Hawaii Bar Journal - March 2023

Christine Daleiden

Joseph Dane

Susan Gochros

Ryan Hamaguchi

Cynthia Johiro

Edward Kemper

Laurel Loo

Melvin M M Masuda

Eaton O'Neill

Lennes Omuro

Brett Tobin

HSBA OFFICERS

President

Rhonda Griswold

President-Elect

Jesse Souki

Vice President

Mark M Murakami

Secretary

Lanson Kupau

Treasurer

Alika Piper

YLD OFFICERS

President

Lisa Yang

Vice President/President-Elect

Kelcie Nagata

Secretary

Danica Swenson Treasurer

Andria Schumann

EXECUTIVE DIRECTOR

Patricia Mau-Shimizu

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Civil Law For um

ACKNOWLEDGMENTS

The Hawaii State Bar Association’s Committee on Judicial Administration (“the committee”) was established for the purpose of maintaining a close relationship with the Judiciary on matters of mutual concer n to the bench and bar Since 2012, the Bench-Bar Conferences and in alter nate years, the Criminal Law Forums, Civil Law Forums, and Family Law Forums have been positive and constructive because of the enthusiasm of Hawai‘i Supreme Court Chief Justice Mark E Recktenwald, w h o h a s s u p p o r t e d t h e e n d e avo r s o f t h e c o m m i t t e e T h e committee appreciates his commitment to making these efforts a priority

The committee acknowledges the many hours that Lisa Lum, S p e c i a l A s s i s t a n t t o t h e A d m i n i st r at i ve Director of the Courts, contributed to facilitating the 2022 Civil Law Forum via Zoom The committee is also g rateful for the following moderators and panelists who assisted and conscientiously prepared for the Forum: Tred Eyerly, S h e r e e Ko n - H e r r e r a , Au d r ey Stanley, Moana Lutey, Amanda Weston, Elizabeth Strance, Kaliko Warrington, Dennis Chong Kee, Ed Kemper, Judge James Ashford, Lisa Bail, Greg Kugle, Lance Collins, Steve Chow, Judge Randal Valenciano, Judge Henry Nakamoto, and Judge Kelsey Kawano Special thanks for the diligence of the reporters: Natasha Baldauf, Kahikino Noa Dettweiler-Pavia, Kurt Kagawa, and Kyleigh Nakasone.

I. Welcome

On Friday, September 16, 2022, Associate Justice Simeon

R. Acoba (ret.), co-chair of the Judicial Administration Committee (“JAC”) of the Hawai’i State Bar Association (“HSBA”), welcomed all participants to the 2022 Civil Law Forum and noted that the JAC is celebrating its tenth year of alter nating forums and bench-bar conferences in collaboration with the Hawai‘i State Judiciary (“Judiciary”). Justice Acoba acknowledged the work of Carol Muranaka, James Kawashima, Steven Chow, and Vladimir Devens in leading the JAC over those ten years The HSBA, under the leadership of 2022 President Shannon Sheldon and Executive Director Patricia Mau-Shimizu, was also acknowledged for its continued support of the JAC Justice Acoba thanked Chief Justice Mark Recktenwald for carefully considering the outcomes and recommendations of each year ’ s Bench-Bar Conference or Law Forums.

HSBA President Shannon Sheldon also extended her thanks o the organizers, participants, and upporters of the JAC and its annual events. Ms. Sheldon undercored that the pur pose of this Forum is to raise and address issues brought to the spotlight by members of the bench and bar

Mr. Devens welcomed the Forum participants and specifically acknowledged the JAC C i v i l L a w S u b c o m m i t t e e c o - c h a i r s a n d t h e Ju d i c i a r y f o r developing this year ’ s Forum

Chief Justice Recktenwald welcomed all participants and thanked the JAC, HSBA, and members of the Judiciary for their effort in bringing the Forum to fruition He emphasized the impact that the JAC forums and bench-bar conferences have on improving the Judiciary and the dispensation of civil

Keahuolu Courthouse

Kaahumanu

by the Hawai‘i State Bar Association Committee on Judicial Administration

We Are Pleased To Announce

Kukui Claydon As

As

KUKUI CLAYTON Director

Commercial Litigation

Real Estate Litigation

DIRECTORS

Terence J. O’Toole • Kenneth B. Marcus • Duane R. Fisher

Sharon V. Lovejoy • Trevor A. Brown • Ivan M. Lui-Kwan • Norman H.Y. Cheng

Andrew J. Lautenbach • Doug Chin • Christina N. Ohira • Lindsay E. Orman

Stephanie E.W. Thompson • Maile S. Miller • Sara S.T. Strona • A. Bernard Bays • Kukui Claydon

OF COUNSEL

Judith Ann Pavey • Paul H. Sato

ASSOCIATES

John W. Kelly • Robert J. Brown • Lauren K.O. Kagawa • Eric S. Robinson

Cori J. Grunenwald • Kari K. Noborikawa • Nicole H. Kim

Director

Duane R. Fisher

Firm President

DUANE R. FISHER President

justice in the State of Hawai‘i. Key among these has been civil justice refor m through revisions to the Hawai’i Rules of Civil Proced u r e a n d H a w a i ’ i Ru l e s o f t h e Circuit Courts. Chief Justice Recktenwald noted that the forums and bench-bar conferences convened over the past two years have also been important in helping the Judiciary respond to the COVID-19 pandemic A critical development arising from the pand e m i c h a s b e e n t h e Ju d i c i a r y ’ s implementation of virtual hearings

Since August of 2020, Hawai‘i courts have conducted approximately 500,000 remote hearings, resulting in a real impact on access to justice Based on interaction with other jurisdictions, Chief Justice Recktenwald believes that in ter ms of civil justice refor m and response to the pandemic, Hawai’i is ahead of the curve. As in past years, Chief Justice Recktenwald looks forward to the report that will be produced by the Forum and hopes that the report will be helpful in charting the future of the Judiciary.

II. Insurance-Related COVID Issues

Tred Eyerly and Sheree Kon-Herrera addressed the handling of COVID-19 business interruption claims by insurance carriers. Mr. Eyerly opened by noting that direct physical loss or damage to a business’ property arising from COVID-19 would most likely be claimed under the business interruption provisions in the entity’s insurance policy At issue was whether the mere presence of COVID-19 virus particles in the air at a business edifice (thereby necessitating closure for the sake of public health) resulted in a covered direct physical loss to that business To date, most federal courts have denied such claims based on the general rationale that virus particles cause no direct physical loss or damage Courts have held that COVID-19 virus particles can be dispatched with a thorough cleaning of the environment Similarly, gover nment mandated COVID-19 shutdowns do not constitute insurable business loss or damage As of this date, there are no COVID-19-relevant decisions by Hawai’i courts on this matter

Ms. Kon-Herrera presented several scenarios under which businesses have sought coverage due to COVID-19 related losses, including:

• Hotel occupancy losses

• Country club business interruption

• Restaurant service losses

Bakery losses stemming from cloure due to employee offsite

COVID-19 exposure

Similar to the Business Interruption ulings, most courts have held that he covered properties listed above did not lose the ability to physically erve their function because of COVID-19 In broad ter ms, for a property damage claim to be susained, the insured must show physcal damage to the property that necessitates a suspension of operations during the period of restoration. The majority of lawsuits premised on claims for property damage related to COVID-19 diminished business opportunities have been dismissed

