January 2016 Hawaii Bar Journal

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION JANUARY, 2016 $5.00

Interview with

Jodi Kimura Yi 2016 Bar President

TA B L E O F C O N T E N T S VO L U M E 1 9 , N U M B E R 1

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin Jodi Kimura Yi

ARTICLES 4 Interview of 2016 HSBA President Jodi L. Kimura Yi

by Ed Kemper

12 The Tension between the FDCPA and the Bankruptcy Code: Who’s on First?

by David C. Farmer

20 Profile: Judge Gary Chang

HSBA OFFICERS President Jodi Kimura Yi President-Elect Nadine Ando Vice President Howard Luke Secretary Russ Awakuni Treasurer Mark M. Murakami YLD OFFICERS President Ryan Hew Vice President/President-Elect Trejur Bordenave Secretary Catherine Taschner Treasurer Ryan Loeffers

OF NOTE 10 Order Regarding Supreme Court Rules 5.1, 5.2 and 5.3 18 HSBA Happenings 24 Court Briefs 26 Case Notes 30 Off the Record 31 Classifieds

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

Hawaii Bar Journal is published monthly with an additional issue in the second quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

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On the cover: Photography by Brett Pruitt, Grass Shack Productions. Pruitt has worked as a professional photographer for more than 30 years. He has enjoyed working with Hawaii’s most prestigious law firms.

Contact Grass Shack Productions studio at 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.

Interview

of

2016

HSBA

By Ed Kemper Please give us your background so the members of HSBA can get to know you?

I am a yonsei (fourth-generation) Japanese immigrant. I am also the third generation of law practitioners in my family.

M y g r a n d f a t h e r, Albert K. Kimura graduated from Northwestern University School of Law in 1927. My father, Wendell K. Kimura graduated from Harvard Law School. He is now happily retired. My o l d e r b r o t h e r, Spencer A. Kimura attended the William S. Richarson School of Law, and currently works at the Law School as the Director of the LLM and Summer Programs.

His wife, Lani Kimura, graduated from Boston College Law School and works at the University of Hawaii’s Office of the Vice Chancellor of Academic Affairs. Also, my cousin Craig Sashihara graduated from Villanova Law School and is the Director of the New Jersey Division on Civil Rights, and finally, my other cousin Brandon M. Kimura, another William S. Richardson graduate, will soon finish his clerkship with the Chief Justice and join the Cades Schutte, LLP law firm.

As a youth, I learned the value of hard work and responsibility when I started my first job: delivering the morning newspaper. Until then, I had not been a

President

school was difficult, it proved to be worthwhile when I won a two-week trip to Europe as a freshman in high school. It was part of a prize in recognition of my being selected the Champion Newspaper Carrier for the year.

Gannett Newspaper Corporation (now known as Gannett Company, Inc.) sent over two hundred students selected from its newspapers across the country on the group tour as a reward and in recognition of our dedication.

It was an eye-opening experience. We traveled through England and Scotland, and I learned a lot about those particular countries and foreign countries in general. I also bonded with the other American youth and learned what their lives were like in their home states. I confirmed that Hawaii newspaper carriers have it much easier in that we never have to contend with snow when delivering! I also learned a lot about myself during the trip, which was the first time I ventured away from my family.

Later, as a senior in high school, Gannett awarded me a scholarship for college. It was sufficient to cover my entire University of Hawaii tuition. Two years later, I transferred to the University of Southern California (“USC”) and my scholarship could not even cover my housing expenses. The most interesting thing about my college years was that during finals week, Los Angeles erupted in the

L. Kimura Yi

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morning person but that quickly changed.

Six days a week through rain, shine and once even a massive mudslide (my route included Kahena Street in Hawaii Kai, which was severely damaged during mudslides caused by the New Years’ Eve flood of 1987). I would finish my route by 6:00 a.m., return home to ‘sleep’ until 6:30, then wake up again to get ready for school. The car ride into town offered another thirty minutes to nap since I attended Punahou School.

Although working during middle

riots of 1992. I distinctly recall watching live television as the initial assault occurred.

No police responded, and the rioting situation increased.

I quickly opened a map to discover that the area being shown on television was a mere seven blocks away from my apartment. My friend came by to walk with

Some of the Cancer Fund of America litigation group

Jodi after cancer hair loss

Jodi after hair loss

San Diego Zoo - Jan. 4, 2015

me to the library to study, and I recall asking her if we should reconsider since the news reports said that the situation was rapidly devolving. Well, we went to the library anyway. They later closed the building and sent all of the students out into the night. A lot of businesses in our neighborhood were looted and burned. It was a terrible week, but by graduation, things had finally settled down. It was odd to have the National Guard at my graduation ceremony. After finishing my B.A. at USC, I returned to Hawaii to attend the William S. Richardson School of Law. Please give us your legal experiences?

Upon graduation from law school, I was privileged to clerk for the Honorable Kevin S.C. Chang at the Circuit Court of the First Circuit. Working with the judge and all of the court personnel was an invaluable experience.

Subsequently, I was fortunate to be hired at the Ayabe, Chong, Nishimoto, Sia & Nakamura law firm, which is over fifty years old. I benefitted from great mentors such as Sidney K. Ayabe, the Honorable Rhonda A. Nishimura, and Francis M. Nakamoto. They nurtured me as a young lawyer, encouraged my involvement with the Hawaii State Bar Association

I could count on my co-workers (then and even now) to assist when I had a question or to discuss and ‘throw around’ ideas.

After ten years of civil litigation at the firm, and the birth of my daughter, I decided to change practice areas.

Gannett Scholarship

(“HSBA”), and during my years with the firm, I litigated many memorable cases. I vividly recall one particular day when a partner came to my office and casually said: “You enjoy fishing, don’t you? I have a case involving a fishpond; would you like to help?” Over five years later, after having reviewed thousands of documents, when we finally prevailed at the Ninth Circuit Court of Appeals (affirming Judge Helen Gillmor’s Order granting summary judgment), it was unbelievable. We had worked so long and so hard on the case and suddenly, it was finally finished.

I was honored and humbled when they made me a partner of the firm, which has some of the nicest and most dedicated attorneys in Hawaii. It was wonderful to work together as a team, driving toward the same goal. I knew that

The next half of my law career was, and is, spent in governmental regulation.

Initially, I worked as Commission Counsel for the Public Utilities Commission, where we addressed ground-breaking issues such as the use of biofuels and its impact on global warming. Currently, I am employed at the Attorney General’s Office in the Tax & Charities Division. I have enjoyed pursuing the ‘rotten apple’ charities whose behavior tends to spoil the entire barrel and give fund-raising a bad name. In particular, a case involving all fifty states, the District of Columbia and the Federal Trade Commission versus the Cancer Fund of America et al. has been extremely fulfilling. It is the first time that all fifty states have been able to unite in a lawsuit to pursue organizations claiming to do charitable work. It offers me the ability to work closely with other state regulators, to see the differences in how they approach similar issues within their borders and, most importantly, once we are finished, there will be no state in which the defendants may run to for safe harbor.

While it is somewhat difficult to conduct discussions via telephone conferences when there are over fifty voices on the line, it is definitely a worthwhile undertaking.

One of the most interesting issues when moving from private practice to govJanuary 2016

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ernment work is that in private practice, it is crystal clear and simple who your client is - the person paying your bills. In government, by contrast, it can be complicated. Often, no one in the litigation is paying your salary; you represent multiple governmental agencies, executives, occasionally legislators or the legislature, and the public interest must also be taken into consideration.

You have been quite active with HSBA activities. Please inform us of your endeavors with the Bar Association.

In reflecting back, I have been Yi Family, Frank, Jodi, involved with Jacqueline, Kenneth the HSBA since approximately 1998 when I co-chaired a committee which updated the HSBA’s Law Line. The Law Line service (long since discontinued, essentially replaced by websites) held telephonically prepared, recorded scripts of general statements of law. Callers could access the scripts by calling in on a touchtone phone and using their key pad, hear different responses regarding family law, labor law, basic corporations law, etc.

Technology has greatly changed the way that we seek and provide information now.

After that project finished, I was asked to run for the Young Lawyers’ Division Board (“YLD”). The YLD performs many community service projects and I enjoyed volunteering for the Legal Line and Law Week clinics, talking with school children about illegal drugs, middle school students about law careers, and high school students about the rights and responsibilities upon reaching the age of majority (Professionals for Drug-Free Kids, Career Fairs, and Ready for the 6 January 2016

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World programs). By 2002, I was the YLD President. I probably would have stopped there. Fortunately, though, I had great support from my law firm, particularly from Sidney K. Ayabe, himself a former HSBA President. He encouraged many of us at the firm to support, volunteer, and even run for HSBA positions.

(three times), Leadership Institute Subcommittee, Hawaii Bar Journal’s Editorial Board, and my favorite title, the “Committee on Committees” (which revised the HSBA’s policies and organizational structure in 2006). I was elected HSBA’s Treasurer (twice), Secretary, and member of the Board of Directors (four years), in addition to the recent Vice President, President-Elect, and forthcoming Presidency terms.

Please tell us about your life beyond your legal career and bar activities?

