from future. This will conMaui, is a graduate of tinue to affect the anthe third class in 2011. nual bar convention, The program has sucsection trainings, and cessfully motivated its the annual fundraiser graduates to take on dinner. Thankfully the greater leadership roles HSBA’s Programs Dein the bar, their organipartment has been zations, and their comadapting to the changes munities. I want to for CLEs and the bar encourage anyone inconvention.

Kulana Kai w Na Kolea Club and Makaha Sons, Sistah Robi, Darlene Ahuna, and Sean Naauao terested in the LeaderAfter 2020, we know ship Institute to apply. that we can hold a virlized e-filing methods with the courts so COVID has affected how the programs tual bar convention again if we have to. It that the public can have confidence in the are conducted, but we are committed to was well attended and the programs ran judicial process, even during a pandemic. continuing this successful program. smoothly thanks to a partnership with a In kind, Chief Justice Recktenwald and local vendor. Conducting it virtually also his team, leveraged technology to conWhat are your thoughts on the helped for members on our neighbor istinue judiciary operations, partnering with Covid-19 impact on the bar lands and on the mainland to attend prothe HSBA to get the word out for any proassociation in particular and the grams they normally would not have had practice in general? the opportunity to attend. A COVID has affected challenge is certainly the “sothe HSBA’s operations, but cial” aspect of the convention Pat and her team responded is reduced. Other state bar quickly to ensure the staff is associations have shared ideas safe and that operations on how they anticipate adaptcontinue. The Board, under ing to that challenge, and we the leadership of Greg Frey, are communicating with them reached out to the legal to see if those ideas can be community to survey how implemented for our memour members have been imbers as well. pacted so that the HSBA The Sections have also could respond and adjust to adapted well to providing best serve them during this programs virtually. I attended Last Day Working at HSBA with Staff crisis. programs from the GovernUnfortunately, we know ment Lawyers Section that that COVID has caused disran incredibly smoothly and cedural changes as quickly as possible. It ruptions in our members’ practices, and the Probate and Estate Planning Section certainly is tough, but our members’ comsome offices have been forced to let go of provides consistent information to its mitment to their craft is stronger. staff, associates, or pushed retirement members about what it is doing, updates dates up. COVID also demonstrated that to the law, and trainings. Proactive What do you consider to be the our attorneys are resilient and dedicated sections can continue to provide highmajor Covid-19 issues facing the to their clients by continuing to provide quality programs to their members bar association this coming year, high-quality services under the circumthroughout 2021, in the face of COVIDand what plans do you have stances. They have leveraged technology 19 challenges. regarding those issues? to conduct virtual client meetings and uti-

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The annual dinner fundraiser could prove to be much trickier if we are unable to hold large gatherings. I do have some ideas about alternatives to an annual dinner that are still being worked out. Unfortunately, since my term as President has been pushed up, I have not yet fully developed that program yet.

Some other bar associations, however, have had Inouye 88th Birthday with Grandma and Uncle some success with online fundraisers, such as virtual Are there any long-term projects silent auctions, that we should be able to or programs that the bar implement. Time will tell whether we are association is working on that able to have an annual fundraiser dinner, might be implemented during your however, I will be sure to plan for an administration? alternative. This is extremely imporOne of the things that I would like to tant because the funds raised helps so accomplish is to increase engagement and many different outreach programs and opportunities for our neighbor island community service projects. members. Having practiced in Hilo, I

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know the challenges that our members outside of Oahu face. The HSBA commits funds in its budget to assist our neighbor island bar associations bring CLE programs to their members. I certainly want to hear from our neighbor island members and leaders if they have ideas for additional engagement opportunities. I want to take advantage of any opportunity to personally participate in neighbor island activities to learn more about the issues important to them and how we can work together to improve the practice of law in their communities.

Is the HSBA making any suggestions or have any plans to have the bar members perform more or additional pro bono

services because of confidence and humility. the Covid-19 issues?

Read the Hawaii Supreme There are no plans to Court’s professionalism mandate more or addiguidelines, and while it may tional pro bono services. seem like common sense, The current pro bono everyone needs a refresher goals for our members are once in a while. Reach out purely aspirational, and I to each other and speak hope that pro bono servwith more seasoned attorices rendered are done neys to learn as much as purely for the sake of helpyou can about the practice ing others, and not beof law. cause it is mandated. Our For all of our members, members demonstrated I encourage you to get inFounders of the Black Friday Invitational Golf Tournament - Reid Matsushima, Levi, that they have huge hearts volved with the bar. VolunJarrett Keohokalole, and Donavan Kealoha with perpetual championship belt and step up when needed, teer for a YLD or SCD such as when the HSBA partnered with project, join a committee or section board, the FoodBank to raise money during the Are there any other words of share your expertise in a CLE, or shoot pandemic. The goal was exceeded by wisdom you would like to share me an email and share your ideas. I want tens of thousands of dollars thanks to the with bar members? to meet and hear from as many of you as generosity of our members and their netFor our newer members, remember I can during my tenure, and while I canworks. I encourage all of our members to to develop and protect your reputation. not be everywhere at once, I want to do as get involved to help those who cannot Our legal community is extremely small, much as I can in the short time I have. help themselves, and every little bit helps and word travels quickly. Practice with My ultimate goal is to leave the HSBA in our communities.

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Levi and Allison Visiting Hawaii Attorneys working in NY Gloria Lam, James Stanton, and Sarah Kam

a better place than it already is, and I cannot do that alone. Success is a team effort; I look forward to working with all of you.

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Any last thoughts?

I want to take this opportunity to thank so many people who have helped me to get where am today. As a law student, I never would have thought that I’d be serving as the HSBA President. Mahalo to Laurie Tochiki and Carol Mon Lee for mentoring me through law school, and Casey Jarman for taking a chance on a new attorney to serve as the legal specialist for the Office of the County Clerk.

To Lyn Flanigan for mentoring me during my service on the YLD Board, and my fellow YLD board members through the years for their tenacity and commitment to ensuring the success of the volunteer projects. To Pat Mau-Shimizu for giving me the opportunity to learn the inner workings of the HSBA and help develop the CLE programs for our members.

