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On the cover: A Walk at Bellows By Helen Iaea. Helen was born in Florida and spent her early years on the farm drawing the things she loved. She started in oils and soon moved on to acrilics, watercolors and pastels. She was intrigued and challenged by watercolor and pastel the most, fell in love with both media and has never looked back. She enjoys all subject matter, portraiture being her favorite. Helen is an honorary life member of the Hawaii Watercolor Society having worked in their workshop program for 14 years and served as President and VicePresident. Iaeaâ&#x20AC;&#x2122;s work may be seen at the Louis Pohl Gallery, 1142 Bethel Street, Chinatown, Honolulu or at www.heleniaeafineart.com Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

by Gerald S. Clay with Maryann G. Sasaki The Legacy of the Adversary System A central tenet of American jurisprudence, perhaps the central tenet of American jurisprudence, is that zealous advocacy by two opposing sides before a neutral judge will lead to the full development of the truth and, ultimately, a just and fair outcome. In this situation, both legal surrogates fight as hard as they can for their clients. This powerful notion presumes a lot. It presumes that there can always be equally matched combatants and, that lawyers will always appear before an unbiased (however unconscious such bias may be) trier of fact on a neutral playing field. It also presumes that a nearly endless amount of time and resources can be devoted to obtaining this result.

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Justice Without Going to Court A Different Approach Another distinct system of dispute resolution exists in stark contrast to the civilized battle royale of adversarial conflict: Mediation (also described as ThirdParty Assisted Negotiation). Unlike the adversary system , mediation and its other forms–conciliation1 and Ho’oponopono2 –avoid the necessity of relying on advocates who would spend endless time and money navigating a complex legal system designed to be understood solely by lawyers. Mediation, instead, relies on the

notion of fairness, the desirability of being heard, the ability to have an experienced advocate’s assistance,3 and the opportunity to examine the background and emotions underpinning the dispute. In mediation, the parties and their advocates come before an experienced mediator, and through the mediation process, the parties agree upon their own solution. The advantages of mediation are many: it is simpler, less acrimonious, cheaper, quicker, and unlike the zero-sum game of the adversary system, there is no declared winner or loser. At its best, the results are two satisfied parties. Indeed, many parties to mediation continue personal and business relationships with the person who began as their adversary. Ultimately, it is a system premised on the notion that third-party assisted negotiation can produce better results than a judicial decision.

Changing Our Point of View Despite the advantages of mediation, the adversary system has been virtually the only dispute resolution process that has been taught to lawyers for centuries. Zealous advocacy is nearly synonymous with the practice of law4 where good men and women are the knight-advocates in a jousting competition for their clients’ interests.5 The adversary system excels at setting a client’s damages with a simple solution like a money judgment, but a client almost always has more subtle interests. What if, as in the case of divorcing parents, the relationship takes precedence over winning? Differences arising between business associates and conflicts arising out of other affiliations also share a common interest in preserving good relations as well. The adversary system is typically destructive of existing relationships. On the other hand, mediation can be constructive, preserving and rebuilding relationships while finding new solutions to old problems. Too often, however, parties do not choose mediation of their own volition, and it takes the threat of, or the actual filing of, a lawsuit to get parties to the mediation table. A Lawyer’s Choice Not only are adversarial cases detrimental to most litigants, but the process is harmful to the profession as well. It is no wonder that our society deems the legal profession untrustworthy and unlikeable.6 For example, a winning adversary strategy is destroying the credibility of the other side and their witnesses. Zealous advocacy within the adversary system rewards such behavior, even though society frowns upon the results.7 As lawyers, should we not employ a system that simultaneously benefits clients, seeks to resolve their conflicts, and satisfies their human needs? The Hawai`i Rules of Professional Conduct appear to say that we are ethically obligated to do so.8 Foremost, our obligation is to represent our clients’ best possible interests, and after more than 40 years of collective practice and observing winners and losers, we do not think the adversary system is the best way of achieving that goal.