Until my late twenties, my life was mostly uneventful. I was Francis M. Nakamoto, Judge Rhonda A. Nishimura employed in a well-respected law firm, helping great clients, and instead of burning out I had Calvin E. Young, Ronald M. Shigekane, Gail M. Kang, as Francis M. Nakamoto, Sidney K. Ayabe feared would happen, I enjoyed the challenges of litigation. I married (Grandfather) Albert K. Kimura Frank Yi, who is a Director in the Honolulu office of TLA Capital Management, LLC, a registered investment Kenneth, age 1 advisory firm headquartered Jodi, Jacqueline, Frank in the San The Francisco Bay area. For decades, the firm firm has had several HSBA presidents: has worked with both individual high net James Ventura, Sidney Ayabe, Jeffrey Sia, worth families and institutional investors and Calvin Young. I think that very few managing both public and private investfirms, if any, have had more past presiments.

We have one daughter, dents.

Jacqueline. She is such a kind-hearted, With the firm’s backing, I volunpositive person that I feel blessed to be her teered for the Strategic Planning parent. She is my biggest fan; upon hearCommittee (three times), Professionalism ing that I’d be the (HSBA) President, she Committee, Judicial Administration excitedly asked, “like President (Barack) Committee, Finance Committee (three Obama?” times), Trial Academy Committee, Then, my brother-in-law was severeMandatory Reporting of Pro Bono Hours ly injured in a beach accident rendering Committee, Nominating Committee him a quadriplegic with some brain dam-

age and excruciating nerve pain. The next several years were consumed with the constant fear that he might worsen or die.

His wife divorced him, leaving him destitute and he now lives with my mother-inlaw. Thankfully, because of her great care, he is now making slow improvement even though it has been almost a decade since his accident.

2011 was a turning point in my life. I had breast cancer, underwent six rounds of chemotherapy and thirty-plus radiation treatments. It was a transformative experience. I had been young and relatively healthy, then my body seemed to betray me by having this massive flaw, or defect.

Suddenly, all of my plans for the future became uncertain. I was forced to contemplate my mortality much sooner than I had expected. I was only 41 years old.

Chemotherapy is essentially poison injected into your body to kill off all fast-growing cells. The closest words I have to describe the sensation is that I felt like “death warmed over.” It didn’t hurt like a cut, but more like a strong ache deep within the center of my bones. But, knowing that the next day and the day after that you would feel better and better was hugely uplifting. By focusing on the future, it made my ‘present’ bearable. Then, once you are completely recovered, they zap you with chemotherapy again; and again; and again; and again; and again. In the end, just being able to survive and get out of bed feels like quite an accomplishment.

Radiation therapy, by contrast, was so gradual that I could barely tell anything was happening. I successfully completed my treatments and even grew my hair back (albeit, it isn’t quite the same). It was a horrible, painful experience, but I am grateful that I am healthy enough to be able to survive such treatment, and I learned something about myself when faced with such a challenge.

In 2013, I was asked to run for the HSBA Vice President position. After consulting with my family, and getting a huge commitment of support from my husband and my daughter, I agreed to run.

However, before I could begin my V.P. year, a true miracle occurred and I became pregnant! My son Kenneth is such a surprise to his ‘aged’ parents; we

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are constantly amazed by our good fortune. He is a happy, friendly tyke who loves waving at other people until they acknowledge and return his greeting.

What are your plans and expectations for the Bar in 2016?

F o r 2016, I hope to Jodi & Jacqueline strengthen H S B A’ s financial position and fiscal policy. I plan to continue and strongly encourage the practice of pre-paying down our mortgage liabilities.

This is especially important since we have a balloon payment coming due in 2022 and at some point, possibly in the near

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boomers entering retirement will be crashing down upon our shore before we know it. The average age of our membership is over fifty years old. While we tend to work longer than prior generations, the aging of our country as a whole will be a significant issue for my generation and those to follow.

We must prepare for the inevitable.

At its core, Jaqueline, age 6 the HSBA’s Jeffrey H.K. Sia, Jodi, Calvin E. Young (Future HSBA Presidents) primary requirement is to maintain the registration database. However, in its 166 years of existence, it has added and constantly changes the robust range of services it provides to its members. In the near future, there will be several new sections. According to the Francis M. Nakamoto & Jodi HSBA Policy Manual, sections provide HSBA members and others who share like interests “a future, interest rates may begin to creep upward. Also, the “silver wave” of baby

forum to develop and improve education and technical skills.” There is great flexibility in how a section is organized - for example, how frequently they will meet (minimum of two meetings per year), whether any dues will be charged, what activities and events they plan to pursue, etc. Please check the HSBA’s bylaws on its website for more details. The HSBA frequently co-sponsors CLE events or it can provide staff support at cost.

Currently, there are twenty different sections on myriad areas of law, ranging from admiralty to natural resources to tax law sections.

Recently, the HSBA received applications for two new sections, the Cannabis Law and Solo and Small Firm Hawaii sections. Also in the planning stages are health care law, energy law, and military law sections. If you have an interest in getting in on the ground floor of these, or want to create your own section, contact the HSBA. It takes as little as five interested persons to work on the initial framework.

A separate, but equally important issue which the HSBA will face this year will be the large number of judicial retirements. I have been alerted to the fact that at minimum, five judges at various levels of the bench, will be reaching their mandatory retirement age, or b e c o m e retirementeligible. The Judicial Selection Commission, led by Chair James KawaJacqueline, age 6 chika, will do a thorough screening job, and I anticipate encountering very few problems.

There is much to look forward to, as well as a lot of work to be done. I will do my best and I hope to “get by with a little help from my friends.”

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Order Regarding Supreme Court Rules 5.1, 5.2 and 5.3 On November 16, 2015, the Hawaii Supreme Court filed its order regarding the following Supreme Court Rules: 5.1, “Electronic and Photographic Coverage of Court Proceedings” 5.2, “Technical Guidelines to be Followed When Extended Coverage Is Permitted under Rule 5.1 or When a Judge Grants a Separate Request” 5.3, “Use of Electronic Devices in Courtrooms by the Bar, Judiciary Personnel, and Self-Represented Litigants.

The Supreme Court ordered that the subject rules as amended and adopted in the December 22, 2014 order are now permanent.

In summary, the rules provide the following: • The extended coverage application process remains the same. Please refer to http://www.courts.state.hi.us/news_ and_reports/media_guidelines/cameras_and_audio_equipment.html.1 • The number of video cameras remains the same (one pool camera and the judge may grant a second camera for live coverage at his/her discretion).

• The number of still cameras remain the same (one still photographer allowed and the judge may allow a second still photographer). The only change to this rule is that a still photographer may also video record proceedings (this was at the request of Civil Beat and other online media that would like to be able to take video clips with their still cameras).

• Another modification to the rule is that media used to be able to audio record a court proceeding using a hand-held recorder. That technology has become almost obsolete, so a member of the public or an individual from the media may now use electronic devices such as laptops, tablets, cell phones or smart phones for audio recordings of the proceeding, with the prior permission of a judge.

• The judge may also grant a timely request by a member of the public or individuals from the media to use electronic devices for note-taking purposes as well. This request is not included in the extended coverage application nor does it have to be in writing. Media or members of the public can ask a judge’s law clerk prior to a proceeding or work 10 January 2016

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with our office in advanced for this prior permission from the judge.

• In all other cases, electronic devices cannot be used during a court proceeding. The members of the bar, judiciary personnel and self-represented litigants may use electronic devices under specific conditions (for court-related business).

• Electronic devices may be brought inside the courtroom, but ring tones and other sounds shall be silenced and the devices cannot be used to make or receive calls inside the courtroom.

• A presiding judge may prohibit or further restrict the use of any electronic devices prior to the proceedings to protect the interests of security, safety, and privacy of parties, jurors, witnesses, attorneys, court personnel, or the public.

Supreme Court Rule 5.2 specifically provides as follows: (3) A judge may also grant a timely request by a member of the public or an individual member of the media to use electronic devices, such as laptops, tablets, cell phones, smartphones, or similarly functioning devices having wireless communication capacity, subject to the following conditions set forth below.

(A) Use of electronic devices under this Rule is restricted to law- or court-related business purposes and is subject to the requirements of subsections (i) through (iv) below. In addition, the presiding judge of a proceeding may prohibit or further restrict the use of any electronic devices prior to or during proceedings to protect the interests of security, safety, and privacy of parties, jurors, witnesses, attorneys, court personnel, or the public, or to ensure the integrity, decorum, or orderly conduct of proceedings. Failure to adhere to these requirements, prohibitions, or restrictions may result in removal of the person or device from the courtroom or courthouse or the imposition of other sanctions. (i) Electronic devices, such as laptops, tablets, cell phones, smartphones, or similarly functioning devices having wireless communication capacity may be used in courtrooms and during proceedings, unless otherwise authorized by the court. Electronic devices may not be used to photograph or for audio or video recording, or for audio or video streaming, except as authorized by this Rule and Rule 5.1 of these Rules. (ii) Within the courtroom, keyboards must be silent. Texting, e-mailing, accessing the internet, and other forms of electronic communication are acceptable uses if conducted without being audibly or visually distracting to others. (iii) The presiding judge may designate a portion of the courtroom for the use of electronic devices.

(iv) Ring tones and other sounds produced by these devices shall be disabled or silenced.