Mahalo to our past presidents and board members, who have left a legacy for me to follow and blaze the next part of the trail, my girlfriend Allison Baird for putting up with my stupid law puns, and to all of my brothers and sisters in the Armed Forces.

And especially to my family: my mom Theresa, dad John, siblings Jesse, Nikki, Kat, and John, and my grandparents Ruth and Harry, and Shimae and John.

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n o i t c e l E tests n o C awaii in H

by Lance Collins An election contest is the legal proceeding used to challenge the results of an election. The main object of an election contest is to determine who has been legally elected according to In re Contested Senatorial Elections, 10 Haw. 216 (Rep., 1896). As stated in Akizaki v. Fong, 51 Haw. 354 (1969), the fundamental interest protected by a contest is in ensuring that the people can decide whomever they please to represent them. In City and County of Honolulu v State, 143 Haw. 455, 431 P.3d 1228 (2018), though, it was said “No matter how justified a court may be in setting aside the results of a popular election, such an action may be perceived as a subversion of the directly expressed will of the people.” This follows the long held belief stated in In re Contested Senatorial Elections that the law should be construed so as not to disenfranchise the voter. Justice Wilder in Kulike v. Fern, 19 Haw. 278 (Terr., 1909) argued that a contestant should be given ample opportunity to present their case and evidence to the end that “the will of the people in the choice of public officers may not be defeated.”

Elkins v. Ariyoshi, 56 Haw. 47, 48 (1974) reaffirmed that the basis for an election contest is to correct errors that would change the outcome of the election. In the Akizaki Case, a contest can also be brought if the correct result cannot be ascertained because of mistake or fraud. Any matter that would impair the fairness of the election result is a proper subject and that includes, according to Blake v. Baker, 19 Haw. 264, 265 (Terr., 1908), incorrect vote counting done in good faith by officials. In Waters v. Nago, SCEC 18-0000909 (January 25, 2019), the counting of ballots obtained by the city clerk after the statutory close of the polls was another. The Elkins Case noted that poorly run or inadequately supervised election processes that 14 January 2021

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only prove “room for abuse” or “possibility of fraud” are generally not adequate bases for a contest. This was extended in Thirty Voters of Kauai County v. Doi, 61 Haw. 179 (1979) to exclude from election contests election officials’ failure to strictly comply with election laws where substantial compliance occurred and there was no showing of fraud.

Under limited circumstances, a challenge to a candidate’s qualification or eligibility can be raised as an election contest of a primary election under H.R.S. § 11-173.5. However, determination of the winning primary candidate’s voter registration after a primary election does not constitute an election contest.1 Tie votes are sometime subject to contest. Matton v. Barnard, 8 Haw. 732, 734 (King., 1892) held that an election contest cannot be used to determine the winner of a tie vote. In Blake v.

Blake, 19 Haw. 264 (Terr., 1908), the appropriate remedy in an election contest which determines a tie is the ordering of a new election. Currently, under H.R.S. § 11-157, a tie is resolved through a statutory formula involving precinct or district averages.

The applicability of the mootness doctrine is narrow.

Because an election contest challenges the validity of the election, there is no action other than discontinuance by the contestant(s) that can moot the case. Even where the legislature seats a party to an election contest before final judicial resolution, as was done in the Akizaki Case, the case is not moot.

Jurisdiction over Election Disputes The right to contest an election is purely statutory. As noted in In re Paikuli, 8 Haw. 680, 687 (King., 1890), during the Kingdom, the Supreme Court and the legislature had concurrent jurisdiction to adjudicate election contests. The Republic of Hawaii’s constitution removed election contests from the

jurisdiction of the legislature with the following purpose: “to remove all these exciting questions from the domain of partizan [sic] feeling[.]”2 The U.S. Congress initially returned election contest disputes to the houses of the legislature in adopting the 1901 Organic Act and the Hawai‘i Supreme Court held that it lacked jurisdiction to decide election contests over county elections when county offices were created, for lack of statutory authority.3 Akizaki v. Fong, 51 Haw. 354 (1969) held that the constitutional assignment of election contests to the courts in the 1950 State Constitution is not limited or defeated by the constitutional provision empowering the legislature to be the judge of the elections of its members.

The present Hawai’i State Constitution provides that a “court of competent jurisdiction” shall decide an election contest. H.R.S. § 11-172 assigns jurisdiction over election contests to the Hawai’i

Supreme Court. In Lathers v. Abercrombie, SCOT 14-0001069 (August 28, 2014), the court ruled that the statutory requirements to perfect an election contest are jurisdictional and failure to comply with all the statutory requirements for an election contest will oust jurisdiction from the Hawai‘i Supreme Court.

Election law violations by officials, voters, candidates or others may render an election illegal and quo warranto proceedings may be used to determine whether the seriousness of the violations invalidated an election.4 The extent to which quo warranto could be used to resolve disputes as to nomination papers was left an open question in Kanealii v. Hardy, 17 Haw. 9 (Terr., 1905). Circuit courts are the appropriate forum to test the legality of an officeholder’s title to office.5 Matters Outside Election Contests A number of election matters are not appropriately brought as election

contests. The Supreme Court held in Logan v. Kealoha, 18 Haw. 659 (Terr., 1906) that it lacks jurisdiction in an election contest to entertain challenges to candidate qualifications or eligibility. A challenge to candidate qualifications or eligibility must be brought pursuant to H.R.S. § 12-8 and is appropriately challenged in the circuit court.6 In Constitution Party v. Lingle, No. 29473 (December 5, 2008), it was held that eligibility determination of a presidential candidate was not appropriately raised through an election contest. In Clark v. Arakaki, 118 Haw. 355, 194 P.3d 176 (2008), interpretation and applicability of a term limit amendment to an officeholder was appropriately sought in the circuit court through declaratory judgment. In Kawauchi v.

David, 129 Haw. 77 (2012), a clerk’s suit seeking a judicial determination as to the qualifications of a candidate was appropriately filed in circuit court but subject to special expedited procedures that must

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be strictly observed. In Green Party of Hawaii v. Nago, 138 Haw. 228, 378 P.3d 944 (2016), challenges to illegal or irregular election procedures in violation of the Hawai’i Administrative Procedure Act under H.R.S. chapter 91 are appropriately brought in the circuit court through declaratory judgment.