Mr. Eyerly noted that three recent law review articles authored by scholars and practitioners have called into question the propriety of resolving business loss claims by substantive motions because evidence was not yet developed 1 Generally, loss is separate from damage Thus, even when no physical damage to property is claimed, the loss component of coverage should be further scrutinized by the courts In earlier times, business loss was frequently covered even where no structural or physical damage to property had occurred However, following the Severe Acute Respiratory Syndrome (“SARS”) outbreaks in the early 2000s, policy standards were revised to specifically exclude claims arising from viruses Mr Eyerly also cited a range of examples where insurers have accepted loss claims even when, arguably, there was no physical, structural damage to the property These cases found that the presence of asbestos, mold, gas, and pet urine caused direct p hy s i c a l l o s s t o p ro p e r t y, t r i g g e r i n g bu s i n e s s i n t e r r u p t i o n c ove r a g e

Ms Kon-Herrera noted that under general insurance law, insureds tend to be favored but the same does not appear to be true for COVID-19 physical loss or damage claims. In contesting a claim denial, insureds bear the burden of proof Gover nment closure orders because of COVID-19 were issued to slow the spread of a disease and, unlike natural disasters, did not cause physical destruction Generally, courts review and inter pret insurance policies according to their plain language and avoid creating ambiguity where there is none Potential

s require claims to be made within two years of the damage or loss and the COVID-19 pandemic is fast approaching its third year. Finally, as a matter of policy, courts hesitate to view insurance as a safety net for all dangers Doing so would likely

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have a significant impact on overall rates and have a chilling effect on the insurance market

III. Gover nment Liability

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With Audrey Stanley moderating, Moana Lutey, County of Maui (“Maui County”) Cor poration Counsel, Elizabeth Strance, County of Hawai’i (“Hawai’i County”) Cor poration Counsel, Kaliko Warrington, City and County of Honolulu (“Honolulu City and County” or “City”) Deputy Cor poration Counsel, and Amanda Weston, State of H a w a i ’ i ( “ S t a t e ” ) D e p u t y A t t o r n ey General (collectively, “Gover nment”) discussed various aspects of state and local gover nment liability. The discuss i o n a p p l i e d a q u e s t i o n - a n d - a n s w e r for mat, as ref lected here

The number of court

A. Proper parties and service of process

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When preparing a complaint a g a i n s t t h e g ove r n m e n t , s h o u l d t h e d e p a r t m e n t t h at i s t h e s u b j e c t o f t h e c o m p l a i n t b e n a m e d i n a d d i t i o n t o t h e gover nment?

• City and County of Honolulu:

The subject department should not be named as departments are not legal entities.

The Revised Charter of Honolulu § 5-205 provides that legal process shall be served upon the Cor poration Counsel (or any deputy), and, if unavailable, then upon the mayor. If the mayor is unavailable, legal process shall be served upon any council member

• County of Maui:

Only the County should be named as a defendant As a matter of course, the County will file a motion to dismiss a department if a department has been named

The Maui County Charter requires service to be made on the Cor poration Counsel or any of its deputies

Charles Crumpton

• County of Hawai’i: Only the County should be n a m e d a s a d e f e n d a n t T h e d e p a r tm e n t s o f t h e C o u n t y s h o u l d n o t b e n a m e d b e c a u s e t h ey a re n o t l e g a l e n t i t i e s. T h e H aw a i ‘ i C o u n t y C o d e re q u i re s s e r v i c e o n t h e C o r p o r at i o n C o u n s e l o r a ny o f i t s d e p u t i e s

• S t at e : S t at e l aw re q u i re s t h at i f a department is individually named, it must be served, in addition to service upon the Department of the Attor ney General

B. Conflicts of interest

How does the gover nment decide if a conf lict of interest exists between an employee and the gover nment and how is that conf lict addressed?

• City and County of Honolulu:

The Department of Cor poration Counsel will deter mine whether a conf lict exists by first reviewing the allegations in the complaint and deter mining whether the actions undertaken by an employee were within the course and scope of a gover nment employee

• In the case of police officers, the Police Commission is responsible for this decision

If the employee was acting within the course and scope of employment, the Department of Cor poration Counsel may represent that individual

If the Department of Cor poration Counsel deter mines that there is a conf lict in representation between the City and the employee, the Department o f C o r p o r at i o n C o u n s e l w i l l a s k fo r per mission from the City Council to hire s p e c i a l c o u n s e l t o r e p r e s e n t t h e employee

This process may be lengthy as the City Council only meets once per month and the time it takes to address the matter averages two months

• County of Maui: The County’s conflicts of interest

process mirrors that of the City and County of Honolulu.

• County of Hawai’i: The County’s conf licts of interest process mirrors that of the City and County of Honolulu

It will also, nor mally, have a representation ag reement between the County and the subject employee if representation is approved

• State: An employee has the option to retain private counsel at their expense or request the Department of the Attor ney General for representation (if eligible). A committee within the Department of the Attor ney General will review the request, research the issues, and deter mine whether the employee was acting within the course and scope of employment The Attor ney General will decide whether the Department of the Attorney General will represent the employee This process usually takes approximately one week after receipt of the employee’s written request unless the Attor ney General is unavailable.

C. Service of Process (Employee as Defendant)

Will the gover nment accept service on behalf of the employee?

• City and County of Honolulu: If the Department of Corporation Counsel has not made a deter mination that it will represent the employee, then the Department of Cor poration Counsel will not accept service on behalf of the employee. If the Police Commission has not made a deter mination as to whether it will authorize representation of an officer, the Department of Cor poration Counsel will usually ask the plaintiff ’ s counsel for a time extension If the plaintiff ’ s counsel is not amenable to an extension, the Department of Cor poration Counsel will contact the court to apprise it of the situation There have been instances where a default was entered against the subject officer and the Department of Corporation Counsel, once representation was approved, has then moved to set the default aside

• County of Maui: If the complaint names the employee in an official capacity, then the Department of Cor poration Counsel will accept service Otherwise, service needs to be made on the employee.

With respect to Cor poration Counsel representing police officers as defendants, the Police Commission must first approve representation by finding the officer acted within the course and scope of employment An extension to answer has not been an issue and generally, plaintiff ’ s counsel is willing to ag ree to an extension.

•County of Hawai’i: Generally, if the Department of Cor poration Counsel has deter mined the employee was acting within the course and scope of employment, it will accept service However, it may need to first check with the employee for authority to accept service. The serving party should, therefore, contact the Department of Cor poration Counsel prior to attempting service

• State: If a complaint has been served and there is a delay in deter mining whether an employee will receive gover nment representation, the Department of the Attor ney General will ask for an extension to file an answer.

D. Jury Demands

May an individual suing the Government demand a jury trial?

• City and County of Honolulu: Jury demands are typically made in cases against the City and even if the plaintiff does demand a jury trial and later withdraws its demand, the City will demand a jury trial The City wants the people to be the trier of fact.

• County of Maui: The County makes jury demands for the same reason stated by the City and County of Honolulu.

• State: There is no right to a jury trial against the State in state courts, and therefore, it will usually seek to have a jury demand denied In the event the State is one of multiple defendants, a jury trial can proceed but the verdict will only be advisory as to the State and the judge serves as the ultimate factfinder

E. Unifor m Infor mation Practices Act (“UIPA”) and Discovery with the Gover nment

(1) W hat is the interplay between Haw. Rev. Stat., Chapter 92F (Unifor m Infor mation Practices Act) and traditional discovery?

• City and County of Honolulu: UIPA generally limits disclosures to a g reater extent than a discovery request made during litigation. Under a UIPA request, the requestor must pay for the gover nment for retrieval of the infor mation as well as for copies thereof and so regular discovery is the more inexpensive course.

• County of Maui: It is rare for the County to receive a UIPA request from the opposing party once litigation begins because discovery is the preferable way to obtain infor mation from the gover nment In the few times a UIPA request has been made while in litigation, the County department that receives the request will notify the Department of Cor poration Counsel and it will contact the requesting counsel to discuss how best to proceed with the production of the infor mation.