Electronic devices brought into the courtroom cannot be used to make or receive calls inside the courtroom, unless otherwise authorized by the court. _________________ 1

The Judiciary website provides guidelines for the media on coverage of the court proceedings.

The following information is noted at the website: Application The news media must notify a coordinator of their intent to provide film, videotape or still photographic coverage of a judicial proceeding by submitting the appropriate form a reasonable time in advance of the start of the proceeding. “A reasonable time” under Supreme Court Rule 5.1(e)(1) is “shall mean the period of time required for all parties to be notified in advance, shall consider the realities of court scheduling, and shall be the minimum time required to accomplish such notification.

Only one written request is necessary for any given case. Once an application is made, all media \are considered to have applied, i.e., if a television station submits an application, newspaper coverage is included and vice versa.

Once an application is submitted for a case, that application will apply through the final judgment and any post-judgment motions and appeals.

Equipment and Operators Only one news media television camera and one still camera each with a single camera operator will be permitted in the courtroom while court is in session. A second television camera may be allowed by the judge for live coverage. A second still photographer may be admitted at the discretion of the judge.

Cameras and operators must be in designated locations. . . .

No artificial lighting device of any kind shall be used in connection with the television camera or still camera. No equipment or clothing of camera operators can bear any insignia or identification of the individual media or network involved in the extended coverage.

It is up to the judge to decide where cameras and microphones can be placed in the courtroom. . . .

News media must arrange any pooling of footage or film among themselves. The court will not participate in any pooling agreement.

Equipment and camera operators must be ready to record prior to the court proceeding.

Equipment must not be installed, moved or removed from the courtroom while court is in session.

Camera operators may not move around the courtroom while court is in session.

Prohibitions Never photograph jurors or even give the appearance of photographing jurors.

There shall be no audio coverage of conferences between attorneys and clients, or between co-counsel and clients or parties, or between counsel and the judge held at the bench. There shall be no extended coverage of any conference or proceedings held in the cham ber s o f a ju d ge o r any i n c am era proceeding.

The Tension between the FDCPA and the Bankruptcy Code:

by David C. Farmer The issues discussed in this article are (1) does a time-barred proof of claim violate either the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the “FDCPA” or the “Act”) or the Bankruptcy Code, 11 U.S.C. § 101 et seq. (the “Code”) and (2) does a bankruptcy court have jurisdiction to rule on FDCPA claims?

Interplay between FDCPA and Code.

What of the interplay between the Act and the Code, 11 U.S.C. § 101, et seq.? Two closely related issues have generated some differences among the circuits: is a time-barred proof of claim (“POC”) a violation of the FDCPA or the Code, and does the Code preempt the FDCPA? TIME-BARRED PROOF OF CLAIM The Eleventh Circuit Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014), cert. denied, —U.S.—, WL 246891 (Apr. 20, 2015), held that filing a POC to collect a timebarred debt in a Chapter 13 bankruptcy violated the FDCPA §§ 1692e and 1692f, by using false, deceptive and misleading means in connection with the collection of a debt.

Crawford filed for Chapter 13 in 2008. After the petition date and well after the applicable state statute of limitations expired, the debt buyer LVNV purchased a $2,037 debt that Crawford owed to a furniture store and that had been charged off in 1999. The last transaction on the consumer’s account occurred in 2001.

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Who’s on First?*

The three-year statute of limitations expired on the enforcement of the debt in 2004. During the bankruptcy proceeding, LVNV filed a timely POC to participate in the Chapter 13 payment scheme in an effort to collect on the out-of-statute debt. In 2012, and long after LVNV had received distributions during the bankruptcy case, the consumer filed an adversary proceeding against LVNV, alleging that it violated the FDCPA by attempting to enforce an outof-statute debt. Lower courts dismissed Crawford’s complaint, but the Eleventh Circuit held that LVNV’s claim on the money was too old under the FDCPA. The Chapter 13 trustee actually paid LVNV’s claim; but in 2012, Crawford filed an objection, saying the claim was unenforceable.

The bankruptcy court for the middle district of Alabama granted LVNV’s motion to dismiss the FDCPA claim, and the district court affirmed. While noting that there was no binding authority on point, the district court determined that the “elephantine body of persuasive authority” weighed in favor of finding that filing a POC in bankruptcy cannot give rise to an FDCPA claim: “Absent an

objection from either the Chapter 13 debtor or the trustee, the time-barred claim is automatically allowed against the debtor. ... As a result, the debtor must then pay the debt from his future wages as part of the Chapter 13 repayment plan, notwithstanding that the debt is timebarred and unenforceable in court. That is what happened in this case.”

The district court explained that filing a POC “does not amount to an effort to collect a

debt,” but “even if it did, it is not the sort of abusive practice the FDCPA was enacted to prohibit.” The consumer appealed to the Eleventh Circuit, where the court ruled in the consumer’s favor.

The Eleventh Circuit disagreed, stating that unsophisticated consumers would not anticipate or be able to defend effectively against the filing of a time-barred claim and that circuit precedent combined with the broad language of the Act made it applicable in this case.

The court relied on a Seventh Circuit opinion saying that “the FDCPA outlaws ‘stale suits to collect consumer debts’ as unfair because ‘few unsophisticated consumers would be aware that a statute of limitations could be used to defend against lawsuits based on stale debts’ and would therefore ‘unwittingly acquiesce to such lawsuits.’”

In a bankruptcy context, the Eleventh Circuit said, the limitations period indicates “a time when the debtor’s right to be free of stale claims comes to prevail over a creditor’s right to legally enforce the debt.” LVNV argued that its filing of the claim was not a “collection activity,” but the Eleventh Circuit said it was a means to collect a debt.

The court also said it was not barred by the automatic stay, which prohibits debt collection outside the bankruptcy

proceeding but does not prohibit the filing of a POC. The court rejected the district court’s reasons for dismissing the FDCPA claim and stated that filing a POC is an attempt to collect a debt covered by the FDCPA, which covers direct and indirect collection actions, including collection initiated through legal proceedings. The court noted that courts have “uniformly held” that the comparable act of suing on an out-of-statute debt violates the FDCPA. Had LVNV filed or threatened to file suit on a time-barred debt in state court to recover the debt, it would violate §§ 1692e and 1692f of the FDCPA. The court explained: “That is so because ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’” The court also noted that, with the passage of time, the debtor’s memory and records of the debt may diminish, “making it difficult for a consumer debtor to defend against the timebarred claim.”

The court reasoned that same philosophy that prevents a debt collector from filing a stale claim in state court prohibits it from filing a proof of claim in a bankruptcy case. The court concluded that the least sophisticated consumer may not realize that the debt is uncollectable and fail to object to it, in which case it is automatically allowed under the Code. The court determined that “a debt collector’s filing of a time-barred proof of claim creates the misleading impression to the debtor that the debt collector can legally enforce the debt.” The court concluded that the “least sophisticated consumer” may therefore fail to object to the claim, and due to the Code’s automatic allowance provision, the claim on the otherwise unenforceable debt will be paid out of the debtor’s limited funds, thereby reducing the funds available to satisfy creditors with legitimate and enforceable claims.

Interestingly, the Eleventh Circuit acknowledged that circuit courts in the Second, Third, Seventh, and Ninth Circuits all hold that the Code preempts the FDCPA in the context of a POC. However, LVNV in Crawford did not claim that the Code preempts the FDCPA. The case may have been decided differently had this issue been raised, which is likely why LVNV filed a Petition for Rehearing.

O’CONNOR PLAYDON & GUBEN LLP ATTORNEYS AT LAW Since 1876

is pleased to announce that

CECILY D. M. KAYA has recently joined the firm as an associate. Ms. Kaya attended Dartmouth College where she obtained her B.A. in English in 2009 and received her Juris Doctorate from the William S. Richardson School of Law at the University of Hawai`i at Manoa in 2015. During law school, Ms. Kaya competed as a member of the Native American Moot Court Team and worked as a Student Research Assistant to Professor Ronald C. Brown, whose published materials focus on East Asian Labor and Employment Law. Ms. Kaya has also served as an extern at both First Circuit Court of the State of Hawai`i and the United States District Court for the District of Hawai`i. Ms. Kaya is a member of Hawai`i Women Lawyers and is the current Vice President of the Dartmouth Club of Hawai`i.

Ms. Kaya’s areas of concentration are employment law, construction litigation, medical malpractice, and insurance defense.

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In the petition filed on July 31, 2014, LVNV argued that the Eleventh Circuit panel decision was contrary to every reported decision on the issue of whether a claim under the FDCPA can be premised upon filing a POC in accordance with the Code. Therefore, consideration by the full Eleventh Circuit Court of Appeals was necessary to avoid a split of authority in the federal courts. The Eleventh Circuit denied LVNV’s Petition, as did the Supreme Court when it denied cert.

The holding in Crawford is a nice, debtor-friendly decision, but is inapplicable in the Ninth Circuit due to Walls unless the issue is revisited in light of Crawford.

DOES THE CODE PREEMPT THE FDCPA? The Ninth Circuit In 2002, the Ninth Circuit decided Walls v. Wells Fargo Bank, N.A., 276 F. 3d 502 (9th Cir. 2002), that controls Hawaii practitioners.