Other matters deemed to lack grounds for an election contest are: governor issuing an election proclamation with typographical errors; candidate campaigns contacting supporters to inform them of extended polling hours and urging them to vote; lack of media coverage of particular candidate before election; winning candidate’s refusal to debate other candidates; candidate being summoned to jury service during primary election season; “discrimination of freedom of speech and freedom of the press.” Election contests under H.R.S. §§ 11-173.5 and 11-174.5 are not the appropriate basis to seek appellate review of an underlying civil case before the circuit court.7 Other jurisdictions distinguish between “election protests” and “election contests” as was the object of the famous case Gore v. Harris, 772 So. 2d 1243 (Fla, 2000), rev’d on other grounds, 531 U.S. 98 (2000). Hawai’i law does not provide a separate mechanism to protest the counting of ballots. Furthermore, Brown v. Iaukea, 18 Haw. 131 (Terr., 1906) affirmed that Hawai’i law does not allow for judicially ordered recounts outside of an election contest. Only errors in counting amounting to a change in the election result may be brought as an election contest. In Lopresti v. State, SCEC-18-0000908 (January 9, 2019), the Supreme Court rejected claims that the lack of mandatory recount requirements in “close” races renders the election contest statute unconstitutional.

Equitable Relief The traditional limits of equitable proceedings did not embrace a remedy for political wrongs.8 More recently, in City and County of Honolulu v. State, an injunction was held appropriate for issues relating to ballot accessibility, fair election procedures, and constitutional violations. The right to public office, however, does not constitute a property interest that will warrant the intervention of equity to protect it.9 Injunctive relief is generally sought before the circuit court. Justice Acoba reasoned that the Supreme Court has power through its supervisory jurisdiction of trial courts to issue injunctive relief against tabulating and certifying the results of an election where a circuit court has declined to do so but is warranted under the circumstances.10 The doctrine of laches is applied to election contests.

In Thirty Voters of Kauai County v. Doi, 61 Haw. 179, 599 P.2d 286 (1979), the Court noted that if a contestant had the opportunity to correct any irregularities in the election process or ballot before the election, courts will not entertain a contest afterward in the absence of fraud or major misconduct. It was said in Lewis v. Cayetano, 72 Haw. 499, 823 P.2d 738 (1992) that laches bars a person from gambling with the outcome of the election by 16 January 2021

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waiting until after an election to contest it when such a challenge could have been brought before the public was put through the time and expense of an election. In Johnston v. Ing, 50 Haw. 379, 382, 441 P.2d 138, 140 (1968) the Court affirmed that persons have an obligation to file an action in the circuit courts, which have the power to prevent use of a ballot not in conformity with the law and compel officials to prepare proper ballots. In Watland v. Lingle, 104 Haw. 128 (2004), however, where contestants were diligent in seeking judicial intervention before the election or where irregularity could not be discovered or addressed by judicial process before election, laches does not apply.

Practice and Procedure An election contest must be filed with the appellate clerk no later than the sixth day after the primary election or twentieth day after the general, special, or runoff election.

The sixth/twentieth-day limitation is mandatory. The Court ruled in Tataii v. Cronin, 119. Haw. 337, 198 P.3d 124 (2008), though, that statutory reference to 4:30 p.m., is to be read as directory and means “by the end of the business day.” Notably, however, in Akaka v. Housel, SCEC-12-0000725 (August 31, 2012), the Court ruled that Hawaii Rules of Appellate Procedure, Rule 26(a)’s language which excludes weekends and holidays from the computation of time for “less than 7 days” deadlines does not extend to the statutory filing deadline for an election contest.

Election contests are conducted, to the extent not otherwise in conflict with statute, following the Hawai’i Rules of Civil Procedure.11 However, as noted in Doe v. Cachola, SCEC18-0000654 (August 31, 2018) and Akaka v. Yoshina, 84 Hawai’i 383, 935 P.2d 98 (1997), motions for discovery may support the conclusion that allegations were based upon indefinite information insufficient to sustain an election contest.

A candidate, a qualified political party or thirty voters of an election district have standing to file an election contest under H.R.S. § 11-172. As noted in Elkins, any other plaintiff lacks standing. The Cachola Case also affirmed that when thirty or more voters contest an election, their names must be made public and subject to verification. In Cunningham v. Yoshina, No. 28182 (October 11, 2006), an amendment adding thirty voters to an election contest was ruled to relate back to the date of the contest where the original contest gave the defendant notice of the claims. However, thirty voters are required to both institute and maintain an election contest.12 In Cermelj v. Nago, SCEC 140001070 (August 28, 2014), online declarants were deemed not proper parties to an election contest and would otherwise lack standing if they did not live in the district subject to the contest.

County clerks in county elections and the chief election officer in state elections are necessary parties to an election contest.13 All successful candidates affected by a contest are also necessary parties.14

Election contestants must provide “direct knowledge or information concerning any one or more irregularities which would invalidate or change the result of the election.” Kulike v. Fern, 19 Haw. 278 (Terr, 1909) (Wilder concurring) A contestant has the burden to prove, by direct evidence, mistakes or errors sufficient to change the result of the election.

The Brown Case prohibited the use of an election contest as a “fishing expedition undertaken in the hope that in an examination of all the ballots enough might be discovered to change the result.” Furthermore, where the irregularities alleged do not exceed the reported margin between the candidates, the complaint is legally insufficient for an election contest.

The focus of an election contest is whether the result of the election is correct. In In re Kapahu, 8 Haw. 735 (King., 1892), proof was not required as to how individual voters voted; only that illegally cast ballots might have affected the result.

According to the Kulike Case, the burden of proof sufficient to inspect ballots is “slight.” However, in Waters v. Nago, SCEC 14-0001317 (December 24, 2014), an audit of a previous election using a different voting system operated by a different vendor was deemed to be unable to provide relevant evidence of mistakes or errors in a contested election.

How evidence is received has changed over time. Under Cornwell v.