M e d i a t i o n

A r b i t r a t i o n

“Nothing is impossible, the word itself says ‘I’m possible!’!’’ ~Audrey Hepburn Dan Bent

Mediator & Arbitrator Former civil litigator & U.S. Attorney B.S. Mechanical Engineering Georgetown Law 548-0080 | www.FairMediation.com

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

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Moving Toward a Theory of Assisted Negotiation Although courts of law, have, for centuries, employed the adversary system, there has always been the need for forums that can craft more unique solutions. Historically in the AngloAmerican legal system, those have been courts of equity. Like mediation, courts of equity which grew alongside courts of law, tried to fashion relief suited to the injury. Courts of law “ensured uniformity and predictability, while courts in Equity tempered the law to the needs of the particular case.”9 Equity embodies a set of eternal principles – those which are “moral, right, just, and good.”10 In the broadest understanding of this view, equity is ethical rather than jural.11 That, too, is the ultimate goal of mediation. It, like equity, is “[g]rounded in the precepts of the conscience[.]”12 “Both [prior courts of] equity and mediation offer[ed] a form of ‘individualized justice’ unavailable in the official legal system[.]”13 In mediation, we can reach unique resolutions regarding matters important to the parties themselves. On the other hand, there are some instances where mediation is not an available vehicle for dispute resolution. Criminal cases do not belong in mediation. These cases require a finding beyond a reasonable doubt and can involve constitutional freedoms. Class actions are unmanageable because of the large number of litigants involved. Likewise the resolution of matters of first imprint, disputes between jurisdictions, and the need to interpret precedents belong under the purview of the court. Considering the Past, Looking Toward the Future As society evolves, so our thinking evolves. The adversary system is a competitive system of resolution that focuses only on solutions that remediate past harms. It has been used for centuries; we hesitate to say it has worked for centuries. Even the winners are unhappy with liti6 May 2016

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gated outcomes.14 The adversary system is usually the least creative solution to a relationship-based dispute. Perhaps that is why less than 3% of cases in Hawaii ever arrive at a final court determination.15 Lawyers and clients both should be mind-

“Compromise in the adversary system is about maximizing individual gain. It does not consider mutual gain.

”

ful of the statistic that “97% of cases are resolved by means other than” a final trial determination.16 Particularly in relationship based disputes, lawyers should advise their clients of this statistic before they begin a lawsuit, or at least before engaging in full-blown discovery. Successful mediation is, after all, settlement, merely at an early and more beneficial stage. Compromise in the adversary system is about maximizing individual gain. It does not consider mutual gain. Although judges have tried to fashion equitable results, they actually have a very limited set of remedial options, most notably, precedents, “guilt or innocence, . . . injunctions, and monetary damages.”17 Judges and others have historically struggled to reform an institution which results in a zero-sum game. In the effort to respect justice, irrespective of precedent,

courts have crafted creative solutions such as joint child custody in divorce, “comparative negligence in torts, . . . [and] promissory estoppel or quantum meruit in contracts[.]”18 Judges’ decisions are limited by those matters that the judiciary can enforce. On the other hand, in mediation, a participant can pledge any number of behaviors in a settlement agreement that a legal decision cannot address. Moreover, should a party feel the need for an enforceable judgement rather than a mediation agreement (a contract), the parties can stipulate to appoint their mediator as the arbitrator of the settlement. The arbitrator can then sign the agreement as a stipulated arbitration award, which is then confirmed in court and made into an enforceable judgment by the court clerk. Thereafter, the party has access to creditor proceedings such as garnishment and attachment. The “Res:” More Than the Conflict In mediation, the parties are given a chance to consider the “res” of the dispute or what is really at stake. Legal disputes typically concern scarce commodities and divisible items like money. The “res,” however, also includes reputation, ongoing business relationships, and harms or hurts not easily compensable by the legal system.19 Therefore, it is worthwhile to consider not only the importance of the issue in the dispute, but also what we have termed the “res” of the matter. “Res” in old English law is said to have a “general import, comprehending both corporeal and incorporeal things[.]”20 In other words, a breach of contract is not a mere disagreement about the language of a single provision in the contract, it usually concerns a host of other relationship issues. While the adversary system is a win or lose proposition–finite and unyielding–mediation can be open-ended, focusing on solving problems, planning for the future, improving relationships, and seeking joint gain.21 A common solution in the adversary system will attempt to make a party whole through an award for dam-

