Hawaii Bar Journal - June 2021

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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 2021 $5.00

TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 6

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

ARTICLES 44 20 19

President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

Is it a Workers’ Compensation Claim, a Personal Injury Tort Claim, or Both?

by L. Richard Fried Jr. and Denise K.H. Kawatachi

24

OF NOTE

HSBA OFFICERS President Levi Hookano

Elder Law Approaching the Post Covid-19 Pandemic Era

by James H. Pietsch

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HSBA Happenings

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Case Notes

26

Court Briefs

27

Moments in History

28 20 30 22 31 28

2021 Hawaii Access to Justice Conference Off the Record Classifieds

30 31

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: Generation to Generation by Jessica Gordon. Gordon attended Antonelli Art College and studied art history in Italy. Moving to Hawaii brought an end to her career in graphic arts and began a new chapter of life including traveling and marriage. She hopes her work brings joy, peace, and serenity to the homes of her collectors.

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.

Elder Law Approaching the Post Covid-19 Pandemic Era

By James H. Pietsch INTRODUCTION Prior to and during the Covid-19 pandemic, the University of Hawai‘i Elder Law Program (“UHELP”) 1 received accounts of abuse, neglect and exploitation of older persons in our community. The pandemic may have helped exacerbate problems, but there may be a silver lining; more members of our community, including the legal community, are recognizing existing problem areas and potential remedies. Politicians may be seeking additional protections for what has been called for decades the “epidemic of elder abuse,”2 and most importantly, older persons, often with the help of their families and lawyers, are finding better ways to enhance their autonomy and self-determination while protecting themselves from abuse and exploitation, even while maintaining social distancing and, for some, isolation.

There is some good news for nursing home residents and their families, who have faced a year of isolation. Following the roll-out of Covid-19 vaccines, nursing home residents and health care workers had priority status. Infection rates and deaths have dropped significantly in nursing homes,3 and on March 10, 2021, the Centers for Medicare and Medicaid Services released revised guidance for nursing home visitation during the Covid-19 Public Health Emergency to loosen restrictions to allow indoor visitation “regardless of vaccination status of the resident or visitor, unless certain scenarios arise that would limit visitation …”4 There is also good news for older persons in general as Covid-19 hospitalizations among older Americans tumble and deaths among them decrease as well as more older persons are vaccinated.5 During the Covid-19 pandemic, there was a new sense of urgency and interest in advance care planning to help ensure that patients’ wishes were accurately documented and respected6 as well as an increase in completion of advance directives, even early on in the crisis.7 UHELP saw an increase in requests, not only to help with advance health care directives on behalf of individuals who had never before executed them, but also from individuals who were very much afraid that their existing advance directives would not be sufficient for them during the pandemic.

The UHELP website8 added a Covid-19 update, which included information about how to execute advance planning documents

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and provided a reference to a specific Covid-19 addendum. UHELP also made presentations via Zoom to the community on topics of urgent concern to older persons.9 During this extended period of isolation, more individuals decided to take charge and to look into “do-it-yourself ” (“DIY”) wills, including holographic wills, which have been valid in Hawai`i since 1997. See generally HAW. REV. STAT. § 5602-502 (2010). A recent study found that (1) it is unclear whether people who create their own wills are less wealthy than those who hire lawyers, (2) there is some evidence that DIY devices are particularly useful for testators who fall gravely ill, and (3) even controlling for the effect of other variables, DIY wills are correlated with a statistically significant increase in the odds of litigation.10 During the transition period between the election and inauguration of a new president, Congress enacted legislation to

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amend the Elder Abuse Prevention and Prosecution Act11 to improve the prevention of elder abuse and exploitation of individuals with Alzheimer’s disease and related dementias.12 But problems continue, even with oversight. Across the country, including in Hawai‘i, claims of financial abuse and exploitation of older or vulnerable persons are often addressed by probate courts by means of conservatorships, which are sought to prevent someone from abusing or exploiting an older or vulnerable adult.13 Sometimes, unfortunately, the perpetrator is someone who was appointed by the court to prevent such abuse from happening in the first place, namely, the conservator.14 Most abuse directed against older persons, including financial abuse, is hidden.15 In a call to UHELP during the Covid-19 pandemic, a caller lamented that his nephew, “Cubby,” most likely with the support of his mother “the

Lioness,” had influenced “Nana” to put the nephew’s name on her account and upon her death, he owned the account valued at over $500,000, to the exclusion of Nana’s children and her other grandchildren.16 Once Nana had said that her daughter was “fierce as a lioness in protecting her cub.” The situation has now caused estrangement between the Lionesses’ family and the rest of the extended family. The last time any of them talked to her, the Lioness proclaimed, “Nana liked Cubby more than anyone else and wanted him to get everything.

You know she did not like any of the four of us when we were growing up—we were a burden.” The three siblings were astounded and want to find out what happened to all of Nana’s money and wonder what role the Lioness may have had in protecting or even encouraging Cubby to go after Nana’s money. If Nana really did want Cubby to get the bulk of her assets and to the exclusion of

all the other grandchildren, how could that be proven?

Nana did not have a will or a trust, but issues of capacity and undue influence also abound in wills and trust conflicts involving disappointed heirs.17 How can one prove the intentions of an individual before his or her capacity diminished or before death? In some states this can be accomplished through pre-death contests, or “pre-mortem validation,” which refers to the use of a statutory procedure to validate, during the lifetime of the maker of that document, a will, trust, or other instrument taking effect at death.

It may be the testator of a will, the trustee of a trust, or the power holder of a power of appointment who initiates the statutory procedure. 18 The term “pre-mortem probate” is used exclusively when the document being validated is the maker’s will.19 Aging, Dementia and Abuse “Coronavirus disease 2019 (Covid-19)

is particularly deleterious to older adults, and there has been a massive increase in reports of elder abuse during the pandemic. Reports of elder abuse range from financial scams to incidents of family violence, with public warnings issued accordingly from the Federal Trade Commission and the American Bar Association.”20 Over the next 20 years persons age 65 and older will increase from 15 to 23 percent of the total population.21 By the year 2060, the number of persons age 65 and older is estimated to be 94 million, which is more than double the 2010 estimate for the same age group.22 Many older persons lead active lives well into their 80s, 90s, and 100s. While the aging population is diverse, their longevity and the pressing need for health care and legal advocacy are summarized by a sobering Administration on Aging report.23 The elder population itself is becoming increasingly older.24 The 85 and older population is projected to increase

from 6.4 million in 2016 to 14.6 million in 2040, a 129% increase.25 The year 2030 marks an important demographic turning point in U.S. history according to the U.S. Census Bureau’s 2017 National Population Projections.26 By 2030, all baby boomers will be older than age 65.27 This will expand the size of the older population so that 1 in every 5 residents will be retirement age.28 By 2035, there will be 78 million people 65 years and older compared to 76.7 million under the age of 18.29 A majority of Hawai‘i’s population of baby boomers have reached the age of 60 and over resulting in the rapid growth of Hawai‘i’s aging population. 30 With the aging of the baby boomers and the decreasing mortality, projections indicate that by the year 2030, one in every four individuals will be an older adult. 31 Age is a known risk factor for developing dementia, and with the number of Americans age 65 or older doubling by

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2060, so could the number of people with dementia.32 There are various forms of dementia disorders,33 but by far the most common form of dementia in those over age 65 is Alzheimer’s disease.34 “Alzheimer’s is a disease of the brain that causes problems with memory, thinking, and behavior.” 35 The disease worsens over time and there is no cure. 36 Dementia is the loss of cognitive functioning— the ability to think, remember, or reason—to such an extent that it interferes with a person’s daily life and activities. These functions include memory, language skills, visual perception, problem solving, self-management, and the ability to focus and pay attention. Some people with dementia cannot control their emotions, and their personalities may change.

These effects, if caused by Alzheimer's disease, generally worsen over time.37 Alzheimer’s disease is the most common cause of dementia in older adults.38 Approximately 6.2 million Americans of all

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ages had Alzheimer’s disease in 2020, seventy-two percent are age 75 or older, with an estimated number of 29,000 individuals in Hawai‘i.39 According to the Alzheimer’s Association: 40 There are three broad phases for the disease, preclinical Alzheimer’s disease, mild cognitive impairment (MCI) due to Alzheimer’s disease and dementia due to Alzheimer’s disease ….[and] the Alzheimer’s dementia phase is further broken down into the stages of mild, moderate and severe, which reflect the degree to which symptoms interfere with one’s ability to carry out everyday activities.

In the past, Alzheimer’s disease was often used to describe the dementia phase of the disease. Today we know that dementia is only one part of the disease. It is preceded by mild cognitive impairment (MCI), a period when individuals have subtle cognitive changes that do not interfere with everyday activities.

The Alzheimer’s Association also notes: 41 … some individuals have dementialike symptoms without the progressive brain changes of Alzheimer’s or other degenerative brain diseases.

Common causes of dementia-like symptoms are depression, untreated sleep apnea, delirium, side effects of medications, thyroid problems, certain vitamin deficiencies and excessive alcohol consumption. Unlike Alzheimer’s and other dementias, these conditions often may be reversed with treatment. Consulting a medical professional to determine the cause of symptoms is critical to one’s physical and emotional well-being.