• County of Hawai‘i: Under Haw Rev Stat § 92F-13 2, gover nment records pertaining to litigation involving the County are exempt from UIPA disclosure Also, there are several Office of Infor mation Practices (“OIP”) infor mal opinions that focus on documents that might be considered “private records” and therefore, constitute an unwarranted invasion of personal privacy A 1995 OIP decision says that generally, infor mation available under UIPA is likely available under discovery while infor mation unavailable under UIPA is not necessarily unavailable under discovery Various appellate decisions concer ning privacy and confidentiality make distinctions between availability under discovery versus UIPA As a

practical matter, the Department of Cor poration Counsel often assists departments with the response to a UIPA response. If there is litigation, pending or expected, the Department of Cor poration Counsel will treat a UIPA request like a discovery request and try to work with the requesting party’s attor ney

• State: Once a lawsuit is initiated, opposing counsel should not contact the Department of the Attor ney General’s client (the relevant state agency), in an attempt to obtain a document to which it would not otherwise be entitled In one situation, an interrogatory and production of documents request was made against the State, and the requesting attor ney made a UIPA request for the same infor mation The Department of the Attor ney General’s position in that instance was that if a requestor is not entitled to a document under nor mal discovery, they would not be entitled to it under a UIPA request. Finally, a requesting party will need to pay for the production of infor mation under UIPA, whereas there is no similar expense for discovery of that material

(2) UIPA and HRPC Rule 4.2

Does the Gover nment consider a UIPA request made during active litigation to be a violation of HRPC Rule 4 2?2

• City and County of Honolulu: This has not been a significant issue for the City If a UIPA request is made during active litigation, the Department of Corporation Counsel will contact the plaintiff ’ s counsel and ask counsel to submit the request through Cor poration Counsel

(3) HRCP Rule 30(b)(6)3

Has the Gover nment experienced significant HRCP Rule 30(b)(6) issues?

• City and County of Honolulu: Some City agencies have a high tur nover rate of employees. It can also be difficult for the Department of Cor poration Counsel to identify the best person to answer certain questions. The Department of Corp o r at i o n C o u n s e l re c o m m e n d s t h at re q u e s t i n g at t o r n ey s p rov i d e re l eva n t

infor mation to it as early as possible so that the Department can work with relevant agencies to facilitate the request

• County of Maui: Attor neys noticing a 30(b)(6) deposition should be as concise as possible in describing what they are seeking They should also contact the Department of Cor poration Counsel as early as possible so that a deter mination can be made as to which employees may appropriately testify Some 30(b)(6) depositions may require multiple employees, and scheduling can be a major obstacle

• State: The Attor ney General prefers to work with the requesting attor ney to narrow the scope of the questions because it is common to have up to 10 employees who have knowledge in an area This is especially challenging when the requesting attor ney is seeking infor mation from 20 years ago or later as relevant employees may have quit, retired, or passed away.

F. Litigation Holds

When and how does the Gover nment issue litigation holds on potential evidence?

• City and County of Honolulu: The City takes its litigation hold obligation seriously If the Department of Cor poration Counsel receives a letter or other indication that a lawsuit is possible, it will issue a hold to all relevant agencies Extreme examples of this include keeping a tree for four years and a garbage truck for two years

• County of Maui: If a claim is made prior to filing a lawsuit, then the Department of Cor poration Counsel will issue a litigation hold to all agencies that may be affected The County’s Infor mation Technolog y department is generally included in the hold so that emails related to the matter can be preserved It is disadvantageous to wait until the statute of limitations approaches to make a claim because certain infor mation may no longer exist as a matter of course.

• State: When a claim is made, the Department of the Attor ney General will issue a hold to all affected departments

G. Discovery General timing issues

• City and County of Honolulu: Responding to discovery requests often takes some time because there is high tur nover of employees and numerous agencies involved Often, requests implicate old records Certain items may be available promptly, but many responses require more than 30 days, and production may be ongoing Opposing counsel will usually ag ree to extension requests.

•State: Opposing counsel usually seek a large number of documents. The Department of the Attor ney General asks that opposing counsel take into consideration the time to locate and redact documents as may be necessary to comply with laws, including FERPA and HIPAA. The State is usually not able to meet the 30-day production requirement and will seek extensions Sometimes, a protective order is not sufficient to address confidentiality concer ns and so the State may require a court order that mandates production.

H. Fees and Costs

May a prevailing party recover fees and costs from the gover nment?

• City and County of Honolulu: The general rule is that if recovery of fees is not allowed by applicable law, then the party seeking it against the City is not entitled to it. The City frequently uses the Court Annexed Arbitration Prog ram (“CAAP”) to preclude a claim for fees and costs against it The City may make an HRCP Rule 68 offer during the CAAP process because the City can recover its costs if a plaintiff takes a CAAP deter mination to trial Note that the City’s HRCP Rule 68 offer is usually around $5,000

• County of Maui: HRCP Rule 54 provides that costs against the County shall be imposed only to the extent per mitted by law. There have been situations where settlements have included an amount to cover certain fees and costs

• County of Hawai’i: Few cases have resulted in awards of fees and costs against the County In the few instances where the allegations include the private attor ney general doctrine,

he County has been required

o pay fees and costs

State: For claims made under he State Tort Liability Act, Haw Rev Stat § 662-12 applies and recoverable fees are limited

o 25% of the judgment and must be paid out of the judgment. Effectively, the State is not charged fees over and above the judgment Costs are generally limited by statute. In past instances, the State has been successful in arguing that expert fees are not recoverable if the applicable statute does not provide for recovery These are important considerations when negotiating a settlement with the State.

I. Punitive Damages

Does the government accept liability for punitive damages?

• None of the jurisdictions are subject to punitive damages in the state courts. However, in lawsuits where an individual is made a party outside of an official capacity claim, that individual can be held liable for punitive damages

Lihue

J. A ppeals and Bonds

Is the gover nment required to post a bond on appeals?

• City and County of Honolulu: There is no requirement that the City post a bond if it appeals a case 4

• State: If the State is the appellant, it typically does not put up a bond

K. Settlement Demands

What constitutes a “good” settlement demand package and how does timing affect the gover nment’s attitude towards settlement?

• City and County of Honolulu: The Department of Cor poration Counsel has the authority to settle claims under $5,000. All settlements in excess of $5,000 must be approved by the City Council In seeking approval of the City Council, the

Cor poration

Counsel will need to set forth ustification, poential liability, a damages analyis, and supportng documentation n considering ettlement offers, he Cor poration Counsel asks hat the plaintiff provide as much relevant infor mation supporting the settlement amount as possible

• County of Maui: A good settlement package includes the liability aspect succinctly laid out The Cor poration Counsel has the authority to settle claims under $7,500 Any higher amount must be approved by the County Council. Without significant documented support, the County Council is generally not receptive to early settlement offers where liability is not clear.

• County of Hawai’i: As noted by the other gover nment

Hilo

entities, a settlement package that proposes a reasonable offer substantiated by supporting documentation tends to receive a more favorable reception Unreasonable demands early in the case tend to trigger vigorous discovery. The preferred time to receive a settlement offer depends on the case and whether liability is clear The Department of Cor poration Counsel is authorized to settle matters for $10,000 or less. Anything higher requires County Council approval The office takes its public trust obligation seriously and is prudent with taxpayer money

• State: The Department of the Attor ney General division supervisors have authority to settle claims under $10,000 If a settlement is between $10,000 and $25,000, the settlement must be approved by the Attor ney General For any amount above $25,000, all the previous amount approvals are required and in addition, the approval of the legislature is required. A realistic settlement demand with sufficient supporting infor mation is important

L. Settlement Process and Considerations

What is the process for Gover nment approval of settlements and what are some of the issues that arise in that process?