ages. Those damages suffered as a consequence of a past-focused dispute may not be enough. In comparison, mediation looks at the larger “res” of the dispute to issues not resolvable through distribution or a winning or losing verdict. Various remedies can be worked out. For example, there are psychological ramifications that can manifest as apologies between parties, apologies to third parties, and closure. A positive outcome can improve one’s social standing as a reasonable and reputable person, the type one might want in his or her own network, club, or social organization. Economic benefits might flow from a mediated agreement: time to pay, security for future payments, new business relationships, mergers, new business referrals, introductions to third parties and potential clients; and not to be underestimated, catharsis–the release of long-held anger or anxiety. The History of Mediation Modernism birthed the labor movement as it did alternative dispute resolution, and we see that clearly when we examine the emergence of mediation in the early 20th century, especially in the context of labor disputes.22 Alternative dispute resolutions including third-party assisted negotiation, developed alongside collective bargaining in labor-management relations.23 In 1947, the TaftHartley Act integrated government-sponsored mediation in labor management agreements by requiring mediation before a strike.24 In the aftermath of the upheavals of the 1960s, legislators and jurists realized that social issues, particularly those at the community level, could be mediated in third-party assisted negotiations. Mediation took a big step in the 1970s, when judges, legal scholars, and other eminent jurists criticized the cost, delay, and waste of the court system. Attorney General Griffin B. Bell declared, “The courts are jammed; there are great delays in obtaining justice. Justice is expensive, and there is little finality in the criminal law.”25 Another proponent of court reform, United States Supreme Court Chief Justice Warren E. Burger, echoed these concerns in 1976 at the

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Pound Conference, where attendees gathered to examine their concerns about the legal system.26 At that event, Justice Burger strongly criticized â&#x20AC;&#x153;lawyers who exploit the inherently contentious aspects of the Adversary System to their own private advantage at public expense.â&#x20AC;?27 After the Pound Conference, the ABA appointed a task force chaired by Griffin Bell to follow up on suggested reforms. The task force recommended the development of Neighborhood Justice Centers, which were community-based facilities handling civil and minor non-violent criminal matters using mediation.28 The Law Enforcement Assistance Administration (LEAA) division of Bellâ&#x20AC;&#x2122;s Department of Justice created a pilot program in 1977 to establish experimental justice centers in a handful of cities.29 In the late 1970s, Honolulu was one of a few cities that received a startup grant from the LEAA to fund a Neighborhood Justice Center on Oahu, which has become the Mediation Center of the Pacific. The LEAA program ended with President Carterâ&#x20AC;&#x2122;s term of office, but the number of community-based mediation centers continued to grow,30 and the Mediation Center of the Pacific, along with mediation centers on other islands, continue to serve both the legal community and the community at large, providing mediation services in such areas as family law, small claims, TROs, and housing disputes. The 1980s heralded the advent of commercial mediation in Hawaii. The American Arbitration Association (AAA) created a pilot project for commercial mediation at the request of Travelerâ&#x20AC;&#x2122;s Insurance.31 People often think of mediation in the context of personal or family disputes, but anyone who has ever practiced business law knows that, from partnerships to LLCs to corporate issues, business relationships are personal. Mediation is ideal for those situations because it often has the effect of not only preserving the business, but continuing productive working relationships. The program was such a success that the AAA expanded it throughout the nation. The AAA started a West Coast Initiative and Keith Hunter, then Vice President of Administration at

the AAA and now CEO of Dispute Prevention and Resolution, Inc., expanded the use of commercial mediation in Hawaii. The Future of Mediation Following the Pound Conference, Harvard University found itself at the forefront of the theory and practice of ADR.32 In 1979, Harvard University, MIT, and other universities in the Boston area created the Harvard Negotiation Project to discuss ideas about negotiation and dispute resolution.33 The Harvard Negotiation Project remains today one of the centers of the theory and practice of cooperative negotiation. Students from various schools and different disciplines attend the courses realizing how useful the courses are to their future careers.34 The project developed the concept of cooperative negotiation, which was featured in the bestselling book Getting to YES: 35 Negotiating Agreement Without Giving In by Roger Fisher36 and William Ury. Simply stated, cooperative negotiation is when you consider the interests of the other party in addition to your own.37 “Getting to YES was written as generic advice for negotiations in a wide variety of human endeavors.”38 It featured what have become the four golden rules of principled negotiation: (1) think about interests not positions; (2) separate the people from the problem; (3) invent options for mutual gain; and (4) use objective criteria to resolve disputes pro-