Capacity and Incapacity and Undue Influence The concepts of undue influence and mental capacity may intersect. A valuable resource for lawyers with respect to issues relating to capacity and undue influence is a newly updated handbook

produced through a collaborative effort of members of the American Bar Association (“ABA”) and the American Psychological Association (“APA”), Assessment of Older Adults With Diminished Capacities: A Handbook for Lawyers 2nd Edition.42 The handbook provides good reasons for attorneys to have a basic understanding of capacity issues and provides guidance as to when to seek a formal assessment of a client or a potential client from mental health professionals in cases of questionable capacity.43 Although lawyers seldom receive formal training in capacity assessment, they make capacity judgments every time they interactively communicate with a client, whether they realize it or not. As a legal and ethical matter, capacity is presumed. It is only when a client presents signs that he or she is struggling with or unable to make an informed, independent choice, that capacity determination becomes a conscious mental process – one deliberately undertaken, haphazardly muddled through, or mistakenly ignored.

In the context of litigation, capacity may be the sole issue

in controversy–such as in a guardianship action or a challenge to a will, trust, or donative transfer based on an allegation of legal incapacity.

In this context, the lawyer’s role is straightforward–to advocate fairly but zealously for the conclusion that represents the interests of the party he or she represents.

In non-adversarial situations, such as estate planning or the handling of specific transactions, issues of capacity are confronted more informally in the daily practice setting. In this setting, legal practitioners by necessity make implicit determinations of clients’ capacity on at least two points.

First, the lawyer must determine whether a prospective client has sufficient legal capacity to enter into a contract for the lawyer’s services. Failing this, representation cannot proceed.

Second, the lawyer must evaluate the client’s legal capacity to carry out the specific legal transactions desired as part of the representation (e.g., making a will, buying real estate, executing a trust, making a gift, etc.).

It also lists several “[u]navoidable capacity determinations” and

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a caution:44 1. Does the client have the capacity to contract for my services?

2. Does the client have the capacity to understand and complete the legal transaction?

3. Are there supports and services that would address concerns about capacity and allow my client to contract for my services and/or complete the legal transaction?

Lawyers need a conceptually sound and consistent process for answering these questions.

Related to capacity issues, the handbook discusses the contemporary use of the term “dementia” and the emergence of the term “Major Neurocognitive Disorder.”45 The handbook also addresses the related issue of undue influence.46 Undue influence is a separate issue from capacity. Under the right circumstances, any adult of any age can be unduly influenced, including individuals whose legal capacity is not in question in any way. It is also true, however, that it can be easier to unduly influence someone who has diminished capacity or who is vulnerable under stressful circumstances, such as recent bereavement, a major life transition, illness, isolation, substance abuse, or imminent death.

Thus, diminished capacity is a significant risk factor for undue influence.

The handbook includes information about the “SODR” legal model to provide a legal framework for considering undue

influence47 found in a handful of states, including Hawai`i,48 and which helps courts determine whether to deny probate of a will based upon the theory of undue influence. The handbook includes “The Undue Influence Wheel,” which “focuses on undue influence tactics most often used to accomplish financial exploitation” and which is based on the assumption that undue influence has parallels to domestic violence, stalking, and sexual assault in which predatory perpetrators ‘groom’ victims to gain power and control.”49 The handbook also includes the California Influence Screening Tool, the purpose of which is to aid Adult Protective Service personnel to screen for suspected undue influence.50 Undue influence refers to questions as to whether the individual is acting freely and knows what he or she is doing. Undue influence was often seen in questions relating to contracts,51 but is also seen as a process or method used to commit financial or sexual exploitation through manipulation or deceit. People are more vulnerable to manipulation when they have certain psychological or medical conditions or difficult or complex personal circumstances, such as mental disorders, depression, stroke, dementia, and social isolation among many others.52 Why do some older victims of financial abuse acquiesce so easily? Consider some of the science: We find a consistent linear decline in financial literacy scores after age 60. A nearly identical rate of decline among men, stockowners, older, and college educated respondents indicates that cohort effects are not driving the results. Confidence in financial decision-making abilities does not decline with age. A separate analysis using data that include measures of cognitive ability suggests that a natural decline in both fluid and crystallized intelligence in old age contributes to falling financial literacy scores . . . Our study finds that, in aggregate and within all financial decision-making domains, advanced age increases overconfidence in financial decision-making abilities.53 Such a decline may ultimately result in individuals being unable to care for themselves or their property.

Without suitable

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alternatives, this may lead to the requirement of petitioning courts for guardianship or conservatorship or both. One study suggests that twenty percent of adults over 65 years of age will fall victim to financial exploitation.54 Approximately 25 percent of financial fraud reports related to Covid-19 received by the Federal Trade Commission have involved scams specifically targeting older persons.55 Social isolation is a known risk factor associated with elder abuse,56 and the imposition of social distancing measures in response to Covid-19 has created new degrees of social isolation for the elderly.57 Coronavirus isolation may heighten risk for elder abuse, including financial exploitation 58 as well as to greater risk of depression, and anxiety.59 Individuals with dementia (neurocognitive disorder), including dementia resulting from Alzheimer’s disease, may be more susceptible to abuse, neglect, and exploitation.60 Because most individuals who suffer from dementia are age 65 and older, the laws, policies, procedures and structures established to protect older persons from abuse, neglect and exploitation may often be used to protect individuals with dementia. Some states have specific elder protective services laws or programs but other states, like Hawai‘i, use a vulnerability criterion for protective services laws. 61 There are many other laws and interventions that may provide protection of older adults, including the Penal Code, consumer protection laws and laws establishing oversight agencies for long term care facilities.62 Adult Protective Services In Hawai‘i, the Adult Protective Services (“APS”) statute (HAW. REV. STAT. § 346-221 (2009)) confers the Department of Human Services (“DHS”) with the jurisdiction to investigate cases of abuse of a vulnerable adult who has incurred abuse or is in danger of abuse if immediate action is not taken.

Attorneys working with older persons need to know at least the basics of

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Hawai‘i’s APS statute.63 Individuals with dementia may fit one or more criteria for protection. The law does not make specific provisions based on age although it does mention older persons as an important segment of the population deserving protection.64 The statute uses the term “vulnerable adult,” which means a person 18 years of age or older who, because of mental, developmental, or physical impairment, is unable to: (1) Communicate or make responsible decisions to manage the person’s own care or resources; (2) Carry out or arrange for essential activities of daily living; or (3) Protect oneself from abuse, as defined in this part.

HAW. REV. STAT. § 346-222 (2009).

Intervention is initiated by a report to the DHS Adult Intake.

HAW. REV. STAT. § 346-224 (2009). If the abuse criteria are met, the report is sent to the Adult Protective Services Unit of DHS for investigation. HAW. REV. STAT. § 346-227 (2009). However, DHS must have the consent of the victim before an investigation or protective action can commence. HAW. REV. STAT. § 346-230 (2009).

The law provides penalties for mandated reporters who fail to report (HAW. REV. STAT. §346-224(e) (2009)) and immunities from liability for those who do report. HAW. REV. STAT. §346-250 (2009).

The Hawai‘i Adult Protective Service Act provides mandatory reporting for certain persons who, in the performance of their professional or official duties, know or have reason to believe that a vulnerable adult has incurred abuse or is in danger of abuse if immediate action is not taken. HAW. REV. STAT. § 346-224 (2012). Mandated reporters include licensed or registered professionals of healing arts, physicians, nurses, pharmacists, employees or officers of any public or private agency or institution providing medical services, law enforcement, and employees or officers of any adult residential care home or similar institution.65 A report may also be made by any other person who has reason to believe that a vulnerable adult has incurred abuse or is in danger of abuse if immediate action is not taken.66 If the abuse criteria are met, the report is sent to the APS Unit of DHS for investigation. HAW. REV. STAT. § 346-227 (2009). However, the department may act only with the consent of the vulnerable adult, unless the department obtains court authorization to provide necessary services, as further provided in the statute. HAW. REV. STAT. § 346-230 (2009). Immunity is granted to anyone making a report in good faith who might otherwise have incurred liability. HAW. REV. STAT. § 346-250 (2009).

The goal of protective services offered by the department is to remedy abuse, neglect, or exploitation of vulnerable adults.

HAW. ADMIN. R. § 17-1421-1. Hawai‘i administrative rules specify details of how adult protective services are provided throughout the state upon receiving a report.67 APS must investigate all

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reports of abuse or potential abuse and has the authority (but not the explicit duty) to prevent any future abuse.68 Covid-19, of course, has made this more difficult.