In Walls, the court was faced with a class action brought against Wells Fargo Thank you for volunteering your time in 2015 to help the most vulnerable in our community get the legal help that they need.

We hope you will continue to provide pro bono services in 2016 and improve access to justice to those that need it the most.

"I believe the world may not be fair but it should be just."-Legal Aid Society of Hawaii staff attorney To volunteer with the Partnership in Pro Bono Program or Honolulu District Court Access to Justice Room, please contact: Sergio Alcubilla Director of External Relations 808-527-8063 sergio.alcubilla@legalaidhawaii.org www.legalaidhawaii.org

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under both the Code— specifically, the discharge injunction of § 524(a) coupled with the court’s contempt power found in § 105 — and the FDCPA. The focus of the FDCPA portion of the action was on Wells Fargo’s attempts to collect discharged debts rather than on any communications with represented persons (see, e.g., 15 U.S.C. § 1692(c)).

The court held: “Because Walls’s remedy for violation of § 524 lies in the Code, her simultaneous FDCPA claim is precluded.”

276 F.3d at 511. Thus, if there is a bankruptcy form of relief, Walls says that that’s all the debtor is entitled to. In essence then, Walls held that the Code, a federal statute, preempted the FDCPA, also a federal statute.

In Walls, Donna Walls filed a Chapter 7 petition and listed a pre-petition obligation of $118,000 owed to Wells Fargo, secured by her house. 276 F.3d at 505. Walls continued to make payments to Wells Fargo both prior to and after her debt was discharged. Walls exercised her Parker “ride through” ability as to her obligations with Wells Fargo.

At some point thereafter, Walls ceased making payments and Wells Fargo foreclosed on the house. The complaint filed by Walls in district court alleged that Wells Fargo failed to obtain a reaffirmation agreement after she filed for bankruptcy protection, and “that her debts were discharged, giving rise to the discharge injunction pursuant to §524(a)(2) and (c).” Id. Walls maintained that the bank’s conduct of soliciting and collecting payments after she received her discharge “was prohibited by § 524 and was an unfair and unreasonable means of collecting a debt under the FDCPA.” Id. Walls also sought a legal determination that § 524 creates a private right of action independent of any contempt proceeding brought under § 105 in bankruptcy court. Simply put, the Ninth Circuit concluded that no such private right of action exists. Walls theorized that since her bankruptcy case was “over and done with,” she needed to rely upon the FDCPA to protect her from unfair collection practices. Id. at 510.

The Ninth Circuit disagreed with the argument advanced by Walls. According to the court, “there [was] no escaping” that Walls’ FDCPA claim was in actuality

an action for an alleged violation of § 524.

Id. Thus, a debtor’s sole remedy for a violation of the discharge injunction exists under the Code, and a debtor cannot bypass the Code’s “remedial scheme” by filing an action against a creditor under the FDCPA. Id. The upshot of the court’s holding in Walls is that the Code implicitly repeals the FDCPA as a mechanism for debtors to curb post-discharge collection efforts for debts that have indeed been discharged.

Some commentators have suggested that Walls was wrongly decided for at least two reasons: first, the FDCPA affords a debtor relief that is unavailable under the Code. For example, the Code does not address the problems of communications with a represented party, a creditor’s mischaracterization of the nature of a debt, or a creditor’s failure to verify the validity of a debt before resuming collection activities, whereas the FDCPA does. Thus, the relief available under 15 U.S.C. §§ 1692c (a) (2), 1692e (2) (A), and 1692g (b) has no Code analogue. In sum, the Walls court summarily denied the plaintiffs their rights under the FDCPA, rights they did not have under the Code. Second, two years after Walls, the Seventh Circuit handed down Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004), in which it explicitly rejected Walls.

Seventh Circuit In Randolph, the Seventh Circuit held that the Code does not preempt an FDCPA action. Indeed, the court held that, in the absence of a statutory inconsistency, no federal statute preempts another. 368 F.3d at 730 (citing Baker v.

IBP, Inc., 357 F.3d 685, 688 (7th Cir. 2004)). The court reasoned that, because there is no (a) irreconcilable conflict between the Code and the FDCPA and (b) no express legislative decision that one replaces the other, neither preempts the other.

In direct contrast to the result reached in Walls, the Seventh Circuit in Randolph concluded that, while the Code and the FDCPA certainly overlap in some respects, the Code does not repeal the FDCPA. As such, under the Seventh Circuit’s approach, a debtor can conceivably bring a claim against a creditor under both the Code and the FDCPA.

In Randolph, when Cheryl Alexander filed her chapter 13 petition, she owed $1,125 to Her dentist. 368 F.3d at 728.

Alexander listed the debt on the schedule of unsecured, nonpriority claims; the dentist was notified of the filing along with the identity of Alexander’s attorney. Id. The dentist filed a POC, and the confirmed plan contemplated that the debt be paid over time. Id. Two years after plan confirmation the dentist died, and his office hired Unlimited Progress Inc. to collect on old accounts, including Alexander’s. Id. Unlimited Progress subsequently sent a dunning letter to Alexander, which she proceeded to ignore. Id. When Unlimited Progress sent a second dunning letter to Alexander, she forwarded the letter to her attorney, who in turn contacted the debt collector and informed it about the ongoing Chapter 13 proceeding. Id. Unlimited Progress immediately closed its file and never again contacted Alexander.

Nonetheless, Alexander filed suit under the FDCPA, claiming that Unlimited Progress falsely represented that she was required to pay the outstanding bill immediately. Id. Alexander also claimed that Unlimited Progress violated the FDCPA by communicating directly with her, even though she was represented by counsel.

The parties consented to a decision by a magistrate judge, who concluded that § 362(h) preempted the FDCPA because the Code occupied the field of debtorcreditor relations to the exclusion of other laws after a federal bankruptcy proceeding is commenced. Id. at 729. The matter was decided prior to the effective date of the 2005 amendments to the Code.

The Seventh Circuit reversed the determination of the district court and held that the Code, and in particular § 362(h), does not implicitly repeal the FDCPA as a statutory mechanism by which debtors can seek redress from unlawful debt collection practices. Id. at 730.

When two federal statutes address the same subject in different ways, a court must inquire as to whether one statute implicitly repeals the other. To conclude that one statute implicitly repeals another, a court needs to find “an irreconcilable

conflict between the statutes or a clear expressed legislative decision that one replace the other.” Id. Because Congress did not express a legislative intention that the Code displaces the FDCPA, the Seventh Circuit examined whether an irreconcilable conflict existed between the two statutes.

In doing so, the court compared the “operational differences” between the statutes, noting that while the statutes certainly overlap, the Code and the FDCPA did not present an irreconcilable conflict.

Id. Therefore, according to the Seventh Circuit, a debtor can seek to enforce both the FDCPA and the Code, and “any debt collector can comply with both simultaneously.” Id. As the court stated: “Overlapping statutes do not repeal one another by implication; as long as people can comply with both, then courts can enforce both.” Id.at 731.

The Seventh Circuit noted the following differences between the Code and the FDCPA: (1) the automatic stay can be violated by any creditor, while the FDCPA only applies to “debt collectors;” (2) § 362(h) affords no defense to a creditor, while § 1692k(c) provides a “bona fide error” defense for a violation of the FDCPA; (3) the Code has no cap for damages, while the FDCPA contains a $1,000 maximum “additional damages” provision per action; (4) punitive damages may be awarded by a bankruptcy court for a violation of the Code, while the FDCPA contains no provision for punitive damages; (5) the Code contains no provision for the awarding of attorneys’ fees to the debtor, while § 1692k(a)(3) of the FDCPA specifically provides for the recovery of attorneys’ fees; and (6) the Code contains no statute of limitations for bringing an action for a violation of the stay, subject, of course, to a defense of laches, while § 1692k(d) provides for a one-year statute of limitations.

Id. at 730.

Perhaps most significant to the court’s conclusion is the difference in the “scienter” requirement to demonstrate a violation of each statute. While § 362(h) makes liability depend on the creditor’s knowledge, § 1692e(2)(A) creates a strict-liability rule: “Debt collectors may not make false claims, period.” Id. Contrary to the position reached by the district court, the January 2016

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Seventh Circuit Court of Appeals determined that strict liability under § 1692k(c) would not interfere with the administration of bankruptcy law established by Congress, particularly the willfulness requirement of § 362(h). Id. Although the Ninth and Seventh Circuits have adopted diametrically opposed holdings regarding the intersection of the Code and the FDCPA, the majority of federal circuit courts have not addressed this issue. Consequently, unless and until the federal circuit courts reach a consensus or the United States Supreme Court elects to rule on this issue, attorneys representing consumers in all jurisdictions, with the exception of the Ninth Circuit, should contemplate whether an action under the FDCPA is another viable remedy in addition to an action under § 362(h), or §§ 105 and 524 of the Code.

The Third Circuit In Simon v. FIA Card Services, N.A., 732 F.3d 259 (3d. Cir. 2013), the Third Circuit ruled that a debtor in a bankruptcy proceeding is not unconditionally precluded from bringing claims under the FDCPA. When claims under the FDCPA are asserted by a debtor in a bankruptcy proceeding, they are often challenged by the debt collector on the basis that the Code governs such matters and precludes application of the FDCPA. Some courts have accepted this argument. See, e.g., Jenkins v.

