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BAR JOURNAL A N O FFICIAL P UBLICATION
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H AWAII S TATE BAR A SSOCIATION J UNE 2022 $5.00
NOTICE TO ATTORNEYS AND LAW FIRMS INTERESTED IN PROVIDING LEGAL SERVICES TO THE MAUI COUNTY COUNCIL SOLICITATION NO.: 22-003OCS In accordance with Chapter 103D, Hawaii Revised Statutes, the Office of Council Services for the County of Maui invites attorneys and law firms licensed to practice law in the State of Hawaii to submit a letter of interest and statement of qualifications to provide legal services to the Maui County Council. A statement must be submitted in accordance with this Notice even if a similar statement has been submitted to the Department of the Corporation Counsel or Office of the County Auditor. Legal services are authorized by resolution and provided in accordance with contracts executed through the fiscal year ending June 30, 2023. The Maui County Council or other legislative agencies and employees of the County anticipates that it may retain attorneys or law firms qualified to practice in the following areas of law through June 30, 2023: Administrative Americans with Disabilities Act Appellate Practice Arbitration and Mediation Civil Rights and Civil Liberties Complex Litigation Conflicts of Interest Constitutional Construction Contract Criminal Defense Election Law Eminent Domain Environmental Federal Court Litigation Forensic Auditing Free Speech
Government Auditing Government Ethics Governmental Immunity Insurance Intra and Inter Governmental Litigation Labor and Employment Land Use Legislative Interpretation and Procedure Lobbying (Federal or State) Municipal Native Hawaiian Rights Open Government (Sunshine Law, Uniform Information Practices Act)
Public Trust Doctrine Public Works Real Property Religion Clauses (Free Exercise, Establishment) Separation of Powers Sexual Harassment Takings Taxation Tort Water Whistleblower Zoning and Planning
Attorneys or law firms interested in being retained to provide legal services in these areas or any other area of practice should submit a letter of interest and a statement of qualifications that include the following information: 1. The name of the attorney or firm, principal place of business and location of all offices, email addresses, and telephone numbers. 2. The areas of practice of the attorney or firm. 3. A summary of the education, experience, and qualifications of any attorney who would be performing substantial legal work or who would be communicating with the client. 4. A summary of the cases or other legal work done relevant to this Notice and the names and contact information of up to five clients who may be contacted, including at least two for whom services were rendered during the preceding year and at least one governmental client. 5. Disclosure if the attorney or firm has legal malpractice insurance coverage, and whether the attorney or firm has ever been denied coverage in the past. 6. An overview of anticipated billing policies. 7. The attorney's or firm's website address. A letter of interest and statement of qualifications in response to this Notice should be addressed to Director of Council Services, and emailed to county.council@mauicounty.us at least ten calendar days before the beginning of a month in order to be eligible for consideration during that month and through June 30, 2023. T he subject line in emails should read: "ln Response to Providing Legal Services to the Maui County Council"; attachments should be in searchable PDF format. Procurement Notice for Solicitation will be posted on the State of Hawaii HANDS website on June 1, 2022.
TABLE O F C ON TE NTS VO LUM E 26 , N U M B E R 6
ARTICLES
EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Joseph Dane Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin
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Remote Work in the Post-Pandemic World by Christopher J. Cole
16 19
A Little Bit About the Legislative Subpoena by Tom S. Tanimoto
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OF NOTE
HSBA OFFICERS President Shannon Sheldon
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HSBA Happenings
President-Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau
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Court Briefs
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2022 Hawaii Access to Justice Conference
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The Supreme Court 2021-2022 Term in Review
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Notice of Interim Suspension
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Case Notes
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Classifieds
Treasurer Alika Piper YLD OFFICERS President Jasmine Wong Vice President/President-Elect Lisa Yang Secretary Nelisa Asato Treasurer Kelcie Nagata
The American Judicature Society’s Annual Sidebar Program
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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 fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.
Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net
On the Cover: Ulu Mama by Shar Tuiasoa. Tuiasoa is a freelance illustrator based in Kailua, Oahu. After studying Fine Art at her local community college for 6 years, Shar moved to California to earn her BFA in Illustration. She moved back to Hawaii shortly after and started Punky Aloha Studio in the summer of 2018. She has created artwork for Apple, Facebook, Sephora, Patagonia, AT&T, and The New York Times and is currently working on her first of two picture books as an author and illustrator for Harper Kids, an imprint of Harper Collins. To see more of her work visit punkyaloha.com
Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.
Remote Work in the
PostPandemic World by Christopher J. Cole For many in Hawaii and across the world, the COVID-19 pandemic fundamentally altered the way business is conducted. By necessity during lockdowns, many people continued to transact business and work remotely, usually from home, in a variety of industries. Creative and widespread adoption of readily available technologies, such as video conferencing platforms, remote networks, smart phones and laptop computers, rapidly accelerated the prevalence of remote work, which is also referred to as “telework” or “telecommuting.” Virtual technology platforms responded with rapid innovation and improvements in short order. Within a matter of weeks and months, our communities witnessed a wide range of diverse occupations, such as physicians practicing “telehealth” medicine, late night talk show hosts, and, pertinent to this article, lawyers, performing remotely the kind of work that previously had been done in-person. Of course, many jobs cannot be performed remotely, but it is safe to say that increased remote work forced by the pandemic has had a transformative effect on a wide spectrum of private and public sector service industries and white collar jobs, including the legal profession. As of the writing of this article, and perhaps at some point in the more distant future if case counts
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spike up once more, the COVID-19 pandemic appears to be on an overall easing trajectory. Though perhaps not with absolute certainty, the virus does appear to be progressing toward an endemic or at least a manageable status at some point. More and more businesses are reopening in full each day. Governments, including our own, have lifted most restrictions. Individuals who had been working remotely are choosing to return to work on a hybrid or completely in-person basis. And employers are increasingly ordering their workers back into the office on a mandatory basis to work alongside colleagues and serve customers face to face. At this juncture, the bar and their clients in industries where remote work is possible face a crossroad issue as our communities reopen to more inperson activities: Is remote work here to stay? How should we adjust? Against the backdrop of conflicting interests and priorities on the subject, described below, this article attempts to answer these and other important questions facing employers by looking at remote work as an increasingly viable phenomenon, surveying the historical judicial treatment of telecommuting as a workplace accommodation, and previewing how recent pandemic-related trends could warrant a holistic approach for Hawaii lawyers and their clients. Remote Work Before the Pandemic Even before the COVID-19 crisis was declared a global pandemic in March 2020, working from home was an increasingly feasible and common workplace option. According to a 2018 survey conducted by indeed.com, 70% of respondents indicated they worked remotely at least one day per week, and 37% said their employers had a remote work policy.1 According to the data collected in 2018, most individuals reported experiencing either an increased (57%) or at least equivalent (38%) productivity, with only 4% reporting a decrease in productivity.2 Employers were even more positive
about the beneficial impact of remote work on worker productivity. Among the surveyed employers adopting remote work policies, the vast majority reported an increased (72%) or equivalent (22%) productivity, and only 3% reported a reduced level of productivity among their employees working from home.3 4 Judicial treatment of telework as a viable option was not nearly as enthusiastic. Court cases addressing the question most frequently arose under the Americans with Disabilities Act of 19905 where individuals sued their current or former employers for denying remote work from home as a “reasonable accommodation” for their disability. The leading case is the oft-cited Vande Zande v. Wisconsin Dep’t of Admin.,6 decided in 1995 by the United States Court of Appeals for the Seventh Circuit. In Vande Zande, the plaintiff was a paraplegic clerical worker who had been allowed to perform some work from home on a part-time basis as a temporary arrangement, but her supervisor refused to authorize the purchase of a desktop computer for her use at home that would have enabled her to continue such work on a full-time basis. Accordingly, she was forced to use sick leave to make up the difference. Vande Zande sued her employer, a state agency, for failing to reasonably accommodate her disability. The district court granted summary judgment to the defendant, and on appeal the appellate court rejected Vande Zande’s argument that the Wisconsin agency was required by the ADA to buy her a desktop computer as a reasonable accommodation so that she could work from home, stating in pertinent part: No jury . . . could in our view be permitted to stretch the concept of “reasonable accommodation” so far. Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home. This is the majority view, illustrated by Tyndall v. National Education Centers, Inc., 31 F.3d 209, 213–14 (4th
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Cir.1994), and Law v. United States Postal Service, 852 F.2d 1278 (Fed.Cir.1988) (per curiam). The District of Columbia Circuit disagrees. Langon v. Dept. of Health & Human Services, 959 F.2d 1053, 1060–61 (D.C.Cir.1992); Carr v. Reno, 23 F.3d 525, 530 (D.C.Cir.1994). But we think the majority view is correct. An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. No doubt to this as to any generalization about so complex and varied an activity as employment there are exceptions, but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.7 The United States Court of Appeals for the Ninth Circuit, which hears appeals in cases originating in Hawaii’s federal courts, initially seemed prepared to adopt the minority view. Thus, in 2001, the Ninth Circuit reversed summary judgment in favor of an employer who denied a medical transcriptionist’s request to be able to work from home due to prior discipline linked to her disability despite evidence that working from home could have enabled her to successfully perform her essential work duties.8 However, about a decade later, the Ninth Circuit in Samper v. Providence St. Vincent Med. Ctr., after an extensive analysis of reported decisions, categorized its prior 2001 decision in Humphreys as an exceptional case, holding that “[e]xcept in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”9 10 This entrenched jurisprudence from appellate decisions, including those governing the Hawaii bar, reflects a historically hostile treatment of remote work nationwide that was aptly described as the “general rule” in Samper. Indeed, a recent exhaustive compilation of post-Vande Zande decisions in a law review article revealed twice as many cases ruling in favor of the employer on summary judgment or motions for summary judgment or judgment as a matter of law.11 And even that survey may understate the existing anti-remote-work bias inherent in the Vande Zande/Samper rule, for many employees may choose not to challenge employer decisions to deny remote work except in the most dubious cases, or such decisions were upheld by courts for other reasons such that they were not among the