In its first annual report submitted during the Covid-19 pandemic,69 financial exploitation was listed as the third-leading problem referred to APS (150 cases) after caregiver neglect (371) and self-neglect (206). This is consistent with previous reports, and the vast majority of the victims in those investigations were older adults.70 As to capacity to protect oneself, the concepts of undue influence and mental capacity are often joined. The Hawai‘i APS law defines capacity as “the ability to understand and appreciate the nature and consequences of making decisions concerning one’s person or to communicate such decisions.” HAW. REV. STAT. § 346-222 (2014). Screening for specific capacities with respect to abuse, neglect or exploitation may be required.71 Hawai‘i’s APS law clarifies that exploiting a vulnerable adult through undue influence may constitute abuse under the statute.72 These nuances are critical for individuals mandated or who wish to report suspected elder abuse and for professions and disciplines that collaborate with APS. Case Management for Elderly Victims of Crime Program This program funded under the Victims of Crimes Act (“VOCA”) provides case management and financial management services for elders on Oahu when a crime has been committed or abuse, neglect, or financial exploitation has already occurred. Services include ongoing case management to provide monitoring for victims, financial monitoring, and direct services including respite and counseling for victims. To receive services, an individual must be 60 years of age or older, a victim of a crime or abuse, have unmet needs, and must not fit the previously mentioned APS’s criteria of being a vulnerable adult.73 Consumer Protection Laws The Department of Commerce and Consumer Affairs is responsible for investigating reports of consumer fraud and for imposing penalties, including enhanced penalties for fraud directed against older persons.74 Financial institutions in Hawai‘i are required to report any suspected financial abuse committed against a person age 62 or older to the Department of Human Services (“DHS”) or a local law enforcement agency. HAW. REV. STAT. § 412: 3-114 (2011).

This law imposes a mandatory duty on any financial institution to report any such suspected incident of financial abuse immediately by telephone to DHS, followed by a written report within five business days. Id. The Commissioner of Securities may impose an extra $50,000 fine per violation added to any existing civil or administrative fine levied for securities violations against

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, 2021 to June 30, 2022: Administrative Law Appellate Practice Antitrust Bankruptcy/Receiverships Business Law, including Contract Law, Corporate Law and Business Transactions Civil Rights Collections/Foreclosures Litigation, including Complex Civil Litigation and Class Actions Constitutional Law Condemnation Construction Law, including Construction Litigation Criminal Law (including Federal Criminal Law) 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 Maritime Law Plaintiffs Qui Tam Project Labor Agreements 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 State Compliance with REAL ID Act Requirements 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, 2021, 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.

a person 62 years or older. HAW. REV. STAT. § 486-27 (2011).

The State also may impose fines of up to $10,000 for each violation by mortgage brokers and solicitors committed against elders, defined as consumers 62 years or older. HAW. REV. STAT. § 454-4.5 (2011).

Other Interventions and Remedies There are myriad other laws and resources to address elder abuse, depending on the particular situation. Under the Penal Code, if a person commits a crime against an older or handicapped person, the act may be prosecuted as a crime and the perpetrator may receive an extended sentence. See HAW. REV. STAT. § 706-662 (2014).

If someone is stealing checks from an older person’s mailbox, the federal postal inspector, the county police, and prosecutor can step forward to investigate and intervene.75 The victim, family members and caregivers may also formulate a plan for electronic direct deposit of checks to help prevent future abuse. Private remedies may also be available through tort or other civil action. For example, a private practice attorney may seek restitution through a civil fraud action in court.76 Private legal remedies, including actions for breach of contract, and tort and civil fraud may also be pursued.77 Conclusion For the past three decades, UHELP has played a role in educating future lawyers, healthcare providers and the community as it has represented and has advocated for legal reform on behalf of older persons in the community,78 who have demonstrated great resiliency during the pandemic despite the disproportionate numbers of deaths among this segment of the population.79 This work will continue with key lessons learned, perhaps some new ideas for the practice of elder law as we approach the post-pandemic era and an even greater respect for the resiliency of our kupuna. __________________ 1

Visit UNIVERSITY OF HAWAII ELDER LAW PROGRAM, www.hawaii.edu/uhelp (last visited April 2, 2021).

2 See, e.g., Priscilla Vargas Wrosch, What More Can Congress Do About the Elder Abuse Epidemic? A Proposal For National Movement, 23 TEMP. POL. & CIV. RTS. L. REV. ix (2013); U. S. DEPARTMENT OF JUSTICE ARCHIVES: FIGHTING BACK AGAINST THE HIDDEN EPIDEMIC OF ELDER ABUSE (2020), https://www.justice.gov/archives/opa/blog/fighting-back-against-hidden-epidemic-elder-abuse.

3 See, National Healthcare Safety Network, COVID-19 Deaths among Residents and Rate per 1,000 Resident-Weeks in Nursing Homes, by Week–United States, CENTERS FOR DISEASE CONTROL AND PREVENTION: NURSING HOME COVID-19 DASHBOARD, (Apr. 5, 2021), https://www.cdc.gov/nhsn/covid19/ltc-report-overview.html#anchor_1594393305.

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4

See, Press Release, Centers for Medicare & Medicaid Services, Revised Guidance for Nursing Home Visitation during COVID-19, https://www.cms.gov/files/document/covid-visitation-nursing-homeresidents.pdf; see also Memorandum from the Dept. of Health & Hum. Services Centers for Medicare & Medicaid Services to the State Survey Agency Directors (Sept. 17, 2020) https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicyand-memos-states-and/nursing-home-visitation-covid-19-revised (discussing updated guidelines to nursing home visitation during the COVID-19 pandemic).

5 See, e.g., Matthew Perrone and Carla k. Johnson, COVID-19 hospitalizations tumble among US senior citizens, U.S. News and World Report, April 22, 2021, https://www.usnews.com/news/healthnews/articles/2021-04-22/covid-19-hospitalizations-tumble-among-ussenior-citizens.

6 See, e.g., Funk, Moss, & Speis, How COVID-19 Changed Advance Care Planning: Insights From the West Virginia Center for End-of-Life, J. PAIN & SYMPTOM MGMT. CARE , Dec. 2020, at e5.

7 See, e.g., CL Auriemma et al., Completion of Advance Directives and Documented Care Preferences During the Coronavirus Disease 2019 (COVID-19) Pandemic, J. AM. MED. ASS’N NETWORK OPEN, July 20, 2020 at 1–4.

8 UNIVERSITY OF HAWAII ELDER LAW PROGRAM: COVID 19 UPDATE, http://www.hawaii.edu/uhelp/covid-19.htm (last visited Apr. 8, 2021) 9 E.g., the UHELP annual “’Nite’ of the Living Will” attracted nearly 200 viewers and two sessions of a legal series sponsored by Catholic Charities Hawaii (CCH) Circle of Care for Dementia, in collaboration with the American Bar Association Commission on Law and Aging, Hale Ku‘ike and UHELP attracted over 300 viewers. See UNIVERSITY OF HAWAII ELDER LAW PROGRAM: NITE OF THE LIVING WILL, https://www.hawaii.edu/uhelp/nite-of-the-living-will.htm.

10

Horton, Do-It-Yourself Wills, 53 UC DAVIS L. REV. 2357, 2357 (2020).

42 U.S.C. §1397m-1 (West 2017).

12 Promoting Alzheimer’s Awareness to Prevent Elder Abuse Act, Pub. L. No.: 116-252, (2020).

13 Kenneth Heisz, Beware of the Con in Conservatorships: A Perfect Storm for Financial Elder Abuse in California, 17 NAT’L ACAD. ELDER L. ATTORNEYS J. 1, 2–4 (2021), https://www.naela.org/NewsJournalOnline/OnlineJournalArticles/OnlineMarch2021/Conservatorships.aspx.

14 Id. 15 See NAT’L COUNCIL ON AGING, Get the Facts on Elder Abuse, https://www.ncoa.org/public-policy-action/elder-justice/elder-abusefacts, (last visited Mar. 22, 2021).

16 The story is a representative tale of calls received at UHELP and the characters bear no resemblance to any actual family. Citations to specific records or persons in the UHELP Tales are omitted for the purposes of confidentiality. More details of this story and other calls to UHELP will be included in a future UHELP publication.

17 See, e.g., James H. Pietsch, The Role of Laws and Lawyers in Helping Avoid Disappointment at the End of Life, Haw. B. J. 5, Aug. 2019 at 5, 5–10, https://hsba.org/images/hsba/Transitioning%20Lawyers/articleend%20of%20life%20decisions%201.pdf.

18 Michael Sneeringer et al., Mom Liked Me Better, and She Will Prove It: Pre-Mortem Validation—Permanent Solution or Fad? AM. B. ASS’N: REAL PROP., TR. & EST. SECTION, PROB. & PROP. MAG., Mar.–Apr. 2021, at 41, 42. Nine states (Alaska, Arkansas, Delaware, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, and South Dakota) have statutes allowing pre-mortem probate of wills in some form, six states (Alaska, Delaware, Nevada, New Hampshire, Ohio, and South Dakota) permit pre-mortem validation of trusts and two states (Delaware and 11

disputes

Resolving Nevada) permit pre-mortem validation proceeding for the holder or exerciser of a power of appointment. Id. 19 Id. 20 See Letter to the Editor, S. Duke Han PhD & Laura Mosqueda MD, Elder Abuse in the COVID 19 Era, 68 J. OF AM. GERIATRICS SOCIETY 7 (Apr. 20, 2020), https://doi.org/10.1111/jgs.16496.

21 Id. 22 Id. 23 U.S. DEP’T OF HUM. SERVICES: ADMIN. FOR CMTY. LIVING & ADMIN ON AGING. 2017 PROFILE OF OLDER AMERICANS, (Apr. 2018), https://www.acl.gov/sites/default/files/Aging %20and%20Disability%20in%20America/20 17OlderAmericansProfile.pdf.