• City and County of Honolulu: For settlements that require City Council approval, the matter must be placed on a monthly City Council agenda The agenda must meet Sunshine Law requirements; therefore, timing is important. Prior approval by a City Council committee may also be needed The City Council does not meet in December and lately there have not been meetings in January. If there are no disruptions, the process generally takes between one and a half months to two months During that time, the Cor poration Counsel will work with the plaintiff ’ s counsel to make payment arrangements There is no guarantee on how the City Council will vote Consequently, council member composition is an important consideration in the settlement process. Lately, if concer ns arise, the City Council will table the matter and retur n to it after it has been further addressed inter nally If the City does not appeal a CAAP award and it becomes a judgment, City Council approval of the judgment amount is not required

• County of Maui: The Cor poration Counsel requests settlement authority requiring County Council approval by draft resolution with a request to be placed on the County Council’s agenda The agenda must comply with the Sunshine Law and be publicly posted for six days prior to the meeting The County Council meets twice a month and refers settlements to a committee which also meets twice a month This means that settlements take at least a month from start to finish From approximately March through June annually, the County Council addresses the county budget and does not take up any other matters Settlements pending approval during that time will generally be deferred to June or July, which means that settlem e n t a p p rova l m ay n o t o c c u r u n t i l Au g u s t . S e t t l e m e n t

demands that are not properly substantiated may be rejected by the County Council The Council members are seasoned and may expect further documentation regarding the settlement, such as further discovery, results and dispositive motions prior to settlement offers being made On occasion, a settlement offer may be rejected by the Council because it appears to be excessive based on the discovery available at the time of the demand There are times where settlement authority has been sought prior to a settlement conference so that an offer may be made. The goal is to be in a position to have productive settlement discussions

• County of Hawai’i: The County Council process for approval of a settlement takes between one to two months and must be placed on the County Council’s agenda in accordance with Sunshine Law requirements. The County Council meets twice per month The Department of Cor poration Counsel may discuss the settlement with the Mayor and the affected agency before bringing the matter to the County Council.

• State: Prior to seeking legislative approval, affected individual agencies will be apprised of the settlement and given an opportunity to provide input A bill addressing the proposed settlement will need to be introduced by January in any given year. If approved by the legislature, the bill will require the Gover nor ’ s signature which typically is obtained in July A check is then issued in August

IV. Administrative A ppeals

First Circuit Court Judge James Ashford, Lisa Bail, Greg Kugle, and Lance Collins discussed the administrative appeals process with Dennis Chong Kee and Ed Kemper as moderators The individual responses to the questions and answers have been combined into a comprehensive summary.

A. Overview of the Administrative A ppeals Process under Haw. Rev. Stat. Chapter 91

The right to an administrative appeal arises when a state or county agency renders a decision as the result of a contested case hearing (“CCH”). A CCH is a proceeding where the legal rights or obligations of an individual or gover nment agency are deter mined A CCH affords due process to the parties, but the proceedings are not as procedurally for mal as a court hearing For example, the Rules of Evidence are applied somewhat less stringently than in a court proceeding At the completion of a CCH, the controlling agency will render a decision on the matter The parties have 30 days in which to appeal the agency ’ s decision to a court

B. W hat is the venue for the appeal?

The appeal process is largely gover ned by HRCP Rule 72 and Haw. Rev. Stat., Chapter 91. In general, an agency appeal is heard by the circuit court Exceptions to this process include appeals of decisions issued by the following agencies:

• Administrative Driver’s License Revocation Office appeals are made to the district court

• Child Support Enforcement Agency appeals are made to the family district court

• Labor and Industrial Relations A ppeals Board appeals are made to the Inter mediate Court of A ppeals (“ICA”).

• A ppeals of Public Utilities Commission decisions regarding motor and waterway carriers are made to the ICA

• A ppeals of Board of Land and Natural Resources (“BLNR”) decisions regarding conservation districts are made to the Hawai’i Supreme Court

• A ppeals of Land Use Commission decisions are made to the Hawai’i Supreme Court

• A ppeals of Council on Water Resource Management decisions are made to the Hawai’i Supreme Court.

• A ppeals of Public Utilities Commission decisions under Haw. Rev. Stat. Chapter 269 are made to the Hawai’i Supreme Court

C. W hat standard of review is applied?

Haw Rev. Stat. § 91-14 allows the court to reverse or modify the decision of an administrative agency if the substantial rights of the petitioners have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Items (1) through (4) above are legal deter minations and subject to the right/wrong standard on appellate review Items (5) and (6) are reviewed under the abuse of discretion standard. There is substantial case law that addresses the deference that the reviewing

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court should lend to the legitimacy of an agency ’ s decision This deference is premised on the understanding that agencies are staffed by individuals who have a deg ree of expertise in specialized matters falling under their purview Nonetheless, the court reviews the matter de novo

In the First Circuit Court, the bulk of agency decisions reviewed by the circuit court under Haw Rev Stat , Chapter 91 are currently assigned to Judge Ashford’s division, but administrative appeals of environmental matters are handled by Judge Crabtree’s division As a point of practice, Judge Ashford noted that establishing the correct standard of review for an administrative appeal is critical, therefore, it is incumbent upon appellants to avoid making a simple boiler plate list of all the standards under Haw. Rev. Stat. § 91-14.

D. How are secondary appeals handled?

Unless an agency appeal is subject to direct review by the Hawai’i Supreme Court, a secondary appeal is available. The appeal to the relevant appellate court is handled like any other appeal applying the standards under Haw Rev Stat. § 91-14(g). The appellate court will review the record of the circuit court, which is the same record that originated from the CCH.

E. What do the statistics illustrate about administrative appeals?

Within the first circuit, the highest number of administrative appeals seem to arise from decisions concer ning worker benefits such as workers’ compensation and unemployment insurance Land use decisions from county planning departments and the appellate boards that oversee them such as the Board of Land and Natural Resources are also heavily appealed A ppeals from decisions of the Department of Public Safety, the Employees Retirement System, and election entities such as the Office of Elections and Election Commissions follow in appeal frequency. Very few circuit court level appeals arise from the Department of Commerce and Consumer Affairs.

The Judiciary provides infor mation in its annual report regarding the number of administrative appeals handled by the circuit court A five-year average from all the circuits shows that 89 agency appeals were filed per year.

F. Administrative appeals process timing

Timing in an appeal to the circuit court is not significantly different than a standard ICA appeal. Once the record on appeal is filed with the court, opening briefs are submitted HRCP Rule 72 sets out the mandated time frames and the overall process tends to take six to eight months from the time the Notice of A ppeal is filed (depending on whether extensions are g ranted) Subject to the court’s calendar, the court typically schedules oral argument three weeks after the reply brief is due If a record on appeal is voluminous, the court may need more time to complete its review prior to scheduling oral argument Environmental appeals are particularly complex, and it may take the court a full two weeks to review the record Since the court will necessarily be handling other cases at the same time, a review of the record may involve a significant amount of time In ter ms of issuing a judgment, each judge is different. The court may rule from the bench, take the matter under advisement and, on occasion, direct the parties to submit simultaneous findings of fact, conclusions of law, and orders

G. W hat factors af fect the success of an administrative appeal?

A court is far more likely to reverse an administrative decision when there is a procedural error such as in the Thirty Meter Telescope BLNR decision where the Hawai’i Supreme Court found due process violations with respect to the board vote One key to preventing a procedural error is to ensure that the agency has an experienced attor ney advising it Typically, the Department of the Attor ney General or the Department of Cor poration Counsel (as applicable) will assign experienced attor neys to matters requiring an administrative decision since procedural errors can essentially

undo years of work.