NOTICE TO ATTORNEYS INTERESTED IN PROVIDING LEGAL SERVICES TO THE CITY AND COUNTY OF HONOLULU
Under the Hawaii Public Procurement Code, Haw. Rev. Stat. Chapter 103D, and the Revised Charter of the City and County of Honolulu, the Corporation Counsel of the City and County of Honolulu is responsible for securing legal services from licensed private attorneys to provide legal advice and representation for City agencies, officers, employees, boards, commissions and semi-autonomous agencies. Corporation Counsel invites licensed attorneys to submit Statements of Qualifications and Expressions of Interest for evaluation. Those private attorneys who are deemed qualified will be included on a list from which special deputies corporation counsel, special counsel, and legal consultants will be selected by the Corporation Counsel to provide necessary legal services. Following are the areas of law in which such services may be required by the Corporation Counsel during the period of July 1, 2022 to June 30, 2023: Administrative Law Appellate Practice Antitrust Bankruptcy/Receiverships Business Law, including Contract Law, Corporate Law and Business Transactions Civil Rights Collections/Foreclosures Constitutional Law Condemnation Construction Law, including Construction Litigation Criminal Law (including Federal Criminal Law) Cybersecurity Election Law Employment Law, including Employee Benefits Energy Law Environmental Law, including Clean Water Act, Clean Air Act, HEPA/NEPA, Regulatory Compliance & Enforcement, Solid Waste Management, Environmental Attributes, and Storm Water Management Fair Housing Probate, Estates & Trusts, including Guardianships Government Contracts & Procurement, including Bid Protests, State and Federal Procurement, and Public Private Partnerships
Government Ethics Health Law Information and Computer Technology Insurance Intellectual Property Labor Law Enforcement Litigation, including Complex Civil Litigation and Class Actions Maritime Law Plaintiffs Qui Tam Public Benefits Law, including ADA Public Financing, including Bond Counsel, Investment Banking, and Financing Leases Public Utilities Law Real Property, including Financing, Development, Land Use Entitlements and Transactions Securities Law Tax Telecommunications Tort Law, including Personal Injury, Products Liability, Design Defects and Professional Malpractice Transportation Law, including Mass Transit, Transit Financing, and Land Use Entitlements Water Law Workers’ Compensation
Licensed attorneys interested in providing legal services in one or more of these areas are invited to submit a Statement of Qualifications and Expression of Interest. Attorneys from the same law firm wishing to be considered must submit separate statements. Attorney statements may include areas not listed above.
Forms are available for download at http://www.honolulu.gov/cor. Forms may also be requested by telephone ((808) 768-5100) or facsimile ((808) 768-5104). Corporation Counsel’s General Policy Regarding Waiver of Conflicts is also available at that website or upon request; however, the decision as to whether to waive a conflict of interest will depend on the facts of that particular situation and is in the sole discretion of the Corporation Counsel.
ALL MATERIALS shall be emailed to: professionalservices@honolulu.gov. NO HARD COPIES, CDs, OR FACSIMILES SHALL BE ACCEPTED.
All forms should be submitted no later than 4:30 p.m., June 30, 2022, to receive full consideration for the above-stated period. Late submittals that meet all applicable criteria will be accepted, but will only be available for consultant selections conducted after the submittals have been reviewed and the service category qualification(s) determined.
125 cases selected for inclusion in that sample.12
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Remote Work During the Pandemic The pandemic immediately forced a sea change in the broad use and acceptance of remote work. One study by PwC suggests 83% of white-collar employees in the United States shifted to remote work for at least some of the workweek in the immediate aftermath of lockdowns imposed during the COVID19 pandemic, and a majority continue to work remotely at least some of the time as of October 2021.13 The shift to remote work has been largely successful and well-received. With a few notable exceptions, including the infamous case of the lawyer who made a court appearance as a kitten,14 meeting by video-conference technology offers a serviceable substitute. Certain benefits, both expected and surprising, have been realized by those fortunate enough to be able to work from home and their employers, as well. Remote workers typically spend less time and money on daily commutes, midday meals, and dry cleaning bills. People can work in more comfortable clothing, so long as their video appearance remains professional. Some have taken the opportunity to fly to exotic locations (including Hawaii) to log in far away from their usual workplace. Armed with a laptop and internet connection, many individuals can theoretically perform their work from virtually any place on earth. Unexpectedly, for some, longstanding fears of productivity declines without supervisors or coworkers keeping workers honest generally have proven to be unfounded, and in many cases productivity actually has improved. Remote work policies, or even a hybrid work scenario, in which employees come into the office intermittently or on a rotating basis, also raise the prospect of businesses reducing their physical workspace footprint, thereby reducing
rent expenses. However, the ubiquity of remote work has not been a uniformly positive development, either as a temporary solution or as a potentially more permanent feature of the post-pandemic modern workplace. Working remotely has a tendency to attenuate relationships between coworkers, managers and other stakeholders. Issues of morale and fairness may engender resentment in workplaces where only some of the workers can work remotely. Many employees, especially those in an earlier stage of their career, wonder if their absence from the workplace and reduced visibility will stymie their professional development. Others have cited concerns about the confidentiality and security of sensitive data when employees have access to such data work from laptops and home computers or when they review confidential paper files in their home offices. And studies have shown both management and subordinate employees believe the isolation brought on by remote work has eroded trust on both sides. In our legal services industry, the litigation bar and judiciary have been perhaps most affected in their day-to-day practice. Litigants seeking jury trials suffered lengthy postponements and substantial backlogs. Remotely conducted hearings, depositions, and similar proceedings experienced logistical issues to one degree or another in regard to exhibits, connectivity issues, interruptions, and delays resulting from use of the remote platform. Anecdotal evidence suggests that the pandemic and associated workarounds, including virtual proceedings, have been particularly challenging for judges, trial attorneys, and their respective staff. The United States Equal Employment
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Opportunity Commission (EEOC), for its part, promptly published official legal guidance early in the pandemic for employers and workers. The EEOC indicated employers may take into account the unprecedented impact of the pandemic, including government restrictions, drastic loss of revenues and/or increases in other pressing expenses, and the need for time limits on temporarily approved measures such as remote work, in considering whether and how to make reasonable accommodations.15 Relatedly, the EEOC reaffirmed that an employer will not be necessarily stuck with a decision to offer remote work as a temporary measure once restrictions are lifted.16 On the other hand, a disabled employee’s experience during the temporary
telework period will be relevant to whether or not the ADA will require her or his employer to continue the arrangement on a more permanent basis after the pandemic subsides.17 If not already known or obvious, the EEOC authorized employers to continue to ask questions or request medical information about an employee’s claimed disability, resulting limitations, and their impact on essential job functions, in discussing options, including whether or not to permit and facilitate the employee’s ability to work from home.18
Calling Workers Back to the Office as the Pandemic Appears to Subside At the time this article is being written, powerful voices are sounding the call for employees to return to the regular, shared workplace. Google announced in March 2022 that it would mandate workers to return to the office starting April 4, 2022.19 Apple followed suit shortly after, announcing a plan that would call its workers back to work in phases, with a hybrid mandate of three days per week in-office by late May 2022.20 In fact, managers have found the remote work paradigm has made it much more difficult for them to supervise teams of workers who must collaborate on projects and assignments, and they are prepared to fire or demote employees who refuse their directives to return to the office.21 On the other side of the coin, many workers have grown accustomed to working remotely, and may resist returning to the physical, shared workspace out of convenience, an ongoing fear of contracting a potentially lethal disease, or both. Recent polling demonstrates that workers expect remote work to continue in their workplace, at least on a hybrid basis, and will quit and seek alternative employment options if not allowed to work remotely at least some of the time. There is also the unpredictable course of the pandemic to consider. Public and private sector managers and executives have grown weary of having to revise, and then revise again, policies, procedures and practices as necessary to adjust to ever-changing restrictions, mandates and public health conditions. Further, given the so-called “Great Resignation” and resultant acute labor shortages plaguing businesses across the
Solutions Start Here country, employers may find that at least some compromise is necessary to avoid losing talent. For instance, Goldman Sachs is facing a backlash after reports that managers used spreadsheets to monitor compliance with its putatively voluntary call for remote workers to return to the office, with industry insiders predicting the financial firm may bleed young talent as a result.22 With such competing forces, prioriWith the equipment in ties and attitudes tugging in opposite dip rections, it is important for business leaders to consider a thoughtful, well-arThey could easily and safely ticulated plan and policy for addressing p remote work in their organizations. Since there are merits on both sides of the question, it seems likely that hybrid T arrangements will emerge as the most common strategy for businesses Thethose number of court and jobs where remote work is feasible. r Regardless of the precise path chosen, an integral part of any employer’s remote work program is to properly identify and address the legal risks and ramifications of remote work. In the sections that folthetoannual low, this articleBecause will pivot discuss some fof the legal issues, trends, and potential solutions that Hawaii lawyers may wish to consider in advising clients navigating that fraught decision, or in establishing internal policies for their own firms, staff and departments.