Kaiue, 18 Haw. 167 (Terr., 1906), the Supreme Court would conduct a hearing to examine ballots in dispute. This was narrowed in the case of Allen v. Spencer, 29 Haw. 112 (Terr., 1926), which adjudicated the matter, by way of competing affidavits. Presently, under H.R.S. § 11173.5 and 11-174.5, all evidence is required to be reduced to writing. The reduction of evidence to writing was criticized in the dissent in Allen v. Spencer. The Akaka v. Yoshina Case ruled that all evidence must conform to the Hawai’i Rules of Evidence.

While an election contest filed over whether a public officer was recalled after a special recall election “does not fit January 2021

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squarely within the language of the [election contest] statute,” the Supreme Court recognized jurisdiction for purposes of determining the law for computing the number of votes cast in the Republican Party v. Waihee Case. In the Lewis Case, though, it said it would do so only where the determination would change the result.

Relief Relief for election contests is governed by the principle: “Invalidating an electoral result thus threatens public confidence in both the efficacy of voting and the independence of our justice system and this risk of irreparable harm is to be avoided if practicable.” City and County of Honolulu v. State.

In a general election contest, the Supreme Court can invalidate an election and order a new one, or if possible, decide who the winner is. In a primary election contest, though, the Supreme Court decided in Funakoshi v. King, 65 Haw. 312, 651 P.2d 912 (1982) that it can only decide the winner and cannot order a new election. In the Elkins Case, the Court ruled that where there was only one nominee for a political party in the primary election, there is no relief available.

Remedies not authorized by statute include a general inquiry into election procedures; an audit of a primary election; ordering a new election and holding of televised debate; firing or jailing the chief election officer, attorney general, or deputy attorney general assigned to elections office; disqualifying a qualified political party or providing police protection to election contestant; or referring allegations of a contest involving wrongdoing to law enforcement.15 The Supreme Court’s adjudication of an election contest is conclusive and final and not subject to further review in state courts.16 Challenges Involving Constitutional Amendments The Supreme Court has jurisdiction to determine the validity of constitutional amendments when construing H.R.S. § 602-5(6), H.R.S. § 602-5(7) and Part XI, Chapter 11, H.R.S. together.17 The validity of the adoption of an amendment to the constitution was held to be a judicial, not political question in Kahalekai v. Doi, 60 Haw. 324, 590 P.2d 543 (Haw., 1979) and courts have authority to determine the validity of proposal, submission, and ratification of any change in the organic law.

In State ex rel. Bronster v. Yoshina, 84 Haw. 179, 932 P.2d 316 (1997), though, the Court determined that resolving the meaning of constitutional provisions related to a constitutional amendment does not convert a lawsuit into an election contest over the results of the election, and circuit courts have jurisdiction to hear such cases.

Non-compliance with constitutional provisions on amending the constitution will invalidate an election result. In Blair v.

Cayetano, 73 Haw 536 (1992), the Court affirmed that constitutional provisions regarding amendments are mandatory and 18 January 2021

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strict observance of every substantial requirement is essential for an amendment to be validly ratified. The Kahalekai Case stated that constitutional amendments ratified by the electorate will be upheld unless they can be shown to be invalid beyond a reasonable doubt. In Taomae v. Lingle, 108 Haw. 245 (2005), it was decided that if a contestant can demonstrate non-compliance with one substantial requirement for constitutional amendment, they will have met their burden and would not be required to demonstrate that compliance would have changed the election result. ___________________ 1

Kahoohalahala v. Hiraga, No. 29415 (October 30, 2008) cited in Dupree v.

Hiraga, 219 P.3d 1084, 121 Haw. 297 (2009); see also Evans v. Kahele, SCEC20-0000507 (October 2, 2020), Ornellas v. Kahoohalahala, No. 29476 (December 15, 2008).

2 In re Contested Senatorial Elections, 10 Haw. 216 (Rep., 1896).

3 See In re Contested Elections, 15 Haw. 323, 332 (Terr., 1903); see also Territory v. Supervisors of the County of Oahu, 15 Haw. 365 (Terr., 1904).

4 Lane v. Fern. 20 Haw. 290, 317 (Terr, 1910) (concurring and dissenting opinion of Chief Justice Hartwell).

5 Hussey v. Say, 133 Haw. 229 (App., 2014).

6 Nishimura v. Williams, 126 Haw. 115 (App. 2011).

7 See Akaka v. Housel, SCEC-12-0000725 (August 31, 2012), Dejean v. Mau, No. SCEC-10-0000008 (October 4, 2010), Tataii v. Cronin, 119. Haw. 337, 198 P.3d 124 (2008), Dejean v. Nago, No. SEC-12-0000714 (August 23, 2012), Cermelj v. Kawauchi, SCEC-12-0000722 (Aug 28, 2012), Kim v. State, SCEC-18-0000650 (August 27, 2018) 8 Giles v. Harris, 189 U.S. 475 (1903) (federal courts are without jurisdiction to hear suits where qualified Black voters were not permitted to register to vote or to vote in federal elections).

9 Taylor v. Beckham, 178 U.S. 610 (1900) 10 Watland v. Yoshina, No. 25410 (November 2, 2002) 2002 WL 31497546 followed in City and County of Honolulu v State, 143 Haw. 455, 431 P.3d 1228 (2018) 11 HRCP Rule 81(b)(10). See also Doe v. Cachola SCEC-18-0000654 (August 31, 2018) 12 Bright v. Fern, 20 Haw. 325 (Terr., 1910), extended in In re Bevins, 28 Haw. 752 (Terr., 1925) (withdrawal of requisite number of petitions at any time will constitute a discontinuance of suit).

13 See H.R.S. § 11-172; see also Han v. Manahan, SCEC-12-0000716 (August 27, 2012).

14 Kim v. State, SCEC 18-0000650 (August 27, 2018) 15 See Taylor v. Nakamura, No. 28180 (October 10 2006), Hoff v. Nakamura, No. 28178 (October 10, 2006), Tataii v. Cronin, 119 Haw. 337 (2008), DeJean v. Nago, SCEC 14-0001285 (Dec 4, 2014), Smallwood v. State, SCEC 16-0000330 (April 21, 2016), Doe v. Cachola, supra.