Genesis Fin. Solutions (In re Jenkins), 456 B.R. 236, 240 (Bankr. E.D.N.C. 2011); McMillen v. Syndicated Office Sys., Inc. (In re McMillen), 440 B.R. 907, 911-13 (Bankr.

N.D. Ga. 2010); B-Real LLC v. Rogers (In re Rogers), 405 B.R. 428, 430-34 (Bankr.

M.D. La. 2009).

The Third Circuit in Simon sided with courts that have found otherwise. In particular, it adopted the Seventh Circuit standard, which provides that courts should examine whether the FDCPA claim raises a direct conflict with the Code, or whether it is possible to enforce both the Code and the FDCPA at the same time. Applying this standard, the Third Circuit found that one of the debtors’ FDCPA claims gave rise to a direct conflict, while another did not.

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On December 30, 2010, Robert and Stacey Simon filed a voluntary petition under Chapter 7 of the Code. Simons, 732 F.3d 259, 262. Shortly thereafter, on January 28, 2011, a law firm representing FIA Card Services sent a letter to the Simons’ bankruptcy attorneys, stating that FIA was considering filing an adversary proceeding to challenge the Simons’ proposed discharge of credit card debt owed to FIA. Id. The letter also stated that FIA would forgo the adversary proceeding if the Simons either stipulated that the credit card debt was not dischargeable, or agreed to pay FIA a reduced amount to settle the debt. Id. Finally, the letter stated that FIA was scheduling a Fed. R. Bankr.

P. 2004 examination to collect information for filing the adversary proceeding.

Id. at 262-63. A Rule 2004 subpoena was attached to the letter.

The Simons filed motions in the bankruptcy court to quash the Rule 2004 subpoena for failure to comply with the subpoena requirements of Fed. R. Bankr. P. 9016 and Fed. R. Civ. P. 45. Id. at 263. The Simons also filed an adversary proceeding against FIA and its law firm, asserting FDCPA claims. Id. The bankruptcy court quashed the Rule 2004 subpoena, but ruled that it did not have subject matter jurisdiction over the FDCPA claims and dismissed those claims without prejudice. Id. The Simons then sued FIA and its law firm in the New Jersey United States District Court, alleging that the January 2011 letter and the Rule 2004 subpoena violated the FDCPA’s prohibition on false, deceptive and misleading debt collection practices. Id. FIA and its law firm moved to dismiss the complaint on the grounds that, among other things, the allegations on which the FDCPA claims were based are governed exclusively by the Code. Id. at 263-64. The district court agreed and dismissed the claims with prejudice, reasoning that the Simons’ FDCPA claims were precluded by the Code. Id. at 264.

The Simons timely appealed the district court’s decision. Id. On the issue of whether the Code precludes application of the FDCPA, the Third Circuit reviewed the “varying, and sometimes inconsistent conclusions”

among appellate and trial courts that have considered the issue. Id. at 271.

After a lengthy analysis, the Third Circuit adopted the Seventh Circuit’s approach, which examines whether the FDCPA claim raises a direct conflict with the Code, or whether both the Code and the FDCPA can be enforced against the debt collector. Id. at 274. The Third Circuit found this approach to be consistent with the Supreme Court’s pronouncement that co-existing federal statutes should be regarded as effective unless there is a clear Congressional intention to the contrary. Id. (citing J.E.M. Ag. Supply Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144-44 (2001)).

The court then applied this standard to the Simons’ FDCPA claims. Id. at 270.

The first claim alleged that the defendants violated §§ 1692e(5) and (13) of the FDCPA by failing to serve the Rule 2004 subpoena directly on the Simons and by failing to include the text of Fed. R. Civ. P. 45. Id.; 15 U.S.C. §§ 1692e(5), (13).

FIA argued, in opposition, that because the bankruptcy court had previously quashed the subpoena on the separate grounds of not complying with the subpoena requirements of Fed. R. Bankr. P. 9016 and Fed. R. Civ. P. 45, the Simons were precluded from exercising additional remedies under the FDCPA. Id. at 271.

The court disagreed, finding that there was no conflict between the FDCPA prohibitions and the Code subpoena requirements. Id. at 279. Because both rules could be satisfied, the court found that the Code did not preempt the FDCPA with regard to this claim and reversed the district court’s dismissal. Id. The Simons’ second claim alleged that the defendants failed to include in the January 2011 letter the “mini-Miranda” disclosure required by § 1692e(11) of the FDCPA, which requires a debt collector to disclose in the initial communication with the consumer that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. Id. at 270-71; 15 U.S.C. § 1692e(11).

The Third Circuit found that the inclusion of such a statement would vio-

late the automatic stay provisions of the Code, which, among other things, prohibit any act to collect a claim against a debtor. Id. at 274. Due to the conflict between the FDCPA requirements and the automatic stay of the Code, the Third Circuit affirmed the district court’s dismis s al of the § 1692e (11) claim.

Id. at 280.

This decision clarifies that, in the Third Circuit, the Code only preempts the FDCPA when there is a direct conflict between the statutes. Where no direct conflict exists, debtors in bankruptcy cases will be able to utilize the protections of both the Code and the FDCPA when dealing with debt collectors. Accordingly, debt collectors are on notice that they must carefully navigate two legal regimes when attempting to negotiate with or collect against bankrupt debtors.

With the Supreme Court declining to review Crawford, the bottom line for Hawaii practitioners unless and until Walls is overruled: (1) a time-barred proof of claim does not violate the Code; however, pursuant to 11 U.S.C. § 502(a) and Fed. R. Bankr. P. 3007, any party in interest may object to a claim including a trustee under 11 U.S.C. § 704(A)(5); and (2) the bankruptcy court does not have jurisdiction to rule on a debtor’s FDCPA claims, since they are preempted by the Code, unless they are prepetition claims administered by a trustee as property of the estate. * An earlier version of this article was presented in November 2015 at the Hawaii Bankruptcy Bar Association’s Fall Seminar.

The author is the managing member of David C. Farmer Attorney at Law LLLC and practices primarily in the areas of bankruptcy, business litigation, and collections. He has served as a Standing Panel Chapter 7 and Chapter 11 Trustee for the Hawaii United States Bankruptcy Court. As a visiting and adjunct professor, he has taught at UH Richardson Law School on the subjects of business reorganization in bankruptcy, debtor-creditor rights, and secured transactions.

Software glitch affects the recent issue of the HSBA Bar Directory The editorial board for the 2015-2016 Bar Directory (aka HSBA Committee on Publications) would like to inform the members of the bar about a software glitch that affected the recent issue of the Bar Directory. The admission dates for the attorneys are four years

off, e.g., an admission year as 1990 should be 1986. This error did not appear until after the Bar Directory had been printed. We are looking into this issue and thank you for your understanding.

Mediation

&Arbitration

""When we teach, we learn.""

- Seneca (54 to 15 BC)

Dan Bent Mediator & Arbitrator 548-0080

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

w w w. Fa i r M e d i a t i o n . c o m

NOTICE

Notice is hereby given that Donte T. Lewis has filed a Complaint in Divorce against Cristina R. Lewis in the Westmoreland County Court of Common Pleas, Pennsylvania, docketed at Civil Action No. 211 of 2013 D. If you, Cristina R. Lewis, wish to defend against the claims set forth in the Complaint in Divorce, you must take action within twenty (20) days. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff.

You may lose money or property or other rights important to you.

You have a right to be represented by a lawyer. You should contact a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the office set forth below to find out where you can get legal help: FAMILY COURT ADMINISTRATOR’S OFFICE, WESTMORELAND COUNTY COURTHOUSE, 2 NORTH MAIN STREET, GREENSBURG, PENNSYLVANIA 15601. TELEPHONE (724) 830-3828.

JENNIFER P. BIERLY, ESQUIRE 330 INNOVATION BLVD., SUITE 302 STATE COLLEGE, PA 16803 TELEPHONE (814) 867-8055 (814) 867-8051 (Fax) jbierly@babstcalland.com

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HSBA HAPPENINGS Board Action Summary

The HSBA Board took the following actions at its meeting in November:

may be considered in the Board’s deliberations.

Board Vacancies on LASH Board

• Approved the YLD Board’s proposed procedures for selection of a YLD representative to the ABA House of Delegates (“HOD”) and approved funding in 2016 up to $1500 to cover the YLD representative’s registration and/or travel expenses to attend HOD meetings; • Approved the banking resolution, which authorizes the 2016 HSBA Officers, Executive Director, and the Director of Operations to conduct monetary transactions on behalf of the HSBA; • Approved of President Markham’s recommendation to appoint Russ Awakuni to serve on the 2016 HSTJA (Hawaii State Trial Judges Association)-HSBA Committee in place of the immediate past president; • Approved the HSBA Nominating Committee’s recommendation to reappoint Rai Saint Chu and Louise Ing and newly appoint Craig Wagnild to the Hawaii State Bar Foundation Board for a three-year term beginning January 1, 2016.

HSBA Board Welcomes Comment on Judicial Nominees

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 the nominee becomes public. Since the legislative process requires a very swift turnaround time, it is incumbent upon bar members to submit their comments in a timely manner so that they

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The Legal Aid Society of Hawaii (“LASH”) will have five positions expiring on its Board. General qualifications for these positions include: affirmative interest in the organization; willing and able to devote time to perform necessary duties; conscientious, studious, thorough, and diligent in learning methods and problems of the organization; and knowledgeable about and supportive of delivery of quality legal services to the poor.