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Legal Implications of Remote Work An employee working from outside of an employer’s physical premises raises a host of legal issues. Can an employer be sued by permitting some employees, but not others, to work remotely? By allowing none to work remotely? What laws apply when an employee works from another state, or a foreign country? How can an employer be sure that hourly workers T are not exposing it to liability for unpaid overtime liability by working “off the clock” at home? The first legal issue attendant to any employer’s remote work policies and practices revolve around discrimination
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laws, primarily those involving disabilities, which have already been discussed above in the context of the pre-existing judicial hostility to remote work as a reasonable accommodation under the ADA. In addition, an employer that only permits some of its workers to work remotely, but not others, could face claims of discrimination on other grounds, such as sex or age discrimination. The touchstone for avoiding the latter sort of claims is to avoid unequal treatment of similarly situated employees or categories of employees. Thornier issues arise in responding to individual requests for special treatment by otherwise qualified employees who claim remote work is needed to enable them to overcome a claimed disability and perform essential job functions, or who claim a conflict with sincerely held religious beliefs,23 or who apply for a transfer to a job that can be done
remotely from a job that cannot. Given the breadth of the generally successful remote work experiment forced on employers by the COVID-19 pandemic, it is an open question whether the existing anti-remote-work bias exemplified by the Vande Zande/Samper line of cases will continue to prevail in contested cases. As one legal commentator observed, “[t]he COVID-19 pandemic has provided ample evidence of the feasibility of more flexible and non-standard work arrangements, including remote work.”24 Based on the limited number of reported cases that have been decided since the pandemic began, one can identify discernible trends. First, many courts have been influenced by the EEOC’s guidance that employers are not automatically bound to continue remote work as a reasonable accommodation merely because they were forced into the practice by
necessity during COVID-19 lockdowns. “The pandemic-era excusing of certain essential functions does not . . . mean that the essential functions have somehow changed. . . . [E]ven if some employees . . . were permitted to telework during the COVID pandemic, the essential functions of their positions are not altered permanently, nor are they somehow retroactively altered.”25 Relatedly, courts have treated decisions made by companies to offer remote work before the pandemic, and during the pandemic, under differing standards due to the exigent circumstances posed by COVID-19 and government-ordered shutdowns, mandates and restrictions.26 On the other hand, courts have ruled an otherwise qualified disabled employee’s experience with remote work during the pandemic can be a relevant factor employers must take into account in deciding whether or not to continue
Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial
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that practice on a more permanent basis as a reasonable accommodation after the office reopens.27 And overall it appears that the pandemic experience during lockdowns has generally dissuaded courts from citing or relying on the Vande Zande/Samper presumption that it would be an “unusual” or “exceptional” job whose essential job functions can all be done remotely from home.28 Based on these trends, it is foreseeable that courts will revisit this rule in the context of fact patterns that will include the parties’ track record of remote work performed during the pandemic. Another legal issue raised by remote work is where employees can sue, and what laws apply, when their employers allow them to work remotely in another state or a foreign country. Foreign labor and employment laws might address a myriad of issues not governed by Hawaii law, or treated differently, on a range of
subjects such as workplace safety, workers compensation, medical or family leaves of absence, wage payment procedures, and state or county discrimination laws. In theory, Hawaii employers who permit their workers to work from the mainland or abroad might be legally required to navigate and comply with a labyrinth of potentially conflicting duties and mandates. For example, New York City has a unique discrimination law that bars adverse actions taken against an employee based on “caregiver status.”29 And California is well-known for having a comprehensive and unique scheme of state and municipal laws governing a wide array of employment prohibited practices and mandates governing paid sick leave, meal and rest breaks, COVID-19 recall and return to work rights, right to sit down at work, and other subjects.30 Many commentators in the labor and employment field have assumed the
law where the employee lives and works from home would apply to the “remote workplace,” even if the employer maintains an office and transacts most of its business somewhere else. But the precise contours of this important conflict of laws issue have not been comprehensively addressed by courts in the context of the dramatically expanded incidence of remote work following the pandemic. It may not occur to companies that by agreeing to permit employees to work remotely from home that they have thereby consented to being haled into distant courts to face lawsuits arising under foreign and unfamiliar laws. Hawaii, like many other states, generally follows the framework established by the Restatement (Second) of Conflict of Laws (1971).31 For contractual claims, a choice of law clause in the contract, if present, will generally control.32 In other cases, however, Hawaii’s choice-of-law
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rules require a determination of which state has “the most significant relationship to the parties and the subject matter.”33 Under the balancing tests applicable under these standards, courts often start with the presumption that the forum’s law will be applied, which means that a foreign court may choose to apply its own law over Hawaii law if the lawsuit originates in another state, but Hawaii law would likely apply if the case is filed here. So far, most reported decisions that have grappled with the post-pandemic phenomenon of employees working in states outside of their employer’s “home” jurisdiction addressed threshold jurisdictional issues, such as federal diversity jurisdiction, or whether the forum state possesses the requisite “minimum contacts” to exercise personal jurisdiction over a corporate defendant consistent with due process. For example, in the case of an employee who filed a sexual harassment lawsuit in her home state of West Virginia that was removed to the federal court, the judge granted her Texasbased employer’s motion to dismiss for lack of personal jurisdiction, holding that “mere accommodation of an employee’s choice to work remotely cannot alone form the basis of asserting specific jurisdiction.”34 The court went on to observe “the rise of COVID-19 and the increase of remote work may one day counsel for the revisiting of the personal jurisdiction analysis framework,” but saw “no compelling reason to inappropriately expand its limited jurisdiction now.”35 In a diversity jurisdiction case, the court stated the difficulty of ascertaining a corporate party’s principal place of business “is surely even more compounded in the post-COVID-19 era, when substantially more employees telecommute,” but that under Hertz Corp. v. Friend, 577 US 77 (2010) (nerve center test), “every corporation has a principal place of business, and has only one of them.” On the matter of the substantive reach of a state’s laws, there have been a line of post-pandemic cases from New York holding that the “impact” test for determining whether or not a plaintiff can bring claims under the Empire State’s state and city anti-discrimination laws depends on where the worker is remotely working from.36 These early trends suggest Hawaii businesses have every reason to account for the prospect of being sued in distant courts applying foreign law when they allow an employee to work from locations outside of Hawaii. The final legal issue covered by this article is an employer’s obligation to track and monitor the working time of hourly, nonexempt employees when they work remotely from home. This is an issue primarily if not exclusively governed by federal law under the Fair Labor Standards Act (FLSA), as amended 29 USC § 201, et seq. Fortunately, the United States Department of Labor (USDOL) issued helpful guidance on this point early in the pandemic in a Field Bulletin.37 The USDOL reaffirmed
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the FLSA requires covered employers to keep accurate records of nonexempt (typically hourly) employees’ working time that it “suffers or permits,” i.e., that they know or should know about, and pay overtime for such work exceeding 40 hours in a workweek at 1.5 times the regular rate of pay. The USDOL pointed out that one way an employer may satisfy this obligation is by “providing a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer.”38 This guidance noted that if an employee then fails to report unscheduled working time, an employer is “not required to undergo impractical efforts to investigate further to uncover unreported hours of work,” or to pay for those unreported hours, so long as it does not discourage or prevent the employees from so reporting.39 This guidance is consistent with existing Ninth Circuit precedent consistently adhering to these rules.40 Of course, the devil is in the details; so, employers can face enormous liability exposure for unpaid offthe-clock overtime, and expensive and intrusive agency audits, if and to the extent that their time reporting procedure is not reasonable, not properly executed or followed, or if managers discourage employees from reporting their unscheduled working time. Such liability may arise from unreported pre-shift or post-shift activities, working through lunch, or work-related interruptions during unpaid meal periods. Possible Solutions and Approaches for Remote Work Now more than ever, remote work is here to stay, even if and after the pandemic subsides. Each business is unique; so, cookie-cutter plans or policies may not suffice. Hawaii lawyers who are consulted by businesses about permitting their employees to work offsite, or who are considering a similar program for their own firm or department, should consider a holistic approach. Some steps that might be adopted may include: (1) identifying tasks, operations, and positions that can, and cannot, be performed remotely; (2) updating job descriptions; (3) drafting or updating remote work policies; (4) mandating that employees formally apply for remote work, if feasible, and creating forms for such purpose; (5) negotiating and drafting contracts that fairly address mutual expectations regarding accessibility, suitability of the home office, choice of law and venue, timekeeping for nonexempt workers, workplace safety, and other relevant issues; and (6) investing in the necessary equipment, software, training, staffing and procedures to effectuate a sensible remote work program. __________________ 1
“Remote Work Can Bring Benefits, but Attitudes Remain Divided,” (11/14/18), accessed at https://www.indeed.com/lead/remote-work-survey.