16 Tataii v. Yoshina (No. 25599, May 22, 2003) also DeJean v. Mau No. SCEC10-0000008 (October 26, 2010) 17 See Taomae v. Lingle, 108 Haw. 245 (2005).

Lance D. Collins is an attorney in private practice on the island of Maui. He is also the compiler and indexer of the Proceedings of the Charter Commissions of the County of Maui 1963-2012, Vols. 1-17.

H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in October: • Approved the joint Executive-Finance Committee’s recommendation on the proposed 2021 HSBA operating budget, including: The same level of HSBA dues assessed for calendar year 2020; Continuation of the $25 per capita neighbor island subsidy. Funds are subject to Keller restrictions; Reduction of the out-of-state travel budget for HSBA officers and other leaders; restriction on HSBA staff out-of-state travel, including a reduction in the budget for such travel; Funding of previously approved Goal Group projects and programs from special reserves; and Approval of the general and special reserves proposal, which includes a $90,000 COVID-19 line item in the special reserves; • Approved the HSBA Civic Education Committee’s request to co-sponsor with the Judiciary History Center a panel discussion in December 2020 on law and public policy under the recent local and national administrations, with such panel discussion to be funded with $300 of voluntary contributions designated for civic education activities; • Approved the quarterly proration schedule below for new admits and provisional licensees beginning November 2020 for HSBA dues. The Disciplinary Board, Attorneys and Judges Assistance Program, and Lawyers Fund for Client

Protection has also been informed and asked if they wish to prorate their fees on a quarterly basis.

Anyone sworn in from January 1 to March 31 will be charged for a full year of dues and fees; Anyone sworn in from April 1 to June 30 will be charged for 9 months of dues and fees; Anyone sworn in from July 1 to September 30 will be charged for 6 months of dues and fees; and Anyone sworn in from October 1 to December 31 will be charged for 3 months of dues and fees; • Voted to create a task force to explore procedures for a succession plan should unanticipated HSBA officer or director vacancies occur beginning with year 2022; •Due to the judicial appointment of 2020 HSBA President-elect Karin Holma to the bench, the Board voted to appoint 2020 Vice President Levi Hookano as the 2021 President, and to appoint Shannon Sheldon, the candidate who did not get elected in last year’s Vice President race to 2021 President-elect (note: Rhonda Griswold will serve as 2021 Vice President, as duly elected); and • Voted to retain its HSBA-appointed attorney position (currently being held by someone who was elevated to the Bench) on the Commission on Professionalism.

2021 Attorney License Renewal In case you missed the December deadline, it is not too late to renew and

avoid being suspended for nonpayment of dues and fees. The late fee for registration in January is $100. The late fee for registration in February is $200.

After February 28, you will need to pay a reinstatement fee of $300 to reinstate your license. Go the HSBA website at www.hsba.org to renew today.

HSBA Board Welcomes Comment on Anticipated 2021 Appointments The HSBA Board welcomes all members who wish to offer confidential comments on judicial nominees to email membercomments@hsba.org or write to the Board immediately after the name of such nominee becomes public. Since the legislative process does not provide for an extended comment period, it is incumbent upon bar members to submit their comments in a timely manner so that it may be considered in the Board’s deliberations.

Board Vacancies on LASH Board The Legal Aid Society of Hawaii, whose primary purpose is to secure justice for and protect the rights of the needy and promote measures for their assistance, will have five positions expiring on its governing Board, each with a 3year term beginning July 1, 2021. Qualifications for the position include being knowledgeable about and supportive of delivery of quality legal services to the poor; willing and able to devote time to perform necessary duties; and conscientious, studious, thorough, and diligent in learning methods and problems of the organization.

Anyone interested in serving in this capacity should submit the following to the HSBA Nominating Committee at nominations@hsba.org by February 26,

2021: a resume, reason for wanting to serve, and area of law practice concentration. Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been none, then state that such is the case. Appointments will be made at the HSBA Board meeting in May or June 2021.

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Lawyer Impairment and Related Ethical Considerations

by Lennes N. Omuro

It is often said that lawyers suffer from impairment issues more than the general public. In February 2016, the ABA and the Hazelden Betty Ford Foundation published the results of a collaborative research project (the ABA Hazelton study) that confirmed that lawyers do indeed suffer from substantial rates of behavioral problems including alcohol dependent drinking, depression, anxiety and stress.1 The ABA Hazelden study involved surveys of 12,825 licensed employed attorneys from all regions of the country and is likely the most comprehensive study to date of its kind.

In particular, between 20.6 percent to 36.4 percent of the lawyers in the ABA Hazelden study screened positive for problematic drinking: hazardous, harmful and potentially alcohol dependent drinking.2 In comparison, only 11.8% of a broad highly educated workforce screened positive in another study.3 These results are comparable to earlier studies.4 However, in contrast to earlier studies which found a positive association between increased problematic drinking and increased years in the profession, the ABA Hazelden study found a direct reversal of that trend with attorneys in their first ten years of practice now experiencing the highest rates of problematic alcohol use.

Junior associates were found to have the highest rates of problematic use followed by senior associates, junior partners, and finally, senior partners.

The ABA Hazelden study also found that levels of depression, anxiety, and stress among lawyers were significant with

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28%, 19%, and 23% of the lawyers experiencing mild or higher levels of depression, anxiety, and stress, respectively.

Similar to the trend of alcohol use, these mental health issues were most prevalent for younger, newer attorneys and generally decreased as both age and years in the profession increased.

In addition to problematic alcohol use and the mental health issues addressed in the ABA Hazelden study, lawyers also suffer from drug usage and other mental health issues including those associated with aging.5 Lawyer impairment is a significant issue in the profession and raises a number of ethical considerations. What should you do if you think you are impaired? What should you do if you suspect a lawyer in your firm is impaired? What should you do if you suspect another lawyer who is not in your firm is impaired?