It is also critical for the parties to make a clear record in the administrative proceedings because the reviewing court is limited to that record. The court appreciates briefing that includes clear and direct citations to the record

H. Are there areas for improvement in this process?

There is a lack of settlement and alter native dispute opportunity at the administrative level as well as at the circuit court level on appeal. Facilitated mediation would be beneficial as would a well-timed pause in the process to consider settlement options However, administrative appeals often involve complex and contentious matters that can be difficult to settle globally

V. A pplication of the New Civil Rules

First Circuit Court Judge James Ashford, Second Circuit Court Judge Kelsey Kawano, Third Circuit Court Judge Henry Nakamoto, and Fifth Circuit Court Judge Randal Valenciano discussed the application of the new civil rules promulgated in October of 2020 and effective as of January 1, 2022. Steve Chow moderated the discussion, which followed a question-and-answer for mat Responses representing the panel as a whole have been combined and summarized to the extent possible. Separate references to a particular “circuit” represent the view of the panelist from that circuit

1. How have HRCP Rule 16(b)(4) and Rules of the Circuit Courts of Hawaii (“RCCH”) Rule 12(a)(4) been implemented with respect to scheduling conferences?

None of the courts has set more than a dozen scheduling conferences since the implementation of the new rules Each court has received some requests to continue scheduling conferences either by way of stipulation or ex parte motion and those have been routinely g ranted Several continuances have been requested, and the courts endeavor to set a new scheduling conference date within two to four weeks of the original date

• Fifth Circuit: The court deter mines the 60- and 90-day deadlines under the rules and works backwards in ter ms of setting the trial schedule with the addition of a one- to two-week cushion for the order to be issued. The court has a concer n as to whether continuance motions are being employed to delay the overall case schedule The court inter prets the rules as requiring the setting of a trial date within the prescribed time frame and although motions to continue have been g ranted, the trial dates remain fixed

• Third Circuit: The court is aware that the overall implementation of the new rules is a work-in-prog ress The attorneys who have appeared in these matters have been cognizant of the new rules Unrepresented litigants have been referred to the Judiciary’s website to access the rules and relevant for ms.

2. W hat is the preferred process for requesting a continuance?

Written stipulations to continue are preferred because they establish a record as to ag reement by the parties.

• First Circuit: The court will not g rant a continuance by a phone call from a single party. At a minimum, it requires an ex parte motion to continue with a proposed order attached

3. Once the scheduling conference has been held and pretrial deadlines are set, have the courts received requests to extend those deadlines? W hat is the preferred method by which to request such an extension?

The courts have not received many requests to extend pretrial date deadlines. Requests to do so should be by way of stipulation or ex parte motion Both for ms of request should clearly state the reasons supporting an extension

• First Circuit: If an ex parte motion to extend a pretrial deadline is made, the court will generally wait a reasonable time to receive opposition (if any) before g ranting the motion.

• Second Circuit: A telephone call to chambers requesting a deadline extension may be acceptable if it is followed by a letter from the parties stating that they ag ree to the extension

4. Have there been instances where the plaintif f files an HRCP Rule 41 Notice of Dismissal of the case prior to the scheduling conference?

This has not occurred in the second, third, or fifth circuits. The first circuit has received four such notices

5. W here can parties obtain for ms relating to the new rules?

The relevant for ms with instructions are located at the Judiciary’s website.

6. At least 21 days prior to the Scheduling Conference, the rules require that the parties meet and confer about matters related to the case. In ter ms of timing, are there measures in place to accommodate the meet and confer requirement prior to the scheduling conference?

The rules require the court to set the scheduling conference within 90 days after a party has been served or 60 days after an answer is filed The courts try to set the scheduling conference one to two weeks prior to the mandated deadline to afford the parties some cushion with respect to timing. The courts have not experienced significant problems with litigants missing these deadlines

• Second Circuit: The courts have dual calendars, and timing can be a challenge, because criminal matters receive preference over civil matters in ter ms of scheduling to comport with a defendant’s constitutional right to a speedy trial The

Mediation &

court tries to be f lexible and accommodate availability of the parties

Fifth Circuit: The court is mindful that f lexibility in timing with respect to the 21-day meet and confer requirement is sometimes necessary but expects overall adherence to the rules.

7. After a defendant has been served, does a defendant’s request to extend the time to file an answer af fect the setting of the scheduling conference?

This issue has not arisen The courts expect that a stipulation or ex parte motion would be submitted explaining the situation and seeking a reasonable amount of time for a continuance

• First Circuit: The court would be skeptical of a request that seeks a long extension of several months

• Fifth Circuit: Maintaining the schedule under the new rules is important The court would proceed with the conference but allow an extended time period for the defendant to file an answer

8. Would the courts consider issuing sanctions if the parties failed to comply with the 21-day deadline to meet and confer?

T h e c o u r t s wo u l d c o n s i d e r t h e circumstances that resulted in noncompliance with the 21-day meet and confer deadline when deter mining whether to impose sanctions The important point is that the parties understand and adhere to the schedule under the new rules

• First Circuit: The court views timely submission of the scheduling conference statements and the joint report as necessary so that the court and parties may prepare for the scheduling conference as critical steps in the process, and failure by the parties to meet and confer would be evaluated through that lens.

9. If a party failed to initially disclose its lay and expert witnesses, would the courts consider barring the witnesses from testifying? The courts would consider doing so but it depends on the reason the party failed to make an initial disclosure The courts understand that the new rules require a change in thinking and preparation at the outset of the lawsuit The courts will not tolerate gamesmanship in that context

10. Do the parties have an ongoing duty to supplement initial disclosures?

• First Circuit: In the court’s perspective, “initial” means the parties should make an ear nest effort to disclose material that they have up to the appointed time and supplement the infor mation as they obtain it during the process The court does not expect the parties to know everything about their case at the commencement It is important to keep everyone current with new infor mation that arises as the case proceeds to trial

• Second Circuit: Infor mation reasonably available to a party should be initially disclosed but the court understands that the parties will not know the entire case universe from the outset.

• Third Circuit: The parties have a duty to supplement disclosures in a timely manner as new infor mation arises.

• Fifth Circuit: Supplemental disclosure is expected. Cases should be resolved on their merits, and it is important for attorneys to be candid and forthcoming with respect to the infor mation they have about their cases

11. H a ve t h e c o u r t s a d d e d a n y infor mation or requirements to t h e s t a n d a r d f o r m o f t h e s c h e d u l i n g conference order?

Generally, nothing has been added

by individual courts, but the fifth circuit noted that the old for m of trial setting order included specific trial-related instructions and those were helpful. The court may start issuing supplemental orders that provide trial- related details as a case moves closer to the trial date

12. W hich party should file the joint report?

There is no preference among the circuits as long as the joint report is filed in a timely manner

1 3 . I s t h e re a n y a d d i t i o n a l infor mation that the courts would like included in the joint report?

The infor mation currently called for in the joint report is generally sufficient.

• First Circuit: The court would like to know whether the case is purely a jury trial, purely a bench trial, or if it is a jury trial with certain equitable claims to be resolved by the judge, as this impacts who the settlement judge will be 14. Do the courts prefer to hold scheduling conferences virtually or in person?