2
Ibid. Ibid. 4 Employers’ pre-pandemic enthusiasm for remote work was not unanimous, with stated objections being based on considerations other than mere productivity. Notably, IBM, an early adopter of remote work practices, reversed its policy in 2017, and called thousands back to work citing teamwork issues. Similarly, Google discouraged remote work due to its negative impact on innovation sparked by “chance” encounters and dialogue among coworkers mingling in the physical workplace setting. Ibid. 5 42 USC §§ 12101, et seq. 6 44 F.3d 538, 544-545 (7th Cir. 1995) (Posner, C.J.). 7 Ibid., 44 F3d at 544-45. 8 Humphreys v. Memorial Hosp. Ass’n, 239 F.3d 1138 (9th Cir. 2001). 9 675 F3d 1233, 1239 (9th Cir. 2012). 10 To date, Hawaii’s state appellate courts have not weighed in on the question in a reported decision, although the Intermediate Court of Appeals ruled against the employee in an unpublished decision. See Janto v. Roman Cath. Ch. in the State of Hawaii, 2012 WL 2446149 (Ct .App. 2012) (circuit court did not clearly err in finding after bench trial that regular in-person attendance was an essential job function based on supervisor’s testimony that plaintiff ’s job as outreach counselor required face-to-face interaction). 11 Stacy Hickox, Chenwei Liao, “Remote Work as an Accommodation for Disabled Employees,” 38 Hofstra Lab. & Emp. L.J. 25, 44 (Fall 2020). 12 Ibid. at 45. 13 Saad, Lydia and Wigert, Ben PhD, “Remote Work Persisting and Trending Permanent,” Gallup News (10/13/21), https://news.gallup.com/poll/355907/remote-work-persisting-trendingpermanent.aspx 14 See Victor, Daniel, “’I’m Not a Cat,’ Says Lawyer Having Zoom Difficulties,” New York Times (2/9/21), https://www.nytimes.com/2021/02/09/style/cat-lawyer-zoom.html 15 See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” https://www.eeoc.gov/wysk/whatyou-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D (“EEOC Guidance”), at Questions D-7, D-9, D-10, D-11. 16 Ibid. at Question D-15. 17 Ibid. at Question D-16. 18 Ibid. at Questions D-4, D-5, D-6. 19 De Vynck, Gerrit, “Google Says its Workers Will Have to be Back in the Office April 4,” Washington Post (3/2/22), https://www.washingtonpost.com/technology/2022/03/02/google-back-to-work/ 20 Schlosser, Kurt, “Apple Announces Return-to-Office Plan for Corporate Workers, with Hybrid Model Starting April 11,” GeekWire (3/4/22), https://www.geekwire.com/2022/apple-announces-return-tooffice-plan-for-corporate-workers-with-hybrid-model-starting-april-11/ 21 Graff, Amy, “Most Managers Said They’d Fire Workers or Cut Pay for not Returning to the Office,” SFGATE (4/13/22), https://www.sfgate.com/bayarea/article/Most-managers-said-they-dfire-workers-or-cut-pay-17073723.php 22 Chirinos, Carmela, “Goldman Junior Bankers are Publicly Threatening to Leave Wall Street for Tech as CEO Demands Full-Time Return to Office,” Fortune (4/1/22), https://fortune.com/2022/04/01/goldmanjunior-bankers-return-to-office-mandate/ 23 Religious discrimination claims exploded during the pandemic, but usually on the idea that vaccinations conflict with sincerely held religious beliefs. At least one plaintiff took that logic a step further by arguing that his religious beliefs mandated that he continue to work from home. 3
The court was not impressed by this theory. See Leone v. Essex Cty. Pros. Ofc., 2021 WL 4317240 (D. N.J. 9/23/21) (denying preliminary injunction). 24 Hickox and Liao, 38 Hofstra Lab. & Emp. L.J. at 26, n.8. 25 Maffett v. City of Columbia, 2021 WL 4596650, *19 (D. S.C. 4/19/21) (citing EEOC Guidance, supra, and granting summary judgment). Accord Thomas v. Bridgeport Bd. of Educ., 2020 WL 12188900 (D. Conn. 11/9/2020) (denying motion for preliminary injunction based, in part, on failure to show likelihood of success on the merits; court found EEOC guidance persuasive). 26 See Ranson-Dillard v. Tech. College Sys. of Georgia, 2022 WL 609155, *4, n.5 (M.D. Ga. 3/1/22) (granting motion to dismiss, court held that employees allowed to work remotely in March 2020 due to pandemic lockdowns are not similarly situated to plaintiff who alleged discriminatory refusal to permit remote work in January 2020). 27 Peeples v. Clinical Support Options, Inc., 2020 WL 5542719, (D. Mass. 9/16/20) (employer ordered to permit disabled plaintiff to work remotely where he was likely to succeed on the merits based on evidence that the employee met all essential job functions remotely during initial four months of the pandemic); Gentile v. County of DuPage, —- F. Supp. 3d —-, 2022 WL 345078, *5-6 (N.D. Ill. 2/4/22) (court denied 12(b)(6) motion to dismiss where plaintiff alleged he performed all essential job functions remotely during the pandemic). 28 But see Acio v. Kyo-Ya Ohana, LLC, 2022 WL 1137157, *10 (D. Hawaii 4/18/22) (Seabright, J.) (quoting Samper’s “except in the unusual case” rule as the basis for granting summary judgment). 29 See New York City Human Rights Law, NYC Admin. Code § 8-107(1). 30 See, generally, https://www.dir.ca.gov/dlse/ (Labor Commissioner website); Kilby v. CVS Pharmacy, Inc., 368 P.3d 554 (Cal. 2016) (construing right to sit at work mandated by wage order). 31 Del Monte Fresh Produce (Hawaii), Inc. v. Fireman’s Fund Ins. Co., 183 P.3d 734, 741 (Haw. 2007). 32 Airgo, Inc. v. Horizon Cargo Transport, Inc., 66 Haw. 590, 595, 670 P.2d 1277, 1281 (1983). 33 Mikelson v. United Servs. Auto Ass’n, 107 Haw. 192, 198, 111 P.3d 601, 607 (2005) (internal quote omitted). 34 Clarke v. Tango Networks, Inc., 2021 WL 6095328, *8 (S.D.W.Va. 12/23/21) (slip copy). 35 Ibid. at *9. 36 See, e.g., Syeed v. Bloomberg, L.P., —- F. Supp. 3d —-, 2021 WL 4952486, *9, n.4 (dismissing lawsuit filed in New York by plaintiff working remotely for New York employer from Washington, D.C., and noting that “the Covid 19 pandemic has only expanded the diaspora of remote workers, many of them laboring in other states for New York firms”) (internal quotation omitted). 37 Field Assistance Bulletin 2020-5 (8/24/20), accessible at https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-5 38 Ibid. at 1. 39 Ibid. 40 Fox v. Summit King Mines, 143 F.2d 926, 932 (9th Cir. 1944); Forrester v. Roth’s IGA Foodliner, Inc., 646 F.2d 413, 414 (1981)).
Christopher J. Cole, a graduate of UCLA and University of California, Hastings College of the Law, is a partner at Marr Jones & Wang. He has practiced labor and employment law in Hawaii, including employment litigation, since 1992.