The Impaired Lawyer’s Ethical Obligations Impaired lawyers have the same ethical obligations under the Hawaii Rules of Professional Conduct (“HRPC” or sometimes the “Rules”) as any other lawyer. Mental impairment does not affect the lawyer’s duty to provide competent representation to clients. Lawyer impairment is also specifically addressed under HRPC Rule 1.16(a)(2), which states that a lawyer shall withdraw from representation of a client “if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”

R

Unfortunately, impaired lawyers may not be aware of their impairment or they may be in denial of the fact that their impairment is affecting their ability to represent clients. Moreover, even lawyers who recognize that they may be impaired often do not seek treatment or bring their impairment to the attention of appropriate persons in their firm. At least one study has concluded that the primary obstacle that prevented lawyers from accessing care was the belief that they could handle the problem on their own.6 As also suggested in the ABA Hazelden study, pervasive fears surrounding an attorney’s reputation is also a barrier to treatment. Therefore, although lawyers theoretically have substantial access to resources for therapy, treatment, and other support through health plans, lawyer assistance programs or individual financial resources, it is not clear that lawyers avail themselves to these resources particularly when working in a high stakes or highly competitive environment. Accordingly, it often falls on other attorneys in or even outside the impaired lawyer’s firm to recognize and address matters related to a lawyer’s impairment.

Obligations Arising Out of an Impaired Attorney in the Firm.

The HRPC does not specifically address a lawyer’s duty to prevent another impaired lawyer from violating the Rules. HRPC Rule 5.1 does, however, address the responsibilities of partners, managers, and supervisory lawyers.

Under Rule 5.1(a), a partner or a lawyer having managerial authority in the firm “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm confirm to the Rules of Professional Conduct.” Comment 3 to this Rule, indicates that the measures that

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may be required to fulfill this obligation can depend on the firm’s structure and the nature of its practice. Further, under Rule 5.1(b), a lawyer with direct supervisory authority over another lawyer “shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”

Next, Rule 5.1(c) makes it clear that a lawyer shall be responsible for another lawyer’s violation of the Rules if the lawyer orders or knowingly ratifies the conduct or if a partner, lawyer with comparable management authority, or a supervising lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable action.

Finally, all lawyers have an obligation to report professional misconduct to the “appropriate professional authority” under HRPC Rule 8.3. Accordingly, lawyers, especially those with managerial and supervisory authority, cannot simply ignore a suspected or known impaired lawyer in the firm.

Signs of lawyer impairment usually involve a distinct change from usual behavior and can include but are not limited to matters such as frequent unexplained absences or sick days, being late for depositions or meetings, failing to return calls or emails, social disengagement or isolation in their office, missing court dates and hearings, deteriorating personal hygiene, inappropriate moods or fears, or unusual focus on death or suicide.7 Impaired lawyers may also ask secretaries or other staff to “cover for them” and often secretaries or other staff members may be in a position to easily and quickly recognize signs of lawyer impairment. Firms should therefore encourage staff members and not just attorneys to be aware of and to report signs of possible impairment to appropriate administrators or partners in the firm.

The ABA has also issued Formal Opinion 03-429 which specifically concerns “Obligations with Respect to Mentally Impaired Lawyer in the Firm. This opinion provides as follows: If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is

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removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statement made to ones for which there is a factual foundation. The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.

ABA Formal Opinion 03-429 further states that the firm’s “paramount obligation is to take steps to protect its clients.”

The first step is therefore to confront the impaired lawyer and take steps to assure that the clients are adequately represented.

The firm should determine whether the impairment of the lawyer is so severe that the lawyer should no longer work on client matters. Evaluation of a lawyer’s impairment may require a detailed review of the lawyer’s work to determine if the impairment has affected the lawyer’s ability to represent clients. A firm might also consider obtaining the advice of an appropriate mental or other health professional to determine the severity of a lawyer’s mental impairment or substance abuse. ABA Formal Opinion 03-429 also suggests that, in some situations, it may be possible to accommodate some impairment. For example, if a lawyer’s ability to function under stress has been impaired, the lawyer might not be able to participate in a trial but could be assigned tasks such as legal research or drafting documents pending the results of any effort to treat the impaired lawyer.

Next, the law firm should also determine if the lawyer’s impairment has contributed to some misconduct and, if so, whether there has been any resulting damage. A detailed review of the lawyer’s work as mentioned above should be made to determine if there has been any harm to the client which might be corrected or mitigated. Moreover, under HRPC Rule 1.4(b) a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision regarding the representation. Accordingly, as suggested

by ABA Formal Opinion 03-429, if a firm determines that an impaired lawyer should be replaced with another lawyer in the firm, the firm may have to explain to the client why the impaired lawyer is no longer working on the matter but, “to the extent possible” should be conscious of the privacy rights of the impaired lawyer. Further, the firm should also consider whether there has been a violation of the HRPC of the type that would require reporting the ethical violation to the “appropriate professional authority” under HRPC Rule 8.3 which is also discussed in more detail below.8

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Finally, ABA Formal Opinion 03-429 states that the responsibility of the firm to the client does not end with the resignation or termination of the impaired lawyer. For example, clients of the firm may be faced with a decision on whether to continue with the firm or to shift their work to the departing lawyer. Under Rule 1.4, firms may be required to advise existing clients of the facts surrounding the withdrawal to the extent reasonably necessary for the clients to make an informed decision about selection of counsel and, in doing so, the firm “must be careful to limit any statements made to ones for which there is a reasonable factual foundation.”

Obligation to Report Rule Violations by Another Lawyer Who may be Impaired Lawyers may also have ethical obligations to report violations of the HRPC by another lawyer who may be impaired.

This reporting obligation would apply not only with respect to impaired lawyers in a lawyer’s firm but also to impaired lawyers outside the firm. In particular, HRPC Rule 8.3(a), provides as follows: A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

In addition, the ABA has issued Formal Opinion 03-431 concerning “Lawyer’s Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment.”

This opinion provides as follows: A lawyer who believes that another lawyer’s known violation of disciplinary rules raise substantial questions about her fitness to practice must report those violations to the appropriate professional authority. A lawyer who believes that another lawyer’s mental condition materially impairs her ability to represents clients, and who knows that that lawyer continues to do so, must report that lawyer’s consequent violation of Rule 1.16(a)(2), which requires that she withdraw from the representation of clients.