ductively.39 The techniques employed – reframing, active listening, and active reflecting40 – can be used in virtually every aspect of everyday life, from negotiating with your children to coming to an agreement in a business transaction. There is always an opportunity to use cooperative negotiation even in the most contentious conflict. Getting to YES was crucial in effecting a change in thought among lawyers and academics about the adversary system and problem-solving in general. The book changed society’s accepted conflict paradigm from limiting winning to the confines of the problem at issue to exploring all possible issues and options for mutual gain which can be available to the parties.41 ‘Getting to Yes’ means creating conditions so that the ‘other’ will want to do what you ask of him [or her], by providing him [or her] with enough gain or needs satisfaction to render an agreement better than the condition of no agreement[.]”42 BATNA is a term coined by Fisher and Ury; it stands for the Best Alternative to a Negotiated Agreement. BATNAs are critical to negotiation. A disputant cannot make an informed decision about the value of a negotiated agreement unless he or she can compare the negotiated agreement to the other potential outcomes (the BATNA).43 Even when winning a case seems like the best alternative outcome, it may not be when time, money, and emotional tolls are calculated. A skilled mediator helps the disputants to understand all

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Dispute Prevention & Resolution 1003 Bishop Street, Pauahi Tower, Suite 1155 Honolulu, Hawai‘i 96813

(808) 523-1234 jh@hiattlaw.com References at www.hiattlaw.com

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the costs of an outcome absent a negotiated agreement. Negotiating should produce something better than the results you can obtain without negotiating.44 The best alternative weighed against a negotiated agreement is the standard of measure parties should use when deciding their best option in a relationship-based dispute.45 Practical Mediation In our experience, there is a range of mediation approaches–what we term “the continuum from facilitative Mediation to evaluative Mediation.”46 At one end, facilitative mediators use “interest based-bargaining,” ask artful questions and more, to help the parties negotiate agreements that work for them. They carry messages, offers, or compromises between the disputants. Further on the continuum, the mediator provides a neutral source of relevant legal and social choices enabling the parties to open a discussion of those matters. Continuing along the spectrum, the mediator in the evaluative approach may posit an opinion with respect to how the conflict might be resolved in the courtroom. Finally, on the opposite side of the continuum from facilitative mediation, the mediator may engage in a full evaluation: a confidential mediator assessment. At this point, the mediator could provide a written analysis of the law along with an analysis of how the facts would unfold in a traditional lawsuit. The mediator could further advise as to the outcome of continuing a lawsuit, including the costs–personal and professional–of doing so. Ultimately, the mediator can make a suggestion to each side regarding their position in the mediation (often termed a “mediator’s proposal”) and what that viable offer might look like. The mediator’s proposal, which is made with the understanding that the parties will acknowledge and accept it, is made with appropriate logic to bridge the gap between the parties. The Key to Success: The Mediator The lynchpin of the entire process is the mediator. He or she must take account of each party, “not as someone to be ‘bested’ or beaten, but each as someone with needs, interests, and goals.”47 One 10 May 2016

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reason we accept settlements and decisions resolved in a courtroom is that, over the centuries, the judicial system has developed the power and authority to render opinions and decisions backed by the power of enforcement. A good mediator can control a potentially volatile interaction and create a situation where one side can recognize another’s point of view. A mediator who brings to the table the requisite background, experience, and maturity can devise a scenario in which the parties continue over the course of the mediation to have faith in the mediator and the process. This recognition is termed in the profession a “mediator’s gravitas.”48 The actions of a good mediator are subtle and authoritative, as illustrated in Before You Sue: How to Get Justice Without Going to Court.49 In that book, the authors describe a quiet, contemplative retired judge listening to each side. When he speaks, his thoughtful analysis results in narrowing the chasm between the parties, and managing the attorneys who are zealously advocating for their side.50 He is able to be collegial with the attorneys and their clients, and yet make his opinion heard through their differences. He retains control throughout.51 In commercial mediation, the mediator must recognize and work with the “feelings” of the parties. As the situation requires, the mediator can work with financial information and plan for ideas such as product development, expansion or downsizing, human resource realignments, and land development or acquisitions. The mediator needs to determine the intentions about dealings with one another and conflicts or transactions that may be bigger than the specific dispute at issue (i.e. the “res”). Not only does a good commercial mediator need to bring education and maturity to bear, he or she must be fluent in the law and the language of business transactions. It takes a certain presence to become a mediator whose opinions are taken seriously without the majesty and the might of a courtroom setting, but a compelling mediator does just that. That is what makes mediation such a profound experience. In the best possible case, both sides are heard, soothed, exonerated, and rela-