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A Little Bit About The Legislative
by Tom S. Tanimoto
The concept of the subpoena1 is grounded deeply in the United States legal system, both on the federal and state levels. Arguably, it is most commonly understood to legal professionals as a document executed by a judge or court clerk that commands a person to appear for the purposes of providing at a certain time and place: (1) testimony in a deposition or court hearing/trial or (2) documents or items for inspection or copying. See Haw. R. Civ. P. 45(a) and (b) and Fed. R. Civ. P. 45(a)(1)(A)(iii). Non-compliance with the dictates of a dulyserved subpoena can lead to being held in contempt of court.2 These subpoenas are referred to as judicial subpoenas. The legislative subpoena is operatively similar to a judicial subpoena, but its origins, applications, and utility are perhaps more esoteric. While legislative subpoenas are generally found on a road much less travelled,3 they are, recently, very hot topics. Congressional subpoenas are heavily featured on national news with respect to the National Commission to Investigate the January 6 Attack on the United States Capitol Complex Act 4, which was created pursuant to passage of House Resolution 3233 on May 19, 2021 in the United States House of Representatives.5 Legislative subpoenas have also been recently featured in local Hawaii news.6 THE LEGISLATIVE SUBPOENA: AUTHORITY SUPPORTING ISSUANCE AND ITS PURPOSE The Hawaii State Senate or House’s joint and several authority to issue subpoenas is clearly provided for in Haw. Rev. Stat. § 21-8(a) and (b) as follows: (a) The president or speaker or other presiding officer of either house of the legislature may issue subpoenas requiring the attendance of witnesses and subpoenas duces tecum requiring the production of books, documents, or other
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evidence, in any matter pending before either house, or committee, as the case may be. (Italics added). (b) Every investigating committee7, when authorized by either house or both houses, as the case may be, may issue, by majority vote of all its members, subpoenas requiring the attendance of witnesses and subpoenas duces tecum requiring the production of books, documents, or other evidence, in any matter pending before the committee. (Italics added). SCOPE Both above subsections, on their face, allow for the issuance of subpoenas that cover a wide array of subject matter so long as they pertain to “any matter pending” before the House, Senate, or investigative committee. The phrase, “any matter pending,” semantically crosses into subject matter that is nearly limitless; equivalent to practically anything within the entire universe This begs the question of whether a legislative subpoena can command the production of virtually any information whatsoever. Haw. Rev. Stat. § 21-8(d) provides in pertinent part that a subpoena “shall contain a reference to the rule, or concurrent, or other resolution, or other means, by which the taking of testimony or other evidence . . . was authorized, and shall in the case of a summons or subpoena, set forth in general terms the matter or question with reference to which the testimony or evidence is to be taken.” However, this statutory section more or less circumscribes the form of the subpoena as opposed to its inherent scope as it does not impose any definable limitations on the resolution on which it is based. Hawaii case law alone apparently provides minimal to no guidance with respect to this issue. However, there are some federal cases concerning Congress – which is arguably the federal corollary to any state’s legislature8 – that set forth some
thoughts as to the limitations of a legislative subpoena. An instructive case is Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020), which concerned subpoenas issued by a Congressional House committee. The Mazars decision presented an overview of the legislative subpoena, including, more importantly, a discussion regarding its permissible scope. The “power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. Without information, Congress would be shooting in the dark, unable to legislate wisely or effectively. The congressional power to obtain information is broad and indispensable. It encompasses inquiries into the administration of existing laws, studies of proposed laws, and surveys of defects in our social, economic, or political system for the purposes of enabling the Congress to remedy them. Because this power is justified solely as an adjunct to the legislative process, it is subject to several limitations. Most importantly, a Congressional subpoena is valid only if it is related to, and in furtherance of, a legitimate task of the Congress. The subpoena must serve a valid legislative purpose. It must concern a subject on which legislation could be had. Furthermore, Congress may not issue a subpoena for the purpose of law enforcement, because those powers are assigned under our Constitution to the Executive and the Judiciary. Thus, Congress may not use subpoenas to try someone before a committee for any crime or wrongdoing.” Id. at 2031-32 (internal citations, quotation marks and brackets omitted and italics added for emphases). Furthermore, “[i]nvestigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are
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indefensible.” Watkins v. United States, 354 U.S. 178, 187 (1957). It follows that any legislative subpoena must advance a legitimate legislative effort and that effort must not be directed for purposes of policing, or seeking a criminal prosecution, or doing whatever another branch of government is tasked with. Approximately one-hundred and forty years ago in Kilbourn v. Thompson, 103 U.S. 168, 191 (1880), upon review of the appropriateness of the legislative subpoena at hand in the case before it, the United States Supreme Court similarly stressed the importance of maintaining distinctions between the various branches of government, i.e., the legislative, executive and judicial branches.9 Accordingly, legislators should always strive to take a step back and assess their position vis-a-vis other government branches to minimize and avoid any semblance or perception of encroachment. Kilbourn discussed and counseled against this real possibility: The opinion, issued many years ago portends that Congress itself would evolve and change and possibly seek to encroach against other government branches as the world changes.10 “The increase in the number of States, in their population and wealth, and in the amount of power, if not in its nature to be exercised by the Federal government, presents powerful and growing temptations
to those to whom that exercise is intrusted, to overstep the just boundaries of their own department, and enter upon the domain of one of the others, or to assume power not intrusted to either of them.” Id. at 191-92 (italics added for emphasis and original spelling of “intrusted” included). It would not be unreasonable to say that the Hawaii legislature (like Congress) is a powerful entity that may itself evolve as the State of Hawaii undoubtedly changes along with the rest of the United States and the world. Hawaii’s legislators have, throughout the years, undoubtedly considered many ever-changing social, technological, economic, medical and legal matters, to name a few, thereby leading to the drafting of hundreds, if not thousands, of proposed bills and resolutions while the House and Senate are in session. The forward momentum of such massive amounts of differing legislation, along with the power to issue subpoenas, substantially empowers the legislature, and overreaching is always a possibility. Legislators undoubtedly work hard and care about their constituents. However, they must strive to remain legislators, while eschewing any attempt to shoehorn their roles into those relegated to individuals in other branches of government. While government should be trusted to work smoothly and collaboratively, it would not be unwise nor unfair for constituents to ask a few questions and take a second look to ensure that everyone stays in their lane. RIGHTS UPON TAKING SERVICE OF A LEGISLATIVE SUBPOENA Haw. Rev. Stat. §§ 21-9, -10, -11 and 11 -12 set forth the protections and rights that attach to recipients of legislative
subpoenas, and they are quite similar to those which come with service of a judicial subpoena, namely reasonable notice of the subpoena’s purpose and the authority governing its issuance, the manner in which the hearing will be conducted and testimony taken, and the right to counsel. Clearly, “recipients of legislative subpoenas retain their constitutional rights through the course of an investigation. And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.” Mazars, 140 S. Ct. at 2032 (internal citations omitted). This is undoubtedly important to any person served a legislative subpoena – to the untrained eye, it may seem more innocuous than its judicially issued counterpart, thereby possibly leaving recipients unaware of their rights and obligations. However, it deserves comparable respect under the law.
DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES
The Department of the Prosecuting Attorney, City and County of Honolulu, is looking to fill vacant deputy prosecuting attorney positions at all experience levels. Applicants must be licensed to practice law in the State of Hawaii and in good standing before the Hawaii Supreme Court at the time of hire. Those waiting for bar exam results are encouraged to apply. The ideal applicant should have strong analytical skills, be comfortable with both oral and written communications, exhibit high ethical standards, and show a commitment to public safety. Salaries start at $75,588. Great benefits package including pension, health coverage, and defined-contribution plans.
The Department is also recruiting law clerks who intend to take the bar exam in February 2022. Law clerks would be in excellent position to be hired as deputy prosecuting attorneys upon passage of the bar exam. Salary is $50,880. Position comes with full benefits.
To apply, please visit our website at: https://www.honoluluprosecutor.org/employment-opportunities.
ENFORCEMENT Haw. Rev. Stat. § 21-14 addresses enforcement of legislative subpoena as follows: Contempt. (a) A person shall be in contempt if the person: (1) Fails or refuses to appear in compliance with a subpoena or, having appeared, fails or refuses to testify under oath or affirmation; (2) Fails or refuses to answer any relevant question or fails or refuses to furnish any relevant book, paper, or other document subpoenaed by or on behalf of an investigating committee; or (3) Commits any other act or offense against an investigating committee which, if committed against the legislature or either house thereof, would constitute a contempt. (b) An investigating committee may, by majority vote of all its members, report to the legislature or the house thereof by which it was established, any instance of alleged
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contempt. The president or speaker shall certify a statement of such contempt under the president’s or speaker’s signature as president or speaker, as the case may be, to the attorney general who shall prosecute the offender in any court of the State. If the legislature is not in session, a statement of the alleged contempt shall be certified by the chairperson or acting chairperson of the committee concerned, under the chairperson’s or acting chairperson’s signature, to the attorney general who shall prosecute the offender as aforesaid. An instance of alleged contempt shall be considered as though committed in or against such house or the legislature itself. Pursuant to subsection (b), if a majority of the investigating committee’s members see fit to report alleged contempt of a legislative subpoena, then the matter will be referred to the Attorney General’s office for prosecution, from which a conviction could lead to a fine of “not more than $1,000 or imprison[ment] not more than one year or both.” Haw. Rev. Stat. § 21-15(a). REMEDIES IN RESPONSE TO OR IN LIEU OF ENFORCEMENT In order to avoid or address enforcement proceedings attendant to a legislative subpoena, there are several avenues to be considered. It goes without saying that retaining an attorney is critical for anyone who is unsure or uncertain of the implications arising after being served a legislative subpoena. Counsel is vital when considering legal defenses such as any applicable privileges or protections and/or determining the actual scope of the information requested and the appropriateness of such a request. One obvious approach would be to fully, but carefully, comply with the subpoena, subject to the advice of counsel.12 Another approach would be to seek court intervention to legally challenge the (Continued on page 24)
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H SBA HAP PE NIN GS HSBA Board Actions The HSBA Board took the following actions at its meeting in March: • Approved the recommendation of the HSBA Nominating Committee to appoint Mei-Fei Kuo to fill the vacancy on the Commission on Professionalism as an HSBA representative for the remainder of a term to expire April 26, 2023; • Approved the recommendation of the HSBA Nominating Committee to recommend to the Court that Lisa Munger be newly appointed and that Alan Van Etten be reappointed to the Special Committee on Judicial Performance for a three-year term beginning in April 2022.