Duties: Governs LASH, whose primary purpose is to secure justice for and protect the rights of the needy and promote measures for their assistance. The five vacant positions are for a three-year term beginning July 1, 2016.

Anyone interested in serving in this capacity should submit to the HSBA Nominating Committee: a resume, explanation of 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, state that such is the case. Please submit applications to the HSBA Office (nominations@hsba.org) by February 29, 2016. Appointments will be made at the HSBA Board meeting before July 2016.

CLE Requirements

Were you scrambling to look for your certificates of completion at the end of last year? Members are reminded to maintain their own certificates of completion and records of attendance for at least three years. RSCH 22(d).

The HSBA does not maintain records of

continuing education credit certificates for individual attorneys. The HSBA maintains certificates of completion for HSBA-sponsored programs. Bar members must certify compliance on the annual registration statement and also produce proof of hours by certificates of completion if requested for a random or compliance audit.

Upcoming CLE Program

Get a jumpstart on your CLE in 2016! The HSBA is excited to present “Hawaii Construction Law and Mechanics Liens” by Gerald Clay, Karin Holma, and John P. (Pete) Manaut on Friday, January 29, 2016, at the HECO Training Facility in Bishop Square. This all-day program will provide useful and practical information about construction law specific to Hawaii; look for details on our website this month.

Questions? Call the HSBA CLE Department at (808) 792-7336.

Annual License Renewal Reminder

If you have not already renewed your registration for 2016, do not delay.

The online registration portal for 2016 license renewal opened on December 1, 2015, and will remain open through February 29, 2016. If you have questions, please email the HSBA Membership Department at ars@hsba. org.

2016 SCD Board and Directors

President Carole Richelieu Vice President/President- Elect Ian Lorne Sandison Secretary Michelle Alarcon

Treasurer Timothy Lui-Kwan

East Hawaii Director Ryan Caday

Oahu Directors Charles Crumpton Rosemary Fazio Rosanne Goo William Tam Kenneth Wong Michael Wong

Maui Director Brandon Segal

Big Island Director Charlene Iboshi Maui Director Judith Neustadter Naone Kauai Director Jonathan Chun 2016 YLD Board and Directors President Ryan Hew Vice President/President- Elect Trejur Bordenave Secretary Catherine Taschner Treasurer Ryan Loeffers Oahu Directors Noah Gibson Abigail Holden Jamila Jarmon Summer Kaiawe Brent Kakesako Marissa Machida Shannon Mears Sommerset Wong West Hawaii Director Clayton Leonard

Kauai Director Shauna Cahill Member Benefits Spotlight

Fastcase Members of the HSBA get free access to Fastcase legal research as a benefit of membership. Fastcase is a nationwide legal research system that specializes in smarter legal research tools, including mobile apps for iPhone, iPad, and Android; data visualization tools; integrated citation analysis; and more. Sign in to your member account at www.hsba.org to access Fastcase.

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 1-888586-1056 (toll free).

Writing Legal Articles for CLE Credits Did you know?

A Hawaiilicensed attorney can earn two continuing legal education (“CLE”) credits annually for writing a legal article of 1,500 words. As of January 1, 2015, Hawaii Supreme Court Rule 22 was amended to include a new activity that may be entitled to credits: “writing scholarly legal articles that comply with Regulation 3 of the Continuing Legal Education Regulations of the State Board of Continuing Legal Education and are published in a bar journal, law review, book, bar association or similar recognized journal, or other legal publication may qualify for two credit hours per 1500 published words per year.” RSCH Rule 22 (e)(4).

CLE Regulation 3, inter alia, requires certain general standards: (1) The course or activity is an organized program of learning with significant intellectual or practical content and deals with matters directly related to the practice of law; (2) The course or activity’s primary purpose is to improve the participant’s professional competence as an attorney. Areas of professional competence include substantive legal issues, legal skills or practice, improving the attorney’s delivery of legal services to clients, and improving the efficiency of the practicing attorney.

Save the Date

In April 2016, there will be an Exchange Event in Tokyo, Japan pursuant to the Dai-Ichi Tokyo Bar Association and HSBA Friendship Agreement. For additional Information, please contact the International Law Section.

Accordingly, the scholarly legal article should be of “significant intellectual or practical content” and relate to the practice of law and an attorney’s professional competence.

A copy of an attorney’s publication of a 1,500-word legal article in the Hawaii Bar Journal should be submitted to the CLE Administrator at the HSBA for approval of CLE credits.

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Profile

Q. Please provide a brief background, such as your education and previous experience prior to being appointed to the bench.

J. Chang: I have been a Circuit Court Judge for 16 years and I am loving it.

Before coming to the bench, I was an insurance defense litigator with the law firm of Matsui Chung Sumida & Chang for 15 years, a deputy attorney general for four years, and a law clerk for one year. In private practice, I litigated cases that primarily involved torts, condominium law, civil rights, employment, and workers compensation. I was born and raised in Honolulu and graduated from Lanakila Elementary School (1966), Kawananakoa Intermediate School (1969), McKinley High School (1972), UHManoa (1976), and Gonzaga Law School (1979). In law school, I was honored to be selected to serve as the managing editor of the

Judge

Gary Chang 20 January 2016

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Gonzaga Law Review. I am married with two children in college and two dogs (my wife is the true master).

Q. What are the types of cases you handle?

J. Chang: Civil actions, land court petitions, and tax appeals.

Q. What are your most favorite and least favorite aspects of being a state circuit court judge?

J. Chang: Most favorite: Interacting with competent counsel.

The part I enjoy the most about my job is the interaction with the attorneys.

I truly enjoy working with the attorneys.

I enjoy presiding over spirited jousts in motion hearings, the creative and intelligent give and take of settlement conferences, and the artful contest of persuasion in trial. I think Shakespeare said it best when he said: “Do as adversaries do in law, strive mightily, but eat and drink as friends.” I love it when good lawyers respond to zealous advocacy with superior effort and skill, rather than personal attacks. The mighty cast compassion and compliments, the weak hurl insults and one-up-manship. Be the mighty!

Least favorite: Unprepared or lazy lawyers. Unprepared or lazy lawyers do a grave disservice to their clients, and I am very protective of clients’ interests.

When a lawyer comes to my court unprepared and ignorant, I have been known to display the court’s displeasure at his/her inexcusable performance; not to torment the attorney, but in hopes that that lawyer will be inspired to be better for his/her client.

Q. What suggestions do you have for attorneys who appear before you? Do you have any pet peeves?

J. Chang: Suggestions: Work hard at the craft of lawyering. Learn the craft first; the rewards will follow.

Learn the fundamentals: Review and learn applicable court rules and procedures, proper document preparation, and civility. If you want to see what kind

Thank You

Thank you to all of the attorneys, support staff, and

law firms that I have had the pleasure of working with in the past 45 years. I would like to speak for myself and all of the wonderful people who have worked at Carnazzo Court Reporting in saying thank you for an extraordinary career. Here's a toast to all of you!

Lou Carnazzo

of lawyers judges like to see in their courtrooms, read the “(1) Preamble: A Lawyer’s Responsibilities” found in the front of the Hawaii Rules of Professional Conduct and (2) “Guidelines of Professional Courtesy and Civility for Hawaii Lawyers.” Read it once a year and remind yourself of what the profession demands.

One final piece of advice: If you have not watched “My Cousin Vinny,” take a couple of hours and watch it. A very entertaining movie. You will see two Vinnys throughout the movie. The first Vinny shows up in court in a leather jacket, wholly unprepared. He predictably does a terrible job of lawyering.

The second Vinny, who shows up in a suit made of cloth, is prepared, and skillfully uses the expert testimony of the lovely Mona Lisa Vito to blow the prosecution’s case out of the water. Be the second Vinny, not the first.

Pet Peeves: (I shall limit my list to 10.)

(1) My number one pet peeve is when lawyers call our chambers, ask a staff member what they should do, and start arguing with, or speaking in a disrespectful tone to, my staff when my staff responds that they are not permitted to give legal advice.

(2) When lawyers ignore the rules.

Court rules are designed to level the playing field. If you do not follow the rules, you are gaining an unfair advantage over your opponent, who does follow the rules.

(3) Lawyers who cite authorities and do not actually read the authorities.

It is a good idea to bring a copy of your authorities with you to the hearing. You are a litigator—bring your court rules with you to court. I might ask you to read into the record the language from your authority that supports your proposition. If you do not have your own authority—awkward!

(4) Appearing at a settlement conference not knowing all of the facts and, therefore, not being able to intelligently evaluate your case or discuss settlement.

You would be absolutely shocked at the frequency with which lawyers come 22 January 2016

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unprepared to a settlement conference—almost daily. They do not know the basic facts of their cases. When I ask specific fact questions, no lawyer can hide his/her ignorance of the evidence, not even by a rambling over-abundance of spoken words.

(5) Lawyers who do not answer the court’s question.

Do not think that filibustering for five minutes without answering my question will make me forget my question.