Accordingly, if a lawyer believes that the conduct of an attorney outside of the lawyer’s own firm raises a substantial question about the attorney’s honesty, trustworthiness or “fitness as a lawyer in other respects,” then the lawyer may have a Rule 8.3(a) reporting obligation to disciplinary authorities.

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Although not all violations of the Rules are necessarily reportable events under Rule 8.3(a) because they may not raise a substantial question about the lawyer’s fitness to practice law, ABA Formal Opinion 03-431 does go on to state that “a lawyer’s failure to withdraw from representation while suffering from a condition materially impairing her ability to practice, as required by Rule 1.16(a)(2), ordinarily would raise a substantial question requiring reporting under Rule 8.3.”

On the other hand, the ABA opinion also suggests that “a lawyer need not act on rumors or conflicting reports about a lawyer” and that the “lawyer must know that the condition is materially impairing the affected lawyer’s representation of clients.” Each situation must, therefore, “be addressed on the particular facts presented.” The opinion further explains as follows: A lawyer may be impaired by senility or dementia due to age or illness or because of alcoholism, drug addiction, substance abuse, chemical dependency, or mental illness. Because lawyers are not health care professionals, they cannot be expected to discern when another lawyer suffers from mental impairment with the precision of, for example, a psychiatrist, clinical psychologist, or therapist. Nonetheless, a lawyer may not shut his eyes to conduct reflecting generally recognized symptoms of impairment (e.g., patterns of memory lapse or inexplicable behavior not typical of the subject lawyers, such as repeated missed deadlines).

The ABA opinion further indicates that a lawyer may or may not make a report to an approved lawyers assistance program but, even if a report is made, such a report is not a substitute for reporting to the disciplinary authority responsible for assessing the fitness of a lawyer to practice in the jurisdiction. There is also no affirmative duty to speak to the affected lawyer or the affected lawyer’s law firm about the condition before reporting to the disciplinary authority. An affected lawyer’s denials alone do not necessarily negate the reporting obligations under Rule 8.3 because it is the lawyer’s knowledge of the affected lawyer’s actual impaired conduct that typically triggers this reporting obligation.

This article is not intended to cover all ethical issues that may arise when faced with an impaired lawyer nor does it address all matters covered by the ABA opinions referenced herein. Lawyers should conduct their own research or consult with appropriate members of their firms or other authorities as needed to address these issues. ___________________

1

Patrick R. Krill, Ryan Johnson and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, Journal of Addiction Medicine (Jan./Feb. 2016), http://journal.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_ Substance_Use_and_Other_Mental.8.aspx.

2 The range of 20.6% to 36.4% apparently exists because not all lawyers answered all questions on the survey. There was an Alcohol Use Disorder Identification Test (AUDIT) score of 20.6% based on 11,278 participants who answered all 10 questions on the AUDIT and an AUDIT C (shortened form) score of 36.4% based on the 11,489 participants who answered at least the first 3 AUDIT questions.

3 ABA Hazelden study, J. Addict. Med. Vol. 10, Number 1, Jan./Feb. 2016 at p. 51.

4 See Rick B. Allan, Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial?, 31 Creighton L. Rev. 265, 266 (1997) (in a 1997 study, 18%-25% of lawyers had a drinking problem compared to 10 % of adults overall in the

United States).

The ABA Hazelden study did consider drug use but a lower percentage of the lawyers completed the drug abuse screening test (DAST) so the data complied did not meet the assumptions for more advanced statistical procedures and no inferences were made. Other studies, however, suggest that drug use is more prevalent among lawyers than the general population. See Allan, supra at 266; see also Ellen Murphy, Coping with Challenges, 17 Bus. L. Today Jan./Feb. 2008 at 35.

6 Melody Crawford Chadwick, Hiding in Plain Sight: Recognizing signs of impairment and what to do about it, Oregon State Bar Bulletin, August/September 2006, https://www.osbar.org//publications/bulletin/06augspet/addictionhidinghtml (referring to a 2003 research study by the Cottonwood de Tucson treatment center).

7 See Chadwick, supra.

8 There is generally no obligation to report under Rule 8.3(a) if the impairment has not resulted in a violation of the Rules. ABA Formal Op. 03-429 at p. 7.

5

Lennes N. Omuro is a partner at Goodsill Anderson Quinn & Stifel and a member of its litigation section. He has also served as his firm’s Professional Responsibility Committee Chairperson and as in-firm Counsel.

[Ed. Note: This article was previously published in the February 2017 issue of the Hawaii Bar Journal.]

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C O URT BR IEF S Above and Beyond: Judge Heely Wins Humanitarian of the Year Award

From left: Leslie Armstrong, Julie Kean, James Rouse, Paul Tonnessen, Judge Adrianne N. Heely, Bevanne Bowers, Second Circuit Chief Judge Richard T. Bissen, Jr., and Cassandra Abdul.

Second Circuit District Family Judge Adrianne N. Heely was recently named Humanitarian of the Year by the Maui Non-Profit Directors Association.

The award is given to an “outstanding individual who freely gives of time, talent, and treasure.” She was also recognized for

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successful stewardship and motivating others to help those in need.

Judge Heely was nominated by Paul Tonnessen of the Friends of the Children’s Justice Center of Maui. Judiciary staff, Maui Prosecutor’s Office, Attorney General’s Office (Maui), Child Welfare Services, and various community providers also submitted a group nomination for Judge Heely.

Tonnessen said that Judge Heely “has gone above and beyond to ensure that all of the children, parents and those suffering from substance use coming before her are treated with compassion, empathy and dignity.” He lauded her understanding of the significant role trauma plays in behavior and works hard to find alternative consequences through programs and therapeutic care.

The group nomination also cited her “above and beyond” approach to justice. They said, “Judge Heely embodies grace and the spirit of aloha” in all she does to better the lives of the children and families who come before her. They cited the many special and thoughtful ways she guides the families, including providing stuffed animals to children to ease the anxiety of being in court and playing Santa during the holidays.

Judge Heely also received a Certificate of Recognition from Maui County Mayor Michael P. Victorino. In part, it thanked her for taking a genuine interest in healing, protecting, and preserving families.

Nakasone, Haia, Naso, and Paek-Harris Sworn-in More than 160 family, friends, and colleagues watched as Judge Karen T. Nakasone, Thomas A.K. Haia, Courtney N. Naso, and Elizabeth Paek-Harris were sworn-in on November 2. Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube channel.