Openings on HSBF Board and Access to Justice Commission The Hawaii State Bar Foundation (HSBF) and the Hawaii Access to Justice Commission (ATJC) will have positions expiring in December. 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. HSBF Duties: • Sets short term and long-term strategic goals and directions for the HSBF; fundraises and develops sufficient resources to carry out goals and directions; and provides oversight of the HSBF’s finances, grants, programs, and operations. Other qualifications: serves as an emissary in the legal community and beyond for the HSBF and its mission. Seven openings; 3-year term beginning January 1, 2023. ATJC Duties: • The Commission’s primary purpose is to substantially increase access to justice in civil legal matters for low- and moderateincome residents of Hawai`i. Other qualifications: active HSBA member who has demonstrated a commitment to and
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familiarity with access to justice issues in Hawai’i. Two HSBA representative openings; 3-year term beginning January 1, 2023. Neighbor island attorneys are encouraged to apply. Attorneys from law firms of 10 or more are encouraged to apply. For more details on the Commission’s work, see http:// www.hawaiijustice.org/hawaii-accessto-justice-commission. Anyone interested in serving in these capacities should submit to the HSBA Nominating Committee (nominations@hsba.org) by July 29: a resume, reason for wanting to serve, and area of 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. Appointment will be made at the HSBA Board meeting in November 2022.
HSBA Awards: Nominate a Colleague HSBA Awards will be presented at the Annual Meeting on October 14, 2022 in conjunction with the virtual Bar Convention. The HSBA Awards Committee seeks nominations of individuals or entities deserving of recognition for the following: • Golden Gavel Award recognizes an attorney or non-attorney for outstanding service to the state or federal judiciary in Hawaii. • C. Frederick Schutte Award recognizes an attorney for outstanding service to the legal community and the profession. • ‘Ikena Award recognizes an attorney or non-attorney for exceptional service in legal education to the public or the profession. • Ki’e Ki’e Award recognizes an attorney for outstanding provision of professional legal services at no charge to the recipient.
• Greeley Key Award for Innovation recognizes an attorney or non-attorney for promoting new and creative uses of, or approaches to, the law. • Champion for Social Justice Award recognizes an attorney for courageous legal work in the face of public controversy. • Malama Hawaii Award recognizes an attorney for effective non-legal community service activities that make a difference and improve the quality of life in Hawaii. For a full description of these awards, please go to www.hsba.org à About Us à Awards. Please submit nominations to the Awards Committee, c/o HSBA, by mail or email (nominations@hsba.org) no later than July 22, 2022.
Member Benefits Spotlight Kapolei Inline Hockey Arenas Kapolei Inline Hockey Arenas is offering walk-in skating duing KIHA public skating hours. Walk through the door and get ready to skate in their public skating rink. To accommodate COVID-19 guidelines, all guests must show proof of full vaccination for all ages upon arrival. As an HSBA member, you will receive $5.00 off walk-in public skating sessions. Each session lasts a maximum of 2 hours at the allotted session times and includes a pair of rental skates. HSBA members will need to present their HSBA Bar Card upon arrival to redeem the discount. This offer will be valid for one family per bar card. For more information on public skating sessions, please visit KIHA’s website at https://www.kihapublicskate.com/ or contact them at kihapublicskating@gmail.com or via phone at (808) 682-5441.
Kumu Kahua Theatre Kumu Kahua Theatre produces world-class theatre written by and about the people of Hawai i, performed in downtown Honolulu. They are pleased to offer HSBA members a 25% discount on staged production tickets. Please call the theatre’s office at (808) 536-4441 to redeem your discount or use the code “HSBA” when ordering online. For more information, please visit Kumu Kahua Theatre’s website at https://www.kumukahua.org/. Consolidated Theatres Movie Tickets Stop by the HSBA office to purchase your Consolidated Theatres movie tickets today for $8.25 per ticket. There is no limit to the number you can purchase. Tickets are accepted at the following Consolidated Theatres locations: • Ward (Open daily) • Pearlridge (Open Friday through Sunday) • Mililani (Open Friday through Sunday) • Olino (Open Friday through Sunday) • Kaahumanu Mall on Maui (Open Friday through Sunday) Consolidated Theatres is committed to meeting or exceeding all CDC, state, and local regulations as well as #CinemaSafe expert-backed suggestions. Please refer to www.consolidatedtheatres.com for more information. To take advantage of this great member benefit, stop by the HSBA office and have your JD number ready for verification of HSBA membership. Check or cash are the only accepted forms of payment. Call the HSBA at (808) 537-1868 if you have any questions. Note that, because there are limitations to special screenings and premiering movies, be sure to read the terms and conditions behind the ticket. Regal Cinemas Movie Tickets Stop by the HSBA office to purchase your Regal Cinemas movie tickets today for $9.25 per ticket. There is no
limit to the number you can purchase. Tickets are accepted at the following opened Regal Cinemas locations: • Dole Cannery • Kapolei Commons • Pearl Highlands Center • Windward Mall • Maui Mall • Regal Prince Kuhio in Hilo Regal Cinemas is committed to the safety of their patrons and employees and is taking steps to keep you cinema safe. Please refer to their website for more information. To take advantage of this great member benefit, you must stop by the HSBA office and have your JD number ready for verification of HSBA membership. Check or cash are the only accepted forms of payment. Call the HSBA at (808) 537-1868 if you have any questions. Note that, because there are limitations to special screenings and premiering movies, be sure to read the terms and conditions behind the ticket. Marriott International Marriott International – The Waikiki Collection extends discounted corporate rates to HSBA members: Participating properties: Moana Surfrider, A Westin Resort & Spa, Waikiki Beach The Royal Hawaiian, a Luxury Collection Resort, Waikiki Sheraton Waikiki Sheraton Princess Kaiulani Discounted rates are only available for select room categories, based upon availability, and subject to change and applicable hotel blackout dates. These rates are not valid for any groups or conventions. To book online, visit the following direct booking link, https://bit.ly/ 3JG0l4H, or call (808) 921-4560 and ask for the “Local Companies” Corporate Rates and provide code Cluster Code: L6C.
Hawaiian Airlines HSBA members are eligible for a 5% off discount on all transpacific web fares (round trip only). For reservation instructions, sign into your member account. Once you are signed into your account, please click on “My Account” > “Benefit-Hawaiian Airlines.” Baggage fees will apply to Preferred Affiliate Bookings. Enterprise / National / Alamo Please refer to the following links for information on available memberships/benefits: Emerald Club enrollment link: https://bit.ly/3hYlHil HSBA custom booking link for Enterprise / National / Alamo: https://elink.enterprise.com/en/hawstbar.html Emerald Club Benefits Flyer: https://bit.ly/3vYBhCS Account Reps: https://bit.ly/3t0CmIs Please contact Nadine Cunningham at (808) 543-1508 with any questions, concerns, or assistance. Priceline NPP members save up to 25% on select hotels when packaged with a rental car, flight, or additional booking. Enroll with NPP to access deeply discounted hotel deals worldwide at https://mynpp.com/association/hsba/.
SCD 2023 Elections The following Senior Counsel Division (“SCD”) officer positions will be available from January 2023: Vice President, Treasurer, Secretary, and Director positions for Oahu. Active and inactive members are eligible to run in this election. June 30, 2022 is the deadline to submit a resume and cover letter to scd@hsba.org.