When you are done speaking, I will simply ask you: “So what is the answer to my question?” At which time, you will typically say: “Um, I am sorry your Honor, what was the question?” At which time, the lawyers in the gallery will chuckle at you. When I ask a question, I will not forget it. It would behoove you to answer my question. If you are afraid of the question, you have not prepared enough. A good lawyer will be prepared to address the weaknesses in his/her case, even if it was not addressed in the brief.

(6) Lawyers who are ignorant of the law.

I make decisions based upon the applicable law and facts. Lawyers help me to make better decisions if they understand (actually understand) the applicable law. Too often lawyers miscite legal authority without actually reading or understanding the authority.

Lawyers may get by with that in a conversation with a colleague or a client.

But when you appear before me, please do your level best to read and understand your legal authorities, particularly on contested legal issues. Oral argument is an opportunity to persuade me that your authority deserves to carry the day.

(7) Lawyers who sit back and do nothing to attempt to settle the case; relying completely upon the court to settle the case for them. The court rules require [yes, I said “require” (Cir. Ct. R. 12.1(a)(4)] the parties to attempt to settle the case through the exchange of written bona fide and reasonable settlement offers before the settlement conference with the court. The overwhelming

majority of lawyers (95%+) fail to discharge that mandate.

(8) Lawyers who submit ex parte motions that fail to comply with Cir. Ct. R. 7.2(f)(2). I deny ex parte motions on the average of at least once every other day because the lawyers fail to fully comply with this rule.

(9) Lawyers who lack civility and who reduce every dispute or issue to a personal contest.

(10) Lawyers who cite to a Lexis or WestLaw electronic cite for opinions that were issued more than three years ago.

This indicates to me either laziness of counsel or ignorance of the importance of proper citation. The Blue Book provides: “When a case is unreported but available on a widely used electronic database, it may be cited to that database.”

Remember that the consequence of not using the proper citation in my court is that I may not be able to locate and read your authority. The purpose of proper citation form is so that your reader can locate the authority.

Q. What do you do for enjoyment or relaxation in your spare time?

J. Chang: Although I am not very good at either, my primary hobbies are fishing and golf. I also enjoy karaoke.

While many only know my serious, business side because of work, I would describe myself as having a very healthy sense of humor and being very fun-loving. I am not much of a recreational reader. So, I enjoy mindless things such as watching TV or going to a movie. I last saw Bridge of Spies (excellent negotiation skills displayed).

I am not much of a computer geek (that is why I cannot locate Westlaw or Lexis electronic cites), but I sometimes enjoy surfing YouTube or listening to a good lecture on Ted.com. I enjoy listening to a wide variety of music. And I accompany my mother and sister to the productions at the Diamond Head Theater every season. I occasionally judge high school speech and debate.

COURT BRIEFS Judge Steven Alm Receives HSBA’s 2015 Golden Gavel Award

On October 23, 2015, First Circuit Court Judge Steven Alm received the Hawaii State Bar Association’s (“HSBA”) 2015 Golden Gavel Award, at the HSBA’s Bar Convention and Annual Meeting.

HSBA Board member and HSBA Awards Committee Chair Rhonda Griswold commended Judge Alm for the creation and expansion of Hawaii’s Opportunity Probation with Enforcement (“HOPE”), and for expanding the scope of the First Circuit’s Drug Court to include higher risk individuals, requiring participants to get a job, and focusing on dual diagnosis treatment for those suffering from mental illness and substance abuse.

Left to right: Jodi Kimura Yi, 2016 HSBA President, 2015 President Elect; Jay Fidell, recipient of the 2015 HSBA President’s Award; Gregory Markham, Hawaii State Bar Association President; Judge Steven Alm, recipient of the 2015 HSBA Golden Gavel Award; Thomas Huber recipient of the 2015 HSBA Malama Award; Ryan Hew, 2016 Young Lawyer’s Division President, 2015 Vice President/ President Elect.

Seeking Applications for Independent Grand Jury Counsel - First Circuit

The Circuit Court of the First Circuit is seeking applications for Independent Grand Jury Counsel. If you are interested in being considered for a one-year appointment, please submit a resume by January 22, 2016 to Judge Richard K. Perkins, 777 Punchbowl Street, Honolulu, Hawaii 96813; fax number: 539-4218.

Kona Attorneys Recognized for Volunteer Service to the West Hawaii Community

Thirty attorneys were recognized for their volunteer service during the Self-Help Recognition Awards on 24 January 2016

HAWAII BAR JOURNAL

November 6, 2015 at the Kona Courthouse in Kealakekua. Since opening in October 2013, the Kona SelfHelp Desk has assisted more than 1,000 people, with volunteer attorneys providing approximately 400 hours of legal information on District and Family Court civil matters.

The volunteers were recognized by Hawaii Supreme Court Chief Justice Mark Recktenwald, Third Circuit Chief Judge Ronald Ibarra, Deputy Administrative Director of the Courts Iris Murayama, District Family Court Judge Aley Auna, Chief Court Administrator of the Third Circuit Lester Oshiro, and Third Circuit Deputy Chief Court Administrators Dawn West and Cheryl Salmo.

The following individual attorneys were honored: Joanna Sokolow (for the most volunteer shifts), Al Lerma, Charlie McCreary, Herman Heimgartner, Dean Kauka, Kaua Jackson, Dawn Henry, Kim Taniyama, Cynthia Tai, Michael Schlueter, Jason Kwiat, Catherine Gibson, Mark Van Pernis, Rebecca Colvin, Daniel Peters, Gerald Garcia, Fred Gianinni, Ann Datta, Stephen Whittaker, Mitch Roth, Jennifer Heimgartner, John Powell, Andrew Kennedy, Shawn Nakoa, Mike Matsukawa, Bob Borns, Wendy DeWeese, Peter Olson, Carol Kitaoka, and Robert Olson.

Also acknowledged were Erin Henschel, Madeline Taomia, and Heather Basham, the AmeriCorps Advocates who, through the Legal Aid Society of Hawaii, organize the SelfHelp Desk at the Kona Courthouse.

Chief Justice Recktenwald also thanked the West Hawaii Bar Association, the HSBA, the Legal Aid Society of Hawaii, and the Access to Justice Commission for their support of the Self-Help Desk.

Kuikahi board president Judge Andrew Wilson noted that Chief Justice Recktenwald is nationally recognized for his leadership and commitment to increasing access to justice. “He has been a strong supporter of alternative dispute resolution and has forwarded our efforts in the courts with programs such as the Hilo Self-Help Center and the Foreclosure Mediation Program.”

Under Chief Justice Recktenwald’s leadership, six Self-Help Centers were established statewide, with volunteer attorneys assisting more than 10,000 people.

Kuikahi Mediation Center Executive Director Julie Mitchell explained, ““More than half of our clients are at or below the poverty level.

The Hawaii State Judiciary has made tremendous strides in increasing its access to justice for all by increasing its services both in the courts and online.

We applaud Chief Justice Recktenwald for his vision and continued efforts.”

Chief Justice Recktenwald has also helped expand services such as the Hawaii Appellate Pro Bono Pilot Project, a divorce mediation program on Kauai, and a paternity mediation pilot project on Oahu.

“I’m honored to receive this recognition from the Kuikahi Mediation Center and the HCBA,” said Chief Justice Recktenwald. “It is because of our community partners like the Kuikahi Mediation Center that we are able to expand programs that encourage litigants to use mediation, so that they can attempt to resolve their conflicts on their own terms and at less cost. We are grateful for this partnership and their continued support.”

Chief Justice Recktenwald Honored With Peacemaker Award

Chief Justice Mark Recktenwald was honored by the Kuikahi Mediation Center, in partnership with the Hawaii County Bar Association (“HCBA”), at an Annual Recognition Dinner on November 15, 2015, in Hilo.

Ku’ikahi Mediation Center Executive Director Julie Mitchell presented Chief Justice Mark Recktenwald with the ‘Peacemaker Award’.

CA S E N OT E S Supreme Court Criminal

Schwartz v. State, No. SCWC-100000199, November 19, 2015, (Pollack, J.; Nakayama, J. and Recktenwald, C.J., concurring separately).

Appellant applied for a writ of certiorari from the judgment on appeal of the Intermediate Court of Appeals to determine whether omission of an element of a charged offense renders the trial court without subject-matter jurisdiction over the case.

The Hawaii Supreme Court found no deficiency of jurisdiction and affirmed the judgment on appeal. In accordance with the prior decisions of this court, the criminal jurisdiction of the district court is provided by Hawaii Revised Statutes Chapter 604. Here, the district court had jurisdiction over the OVUII charge alleged against Appellant by satisfaction of the requirements set forth in that chapter. Subject-matter jurisdiction is not abrogated by a charging instrument that fails to allege a culpable state of mind or a statutory element defining the offense. The fact that the OVUII charge failed to allege an element of the offense therefore did not extinguish the criminal jurisdiction of the district court. Based on the foregoing, the Hawaii Supreme Court overruled State v. Cummings, 101 Hawaii 139, 63 P.3d 1109 (2003) and State v. Walker, 126 Hawaii 475, 273 P.3d 1161 (2012) insofar as the holdings of those decisions indicated that a charge, information, or indictment that failed to allege either the requisite mental state or an element of the charged offense deprives a trial court of subjectmatter jurisdiction. In addition, the decision in Christian v. State, 131 Hawaii 153, 315 P.3d 779 (App. 2013) was also overruled.