24 Id. 25 Id. 26 Press Release, U.S. Census Bureau, Older People Projected to Outnumber Children for First Time in U.S. History (Mar. 13, 2018), https://www.census.gov/newsroom/press-releases/2018/cb18-41-populationprojections.html.

27 Id. 28 Id. 29 Id. 30 STATE OF HAW. DEP’T OF HEALTH EXEC. OFF. ON AGING: 2019 – 2023 HAWAII STATE PLAN ON AGING, https://www.hawaiiadrc.org/Portals/_AgencySite/State%20Plan/StatePlanOnAging2019 _2023.pdf.

31 Id. 32 NAT’L INST. OF HEALTH: NAT’L INST. OF NEUROLOGICAL DISORDERS & STROKE, WHAT IS DEMENTIA? SYMPTOMS, A TYPES, AND DIAGNOSIS 1 (2017), https:www.nia.nih.gov/health/what-dementiasymptoms-types-and-diagnosis [hereinafter WHAT IS DEMENTIA?].

33 ALZHEIMER’S ASS’N, ABOUT ALZHEIMER’S DISEASE (2019), https://www.alz.org/media/Documents/alzhe imers-dementia-about-alzheimers-diseasets.pdf.

34 Id. 35 See NAT’L INST. ON AGING, ALZHEIMER’S BASICS http://www.nia.nih.gov/alzheimers/topics/alzheimers-basics (last visited Mar. 22, 2021).

“The disease is named after Dr. Alois Alzheimer. In 1906, Dr. Alzheimer noticed changes in the brain tissue of a woman who had died of an unusual mental illness. Her symptoms included memory loss, language problems, and unpredictable behavior. After she died, he examined her brain and found

equitably

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15

many abnormal clumps (now called amyloid plaques) and tangled bundles of fibers (now called neurofibrillary tangles). Plaques and tangles in the brain are two of the main features of Alzheimer’s disease. The third is the loss of connections between nerve cells (neurons) in the brain.” Id. 36 Id. 37 Id. 38 Id. 39 ALZHEIMER’S ASS’N., 2021 ALZHEIMER’S FACTS AND FIGURES, at 19, 22, https://www.alz.org/media/documents/alzheimers-facts-and-figures.pdf (last visited March 20, 2021).

40 Id. at 8.

41 Id. at 9.

42 A.B.A COMM’N. ON L. & AGING & AM. PSYCHOLOGICAL ASS’N, ASSESSMENT OF OLDER ADULTS WITH DIMINISHED CAPACITIES: A HANDBOOK FOR LAWYERS (2nd ed. 2021), http://www.apa.org/pi/aging/resources/guides/diminishedcapacity.pdf [hereinafter Handbook for Lawyers]. This handbook represents the second edition of the original collaborative effort of members of the American Bar Association (ABA) and the American Psychological Association (APA) which produced the original handbook in 2005. Since the original publication, the legal views of capacity have been heavily influenced by human rights trends, a growing awareness of the need for robust decision supports, growing concerns over abuse and exploitation of older persons, and more nuanced clinical tools for understanding and assessing the variations of capacity. The resulting changes in this edition of the handbook include the inclusion of separate chapters on specific capacities and undue influence; a greater emphasis on the importance of supported decision-making strategies; greater attention to financial capacity red flags; and a greater emphasis on the fact that capacity is multidimensional and rarely an all-or-nothing proposition. This latter principle is even reflected in the slight change in the title which changes the original “Capacity” to “Capacities.”

43 Id. at 1.

44 Id. 45 Id. at 88.

“Importantly, in recent years the term Major Neurocognitive Disorder has emerged and is now found in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as the new term for dementia (although we are likely still to hear both terms used). This term reflects the wealth of new information about the biological underpinnings of dementia. It also sets aside the stigma attached to “dementia.” Legal professionals may also encounter the term Mild Neurocognitive Disorder or Mild Cognitive Impairment. These terms describe declines in cognitive functioning that are greater than expected for one’s age but not to such an extent that the person is unable to perform important tasks to living independently. They are less efficient. For example, an older client may have more trouble with memory than would be expected, but has demonstrated an ability to still drive safely, shop, and prepare their own meals.

“Advances in biology have not replaced an essential fact: To diagnose dementia or major neurocognitive disorder, or mild cognitive impairment, or mild neurocognitive disorder, a clinical evaluation is needed. Because of the ever-evolving research and practice in diagnosis and labels, legal professionals wanting to learn more are encouraged to review the suggested resources in the handbook.”

46 Id. at 26.

47 Id. at 26.

48 In re Estate of Herbert, 90 Haw. 443, 979 P.2d 39 (Mar. 17, 1999) (addressing whether undue influence was exerted upon the deceased, to induce her to change her will). The Hawai`i Supreme Court discussed the

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SODR factors in the case: “It is sometimes said that the elements of undue influence are, susceptibility of [the] testator [or testatrix], opportunity for the exertion of undue influence, disposition to exert undue influence, and the result, in the will, of such undue influence.” Id. at 457, P.2d 53. “The so-called ‘SODR’ factors have evolved to aid courts in determining whether to deny probate of a will based upon the theory of undue influence. Well established Hawai’i case law involving undue influence has impliedly recognized and adopted the ‘SODR’ factors.” Id. (citing In re Notley’s Will, 15 Haw. 435, 440–41 (1904).

49 Handbook for Lawyers, supra note 42, at 27.

50 Id at 29. “Undue influence means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” CUIST is divided into four categories: Client Vulnerability, Influencer’s Authority/Power, Actions/Tactics, and Unfair/Improper Outcomes. Check all the factors that apply to the victim’s circumstances and provide examples.” Id. 51 RESTATEMENT (SECOND) OF CONTRACTS §177 (AM. L. INST. 1981).

“Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare.”

52 See, e.g., ANN STANYER, FINANCIAL ABUSE OF OLDER CLIENTS: LAW, PRACTICE AND PROCEDURE, (Bloomsbury Publishing, 2017).

53 See Michael S. Finke et al., Old Age and the Decline in Financial Literacy, 63 MANAGEMENT SCIENCE 1, 213–30 (2011).

54 Mikhail Zinshteyn, Bank Tellers Can Help Fight Financial Exploitation, Study Finds, AARP.ORG (Oct. 17, 2019), https://www.aarp.org/money/scamsfraud/info-2019/bank-tellers-prevent-financial-fraud.html.

55 Judy Stringer, Danger: Watch Out For These Covid-19 Scams, FORBES (Aug. 30, 2020), https://www.forbes.com/sites/nextavenue/2020/08/30/danger-watch-out-for-these-covid-19-scams/#d0793ec760ca.

56 David Burnes et al., Prevalence of and Risk Factors for Elder Abuse and Neglect in the Community: A Population-Based Study, 63 J. AM. GERIATRICS SOC., 2015, at 1908–11, n. 9, https://www.researchgate.net/profile/Paul_Caccamise/publication/281340166_Prevalence_of_and_Risk_Factors_for_E lder_Abuse_and_Neglect_in_the_Community_A_PopulationBased_Study/links/5ac23d710f7e9bfc045e53bd/Prevalence-of-andRisk-Factors-for-Elder-Abuse-and-Neglect-in-the-Community-A-Populati on-Based-Study.pdf.

57 Lena K. Makaroun, Rachel L. Bachrach & Ann-Marie Rosland, Elder Abuse in the Time of COVID-19—Increased Risks for Older Adults and Their Caregivers, AM. J. GERIATRIC PSYCHIATRY (May 19, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7234937/#bib0006.

58 David Godfrey, Coronavirus Isolation May Heighten Risk for Elder Abuse, AM. BAR. ASS’N (Mar. 26, 2020), https://www.americanbar.org/groups/law_aging/resources/coronavirus-update-and-the-elder-law-community/coronavirus-and-elderabuse/.

59 Id.; Ziggi Ivan Santini et al., Social Disconnectedness, Perceived Isolation, and Symptoms of Depression and Anxiety Among Older Americans (NSHAP): A Longitudinal Mediation Analysis, 5 LANCET, no. 1, January 2020, https://www.sciencedirect.com/science/article/pii/S246826671930230 0.

60 See e.g., Lichtenberg, Financial exploitation, financial capacity, and Alzheimer’s disease, 71 AMERICAN PSYCHOLOGIST 4, 312–320 (2016).

61 See, e.g., STETSON UNIVERSITY: STATUTORY UPDATES, https://www.stetson.edu/law/academics/elder/home/statutory-updates.php. Stetson University College of Law, by and through the Center for Excellence in Elder Law and the Elder Consumer Protection Program, produces

certain statutory monitoring and update materials for the use by and the benefit of the public and professional communities. These statutes vary widely based on who may be eligible for services and the types of abuse that may be actionable. At the same time, federal laws, such as the Older Americans Act, do little more than authorize funds for local awareness and coordination endeavors. See 42 U.S.C. §3002 (2006 & Supp. 2012). Unlike federal laws on child abuse and domestic violence, which fund services and shelters for victims, there is no comparable federal law on elder abuse.