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(Continued from page 21) sufficiency, scope, or legitimacy of the subpoena. While there is precedent for such, there is not much precedent under Hawaii case law.13 The Mazars court deemed it prudent that “courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake. . . .” Mazars, 140 S.Ct. at 2035. Some points of consideration are: (1) whether the legislative purpose underlying the subpoena warrant involvement of the person or entity who/that is served the subpoena; (2) whether the subpoena is no broader than necessary; (3) what evidence is presented by the legislative body to “establish that a subpoena advances a valid legislative purpose”; and (4) what burdens are imposed on the recipient of the subpoena, and any such burdens must be looked at carefully, especially where rival branches of government are involved so as to avoid the situation where subpoenas are issued for purposes of gaining some type of advantage. Id at 2035-36. In analyzing the propriety of a subpoena issued by a special committee of the House of Representatives, the Kilbourn court noted that Congress warranted particular scrutiny. In reference to the House, it was stated that “[b]y reason, also, of its popular origin, and the frequency with which the short term of office of its members requires the renewal of their authority at the hands of the people, – the great source of all power in this country, – encroachments by that body on the domain of coordinate branches of the government would be received with less distrust that a similar exercise of unwarranted power by any other department of government. It is all the more necessary, therefore, that the exercise of power by this body, when acting separately from and independently of all other depositories of power, should be watched with vigilance, and when called in question before any other tribunal having the right to pass upon it that it should
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receive the most careful scrutiny.” Kilbourn, 103 U.S. at 192. A third avenue would be to negotiate with the committee issuing the subpoena and arrive at a compromise regarding an agreeable protocol and scope with respect to the disclosure of information, similar to the “meet and confer” process set forth in the rules of discovery. See, e.g., Haw. R. Civ. P. 37(a)(4)(A) (requiring a “good faith effort to obtain the disclosure or discovery without court action” prior to seeking enforcement of a discovery request). Mazars countenanced this collaborative approach in lieu of litigation, and noted that “disputes of this sort can raise important issues concerning the relations between the branches; that related disputes involving congressional efforts to seek official Executive Branch information recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve such disputes among themselves without the benefit of guidance from us. Such longstanding practice is a consideration of great weight in cases concerning the allocation of power between the two elected branches of Government, and it imposes on us a duty of care to ensure that we not needless disturb the compromises and working arrangements that those branches themselves have reached.” Mazars, 140 S.Ct. at 2031 (internal citations and quotation marks omitted). It would indeed be tough to argue against a “mediated” resolution in lieu of litigation. CONCLUSION A legislative subpoena is to be treated with equal regard to a judicial subpoena, and while much in the legal world is subject to analysis on a case-by-case basis, seeking counsel upon service of a subpoena should be the first thing to consider, be it from the House, Senate, or one of its committees. In addition, while it can take some time to hire counsel and amass papers, information, and/or
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prepare for testimony pursuant to a subpoena, there is a certain reverence to be accorded to a long-standing process that is designed to further and support the work of the legislature, and thereby, the entire government. It is upon this reverence that the process should be respected and cloaked with the presumption of propriety; however, it is obviously and by necessity, incumbent upon the legislature to likewise operate in the best of good faith. _________________
Haw. Rev. Stat. § 21-2, defines an investigating committee to include joint committees (i.e., of both houses), standing, special or select committees, authorized subcommittees, or any entity created by law. 8
Article I, Section 1 of the United States Constitution reads: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article III, Section 1 of the Hawaii State Constitution reads similarly: The legislative power of the State shall be vested in a legislature, which shall consist of two houses, a senate and a house of representatives. Such power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States.
1
The word subpoena is a noun, defined by the online version of the Merriam – Webster Dictionary as “a writ commanding a person designated in it to appear in court under a penalty for failure” (italics added for emphasis). Available at https://www.merriam-webster.com/dictionary/subpoena. As pertinent infra, the commonplace or layman definition of the word subpoena has undeniable judicial undertones.
2
Fed. R. Civ. P. 45(g) states as follows: “Contempt. The court for the district where compliance is required — and also, after a motion is transferred, the issuing court — may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Haw. R. Civ. P. 45(f) is very similar (stating that “[f]ailure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of the court from which the subpoena issued”).
3
There is undoubtedly far more literature, analysis, case-law, etc., devoted to the discussion of judicial subpoenas, as opposed to legislative subpoenas.
9
“It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.” Kilbourn v. Thompson, 103 U.S. 168, 190 (1880) (spelling of intrusted in original).
4
See e.g., Nik Popli, Time.com (January 11, 2022, 5:12 p.m. E.S.T.), Can the Jan. 6 Committee Subpoena Lawmakers? It’s Complicated, https://time.com/6138561/jan-6-committee-non-complying-lawmakers/; Hugo Lowell, The Guardian.com (January 18, 2022, 2:00 p.m. E.S.T.), Capitol attack panel grapples with moving inquiry forward: to subpoena or not? https://www.theguardian.com/us-news/2022/jan/17/us-capitol-attackpanel-inquiry-subpoena.
5
Available at https://www.congress.gov/bill/117th-congress/housebill/3233/all-actions?overview=closed&q=%7B%22roll-callvote%22%3A%22all%22%7D 6
See e.g., Chad Blair, Honolulu Civil Beat (Oct. 21, 2021) New Subpoenas From Panel Looking At State Auditor Raise Concerns, https://www.civilbeat.org/beat/new-subpoenas-from-panel-looking-atstate-auditor-raise-concerns/.
7
An investigating committee and its powers come to fruition by virtue of Haw. Rev. Stat. § 21-3(a) and (b) which state: (a) An investigating committee may exercise its powers during sessions of the legislature, and also in the interim between sessions when so provided by law or by the concurrent or single house resolution or statute by which the committee was established or from which it derives its investigatory powers. (b) The concurrent or single house resolution or statute establishing an investigating committee shall state the committee’s purposes, powers, duties and duration, the subject matter and scope of its investigatory authority, and the number of its members.
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10 Recent changes in the world have no doubt affected the State of Hawaii. These changes include but are certainly not limited to the COVID-19 pandemic and its medical, health, and economic ramifications, rapidly advancing technology, increasing governmental partisanship and the dynamic state of international affairs.
11
The headings of each of the enumerated sections – which are, in and of themselves, descriptive – are as follows: § 21-9 Notice to witnesses; § 21-10 Conduct of hearings; § 21-11 Right to counsel and submission of questions; and § 21-12 Testimony. 12
The right to counsel is statutorily embodied for a reason; it is appropriately there because rights are invariably implicated when an individual is called upon to testify under oath or produce documentation. 13
Chad Blair, Honolulu Civil Beat (Nov. 3, 2021), Court Says Hawaii State Auditor’s Working Documents Are Confidential, https://www.civilbeat.org/2021/11/court-says-hawaii-state-auditors-working-documents-are-confidential/ (reporting that the court ruled certain documents are subject to disclosure, while some others are confidential).
Tom Tanimoto practices family law as a partner with Coates Frey Tanimoto & Gibson, AAL LLLC, where he currently serves as its litigation supervisor and in-house chess fanatic. In addition, he serves as a member of the Board of Bar Examiners and is the 2022 vice-chair/chair-elect of the HSBA Family Law Section for which he previously served as its chair in 2018.
COURT BRIEFS
2022 Hawai‘i Access to Justice Conference
Chief Justice Participates in WCCC Ceremony
Save the date: Friday, June 17, 2022. The Hawai‘i Access to Justice Conference, sponsored by the Hawai‘i Access to Justice Commission, will be an all-day event, currently scheduled to be held in person at the Law School. Please plan to attend for a provocative discussion and varied workshops that seek justice for the underserved and include extensive audience participation about pressing current issues. Hawai‘i Supreme Court Chief Justice Mark Recktenwald and Second Circuit Judge (ret.) Joseph Cardoza, chair of the Commission, will offer opening remarks. Dean Camille Nelson, William S. Richardson School of Law, University of Hawai‘i at Manoa, will be the keynote speaker. As usual, free lunch and refreshments and six low-cost continuing legal education (“CLE”) credits will be available.
Chief Justice Mark Recktenwald handed out certificates and addressed graduates at the Women’s Community Correctional Center (“WCCC”) on April 7.
Fifteen women received their General Education Diplomas (“GED”), five completed the GED Tutor Training program, eight graduated from the Puuhonua Program with Academic Subject Certificates in Psychosocial Developmental Studies, and eight received Kapiolani Community College Culinary Arts program certificates.
“You have a new start. You made a choice to make a change in your life, to take that one step down the path of hopefully going further with your education. This is a big accomplishment today,” said the Chief Justice. “The only limits for you, as far as I’m concerned, are the limits you put on yourself. Stay true to your heart, work hard, and be willing to try. That’s what you have shown us today.”
The Supreme Court 20212022 Term in Review The American Judicature Society (“AJS”) and the William S. Richardson School of Law at the University of Hawaii-Manoa are sponsoring a presentation on The Supreme Court 2021-2022 Term in Review. The event will be held on July 6, 2022 via Zoom from 12:00 to 1:30 p.m. (HST). The featured speaker will be Tom Goldstein, partner of the Washington D.C. firm Goldstein and Russell, cofounder and publisher of SCOTUSblog and named one of the nation’s 40 most influential lawyers of the decade by the National Law Journal. Mark Bennett, Circuit Judge of the United States Court of Appeals for the Ninth Circuit, will serve as moderator, and Louise Ing, partner at Dentons, will be the emcee. Please go to the AJS website (http://american judicature society.org) to register for the July 6 presentation.