Conducting scheduling conferences virtually is acceptable

• Second Circuit: The court prefers to hold scheduling conferences in-person although Zoom is an acceptable alter native Telephone participation in the scheduling conference is discouraged

• Fifth Circuit: The scheduling conference is not an infor mal matter; therefore, the court prefers to hold it in person, but Zoom is acceptable

15. Have conferences regarding motions for discovery been held? No

16. Would a motion for a discovery conference be handled like a nor mal motion?

• First Circuit: The court would seriously

consider holding a status conference on the matter and attempt to resolve it without a hearing

• Second Circuit: The hearing on the motion would be conducted like any other civil motion

• Third Circuit: The court would conduct a hearing on the motion The standard 18-day rule for hearings would apply and the movant must contact chambers for a hearing date. If counsel indicates that the issue is relatively simple, the court may hold an infor mal discovery conference to try and resolve the matter

17. Have any cases been put on the expedited trial track yet?

The first circuit is the only court to have set cases on the expedited track One case was set for trial, but it was resolved by a dispositive motion The second, third, and fifth circuits have not set any cases on the expedited trial track, but it is important for litigants to understand that due to consolidated calendars, criminal trials have priority, and the date set for trial is not necessarily the date on which the trial will start.

18. Have there been any instances where a party seeks a continuance of a trial date under the new rules?

This issue has not arisen, but the good cause standard would apply when considering a motion to continue the trial date

19. Have there been issues with the initial disclosure of expert witnesses under HRCP Rule 26(a)(1)(c)?

The courts have seen parties list treating physicians as both lay and expert witnesses to avoid a dispute as to whether such witnesses were properly disclosed as one or the other The status of a treating physician is largely dependent upon the explanation of the care that the physician provided. The courts do not see a need for a physician to prepare and testify about a treating report The medical records alone are usually sufficient to demonstrate the condition and treatment thereof.

20. How are streamlined discovery disputes handled?

A party involved in the dispute should contact the court and ar range for the matter to be addressed

• Fir st Circuit: A party may email or call the court to have the matter addressed, and the court prefer s to do so of f the record because the discussion tends to be candid. If the dispute cannot be resolved of f the record, the court will have the parties argue the matter on record

• Second Circuit: T he court is amenable to a tele phone conference where the parties can argue their positions T he court will also require the parties to submit briefs on the

matter so that there is a record.

• T hird Circuit: T he matter may be addressed by conference once a party raises it. If the dispute requires it, the court may order briefing

• Fifth Circuit: T he court should be contacted, and the parties will be directed to brief the matter with a five-page limit

21. Have there been timing issues regarding the requirement that the plaintif f make a settlement of fer to the defendant prior to a settlement confere n c e a n d t h e r e q u i r e m e n t t h a t t h e d e f e n d a n t submit a bona fide response to the demand?

T he courts have not encountered issues with this process but noted the importance of the plaintif f issuing the demand as soon as possible to encourage a productive settlement discussion

VI. Closing Remarks

Mr Chow thanked the participants and noted that the pur pose of the Forum is to improve the judicial system through a partner ship and dialogue between the Judiciar y and the bar

2022 CIVIL LAW FORUM PARTICIPANTS

T he HSBA Committee on Judicial Administration in 2022 comprised of the following co-chair s and member s: Hawai‘i Supreme Court Associate Justice Simeon R Acoba, Jr (ret ), Co-Chair; Vladimir Devens, Co-Chair; Judge Ronald Ibar ra (ret.), Judge Blaine J. Kobayashi, Judge Brian Costa, Judge Rowena A Somerville, Chief Judge Randal G Valenciano, Judge Wendy DeWeese, Judge Summer M Kupau-Odo, Judge M. K anani Laubach, Judge Clarissa Malinao, Hayley Cheng, Dennis Chong Kee, Steven J T Chow, K ahikino Noa Dettweiler, Kir sha K M Durante, Tred Eyerly, Daylin Rose Heather, Ed ward C. Kemper, Erin Kobayashi, Simeona Mariano, Dyan Mitsuyama, Carol K Muranaka, Kyleigh F K Nakasone, Richard Sing, Audrey E Stanley, Wilson Ung a, and Dawn West.

PARTICIPANTS

T he Civil Law Forum Subcommittee is comprised of the following committee members: Vladimir Devens, Co-Chair, Steven Chow, Co-Chair, Dennis Chong Kee, Kahikino Noa

D e t t we i l e r, E d Ke m p e r, C a ro l K . M u r a n a k a , Ky l e i g h

N a k a s o n e, Au d rey S t a n l ey, Tre d E ye rl y, Ju d g e S u m m e r

Ku p a u - O d o, D ay l i n Ro s e H e at h e r, C h i e f Ju d g e R a n d a l Valenciano, Judge Ronald Ibarra (ret.).

APPELLATE JUDGES AND ADMINISTRATION

Honorable Mark E. Recktenwald, Chief Justice, Hawai‘i Supreme Court

(Continued on pa ge 30)

C A S E N O T E S

Supreme Court Criminal

State v Canosa, No SCWC-200000650, January 17, 2023, (Wilson, J.). This case raised the issue of whether a sixteen-month delay in sentencing deprived the defendant of due process, where the delay in sentencing precluded the defendant from being sentenced before the expiration of the ordinary maximum ter m The Hawaii Supreme Court also considered whether the delay in sentencing rendered the defendant’s allocution constitutionally inadequate The Hawaii Supreme Court held that in this specific instance, the State caused an unreasonable delay in sentencing which deprived the defendant of due process and a sentencing proceeding that was fundamentally fair, in violation of article 1, section 5, of the Constitution of the State of Hawaii and the Fourteenth Amendment to the United States Constitution The Hawaii Supreme Court also held that the State’s unreasonable delay in sentencing deprived the defendant of the opportunity for allocution, in violation of the due process clause under article 1, section 5, of the Constitution of the State of Hawaii

Family

In the Interest of ASK, No. SCWC-210000285, December 27, 2022, (Eddins, J ) The family court has to consider sixteen factors to guide its best interests of the child finding in parental custody and visitation cases See Hawaii Revised Statutes § 571-46(b). But there are no statutory factors to guide a family court’s “best interests of the individual” finding in adoption and per manent placement cases See Haw Rev Stat § 578-8 So what’s a family court to do when faced with competing petitions for adoption of three young siblings? In petitions for adoption and per manent placement, the Hawaii Supreme Court held that a family court is free to consider any admissible evidence that addresses its dispositive fact of consequence, the best interests of t h e i n d

Appeal Pointer

In multi-claim or multi-party circuit court cases, a final judgment is not appealable unless it identifies the claims and the parties for which the judgment is entered and unless it resolves, on its face, all claims against all parties. Jenkins v. Cades Schutte F leming & Wright, 76 Hawai‘i 115, 119-20, 869 P 2d 1334, 1338-39 (1994)

evidence supporting some best interests factors listed in Haw Rev Stat § 571-46(b). And it may include much more Only the rules of evidence confine the family court as it finds, weighs, and values facts to reach its best interests deter mination Because the Family Court of the First Circuit properly assessed the relevant evidence to support its best interests of the individual determination, the Hawaii Supreme Court affir med its orders.