tively unscathed financially and emotionally. That this can be accomplished outside a courtroom and for a fraction of the cost of a full-blown lawsuit is nothing short of magic. Of course, there will always be a place for the adversary system but, in disputes emerging from relationships, the mediation process produces a more satisfying and collaborative outcome and a gain for all involved. “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln, Law School Lecture, 1850 __________________ Gerald S. Clay is a founding partner of Clay Chapman Iwamura Pulice & Nervell. He was trained as a mediator in 1984. He is a member of the Mediation Panels of Dispute Prevention & Resolution and the American Arbitration Association. He is a Fellow of the American College of Civil Trial Mediators and the National Academy of Distinguished Neutrals. He can be reached at gclay@paclawteam.com. Maryann Gatto Sasaki is an associate at Clay Chapman Iwamura Pulice & Nervell where she practices corporate and real estate law. She attended Columbia University and Harvard Law School, where she was privileged to study at the Harvard Negotiation Project. She can be reached at msasaki@paclawteam.com. 1 Conciliation is the European term for assisted negotiation. Kessler, Amalia D., Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication, 10 THEORETICAL INQ. L. 423, 428 (2009). 2 Ho’oponopono is a traditional Hawaiian conflict resolution process, which means “disentangling” or “putting things right.” James A. Wall, Jr. & Ronda Roberts Callister, Ho’oponopono: Some Lessons from Hawaiian Mediation, 11 NEGOT. J. 45, 47 (1995) (“Like the process of mediation in any society, ho’oponopono is highly variant. Its users – both today and in the past – employ many different techniques and vary the combinations and sequencing to fit the situation. This being the case, the unique archetype of ho’oponopono cannot be specified.”).

3 Many mediations do not use advocates, especially in community mediations.

Community

4 “[A] lawyer’s first duty is to be the zealous advocate of the client.” Lawrence J. Fox et al., Report, Ethics: Beyond the Rules: Historical Preface, 67 FORDHAM L. REV. 691, 693 (1998). 5 Strier, Franklin D., Major Problems Endemic to the Adversary System and Proposed Reforms, 19 W. ST. U. L. REV. 463, 463 (1992) (“Our adversary system of trial procedure is ensconced in our culture.”). 6 Gross, Leonard E., The Public Hates Lawyers: Why Should We Care?, 29 SETON HALL L. REV. 1405, 1420-21 (1999). 7 Meany, Matthew E., “Lawyer as Public Citizen” – A Futile Attempt to Close Pandora’s Box, 35 CAMPBELL L. REV. 119, 132 (2012) (“‘Litigation tactics are means to the only goal that counts: a successful outcome, which, needless to say, is unrelated to the right outcome.’ Conversely, society values objective justice and demands that a lawyer aid in its administration . . . . Unlike the client, society is concerned with the ‘right outcome.’”). 8 The commentary to Rule 2.1 of the Hawai`i Rules of Professional Conduct recommends that lawyers advise their clients of alternative dispute resolutions: “[W]hen a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.” HAW. R. PROF’L CONDUCT 2.1 cmt. 5 (2014). 9 Main, Thomas O., ADR: The New Equity, 74 U. CIN. L. REV. 329, 329 (2005). 10 Id. at 344. 11 Id. 12 Id. 13 Nolan-Haley, Jacqueline M., The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound, 6 CARDOZO J. CONFLICT RESOL. 57, 58 (2004). 14 Haas, Aaron S., The Client Who Lost Despite Winning and the Client Who Won Despite Losing: Reflections on Starting a New Immigration Clinic, 14 SCHOLAR 715, 725 (2012). 15 From 2014-2015, approximately 1% of all civil cases and 2% of family actions filed in Hawaii were disposed of by a trial (jury and nonjury). See THE JUDICIARY: STATE OF HAWAI`I, 2015 ANNUAL REPORT STATISTICAL SUPPLEMENT (2015), available at http://www.courts.state.hi.us/ docs/news_and_reports_docs/annual_reports/J