The American Judicature Society’s Annual Sidebar Program The American Judicature Society (“AJS”) invites summer associates and young lawyers to participate in their Annual Sidebar Program on Thursday, July 14, 2022, 4:00 to 6:00 p.m. at the Hawai‘i Supreme Court, Ali‘iolani Hale (second floor courtroom), 417 South King Street. The program offers a unique opportunity to observe a moderated panel discussion with some of Hawai‘i’s distinguished judges, engage in small group discussions with these jurists, and socialize with them and each other during the reception that follows. The panel of distinguished judges include Hawai‘i Supreme Court Chief Justice Mark E. Recktenwald, Hawai‘i Intermediate Court of Appeals Associate Judge Keith K. Hiraoka, First Circuit Court Judge Lisa W. Cataldo, First Circuit Court Judge Gary W.B. Chang, First Circuit District Court Judge Karin L. Holma, and United States Magistrate Judge Wes Reber Porter. Originally founded in 1913, the American Judicature Society is an independent, non-partisan, membership organization that has worked to protect the integrity and independence of the American justice system. AJS continues in Hawai‘i as a diverse and broadly based group – including judges, lawyers, and members of the public – aiming to promote fair and impartial courts through research, publications, education, and advocacy for judicial reform. The work of AJS focuses primarily on judicial ethics, judicial selection, access to justice, criminal justice reform, diversity in the judiciary, and the jury system. For more information, contact Laurie Tam at 521-9298, ltam@cades. com.
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Notice of Interim Suspension
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On April 5, 2022, the Hawaii Supreme Court ordered Maui attorney Michael John Collins suspended from the practice of law on an interim basis. In proceedings brought under Supreme Court rules (RSCH) Rule 2.19 (“Proceedings where an attorney. . . is alleged to be incapacitated”) and Rule 2.23 (Interim Suspension), the supreme court found “sufficient evidence in the record to demonstrate that Respondent Collins has committed multiple violations of the Hawaii Rules of Professional Conduct and poses a substantial threat of serious harm to the public.” The interim suspension is effective upon entry of that April 5, 2022 order and will remain in effect “pending final disposition of the disciplinary proceedings predicated upon the conduct causing the harm.” Given this interim suspension, Collins shall not accept any new retainer or engage as an attorney for another in any case or legal matter of any nature. Collins is also ordered to comply with RSCH Rule 2.16 (Disbarred and suspended attorneys) that require him to promptly notify all his clients and any attorneys for any adverse party in any pending litigation, of his suspension and consequent inability to act as an attorney. Collins is also required to surrender to clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned and to file an affidavit with the court of compliance with the rule by April 25, 2022. Collins, age 43, was admitted to the Hawaii bar in 2008 and is a graduate of American University, Washington College of Law, in the District of Columbia. Case information: Disciplinary Board of the Hawai‘i Supreme Court v. Michael John Collins, II, SCAD-22-0000099.
D I O AV
inter-office disputes...
make sure everyone has their own Bar Directory! The 2022 HSBA Directory is coming out shortly with new addresses, phone numbers and photos. Every active attorney in Hawaii (who requested)will get a copy. The Directory is a quick and easy reference tool for attorneys and their support staffs. You can show your staff that you value their time and efforts by providing them with the
most current Directory, instead of an outdated hand-me-down. This year there will be a limited number of extra directories available. Last year we sold out so place your pre-order for extra Bar Directories on or before June 10, 2022 to ensure that your firm receives enough copies of the 2022 Bar Directory.
Name of Individual or Firm Address Email
Phone
Cost Per Directory $41.88
Number of Extra Directories Ordered
❏ Will pick up at publishers office ❏ Please mail ($9.00 Per Directory for Postage & Handling) ❏ Payment by check (Grass Shack Productions) ❏ Will contact Publisher with credit card Information Please mail or Email your order form to: Brett@grassshack.net Grass Shack Productions P.O.Box 37247 Honolulu, HI 96837 808.521-1929
CAS E NOTES Supreme Court Land Alexander & Baldwin, LLC v. Nelson Armitage, Sr., No. SCWC-16-0000667, April 5, 2022, (Recktenwald, C.J.). Beginning in 2011, Nelson Armitage (“Armitage”) and a group of others that included Robert Armitage, Wayne Armitage, and Frederick Torres-Pestana (collectively, “individual defendants”) entered onto and occupied land belonging to Alexander & Baldwin, LLC in Maui (“A&B”). They purported to act on behalf of an organization called the Reinstated Hawaiian Nation. A&B sued seeking a writ of ejectment, damages, and preliminary and permanent injunctions barring them from entering any property owned by A&B. In addition to the individual defendants, A&B also sued the Reinstated Hawaiian Nation by various names. Throughout the proceedings, Armitage and Henry Noa, who was not a party, defended the Reinstated Hawaiian Nation as foreign minister and prime minister, respectively. In short, they acted as lawyers would in representing the interests of the Reinstated Hawaiian Nation. The circuit court granted summary judgment to A&B and entered the requested injunction. The defendants appealed, with Armitage and Noa again purporting to represent the Reinstated Hawaiian Nation. The ICA dismissed the appeal as to the Reinstated Hawaiian Nation, reasoning that, as non-attorneys, Armitage and Noa could not represent its interest before that court. However, the ICA addressed Armitage’s appeal individually and rejected each of his substantive points of error. Although he abandoned his substantive points of error, he asserted that if the ICA was correct that his representation of the Reinstated Hawaiian Nation was improper and merited dismissal of the appeal, then, for the same reason, the circuit court’s
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Appeal Pointer A motion for extension of time to file an opening, answering or reply brief will be approved only upon good cause shown. The submission of the motion does not toll the time for filing the brief. HRAP 29(b). judgment must be vacated as to the Reinstated Hawaiian Nation. The Hawaii Supreme Court agreed. In doing so, the Hawaii Supreme Court rejected a rule that would automatically render a nullity any judgment obtained as a result of the improper participation of a non-attorney representative, but nevertheless held that the judgment against the Reinstated Hawaiian Nation must be voided. The public policy behind the prohibition on the unauthorized practice of law required the Hawaii Supreme Court to vacate the circuit court’s judgment as to the Reinstated Hawaiian Nation. However, the Hawaii Supreme Court did not vacate the judgment against Armitage or any other defendant.
Intermediate Court of Appeals Family SC v. JC, No. CAAP-20-0000618, April 14, 2022; (Wadsworth, J.). Father contended that the Order Denying Relief: (1) infringed upon Father’s fundamental parental rights, as protected by the due process clause of the Fourteenth Amendment to the United States Constitution; (2) failed to uphold “the special weight standard” imposed by Haw. Rev. Stat. § 571-46.3(2); and (3) violated Haw. Rev. Stat. § 578-16a. Father also challenged Findings of Fact (“FOFs”) 135, 140 through 143, 145, 146, and 149 of the Family Court’s Findings of Fact and Conclusions of Law (“FOFs/COLs”), entered on January 29, 2021. In Doe v. Doe, 116 Hawaii
323, 172 P.3d 1067 (2007), the Hawaii Supreme Court declared the state’s grandparent visitation statute, Haw. Rev. Stat. § 571-46.3, facially unconstitutional, because it did not include the “harm to the child” standard required by the right to privacy under article I, section 6 of the Hawaii Constitution. Id. at 336, 172 P.3d at 1080. The court ruled that “proper recognition of parental autonomy in child-rearing decisions requires that the party petitioning for visitation demonstrate that the child will suffer significant harm in the absence of visitation before the family court may consider what degree of visitation is in the child’s best interests.” Id. at 335–36, 172 P.3d at 1079–80. The ICA held that Doe’s harm-to-the-child standard applies where Father, as a custodial parent whose fitness has not been challenged, seeks to modify a visitation order entered in favor of non-parent third parties, i.e., Maternal Grandparents. The ICA further held that Maternal Grandparents had satisfied the harm-to-the-child standard in the unique circumstances of this case, where the Family Court entered extensive findings of fact that the Children would suffer significant harm if the visitation order were modified as requested. The Family Court also correctly concluded that the weight of the evidence on Maternal Grandparents’ side was sufficient to overcome the rebuttable presumption in favor of Father’s request to modify visitation. See Troxel v. Granville, 530 U.S. 57, 68-70 (2000) (plurality opinion). Father’s remaining arguments, to the extent not waived, were without merit.
Articles Wanted If you are interested in writing either a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov; or Carol Muranaka at carol.k.muranaka@gmail .com ; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is approximately 500 to 1,500 words. The Hawaii Bar Journal reserves the right to edit or not publish submitted material.
ATTORNEY WANTED ESTABLISHED DOWNTOWN LAW FIRM is seeking a litigation associate attorney to join its dynamic team. 2 -8 years civil litigation experience preferred; Admission to Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Please submit resume and writing samples in confidence to: Recruiting Committee/HR Case Lombardi & Pettit, A Law Corporation 737 Bishop Street, Suite 2600 Honolulu, HI 96813 Email: recruitingdirector@caselombardi.com EXCELLENT OPPORTUNITY for practicing attorney to join established Family Law department in large firm, with mentoring. Join us as an associate on a partner track. Excellent opportunity to work 1:1 with clients and do interesting court-based work. Previous court experience preferred. Please submit your r e s u m e to p to ma r @a wlaw.co m a n d lmcgivern@awlaw.com. EXPERIENCED ATTORNEY, 24 yrs., will provide legal services. Pleadings, motions and memos, appellate briefs and other writing assignments. Reasonable rates. Email hawaiilawpro@gmail.com. O’CONNOR PLAYDON GUBEN & INOUYE LLP Seeking Associate Litigation and/or Bankruptcy Attorney. Minimum 1 year legal
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