Judge Nakasone will serve as an Associate Judge on the Intermediate Court of Appeals. Judges Naso and Paek-Harris will preside in First Circuit District Family Court, and Judge Haia will preside in First Circuit District Court.

Guest speakers were Governor David Y. Ige, Hawaii State Bar Association Vice President Levi K. Hookano, Hawaii State Trial Judges Association President Judge Matthew J. Viola, Judicial Selection Commission Chair Ronette M. Kawakami, and Senate President Ronald D. Kouchi.

Judge Nakasone will serve a 10-year term and Judges Haia, Naso, and PaekHarris will serve six-year terms.

Fukui, Holma, Park, and Zane Sworn In as District Court Judges Dozens of family, friends, and colleagues watched as Tracy S. Fukui, Karin L. Holma, Andrew T. Park, and Bryant G.F.Y. Zane were sworn-in as judges of the District Court of the First Circuit on November 16. Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube channel.

Guest speakers were Hawaii State Bar Association President P. Gregory Frey; Hawaii State Trial Judges Association President Judge Matthew J. Viola; Judicial Selection Commission Chair Ronette M. Kawakami; and Senate President Ronald D. Kouchi. Judges Fukui, Holma, Park, and Zane will each serve six-year terms.

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CAS E NOTES Supreme Court Family L.R.O. v. N.D.O., No. SCWC-190000446, November 5, 2020, (Recktenwald, C.J.). Hawaii’s version of the Uniform Premarital Agreement Act (“UPAA”) provides that a premarital agreement (“PMA”) is enforceable unless one of the parties proves they did not execute it voluntarily. Hawaii Revised Statutes § 572D-6(1) (2018). Petitioner N.D.O. (“Wife”) argued throughout the parties’ divorce proceeding that she involuntarily executed a PMA prior to her marriage to L.R.O. The Hawaii Supreme Court concluded that the family court did not err in rejecting that argument and by enforcing the PMA. However, to provide further guidance to the family courts, the Hawaii Supreme Court adopted the California Supreme Court’s test for voluntariness in PMAs under the UPAA. The Hawaii Supreme Court further held that Wife’s other asserted points of error were meritless.

Insurance State Farm Mutual Automobile Ins. Co. v.

Mizuno, No. SCCQ-19-0000556, November 20, 2020, (Wilson, J.). On August 28, 2019, the Hawaii Supreme Court accepted the following certified question from the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”): Under Hawaii law, is a permissive user of an insured vehicle, whose connection to the insured vehicle is permission to use the vehicle to run errands and drive to work, entitled to uninsured motorist (“UM”) benefits under the chain-of-events test because he was injured by an uninsured motorist? The Hawaii Supreme Court answered the certified question in the affirmative. The proper inquiry under the chain of events test in this case is whether a permissive user, such as Mizuno, had re-

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Appeal Pointer A statement of jurisdiction may be stricken unless a copy of the judgment or order appealed from is attached to it. HRAP 12.1(d). tained a “sufficient connection” to the insured vehicle. Under the chain of events test, Mizuno is entitled to UM benefits because he was a permissive user of the insured vehicle during the chain of events resulting in his injury caused by an uninsured motor vehicle.

Intermediate Court of Appeals Civil Procedure Carvalho v. AIG Haw. Ins. Co., Inc., No. CAAP-16-0000167, November 16, 2020, (Ginoza, C.J.). Plaintiff-Appellant Bernet Carvalho, individually, and as personal representative of the Estate of Royden Kalavi, deceased, (“Plaintiff Carvalho”), appealed from the Judgment filed on February 23, 2016, by the circuit court in favor of Defendants-Appellees AIG Hawaii Insurance Company, Inc. and Hawaii Insurance Consultants, Ltd. (collectively “AIG”). Plaintiff Carvalho contends the Judgment should be vacated because the circuit court: (1) abused its discretion in entering the Order Precluding Evidence where it precluded Plaintiff Carvalho from seeking or introducing relevant evidence on her claim for bad faith against AIG; (2) abused its discretion in entering the Order Denying Motion to Amend Complaint because Plaintiff Carvalho made a prima facie showing under Hawaii Rules of Civil Procedure Rule 15(a) and pertinent case law warranting leave to amend her complaint; (3) abused its discretion in entering the Order Denying Reconsideration because the motion was timely filed, and the circuit court refused Plaintiff Carvalho’s request to pro-

vide specific guidance on the admissibility of evidence at trial; and (4) erred in entering the Order Granting AIG’s MSJ in light of the Hawaii Supreme Court’s disfavor in granting summary judgment in fact-intensive insurance bad faith claim handling cases. The ICA concluded it was error for the circuit court to grant summary judgment.

Criminal State v. Forbes, No. CAAP 19-0000585, November 20, 2020, (Leonard, J. with Hiraoka, J., concurring and dissenting). In State v. Sheffield, the Hawaii Supreme Court held that a circuit court plainly erred when it failed to instruct a jury that the restraint necessary to support a conviction for Kidnapping under Haw. Rev. Stat. § 707-720(1)(d) must be restraint that is more than incidental to an accompanying crime. The Hawaii Supreme Court did not address the restraint necessary to support a conviction for Kidnapping based on other subsections of the Kidnapping statute. Therefore, the ICA addressed the restraint necessary to support a Kidnapping conviction under Haw. Rev. Stat. § 707-720(1)(e), and based on the Hawaii Supreme Court’s rationale, the ICA held that the restraint necessary to support a conviction for Kidnapping under Haw. Rev. Stat. § 707-720(1)(e) must be restraint that is more than any restraint incidental to the intended terroristic threatening of the complaining witness.

Hiraoka, J., concurred in part and dissented in part. Hiraoka, J. concurred that Defendant did not release the Complaining Witness. However, he would not find plain instructional error. Even if State v. Sheffield applied to prosecution for kidnapping under Haw. Rev. Stat. § 707720(1)(e), in Hiraoka, J.’s view, the trial court’s failure to give Sheffield-type instruction was harmless beyond a reasonable doubt.

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