62 See, e.g., James H. Pietsch, Elder Abuse and Laws to Protect Older Persons in Hawaii, 93 HAW. BAR J., 16, 13 (2013).

63 See, James H. Pietsch, Elder Abuse and Laws to Protect Older Persons in Hawaii, 16 HAW. B. J. 13, 93 (2013).

64 Id. at 98 (citing HAW. REV. STAT. § 346-221): While advanced age alone is not sufficient reason to intervene in a person’s life, the legislature finds that many elders have become subjects of abuse, neglect, and exploitation. Substantial public interest exists to ensure that this segment of the population receives protection.

65 Id. The list does not include attorneys, but any person may report, and the reports are confidential. However, attorneys should note HAW. R. OF PROF’L CONDUCT R. 1.6 (amended 2013), which imposes a duty of confidentiality on lawyers, allowing them to disclose information related to representation of a client only in very limited circumstances, such as when the client gives informed consent, or the disclosure is “impliedly authorized in order to carry out the representation.”

66 Id. 67 HAW. ADMIN. R. §17-1421-4 Geographic areas of service, provides that protective services for vulnerable adults shall be available throughout the State subject to the availability of resources.

68 See id.

69 Email from Administrator, Adult Protective and Community Services Branch, “APS Statistics for 2020,” (Feb. 5, 2021) (on file with author).

70 See, e.g., MATTHEW COKE, HAW. LEGIS. REFERENCE BUREAU, A SURVEY OF ADULT PROTECTIVE LAWS IN HAWAI`I AND NATIONWIDE, https://lrb.hawaii.gov/wpcontent/uploads/2007_ASurveyOfAdultProtectiveServicesAndElderAbuseInHawaiiAndNationwide.pdf (Dec 2007).

71 The University of Alabama at Birmingham (“UAB”) “Brief Financial Capacity Screen” (BFCS) was developed by Daniel Marson, JD, PhD., specifically for APS workers in Georgia to use (agencies involved were the Georgia Alzheimer’s Association and Georgia Division of Aging Services). There are two attachments that comprise the BFCS: a clinical interview screen and an optional direct assessment module (where APS workers can directly test certain client financial abilities). There are also administration manuals linked to this measure, which are available to APS workers. UAB retains all the intellectual property rights in this measure. For a discussion of Daniel Marson’s work in the area of capacity in elder law, see Daniel C. Marson et al., Testamentary Capacity and Undue Influence in the Elderly: A Jurisprudent Therapy Perspective, 28 L. & Psychol. Rev 71, (2004).

72 HAW. REV. STAT. §346-222 (2014) (“Financial exploitation may be accomplished through coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.”).

73

See HAW. DEP’T OF HUM. SERVICES: ADULT PROTECTIVE AND COMMUSERVICES,http://humanservices.hawaii.gov/ssd/home/adult-services/ (last visited Mar 11, 2021).

74 HAW. REV. STAT. § 480-13.5 (1998) provides: (a) Additional civil penalties for consumer frauds committed against elders. If a person commits a violation under section 480-2 which is directed toward, targets, or injures an elder, a court, in addition to any other civil penalty, may impose a civil penalty not to exceed $10,000 for each violation. (b) In determining the amount, if any, of civil penalty under subsection (a), the court shall consider the following: (1) Whether the person’s conduct was in willful disregard of the rights of the elder; (2) Whether the person knew or should have known that the person’s conduct was directed toward or targeted an elder; (3) Whether the elder was more vulnerable to the person’s conduct than other consumers because of age, poor health, infirmity, impaired understanding, restricted mobility, or disability; (4) The extent of injury, loss, or damages suffered by the elder; and (5) Any other factors the court deems appropriate. (c) As used in this chapter, “elder” means a consumer who is sixtytwo years of age or older.

75 See generally Sarah B. Berson, Prosecuting Elder Abuse Cases, National Institute of Justice (Apr. 14, 2010), https://nij.ojp.gov/topics/articles/prosecuting-elder-abuse-cases (discussing the challenges and unique disposition of elder abuse cases in the realm of criminal prosecution, and the importance of multidisciplinary prosecution teams that involve both criminal and elder law professionals.

76 See generally David Godfrey, Understanding and Utilizing State Elder Abuse Statutes, NAT’L CTR. ON L. & ELDER RTS. (Jan. 2020) (discussing the mechanics of state elder abuse laws and charting out civil litigation strategies for elder abuse cases), https://ncler.acl.gov/getattachment/Legal-Training/State-Elder-AbuseStatutes-Issue-Brief.pdf.aspx?lang=en-US. 77 Id. 78 See, James H. Pietsch, The University of Hawai`i Elder Law Program: Celebrating 30 Years of Advocating for Older Persons, their Families and their Care Providers, 25 HAW. BAR J. 2, (2021).

79 See, e.g., Neal Milner, Elderly Hit Hard By Pandemic Aren’t Just Vulnerable Victims, CIVIL BEAT (Feb. 11, 2021), https://www.civilbeat.org/2021/02/neal-milner-elderly-hit-hard-bypandemic-arent-just-vulnerable-victims/.

NITY

James H. Pietsch is a Professor of Law at the William S. Richardson School of Law and Director of the University of Hawai`i Elder Law Program. At the law school, Professor Pietsch teaches Law, Aging and Medicine, Elder Law Clinic (including a focus on veterans), Advanced Health Law Studies (Experiential) and Health Law: Bioethics. He is also an Adjunct Professor of Geriatric Medicine and Psychiatry at the John A. Burns School of Medicine. Special thanks to UHELP volunteer attorney, Neva Keres, and to Richard Malcolm Crum, J.D. Candidate, Class of 2021, William S. Richardson School of Law.

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H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in March 2021: • Approved the joint Executive-Finance Committee’s recommendation to select Gilford Sato & Associates, CPAs, Inc. to conduct the HSBA financial audit and tax return preparation for year 2020; and • Approved the Nominating Committee’s recommendation to appoint Mahealani Krafft to fill the unexpired term on the MCLE Board to begin immediately and expire on October 1, 2022.

Vacancies on HSBF Board The Hawaii State Bar Foundation (“HSBF”) will have six available board positions with three-year terms beginning on January 1, 2022. General qualifications for these positions include having an affirmative interest in the organization; being willing and able to devote time to perform necessary duties; and being conscientious, studious, thorough and diligent in learning methods and problems of the organizations.

Duties of the HSBF include setting short-term and long-term strategic goals and directions for the HSBF; fundraising and developing sufficient resources to carry out goals and directions; providing oversight of the HSBF’s finances, grants, programs, and operations; and serving as an emissary in the legal community and beyond for the HSBF and its mission.

Anyone interested in serving in this capacity should submit the following to the HSBA Nominating Committee at nominations@hsba.org by July 30, 2021: 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.

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Appointments will be made at the HSBA Board meeting in November or December 2021.

Member Benefits Spotlight: Travel and Transportation Aston at the Executive Centre Hotel HSBA members can enjoy discounted rates to all Aston properties in Hawaii, including in downtown Honolulu at the Executive Centre, 1088 Bishop Street. For more information or reservations, please call (808) 5393000 or visit https://bit.ly/2P6O8zP. Use the Corporate/Promotions Code JX4963 if making reservations online or by phone.

AVIS Car Rental Call (800) 962-1434 or visit your HSBA custom website at https://bit.ly/3sBgJLo for discounts, reservations, and Avis Preferred Program enrollments (AWD# H209337).

BookingCommunity HSBA members get exclusive access to hotel rates of over 800,000 participating hotels and resorts that are up to 70% less than any other online travel booking site. Visit their website at https://bit.ly/32DTjKB to learn more.

Enterprise/National/Alamo • For Emerald Club enrollment, visit https://bit.ly/3v7sDy8.

• For HSBA custom booking for Enterprise/National/Alamo, visit https://bit.ly/3tBoEJZ. • For a brief overview of Emerald Club benefits, visit https://bit.ly/3dAsCNh. • Local, HSBA-dedicated account representatives are available at https://bit.ly/3vbBO0J to assist with questions, concerns, or sold out requests.

Contact Nadine Cunningham at (808) 543-1508 with any questions, concerns, or assistance.

Hawaiian Airlines HSBA members are eligible for a 5% discount on all transpacific web fares (round trip only). For reservation instructions, sign in to your member account at https://bit.ly/32uCC4o. Once you are signed in, please click on “My Account” > “Benefit-Hawaiian Airlines.” Baggage fees will apply to Preferred Affiliate Bookings.

Hotelogical Receive up to 70% off hotels and resorts worldwide with free access to Hotelogical’s unpublished, member-only rates. Enroll with NPP to start saving with special member deals at https://bit.ly/3dxVUfs. Marriott International The WAIKIKI Collection extends discounted corporate rates to HSBA members for the following 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 on select room categories only, based upon availability and subject to change. Hotel blackout dates apply. These rates are not valid for any groups or conventions. To book online, visit https://bit.ly/32AqG17 or call (808) 921-4560 and ask for the “LOCAL COMPANIES” corporate rates and provide Cluster Code “L6C.” Priceline 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://bit.ly/3n4E3Qs.