(Continued on page 15)

by Tracey Wiltgen Community mediation centers play a critical role in Hawaii’s communities by helping thousands of individuals talk through and resolve conflicts without resorting to violence or a formal legal process. Since 1979 when the Mediation Center of the Pacific (formerly Neighborhood Justice Center) was founded on Oahu to address neighbor disputes, the need for and use of community mediation has grown. Today there are five community mediation centers located throughout the State that assist more than 8,000 people annually including: divorcing couples; landlords and tenants; schools and parents of children with disabilities; condominium and homeowner association boards and unit owners; families; consumers and merchants; employees and employers; co-workers; and more. In addition to providing low cost mediation services for all, the community mediation centers offer no-cost mediation services to low income and underserved populations. They are therefore a critical resource for increasing access to justice in Hawaii’s communities because they offer the only affordable mediation or dispute resolution option for individuals in the lowincome population to resolve their disputes. To provide these cost effective services, the community mediation centers rely on a pool of approximately 250 professional mediators who provide their services pro bono. Completion of a minimum of forty hours of training is required of every new mediator before they are eligible to comediate with experienced mentor mediators. Additionally, because mediation has become highly specialized over the years, trainings in the areas of divorce, custody, civil rights, foreclosure, special education, elder and more, are required before mediators are assigned to mediate cases in these areas. Every training includes an overview

of the relevant law, as well as a customized process and mediation tools to best assist the participants in each unique area. All community mediators are also required to adhere to the same standards of conduct that are expected of private mediators, including those outlined in the Guidelines for Hawaii Mediators and the Model Standards of Conduct for Mediators. The mediation discussions are confidential, the mediators remain impartial, and a conflict of interest check is completed before assigning a mediator to a case. With the exception of some unique programs offered only through the Mediation Center of the Pacific (ACCESS ADR and Condominium Mediation), the community mediation centers adhere to a facilitative approach to mediation. A team of two mediators work with the participants in joint and individual sessions to gather information, identify their respective interests, pose critical questions and assist in negotiating customized agreements that work for them. The community mediation centers are a vital resource for Hawaii’s communities. They provide affordable mediation and dispute resolution services in areas that have been identified as the greatest areas of need for increasing access to justice such as divorce and landlord/tenant. Equally important, they continually develop new programs to meet identified community needs such as the Mediation Center of the Pacific’s Kupuna Pono Program designed to assist elders and their families, and the Hawaii Island Centers (Ku`ikahi Mediation Center and West Hawaii Mediation Center) Foreclosure Mediation Program that assists homeowners and lenders. ___________________ Tracey S. Wiltgen is the Executive Director of the Mediation Center of the Pacific, a 501(c)(3) non-profit corporation that serves more than 7,000 people annually. May 2016

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Condominium

by John A. Morris The Hawaii Real Estate Commission (the “Commission”) first became involved in promoting mediation for condominium boards and owners as part of the Commission’s education program (the “Program”). Mediation made sense because parties to condominium disputes often had to continue to live together, therefore, a dispute resolution process that does not create “winners” and “losers” has significant advantages. The Commission recognized that third-party assisted negotiation could

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also provide an educational benefit by helping each side gain perspective on the merits of their claims. Then, even if the dispute could not be resolved through mediation, the parties would have the benefit of an independent third-party evaluation. Mediation in this area has not always lived up to its potential. Boards can be reluctant to sit down and discuss a problem face-to-face with complaining owners. In addition, the law or governing documents can limit agreements. This creates the perception that the time and effort of mediation is not always well spent. The “facilitative” model for the

Commission’s Program also meant that mediation did not always provide educational benefits. Mediators unfamiliar with condominium law could not provide the parties with a thorough analysis of their claim. Without knowledge of the law, mediators were also often in the position of trying to negotiate agreements without understanding that the law and the condominium’s governing documents limited the parties’ ability to agree. As a result, to that extent, the value of Commission’s Program was diminished. This changed with Act 187 (SLH 2013), which had the stated intent of promoting greater use of mediation by using professionally trained mediators in an “evaluative” mediation process on the theory that mediators with a background in condominium law would be more effective in persuading parties to “evaluate” their disputes. (As used in act 187, “professionally trained mediators” includes retired judges and individuals who have professional mediation training which shall include appropriate

knowledge of mediation procedures, ethics, standards, and responsibilities.) On June 30, 2015, the REC announced the implemenation of the evaluative mediation program with four approved providers. After payment of an initial fee of $375, the REC subsidizes mediation up to a maximum of $3000 â&#x20AC;&#x201D; sometimes more if circumstances justify. The cost of the evaluative mediation program is collected from condominium owners as part of the Commissionâ&#x20AC;&#x2122;s Program. The evaluative mediation program is so new, however, that it is difficult to evaluate its effectiveness. Nevertheless, the evaluative mediation program has the potential to fulfill the original intent of the Commissionâ&#x20AC;&#x2122;s Program of educating owners and boards on their rights and responsibilities while also resolving their disputes. _________________ John A. Morris first became involved with condominiums and homeowner associations when he served for three years (1988-1991) as the first condominium specialist for the Hawaii Real Estate Commission. He is currently a comanager of Ekimoto & Morris LLLC, which represents over 600 condominiums and other types of homeowner associations. May 2016