Intermediate Court of Appeals Labor

Pave v Production Processing, Inc , No CAAP-17-0000600, December 22, 2022, (Hiraoka, J ) In each of these c o n s o l i d a t e d a p p e a l s , a p e r s o n w a s

g Before being injured, the person had an asymptomatic physical condition that contributed to cause post-work-accident disability, but there was no evidence that the preexisting condition had impaired the person ’ s physical functioning before the work accident. Each person was awarded per manent partial disability (PPD) benefits under the Hawaii Workers ’ Compensation Law, Hawaii Revised Statutes Chapter 386 The Labor and Industrial Relations A ppeals Board (LIRAB or the Board) apportioned liability for PPD benefits to the Special Compensation Fund (SCF) The issue in each appeal was whether SCF was liable to pay a portion of the PPD award The ICA held that SCF is not liable for PPD benefits if an employee’s preexisting “condition” did not cause a “disability” that is, “loss or impair ment of a physical or mental function” before the employee’s work accident The record in each case contained no evidence that the injured employee was physically impaired before their work accident In each case, at least one doctor apportioned causation of post-workaccident disability to a preexisting condition; but in neither case was there evidence that the preexisting condition had caused a pre-work-accident loss or impair ment of physical or mental function. Accordingly, the ICA reversed the decision and order issued by the Board

H S B A H A P P E N I N G S

Run for the 2024 HSBA Board

The HSBA Nominating Committee seeks candidates to run in the next HSBA Board election The following officer positions (one-year term) will be available beginning January 2024: Vice President, Treasurer, and Secretary The following director positions (two-year term) will be available: five for Oahu, one for Kauai, and one for West Hawaii The HSBA/ABA Delegate position will also be available If interested, email a cover letter and resume to the Nominating Committee (nominations@hsba org) by April 21 The Committee will have a slate ready by the end of May

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NOTICES OF DISCIPLINE FOR DEXTER K. KA‘IAMA AND ERIK W. KVAM

Indefinite Suspension of Dexter K. Ka‘iama

On January 11, 2023, the Hawai i Supreme Court indefinitely suspended Honolulu attor ney Dexter K Ka’iama from the practice of law in Hawaii pursuant to RSCH Rule 2 12A Ka’iama refused to cooperate with the Office of Disciplinary Counsel (ODC), as required by HRPC Rule 8 4(g)) in its investigation into specific acts of misconduct, and he refused to comply with ODC’s lawfully issued RSCH Rule 2.12 subpoena. Later, after ODC sought Mr Ka’aima’s suspension for the failure to cooperate and an Order to Show Cause (OSC) was issued by the supreme court, he stated he would not comply with that OSC, and instead “tender[ed] his resignation and/or surrender of his license to practice law ”

ODC objected to the pur ported resignation as procedurally improper (RSCH Rule 2 14) and asked the court to impose the sought relief of an indefinite suspension per RSCH Rule 2 12A Ultimately, the court granted the petition and imposed this indefinite suspension until such time as Ka’iama seeks reinstatement with proof that he has cured the failure to cooperate RSCH Rule 2 12A(d)

Upon entry of the January 11, 2023, suspension order, Ka’iama shall not accept any new retainer or engage as attorney for another in any case or legal matter of any nature See RSCH Rule 2.16. He is also required to promptly notify all of his clients and any attor neys for any adverse party in any pending litigation of his suspension and consequent inability to act as an attor ney Id Ka’iama shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been ear ned. RSCH Rule 2.16 and HRPC Rule 1 16(d)

Ka’iama was admitted to the

Hawai i bar in 1986 and is a graduate of the University of Hawaii, William S Richardson School of Law

Case infor mation: ODC v Ka‘iama, SCAD-22-0000623 (January 11, 2023).

Suspension of Erik W. Kvam

On January 17, 2023, the Hawai i Supreme Court imposed a two-year suspension from the practice of law on Honolulu attor ney Erik W Kvam for his conduct in connection with the 2010 representation of a Japanese cor poration doing business in Hawaii

In 2010, Kvam failed to communicate the basis or rate of his fees to a new client within a reasonable time after commencing the representation, in violation of HRPC Rule 1 5(b) (Manner in Which Fees are Ear ned) He also invoiced, and received from, his client $59,750 00 for 59 75 hours of legal work, asserting a rate of $1,000.00 an hour, thereby charging an unreasonable fee, in violation of HRPC Rule 1 5(a) (Reasonableness of Fees) Kvam violated HRPC Rules

1 13(b) and 1 13(e) (Organization as Client), when he failed to act in the best interest of his cor porate client, including by failing to consult with a higher authority at the cor poration when confronted by, and conceding to, an employee’s request both for a cash commission for assisting with securing the representation and for the drafting of an indemnity agreement of extraordinary scope and breadth to indemnify the employee against the interests of the cor poration, and invoicing his client for the preparation of that indemnity agreement

For representing to the cor poration that the entirety of the $59,750 00 fee paid to him was for legal services, when a significant portion was instead paid to the employee as a commission, Kvam violated HRPC Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and HRPC Rule

7 2(b) (Advertising – prohibited referral fees)

The supreme court adopted the Disciplinary Board’s finding of aggravating and mitigating factors; finding in aggravation Kvam’s dishonest or selfish motive, multiple violations of the rules of professional conduct, and refusal to acknowledge the wrongful nature of his conduct In mitigation, the court noted the absence of a prior disciplinary record.

The supreme court concurred with the Disciplinary Board’s finding that Kvam’s conduct was knowing and intentional and caused serious injury to his client that under Standards 4.31(b), 4.61, 5 11(b), and 7 1 of the American Bar Association Standards for Imposing Lawyer Sanctions, his conduct warrants disbarment However, the court also found that based upon the particulars of the record in this case, Kvam’s clean disciplinary record prior to this matter to be of persuasive significance Therefore, the supreme court imposed a two-year suspension from the practice of law, to be effective 30 days after entry of the order of suspension.

Upon entry of the suspension order, Kvam shall not accept any new retainer or engage as attor ney for another in any new case or legal matter of any nature However, between January 17, 2023 and February 16, 2023, he may wind up and complete, on behalf of any client, all matters that were pending on January 17, 2023 During that time he is required to promptly notify all of his clients and any attor neys for any adverse party in any pending litigation, of his suspension and consequent inability to act as an attor ney. By February 16, 2023, Kvam shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been ear ned.

Kvam was admitted to the Hawai i bar in 2003 and is a graduate of Georgetown University He is also admitted in New York (1985) and Califor nia (2002)

Case infor mation: ODC v Erik W Kvam, SCAD-22-00000380 (January 17, 2023)

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Celebrating 35,000 Free Legal Consultations for Hawaii Residents

and Alana Bryant. Sergio Alcubilla, Steven Nichols, Micah Smith, James Rooney, Dale Zane, Nicolas Kido, and Bill Lawson

Since 2011, individual attor neys, law fir ms, and professional legal associations have volunteered at Hawaii’s courthouse self-help centers, providing more than 35,000 free legal consultations to people seeking assistance, many of whom could not afford a lawyer. In 2022, the state commemorated the 10-year anniversaries of the Self-Help Centers in the Hilo and Maui courthouses and the Access to Justice Rooms in the Honolulu District Court and the Ronald T.Y. Moon Judiciary Complex in Kapolei Volunteer attor neys were honored for their service at special recognition ceremonies celebrating the anniversaries of each center.