NOTICE TO ATTORNEYS AND LAW FIRMS INTERESTED IN PROVIDING LEGAL SERVICES TO THE MAUI COUNTY COUNCIL SOLICITATION NO.: 20-006OCS Pursuant to 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 pursuant to this Notice even if a similar statement has been submitted to the Corporation Counsel or Office of the County Auditor. Legal services are authorized by resolution and provided pursuant to contracts executed through the fiscal year ending June 30, 2021.

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, 2021: 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 mailed to the Office of Council Services, 200 S. High St., #703, Wailuku, HI 96793 or 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, 2021. For mailed responses, include an electronic copy of the submittal in searchable PDF format. For emails, the subject line should read: “In Response to Providing Legal Services to the Maui County Council”; attachments should be in searchable PDF format.

Procurement Notice for Solicitation posted on the State of Hawaii HANDS website on 05/14/20.

Is it a Workers’ Compensation Claim, a Personal Injury Tort Claim, or Both?

by L. Richard Fried Jr. and Denise K.H. Kawatachi When an employee sustains a serious injury while working, there are several frequently asked questions: How will I pay my medical bills? What about my lost income? Can I sue my employer or my co-worker? Am I only entitled to workers’ compensation? Can I get money for my pain and suffering? Many times, these questions can only be answered after looking further into what happened. This article is a general and broad overview of Hawaii state law for employees injured while working.

General Overview of Hawaii’s Workers’ Compensation Law Hawaii’s Workers’ Compensation Law is set forth in Chapter 386, Hawaii Revised Statutes (hereinafter “HRS”) and was enacted for employees who suffer injuries arising out and in the course of employment to provide “an injured work[er] . . . an assured, certain and prompt compensation” and to “secure for the employer freedom from vexatious, delaying and uncertain litigation[.]” Iddings v. Mee-Lee, 82 Hawai’i 1, 8, 919 P.2d 263, 270 (1996) (quoting Estate of Coates v. Pac. Eng’g, 71 Haw. 358, 364, 791 P.2d 1257, 1260-61 (1990)).

Under workers’ compensation law, there is a presumption that a worker injured on the job is entitled to workers’ compensation benefits. HRS § 386-85 (“In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary … [t]hat the claim is for a covered work injury.”). Workers’ compensation benefits are generally paid to a worker regardless of whether an employee was at fault for causing their own injuries.

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HRS § 386-3. However, an employee is not entitled to compensation if the injuries were caused by the “employee’s wilful intention to injure oneself or another by actively engaging in any unprovoked non-work related physical altercation other than in self-defense, or by the employee’s intoxication.” HRS § 386-3(b).

In exchange for the certainty of a statutory award for all work-connected injuries, the employee gives up the right to recover tort damages. Evanson v. Univ. of Hawaii, 52 Haw. 595, 598, 483 P.2d 187, 190 (1971). Benefits available under the workers’ compensation system are generally limited to: (1) medical benefits; (2) rehabilitation benefits including medical rehabilitation and vocational rehabilitation; (3) income benefits; (4) indemnity benefits; (5) permanent partial disability (PPD) benefits and (6) death benefits, if applicable. These benefits are set forth in Part II of the Workers’ Compensation Law. HRS §§ 386-21 through 386-57. The director of the department of Labor and Industrial Relations has original jurisdiction over all controversies and disputes arising under the Workers’ Compensation Law, with a right to appeal any decisions of the administrative agency. HRS § 386-73.

Generally, recovery under Hawaii’s Workers’ Compensation Law is an employee’s exclusive remedy against the employer and co-workers for injuries that arise out of and in the course of employment regardless of the severity of the injury. In other words, an employee generally cannot sue their employer or co-workers for damages even though the employer or co-workers negligently caused the injury. The exclusive remedy provision is set forth in HRS § 386-5, which states in pertinent part: “The rights and remedies herein granted to an employee or the employee’s dependents on account of a work injury suffered by the employee shall exclude all other liability of the employer to the employee[.]”

However, there are exceptions to the exclusive remedy provision of Hawaii’s Workers’ Compensation Law that permit the injured employee to pursue personal injury tort claims against their employer and/or co-worker in addition to workers’

Depositions & Arbitrations during the

Pandemic

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

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

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

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

Records Depositions: The Records Department

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

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

RALPH ROSENBERG COURT REPORTERS, INC. A Full-Service Court Reporting Firm Tel: 808-524-2090 • Web:

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compensation benefits. The first exception is specifically set forth in HRS § 386-5 for claims of “sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto.” Another exception is set forth in HRS § 386-8, which allows an employee to sue a co-worker if the injury is caused by the co-worker’s “wilful and wanton misconduct.”

HRS § 386-8(k). The phrase “’wilful and wanton misconduct,’ as used in HRS § 386-8(k), includes conduct that is either: (1) motivated by an actual intent to cause injury; or (2) committed in circumstances indicating that the injuring employee (a) has knowledge of the peril to be apprehended, (b) has knowledge that injury is a probable, as opposed to a possible, result of the danger, and (c) consciously fails to avoid the peril.” Iddings, 82 Hawai’i at 12, 919 P.2d at 274.

Hawaii’s Workers’ Compensation Law is beneficial to both the employer and the injured employee. The injured employee is entitled to benefits without having to wait months, or more likely years, it may take if the employee was required to sue for personal injury tort compensation. The workers’ compensation system allows for the prompt payment of benefits to the injured employee, allowing the injured employee the ability to receive medical care and, in situations where the employee is unable to work due to their injuries, income benefits which gives the injured employee the ability to pay for expenses such as food, shelter and clothing. The employee is also entitled to benefits for injuries that result from the employee’s own negligence or fault.

Hence, workers’ compensation is a no-fault benefit that is paid regardless of, or despite, anyone’s fault. The primary benefit to the employer is that benefits are limited and it is generally immune from personal injury tort claims by its employees for workrelated injuries.

General Overview of a Personal Injury Tort Claim A personal injury tort claim is generally fault based, with several exceptions such as strict products liability. Generally speaking, in order to prevail in a personal injury negligence claim, the plaintiff must prove that the other individual or entity acted negligently (doing something which a reasonable person would not do or failing to do something which a reasonable person would do) or is subject to strict liability; and their negligence or basis for strict liability was a substantial factor in bringing about the injury. Instructions 6.1 and 7.1, Hawaii Civil Jury Instructions, 1999 edition. Therefore, unlike in a workers’ compensation claim, the injured party in a personal injury negligence claim must prove fault.

A broader range of damages are recoverable in a personal injury lawsuit, including compensatory and punitive damages.

General or noneconomic damages, include past, present and reasonably probable future pain and suffering, mental anguish, emotional distress, disfigurement, loss of enjoyment of life, loss of consortium, and those damages that “cannot be measured definitively in monetary terms.” Dunbar v. Thompson, 79 Hawai’i 306,

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315, 901 P.2d 1285, 1294 (Haw. Ct. App. 1995)(citations omitted); HRS § 663-8.5 (noneconomic damages include “pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium, and all other nonpecuniary losses of claims”).

Special, or economic, damages are those damages that can be “calculated precisely” or can be determined with reasonable certainty. Instruction 8.2, Hawaii Civil Jury Instructions, 1999 edition. “Special damages are often considered to be synonymous with pecuniary loss and include such items as medical and hospital expenses, loss of earnings, and diminished capacity to work.” Dunbar, 79 Hawai’i at 315, 901 P.2d at 1294. Today, both past and future economic losses are considered special damages as old common law distinctions have no practical effect.

Punitive damages are those damages assessed for the purpose of “punishing the defendant for aggravated or outrageous misconduct and to deter the defendant and others from similar conduct in the future.” Masaki v. Gen. Motors Corp., 71 Haw. 1, 6, 780 P.2d 566, 570 (1989). Therefore, unlike in a workers’ compensation claim, the injured party in a personal injury tort claim can recover the full range of damages recognized by law.

In a personal injury tort claim, the plaintiff bears the burden of proving each element of the claim by a preponderance of the evidence, e.g., O'Grady v. State, 140 Hawai'i 36, 47, 396 P.2d 625 (2017), whereas an employee in a workers’ compensation claim has the benefit of a presumption in favor of coverage. And finally, employees may be entitled to full workers’ compensation benefits even when injuries are caused by their own fault or negligence. Plaintiffs in personal injury claims (negligence and strict liability) may have their awards reduced by the degree of their own fault; or barred from any recovery in negligence claims where their own negligence exceeds the negligence of the defendant(s). HRS § 663-31.

Workers’ Compensation Claim and Personal Injury Tort Claim There are numerous situations in which an employee can have a workers’ compensation claim and a personal injury tort claim arising out of the same incident. Generally speaking, the injured employee may file a personal injury tort claim against a “third party,” which is an individual or entity other than the injured employee’s employer or co-worker. One of the most common situations is when the employee is driving as part of his job and is injured in a motor vehicle collision (not caused by a coworker). Because the employee was working at the time of the collision, he/she is entitled to workers’ compensation benefits. If the other driver is a “third party,” and at fault for the collision, the injured employee can file a personal injury negligence claim against the other driver. Another common situation is when an employee is injured by a defective product, which could be grounds for a strict products liability action against the product’s manufacturer, a “third party.”

Solutions Start Here When an injured employee has both a workers’ compensation claim and personal injury tort claim, there are several things the injured employee must keep in mind.