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Family Law

by Jim Hoenig “I want a divorce.” Whether you say it, hear it, or just think it, the phrase evokes images of vicious conflict, costly courtroom battles, lasting bitterness, and the chandelier crashing to the floor in “War of the Roses.” The problem is not divorce, not attorneys, not the courts — it is the process you have to go through to become divorced. Divorce issues are unpleasant enough without turning for their resolution to a process which heightens contentiousness and perpetuates problems. Traditional litigation pits spouse against spouse in a battle for children and property which is by its very nature divisive. In court, there appear to be winners and losers, but in reality, both spouses and their children, families, and business associates stand to lose far more in emotional and financial consequences than may be gained from divorce litigation. But even where divorce is inevitable, the conflict, costs, and acrimony are not. Mediation unites spouses in seeking solutions. Recognizing that the responsibility of children and property may require them to have years more of ongoing contact, mediation gives them the tools and experience for future collaboration and allows the marriage relationship to end in a manner which permits and encourages the preservation, and perhaps even the improvement, of the couple’s future relationships. There is high emotional content of such cases. Divorce involves several major psychological stressors for one or both: loss of a loved partner, moving, loss of friends or family, and often job or other major lifestyle changes. Divorce strikes at people’s self-esteem and very basic needs, effecting everything from safety and security (shelter, food, etc.) to the need for love and belonging. No other area of civil litigation is as emotionally-driven as divorce. But there is no 14 May 2016

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emotional vindication in litigation. Spouses do not get to pour out their hearts in court and have the judge say, “Yes, you are right. You are a good person, and he/she is not.” In mediation, however, the parties do have an opportunity to discuss how they feel in a professional, structured, supportive, and formal proceeding. This may be the only time when a truly neutral person will listen, and it is usually the only time when one spouse must sit, listen, and pay attention to the other. Mediation is the assisted exercise of a power which people do not realize they have until they no longer have it: the power to determine their own outcome by reaching a mutually acceptable resolution of their issues. For people struggling to keep their lives from spinning out of control during a divorce, that power is especially meaningful. Research shows that satisfaction and compliance with mediated agreements is substantially greater than with court judgments and that mediated settlements result in far less post-divorce litigation than courtordered outcomes. Thus mediation helps clear crowded calendars and preserve judicial capacity in an era of diminished resources and increased demands. A number of “Alist” Family Law attorneys have learned to use mediation effectively and are recognized as domestic relations problemsolvers whose satisfied clients are vocal in their praise and enthusiastically refer friends – an unusual outcome in divorce cases. _________________ Jim Hoenig is the only person in Hawaii listed in Best Lawyers in America in “Family Law Mediation.” First in his class at both Stanford University and Stanford Law School, he was Law Review President and served as a law clerk to the Chief Justice of the United States (Earl Warren). A full-time mediator, he does not practice law or psychology.

MEDIATING THE TORT CLAIM by Gregory Markham Mediation has successfully been used to resolve tort claims for over a decade, and local attorneys are constantly urged to use it. However, judges do not generally “order” mediation. Typically, the disputants agree to it themselves first and then suggest it to the court. In any case, attorneys should not rush into mediation until evidence is first developed. When parties are stubborn or entrenched in their respective positions, the person they choose as a mediator is key. The mediator must challenge parties’ theories, evidence, and arguments, and point out the weaknesses in the parties’ case. The mediator must also be persistent and be able to influence, persuade, and lead the litigants. When I suggest a mediator, I look to the ethnicity, age, gender, political outlook (if known) of the other party. I then select a mediator that matches those criteria. More importantly, I choose someone that my gut tells me is “right” for the case. On the other hand, when reasonable attorneys and clients choose a reasonable mediator, it is enough the mediator be experienced in the tort at issue. Finally, lunch time is critical. Generally, the parties work through lunch and there are no breaks in the process. Timing is imperative. Settlement will not take place unless enough information has been available for a sufficient amount of time to allow a complete evaluation of the case by the defense attorney. This is often misunderstood by claimants’ attorneys as an attempt by the defense attorney to run up the bill. It is not. Insurance carriers, for example, will not pay, set a reserve for a case, or provide authority until the facts and the law are well understood. If there are too many unknowns, the insurance company will not let the process move forward. To best serve their clients, it is essential that attorneys not rush to mediation, but be diligent and proceed only when there is enough information to fully evaluate the claim. _____________________ Gregory Markham is immediate past president of the HSBA and an insurance defense attorney for 33 years.