Attor neys and Judiciary staff who provided operational support for the Kapolei Access to Justice Room and the Honolulu District Court Access to Justice Room were honored at special events with Chief Mark E Justice Recktenwald in December. Attendees included Andrea Graf, Noah Gibson, Jenny Silbiger, Dyan Mitsuyama, Ann Isobe, Lynnae Lee, Sara Jo Buehler, Gemma Rose Poland Soon, P Gregory Frey, First Circuit Senior Family Court Judge Matthew Viola, Tom Tanimoto, Gabriel Leggott, Angela Min, Christine Daleiden, Derek Kobayashi. Michael Goodman, Gilbert Doles, Rebecca Gardner, Deputy Chief Judge Melanie May, Jennifer Chin, Rachel Figueroa,

“I am deeply g rateful to all the hard-working attor neys who have given their time and expertise over the past decade to support the courthouse SelfHelp Centers in our effort to provide assistance to those who need it most,” said Chief Justice Mark E. Recktenwald. “Attor neys who volunteered during the past two years deserve special recognition for their dedication to serving our communities through the challenging times of the COVID-19 pandemic ”

“Thanks in large part to the strong support of the Hawaii State Bar Association and the Legal Aid Society of Hawaii, we opened Self-Help Centers on Kauai, Maui, and the Big Island, along with two Access to Justice Rooms on Oahu. Over the past 10 years, hundreds of attor neys have volunteered - 230 in the last year alone - and they have helped thousands of people at almost no cost to the public It’s no exaggeration to say that these centers have become the signature achievement of Hawaii’s Access to Justice movement. In the latest survey of all 50 states as well as the territories, Hawaii ranked sixth for our efforts to provide access to justice ”

The Self-Help Centers were established as part of the Judiciary’s commitment to increasing access to justice in the courts. Since opening, Hawaii attor neys have provided legal infor mation and guidance on a variety of civil legal matters in district and family courts, including landlord-tenant cases, collection cases, temporary restraining orders, and divorce

A g roup of approximately 20 people met in a conference room at the State Capitol to discuss a new idea of

opening self-help centers in Hawaii’s state courthouses Kauai was selected to spearhead the initiative Fifth Circuit District Court Judge Trudy Senda (ret ) and LASH Executive Director Nalani Fujimori Kaina played crucial roles in opening the center, from implementing logistics, to developing training plans for volunteers.

Attor neys interested in volunteering at the Self-Help Centers, or other pro bono opportunities, are invited to visit the Hawaii Access to Justice Commission website and click the menu item “How to Help ”

Second Circuit Family Court Shares the Joy of Reading

Keiki in the rural areas of Maui County are being given the gift of reading when attending Family Court proceedings thanks to generous donations from the Hilary Clinton Reading Foundation and Penguin Books The National Council of Juvenile and Family Court Judges recently sent hundreds of these donated books to the Second Circuit, according to Family Court Judge Adrianne N Heely Fully stocked bookshelves now ador n the courtrooms.

“The joy these books have brought to our families is priceless,” said Judge Heely “When I see how eager the children are to choose their books and hold them like prized possessions, I get chicken skin ”

Judge Heely expressed her deep appreciation to NCFCJ, and the benefactors for their compassion and generosity

Youth in Foster Care Revel in Teen Day Activities

More than 20 teenagers from ages 12 to17 years old had the chance to enjoy Teen Day, which was sponsored by the East Hawaii Youth Leadership HI HOPES board. The acronym stands for Hawaii Helping Our People Envision Success and is led by Raquel Gali

The youth, who are in foster care, shared the Hilo Family Court courtroom with social workers, deputy attor neys general, guardians ad litem, parents’ attor neys, HI HOPES board members and volunteers, Salvation Ar my Family Intervention staff, judges, and Judiciary staff members.

“The goals for Teen Day are to educate foster youth on what rights and services are available to them, encourage them to attend court hearings and meet and talk to their judge, expose them to the court environment in a friendly, welcoming way, and really to have an enjoyable time,” remarked Third Circuit Family Court Judge Darien Ching Nagata.

The November 17 prog ram featured a courtroom overview by Judge Nagata, ice breaker activities, and a session on “Know Your Rights” with HI HOPES board members Melissa Mayo and Precious Ahulau-Kaleo There was a panel discussion on “Participating in Your Court Hearings” with Deputy Attor ney General Ken Goodenow, Guardian Ad Litem Valerie Grab of the Children’s Law Project, Albert Pacheco, HI HOPES board member Kekoa Abellera, and Judge Nagata. The Salvation Ar my ’ s Jasmine Castro conducted a session on the Imua Kakoa prog ram for foster youth transitioning into adulthood Chief Justice Mark E Recktenwald and Third Circuit Court Chief Judge Robert D S Kim also met with the participants.

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Honorable Sabrina S. McKenna, Associate Justice, Hawai‘i Supreme Court

Honorable Lisa M. Ginoza, Chief Judge, Inter mediate Court of A ppeals

Honorable Keith K Hiraoka, Associate Judge, Inter mediate Court of A ppeals

Honorable Sonja M McCullen, Associate Judge, Inter mediate Court of A ppeals

Honorable Karen T Nakasone, Associate Judge, Inter mediate Court of A ppeals

Honorable Clyde J Wadsworth, Associate Judge, Inter mediate Court of A ppeals

Rodney Maile, Administrative Director of the Courts

Lisa T K O Lum, Special Assistant to the Administrative Director of the Courts

Angela Kuo Min, Special Assistant to the Administrative Director of the Courts

Dawn West, Chief Court Administrator, Third Circuit

Er nest DeLima, Deputy Chief Court Administrator, Second Circuit

Dean Hiraki, Deputy Chief Court Administrator, Third Circuit

Cheryl Salmo, Deputy Chief Court Administrator, Third Circuit

JUDGES

Judge James Ashford, Judge Jeannette Castagnetti, Judge Lisa Cataldo, Judge Gary Chang, Judge Jeffrey Crabtree, Judge Kirstin Hamman, Judge Kelsey Kawano, Judge Robert Kim, Judge James McWhinnie, Judge Henry Nakamoto, Judge Dean Ochiai, Judge Kathleen Watanabe

ATTORNEYS

Tristan Andres, Lisa Bail, Natasha Baldauf, Addison Bonner, Adrian Chang, Andrew Chianese, Nicholas Ching, Megan Cobur n, Lance Collins, Michael Cruise, Charles Crumpton, Gilbert Doles, Gary Grimmer, Leighton Hara, Janice Heidt, Lerisa Heroldt, Lahela Hite, Kurt Kagawa, Malia Kekai Robin Kishi, Derek Kobayashi, Sheree Kon-Herrera, David

Keith Kopper, Gregory Kugle, Sunny Lee, Mariana LöwyGerstmar, Moana Lutey, Patricia Mau-Shimizu, William McKeon, Diana Mellon-Lacey, Casey Miyashiro, Duane Miyashiro, Robert Miyashita, Michi Momose, Nick Monlux, Mark Murakami, Zale Okazaki, Jonathan Ortiz, Jeremy O’Steen, Thomas Otake, Glen Pascual, Dennis Potts, Trevor Potts, Michelle Premeaux, Richard Rand, Rafael Renteria, Kenneth Robbins, Sinclair Salas-Ferguson, Shannon Sheldon, Christopher St Sure, Elizabeth Strance, Ryan Thomas, Stephanie Thompson, Richelle Thomson, Mark Valencia, Alan Van Etten, Kaliko Warrington, Amanda Weston, Allen Williams, Matthew Winter, Keyra Wong, Cynthia Wong, Deborah Wright, Reginald Yee, Elijah Yip, Calvin Young

1 See R. Lewis, et al., “Couch’s ‘Physical Alteration’ Fallacy: Its Origins and Consequences,” ABA 56 Tort Trial & Insurance Practice Law Journal (Fall 2021); C Miller, et al , “COVID-19 and Business Income Insurance: The History of Physical Loss and What Insurers Intended It to Mean,” ABA 57 Tort Trial & Insurance Practice Law Jour nal (2022); E Knutsen and J Stempel, “Infected Judgment: Problematic Rush to Conventional Wisdom and Insurance Coverage Denial in a Pandemic,” 27 Conn Ins L R 185 (2021)

2 HRPC 4.2 provides as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

3 HRCP Rule 30(b)(6) provides as follows:

(6) A party may in the party’s notice and in a subpoena name as the deponent a public or private cor poration or a partnership or association or gover nmental agency and describe with reasonable particularity the matters on which examination is requested In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify A subpoena shall advise a nonparty organization of its duty to make such a designation The persons so designated shall testify as to matters known or reasonably available to the organization This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these Rules

4 The other panelists did not disag ree

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