First, if the injured employee files an action against a third party, the employee must give the employer “written notice of the action and the name and location of the court in which the action is brought by personal service or registered mail.”

HRS § 386-8(b).

Second, if the injured employee reaches a settlement with the third-party, the employee must obtain the written consent of the employer of the third-party settlement and release. HRS § 386-8(d) (“No release or settlement of any claim or action under this section is valid without the written consent of both employer and employee”).

Third, the employer has a right to reimbursement for its workers’ compensation payments. As set forth in HRS § 386-8(f), if the third party action is prosecuted by the employee alone: [T]he employee shall be entitled to apply out of the amount of the judgment for damages, or settlement in case the action is compromised before judgment, the reasonable litigation expenses incurred in preparation and prosecution of the action, together with a reasonable attorney’s fee, which shall be based solely upon the services rendered by the employee’s attorney in effecting recovery both for the benefit of the employee and the employer. After the payment of the expenses and attorney’s fee, there shall be applied out of the amount of the judgment or settlement proceeds, the amount of the employer’s expenditure for compensation, less the employer’s share of the expenses and attorney’s fee.

HRS § 386-8 also describes the employer’s right to reimbursement where the civil action is prosecuted by the employer alone, as well as when the action Is prosecuted by both the employee and employer.

The employer’s right to reimbursement was addressed in Alvarado v. Kiewit Pac. Co., 92 Hawai’i 515, 993 P.2d 549

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(2000). In Alvarado, the Hawaii Supreme Court set forth a formula to determine the amount of the employer’s share of fees and costs and the amount of the worker’s compensation carrier’s first lien. The first step in the Alvarado formula – determination of the employer’s share of fees and costs – was stated as follows: [Calculate] . . . the fraction equal to the amount of workers’ compensation expended, plus calculable future benefits, divided by the total amount of the settlement. FN2. This fraction will then be . . . multiplied by the total amount of reasonable attorney’s fees and costs incurred by the employee in the course of pursuing the recovery action.

FN2. If the “share” of compensation expenditures to date plus future benefits, divided by the total settlement amount is greater than the whole number one (1), then the employer is liable for all of the attorney’s fees and costs incurred by the employee while pursuing recovery from the third party tortfeasor.

Id. at 518-19, 993 P.2d at 552-53. The next step in the Alvarado formula – determination of the amount of the workers’ compensation carrier’s lien – was stated as follows: [The employer’s share of fees and costs] . . . should then be . . . subtracted from the total compensation already expended to date, by the employer. This results in a first lien that the employer may assert against the settlement amount.

Id. 92 at 519, 993 P.2d at 553 (footnote omitted).

It should be noted that the Hawaii Supreme Court in Alvarado emphasized that the circuit court has discretion to determine each case on its merits and can deviate from the formula, specifically stating: “if the circuit court determines that the employer’s share of the attorney’s fees and costs, as first computed under the applicable formula, is not reasonable in light

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of the particular circumstances of a case, we emphasize that the circuit court retains the discretion to consider each case on its merits.” Id. at 520, 993 P.2d at 554.

The final issue an injured employee must be cognizant of is that the employer is entitled to a “future credit” if there is a settlement or judgment. HRS § 386-8.

The amount of the “future credit” is the balance of the settlement or judgment after reimbursement of the worker’s compensation lien and after deducting the employee’s attorney’s fees and costs. The injured employee must exhaust the “future credit” before the workers’ compensation carrier is required to make any additional workers’ compensation payments on the employee’s behalf. See Alvarado, 92 Haw. at 519, 993 P.2d at 553.

It is worth noting that that the director of the department of Labor and Industrial Relations retains discretion and jurisdiction to determine whether the employer “has an obligation to make further compensation payments including reimbursements and credits against sums recovered from any third party.” Hawaii Administrative Rules § 12-10-31(c).

Conclusion There are many differences between a workers’ compensation claim and a personal injury tort claim. Depending on the circumstances, an injured employee may be limited to only those benefits under Hawaii’s Workers’ Compensation Law. There are, however, many situations where an injured employee may be entitled to pursue both a workers’ compensation claim and a personal injury claim, but there are a number of issues that an injured employee must keep in mind during their pursuit of these claims. __________________ L. Richard Fried, Jr. and Denise K.H. Kawatachi, attorneys at Cronin, Fried, Sekiya, Kekina and Fairbanks.

CASE NOTES Appeal Pointer A stipulation to dismiss an appeal or a motion for voluntary dismissal of an appeal will not be approved by the appellate court unless the stipulation or motion complies with the requirements of HRAP 42.

ICA Criminal State v. Lajala, No. CAAP-200000080, March 30, 2021, (Wadsworth, J.). Defendant-Appellant Malia Kaalaneo Lajala (“Lajala”) appealed from the “Judgment of Conviction and Sentence As To . . .Lajala” (“Judgment”). After a jury trial, Lajala was convicted of Hindering Prosecution in the First Degree (“Hindering Prosecution One”), in violation of Haw. Rev. Stat. § 710-1029(1), and Assault Against a Law Enforcement Officer in the Second Degree, in violation of Haw. Rev. Stat. § 707-712.6.

Under Haw. Rev. Stat. § 710-1029(1), a person commits the offense of Hindering Prosecution One if the person “renders assistance” to another person with the required intent. Haw. Rev. Stat. § 710-1028 (2014) defines “renders assistance” for purposes of Haw. Rev. Stat. § 710-1029(1). Lajala raised a single point of error on appeal, contending that the circuit court erred in instructing the jury on the charge of Hindering Prosecution One by omitting the statutory definition of “renders assistance.” The ICA held that the jury instruction on the charge of Hindering Prosecution One was prejudicially insufficient and erroneous for failing to define “renders assistance” for the purpose of determining the material elements, including the conduct element, of

the charged offense, i.e., that Lajala rendered assistance to another person.

State v. Torres, No. CAAP-200000464, April 8, 2021, (Leonard, J.).

This appeal arose out of a defendant’s pretrial detention and commitment to the custody of the Director of the State of Hawaii, Department of Health (“Director of Health”). The ICA held that pursuant to the applicable statute, a criminal defendant who has been ordered to be detained pretrial in the custody of the Director of Health, in an institution for detention, assessment, care, and treatment, shall receive credit for the time of detention in such institution, as well as receive any other statutory credit due for time served in a correctional institution.

Torts Alghussein v. Kaan, No. CAAP-170000058, March 25, 2021, (Hiraoka, J.).

Plaintiff-Appellant Marilyn Alghussein (Alghussein) underwent surgery performed by Defendants-Appellees Kenneth T. Kaan, M.D., and Kenneth T. Kaan, M.D., Inc. (collectively, Dr. Kaan). There was a bad result. Alghussein sued Dr. Kaan, claiming he failed to obtain her informed consent for the surgery. The circuit court entered two orders granting summary judgment in favor of Dr. Kaan. The ICA held that Alghussein presented evidence creating a genuine issue of material fact about whether Dr. Kaan fully complied with the Hawaii medical informed consent statute, Haw. Rev. Stat. § 671-3 (Supp.

2008).

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C O URT BR IEF S Dunn and Rouse Sworn In

Maui Family Court Drug Courts Holds Final Graduation

Christopher M. Dunn, Second Circuit District Court Judge

Judge Adrianne N. Heely (second from left), Family Court Drug Court Administrator Meridith Russell (far left), Program Coordinator Michelle Boughner, and Program Social Worker Charnell Casil.

James R. Rouse, Second Circuit District Family Judge Although the Second Circuit courtroom could accommodate only a few family members due to the pandemic, the atmosphere was nevertheless joyful as Christopher M. Dunn was sworn in as District Court Judge and James R. Rouse was sworn in as District Family Judge on March 25. Many more family members and friends watched remotely as Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube channel.

Guest speakers were Maui Bar Association President Elizabeth S. Cuccia, Hawaii State Bar Association President Levi Hookano, Hawaii State Trial Judges Association Secretary Judge Kirstin M. Hamman, Judicial Selection Committee Chair Ronette M. Kawakami, and Senate President Ronald D. Kouchi.

Judges Dunn and Rouse will both serve six-year terms.

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The 26th Maui Family Drug Court graduation on March 23 was bittersweet as it marked a milestone for graduates and signaled the end of the program due to budget constraints.

The graduation was held virtually on Webex with the graduates and several Maui Family Court staff socially distanced in the courtroom.

Maui Family District Court Judge Adrianne Heely welcomed everyone and gave Drug Court team members the opportunity to impart words of wisdom and accolades to the graduating class. Napua Greig, proud that a family member was graduating, made a special appearance. She sang and danced hula, accompanied on the ukulele by Damon Williams.

Among the invited guests who worked with program participants in their efforts to turn their lives around were prosecutors, public defenders, social workers, guardians ad litem, deputy attorneys general, therapists, treatment center staff, counselors, family, and friends.

Despite the closure of the Maui Family Drug Court, participants and their families will continue to receive support and services from court social workers and the Department of Human Services Child Welfare Services team. Maui Family Drug Court would like to thank Paul Tonnessen and the Friends of the Children’s Justice Center, the community, and contracted providers for their support over the years.