Nakayama, J. concurred separately joined by Recktenwald, C.J. Nakayama, J. concurred with the majority’s determination that charging defects were not jurisdictional in nature and that the District Court of the Second Circuit 26 January 2016

HAWAII BAR JOURNAL

Appeal Pointers

An appeal may be dismissed or other sanctions may be imposed if the Civil Appeals Docketing Statement (“CADS”) is not filed for a required case. HRAP 3.1(b), 3.1(f). The CADS will be stricken if a copy of the judgment or order appealed from is not attached to it. properly denied Appellant’s Hawaii Rules of Penal Procedure Rule 40 petition. Nakayama, J. believed that State v.

Wheeler established a new rule that should not apply to convictions that were final when Wheeler was decided.

Indeed, this court had already determined that Wheeler worked a fundamental change in Hawaii’s OVUII charging requirements.

Labor

State v. DeMello, No. SCWC-100000173, November 2, 2015, (Nakayama, J.; Pollack, J. dissenting with Perkins, J.). The State of Hawaii (State) asked the Hawaii Supreme Court to determine whether the Intermediate Court of Appeals (ICA) gravely erred when it held that lost wages may not be awarded as restitution pursuant to Haw. Rev. Stat. § 706-646. The Hawaii Supreme Court held that Haw. Rev. Stat. § 706-646 permits restitution for reasonable and verified lost wages in appropriate circumstances. The district court therefore acted within its discretion when it ordered Appellant to pay restitution for wages that the Complaining Witness lost as a result of Appellant’s unlawful conduct.

Pollack, J. with Perkins, J. dissented.

Pollack, J. disagreed that the statute unambiguously provides for the recovery of lost wages as a category of restitution and asserted the following positions. When viewing the words of the restitution statute in the context that they are used, it is apparent that the legislature intended to limit the types of

financial injuries that are compensable under the statute. Because it is not clear on the face of the statute whether or not lost wages are recoverable, it is necessary to look to legislative history and other tools of statutory construction in fulfilling the court’s duty “to ascertain and give effect to the intention of the legislature.” Gillan v. Gov’t Emps. Ins. Co., 119 Hawaii 109, 115, 194 P.3d 1071, 1077 (2008) (quoting Colony Surf, Ltd., 116 Hawaii at 516, 174 P.3d at 355).

The legislative history of the restitution statute includes specific and reliable evidence that the legislature intended to exclude wage loss from recovery under the statute. In addition, application of the rule of lenity and other doctrines of statutory construction demonstrate that the statute does not provide for compensation of lost wages. The consequence of the majority’s holding goes far beyond simply including lost wages within the limited categories of restitution recoverable under the statute. The majority’s decision rests on an analysis that essentially finds that there are no limitations to the categories of restitution that are compensable under Hawaii’s restitution statute and broadens the statute’s coverage beyond its understood application by courts and practitioners for nearly twenty years in a manner that is contrary to the legislature’s intent.

Pulawa v. Oahu Constr., No. SCWC11-0001019, November 4, 2015, (Wilson, J.). This case arose out of a work-related injury Appellant incurred while employed as a construction supervisor for Appellee and the subsequent workers’ compensation claims made against Appellee, insured by Seabright Insurance Company. The issues presented on appeal were (1) whether there was substantial evidence to show that a neuromonics device was reasonably needed to treat Appellant’s tinnitus and

(2) whether Appellant was no longer entitled to total temporary disability (TTD) payments because he was able to resume work. The Hawaii Supreme Court held that there was substantial evidence that the neuromonics device was reasonably

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needed

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treating

Appellant’s tinnitus and that, based on this finding, Appellant was not medically stable and unable to return to work.

Thus, the Labor and Industrial Relations Appeals Board clearly erred in its determination that Appellant was not entitled to the neuromonics device and in its decision to terminate Appellant’s TTD payments.

Intermediate Court of Appeals Labor

Irving v. Ocean House Builders dba Nan, Inc., No. CAAP-14-0001059, October 30, 2015, (Foley, J.).

On appeal, Appellant contended that the Labor Industrial Relations Appeal Board (LIRAB) erred in (1) denying his request to designate the employer as a crossappellant; and (2) not concluding that Appellant was the prevailing party on the employer’s cross-appeal; and (3) denying Appellant recovery of attorneys’ fees under Haw. Rev. Stat. § 38693. The ICA concluded that: (1) the Director had not promulgated any applicable rules regarding designation of a party as a cross-appellant and therefore, there was no error in not designating the employer a cross-appellant; (2) the LIRAB should have applied Haw. Rev. Stat. § 386-93(b) to the employer; and (3) employer lost its challenge on the issue of whether Appellant sustained work-related injuries and therefore Appellant was entitled to the award of costs and reasonable attorneys’ fees incurred in defending against employer’s challenge on this issue.

OFF THE RECORD Cades Schutte welcomed three new associates to the firm: Nathan C. Yang, who received his law degree from the Duke University School of Law; Michelle Oh Yip, who graduated from the William S. Richardson School of Law; and Cheryl L.M.T. Itagaki, who graduated from the University of Southern California Gould School of Law and is in the employee benefits and executive compensation, trusts and estates, and the tax department. Yang is in the firm’s real estate and corporate departments, and Yip is in the tax and litigation departments.

Christian Fenton recently joined the Rufo Law Group as of counsel. He is a principal at The Law Office of Christian Fenton and is also licensed in California; his practice focuses on civil litigation and intellectual property.

Fenton will work primarily in the firm’s business litigation division.

Rayni Nakamura-Watanabe, formerly an associate attorney with Chung & Ikehara, joined the Law Office of Robert A. Mash, Staff Counsel for GEICO. Kelly Suzuka joined Goodsill Anderson Quinn & Stifel as an associate and concentrates her practice in the areas of real estate and corporate law.

She received her law degree from the University of Hawaii, William S. Richardson School of Law and was a member of its law review.

Megumi Honami joined Damon Key Leong Kupchak Hastert as an associate in the firm’s business and commercial law, real estate, and immigration and naturalization practice groups. She graduated cum laude from the William S. Richardson School of Law, where she served as senior editor of the Asian-Pacific Law and Policy Journal and president of the Pacific-Asian Legal Studies Organization.

Sarah Simmons joined the Ashford & Wriston law firm as an associate in the real property, business, and estate planning departments.

30 January 2016

HAWAII BAR JOURNAL

Damien Elefante is with the State of Hawaii Department of Taxation as a Tax Compliance Coordinator. He was a former deputy attorney general in the Tax Section of the Department of the Attorney General.

Chief Justice Mark Recktenwald was honored by the Kuikahi Mediation Center, in partnership with the Hawaii County Bar Association (“HCBA”), at an Annual Recognition Dinner on Sunday, November 15, 2015, in Hilo.

“This year Kuikahi is giving our ‘Peacemaker Award’ to the Chief Justice of the Hawaii State Supreme Court.

Chief Justice Recktenwald is nationally recognized for his leadership and commitment to increasing access to justice,” said Judge Andrew Wilson, Kuikahi’s board president. “He has been a strong supporter of alternative dispute resolution and has forwarded our efforts in the courts with programs such as the Hilo Self-Help Center and the Foreclosure Mediation Program.”

Under the Chief Justice’s leadership, Self-Help Centers were established in six locations statewide, including in Hilo and Kona. More than 3,860 individuals, who otherwise could not have afforded legal representation, have been assisted on the Big Island, alone.

Statewide, the volunteer attorneys at the Self-Help Centers have assisted more than 10,000 people.

“More than half of our clients are at or below the poverty level,” said Julie Mitchell, Executive Director of the Kuikahi Mediation Center.

“The Hawaii State Judiciary has made tremendous strides in increasing its access to justice for all by increasing its services both in the courts and online.

We applaud Chief Justice Recktenwald for his vision and continued efforts.”

In addition, mediation services are available at the Hawaii State Judiciary’s district, circuit, and appellate courts.

Chief Judge Ronald Ibarra said: “The Chief Justice has always recognized the

value of conflict resolution and conciliation methods and has supported programs, such as our Third Circuit Foreclosure Mediation Program, Family Court’s Ohana Conference, and our Court Annexed Arbitration Program.”

The Chief Justice has also helped expand services such as the Hawaii Appellate Pro Bono Pilot Project, a divorce mediation program on Kauai, and a paternity mediation pilot project on Oahu.

“I’m honored to receive this recognition from the Kuikahi Mediation Center and the HCBA,” said Chief Justice Recktenwald. “It is because of our community partners like the Kuikahi Mediation Center that we are able to expand programs that encourage litigants to use mediation, so that they can attempt to resolve their conflicts on their own terms and at less cost. We are grateful for this partnership and their continued support.”

HCBA also recognized Addison M. Bowman, who is a Professor of Law Emeritus at the William S. Richardson School of Law and an appellate mediator for the Hawaii Supreme Court, for his many years of service.

News for “Off the Record”

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

Correction

In the last issue, the officers of the Federal Bar Association, Hawaii Chapter, were mentioned. One name was inadvertently missing: Jeffrey Portnoy is the Immediate Past President.

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