The program was designed by Judge Douglas S. McNish to help parents break the cycle of addiction, child abuse, and neglect through monitored service delivery. He retired before it launched in 2005. Other judges who worked closely with the program over the years include Judge Geronimo Valdriz Jr., Judge Keith E. Tanaka, Judge Lloyd A. Poelman, and Judge Heely.

Moments in History

by Carol K. Muranaka More than one hundred and twenty-two years ago this June, when a newspaper sold for five cents, a beginning “Bar Society” was created. Twenty-eight lawyers met on a Saturday afternoon in the Supreme Court chambers to discuss the organization of “The Hawaiian Bar Association.” Judges Davidson, Robertson, and Wilcox, Messrs. Achi, Andrews, Ballou, Berry, Clark, Case, Cathcart, Caypless, Chillingworth, Correa, Davis, Dole, Gear, Hankey, Henshall, Humpreys, Johnson, Marx, McClanahan, Parke, Stewart, Vivas, Wilder, and Wright, and Col. Little attended.

Initially, the formation of permanent organization was proposed, but one of the gentlemen protested and said that he was not ready to vote for a president until that officer’s authority was known. As reported by The Advertiser on Monday,

June 26, 1899, the reporter said it was “good fun to attend this meeting.”

It was good fun to attend this meeting.

Now, lawyers are supposed, popularly, to be able to tell anything, do anything, exactly right, offhand. Several things made the fun. In the first place, in effecting temporary organization, they floundered about in this style of individuals who had never heard of the rules of Cushing or Reed or any other authority on parliamentary procedures. One of the gentlemen remarked at a certain stage that faltering or delay or indirection might well be expected from a gathering of women for business.

Well, these legal lights could learn a whole lot concerning the conduct of a meeting along the lines of order by attending sessions of any one of the score of local societies with female membership alone.1

The men discussed certain resolutions to allow the Hawaii Supreme Court justices to serve life terms. After speeches made in the style of Patrick Henry, discussion was tabled until the following Wednesday. At a subsequent bar meeting, the resolutions were withdrawn because the constitution of the Bar Association provided that it should not take part directly or indirectly in any political issue.

Paul Newmann was the first president; S.M. Ballou, vice president; A.A. Wilder, secretary; and S.K. Kane, treasurer. It was agreed that the Association would be non-political and that it would not be used for political purposes. Meetings were held every quarter.

1

Men of the Law; Laborious Work of Organizing an Association, THE ADVERTISER, June 26, 1899; see also Met in Harmony, THE ADVERTISER, June 24, 1899.

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2021 Hawaii Access to Justice Conference Save the date: Friday, June 25, 2021. The Hawai‘i Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission, will be an all-day event. Please attend to be part of an exciting, provocative discussion about seeking justice for the underserved, including opportunities for audience participation.

The keynote speaker will be Honorable Nancy Gertner (Ret.), who is

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full the yearly three-credit CLE require-

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O FF THE R EC ORD Alicia Fung joined the Carlsmith Ball law firm as an associate in the law firm’s transactional practice group. Alicia most recently served as a law clerk to the Honorable Derrick H.M. Chan at the Intermediate Court of Appeals.

Mateo Caballero, former legal director at the American Civil Liberties Union of Hawai‘i, embarked on his own law practice focused on civil and workers’ rights as well as legal services for non-profits and social enterprises (among other practice areas).

Keith Amemiya was named executive director of Central Pacific Bank Foundation. In this new role, he will

Solicitation for Application to Provide Administrative Hearing Service by Attorneys The Hawaii State Department of Land and Natural Resources (DLNR) may require qualified, licensed attorneys to provide administrative hearing service for its contested cases during Fiscal Year 2022 (July 1, 2021 to June 30, 2022). Any party interested in providing such service should send resume or curriculum vitae in PDF format to the DLNR Administrative Proceedings Office by email at DLNR.CO.APO@hawaii.gov.

30 June 2021

HAWAII BAR JOURNAL

manage strategic planning, programs, and operations for the bank’s philanthropic arm. Prior to this appointment, he served as executive director of Hawai‘i High School Athletic Association.

Laurie Tochiki received the 2021 Casey Excellence for Children Leadership Award, which recognizes individuals who have dedicated themselves to building hope and improving outcomes for children and families in the child welfare system. Tochiki is the president and CEO of Epic ‘Ohana, a nonprofit organization that supports families in the child welfare system.

Colin Miwa, Lawrence Okinaga, Ivan Lui-Kwan, and others are working on the American Judicature Society National Conference scheduled for November 21 to 24, 2021, at the Sheraton Waikiki, Honolulu, Hawaii.

“Judicial Independence in the Age of Political Polarization” is the theme of the conference, which will feature timely topics: (1) “Assault on the Courts—the 2020 Election and Beyond;” (2) “Politics, Judicial Selection, and the Administration of Justice;” (3) “Confidence in the Courts, Judicial Ethics and Accountability;” (4) “Understanding the Courts, Civics, and Judicial Independence;” and (5) “Judicial Diversity in the Courts,” and nationally known speakers. Presentations are currently planned to include Dean Erwin Chemerinsky of the University of California Berkeley School of Law, Alicia Bannon of the Brennan Center for Justice, and Dr. Anthony Simones with the Missouri State Bar Association’s civics education program.

Please calendar the event and plan to

attend for stimulating and engaging presentations and discussions. The conference will be conducted in a hybrid format featuring participation in-person or via Zoom.

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

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 K. 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 longer law-review type articles are published in a special issue. The Cades Foundation has been gracious and generous in funding this special issue.

These articles exceed 7,000 words.

The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

ATTORNEY WANTED ASSOCIATE LEGAL COUNSEL. The Honolulu Ethics Commission is seeking experienced attorneys for an Associate Legal Counsel. The Commission advances the standards of ethical conduct in city government to improve and maintain public confidence in city officials and employees. Litigation, policy, government experience preferred; admission to Hawaii Bar required. Email cover letter with salary requirement, resume, and at least three references to:ethics@honolulu.gov. For more information, go to www.honolulu.gov/ethics.

BOUTIQUE ESTATE PLANNING FIRM is looking for an associate attorney who is passionate about helping clients with their estate planning needs. The ideal candidate will have experience in a law firm’s litigation and/or transaction practice as well as either clerking with a probate judge or working in the area of estate planning here in Hawaii or on the mainland. Please mail resumes to: Conahan Law Group LLLC, 737 Bishop Street, Ste. 2990, Honolulu, Hawaii 96813. Serious inquiries only, and please feel free to add personal statements about yourself, your goals and your interests.

COATES FREY TANIMOTO & GIBSON, Hawaii’s largest Family Law Firm, seeks associate attorney with interest and/or experience in divorce/family law. Knowledge of Asian language(s) and/or criminal/TRO procedures a plus but not essential. Excellent benefits, advancement and atmosphere. Email (divorce@coatesandfrey.com) or fax (808524-0717) resume to Greg Frey.

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Join as counsel or on partner track. Firm provides all administrative services. Please submit your resume to ptomar@ awlaw.com MACDONALD RUDY O’NEILL & YAMAUCHI LLP seeks talented, conscientious litigation associate. Remote and in-person practice due to intensive use of cloud applications. Must be comfortable with computer applications.

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SETTLE MEYER LAW is in search of a transactional associate attorney with at least 2-4 years’ business and/or real estate legal experience, and a commercial litigation/intellectual property associate with 2-4 years’ experience. This is an exciting opportunity to work at a firm tackling a number of pressing issues facing Hawaii, including affordable housing and high-tech/IP business development. Qualified candidates must have distinguished academic credentials, strong research, writing and analytical skills, and be self-starters with a commitment to excellence. Please submit resume, writing sample and salary requirement to info@settlemeyerlaw.com.

THE LEGAL CLINIC, a non-profit legal services provider, is seeking a full-time immigration attorney to begin in September 2021. The attorney, with a senior staff attorney, will be responsible for representing low-income immigrant clients in a variety of areas, including petitions for asylum and Temporary Protected Status; removal defense; applications for naturalization, residency, humanitarian visas, and DACA. Two years of legal practice, knowledge of immigration law, and a commitment to public interest legal service, along with strong lawyering skills, are required. Hawai‘i State Bar membership is desired but not required. Salary is in the range of $60,000$70,000, with a generous benefit package.

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COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts.

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PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559 REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059.

REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

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

Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com

OFFICE SPACE OFFICE SPACE in the Historic Hawaii Times Bldg 928 Nu’uanu Ave. 290 sq ft furnished, Available now. Call or email 808-534-1040 jslawsky@1stallied.com AVAILABLE -Immediately. Located in Waterfront Plaza, Executive Suite. Two window offices (1 or both). 2 secretary carrels, storage closet available too. Includes use of conference room, kitchen, reception area.

Shared law/CPA office. Ample parking. Call Scott @ 295-9577.

LIKE NEW Law Office space available to share with kitchenette and professional conference room , one minute walk from Ala Moana shopping center. WiFi included 24/7 access to office Call:(808)256-5858

RECRUITING / TEMP STAFFING CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure.

AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. www.lanceluke.com 808-422-2132

HiEmployment is Hawaii's best choice for finding top legal talent. Professional recruiting and temp staffing services available.

695-3974. email: info@hi-employment.com June 2021

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