(Continued from page 11) ud_Statistical_Sup_ 2015.pdf. 16

John Barkai & Elizabeth Kent, Let’s Stop Spreading Rumors About Settlement and Litigation: A Comparative Study of Settlement and Litigation in Hawaii Courts, 29 OHIO ST. J. ON DISP. RESOL. 85, 99 (2014).

27 Keynote Address by Chief Justice Warren E. Burger, Agenda for 2000 A.D. — Need for Systematic Anticipation, National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (April 7-9, 1976) (conference commemorating Roscoe Pound’s address to American Bar Association in 1906 Annual Meeting), reprinted in 70 F.R.D. 79, 91 (1976).

17 Menkel-Meadow, Carrie, When Winning Isn’t Everything: The Lawyer As Problem Solver, 28 HOFSTRA L. REV. 905, 908 (2000) [hereinafter Menkel-Meadow, When Winning Isn’t Everything].

28 ROBERT M. KAMINS & ROBERT E. POTTER, THE MEDIATION CENTER OF THE PACIFIC: A BRIEF HISTORY 5 (2007).

18 Id.

29 Id.

19 Id. at 909.

30 Id. at 7.

31 ADR Services Expand, ARBITRATION TIMES 7 (Summer 1983).

What is RES?, THELAWDICTIONARY.ORG, http://thelawdictionary.org/res/ (last visited Mar. 4, 2016). 21 M en k el-Mead ow, W hen Winning Isn’ t Everything, supra note 17, at 910.

32 Sanchez, Valerie A., Back to the Future of ADR: Negotiating Justice and Human Needs, 18 OHIO ST. J. ON DISP. RESOL. 669, 693 (2003).

22 Hanycz, Colleen M., Whither Community Justice? The Rise of Court-Connected Mediationin the United States, 25 WINDSOR Y.B. ACCESS JUST. 167, 18586 (2007).

33 About the Harvard Negotiation Project, HARVARD LAW SCHOOL, at http://www.pon.harvard.edu/ research_projects/harvard-negotiationproject/hnp/ (last visited on Mar. 12, 2016).

23 Hurder, Alex J., The Lawyer’s Dilemma: To Be or Not to Be a Problem-Solving Negotiator, 14 CLINICAL L. REV., 253, 278 (2007).

34 Co-author Maryann Gatto Sasaki says she uses the techniques she learned at the Harvard Negotiation Project “nearly every day in nearly every situation.”

24 Sokol, Ronald, Air France and Taft-Hartley, N.Y. TIMES, Oct. 8 2014, http://www.nytimes.com/ 2014/10/09/opinion/air-france-and-taft-hartley.html. 25 Bell, Griffin B., Assuring the Adversary System, 61 WASH. U. L. Q. 673, 674 (1983). 26 The Pound Conference, marked the 70th anniversary of remarks delivered by Roscoe Pound, where Pound had presented a paper entitled, “The Causes of Popular Dissatisfaction with the Administration of Justice.” Lee, Rex E., The Profession Looks at Itself—The Pound Conference of 1976, 1981 BYU L. REV. 737, 737 (1981) (Pound “asserted that ‘[t]he sporting theory of justice, the instinct of giving the game fair play,. . . is so rooted in the profession in America that most of us take it for a fundamental legal tenet.’ The result, in his view, was that ‘in America we take it as a matter of course that a judge should be a mere umpire, to pass upon objections and hold counsel to the rules of the game, and that the parties should fight out their own game in their own way without judicial interference.’”) (citing The Address of Roscoe Pound, Annual Meeting of the American Bar Association (Aug. 29, 1906), reprinted in THE POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE 344 (A. Levin & R. Wheeler eds. 1979)).

35 ROGER FISHER & WILLIAM L. URY, GETTING YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (Bruce Patton ed., 1981) [hereinafter GETTING TO YES].

41 Baruch Bush, Robert A., Staying in Orbit, or Breaking Free: The Relationship of Mediation to the Courts Over Four Decades, 84 N. DAK. L. REV. 705, 721-22 (2008) (After Getting to YES came out, “[t]he needs-and-interests language was the core of the new negotiation theory, reflecting the changed view that negotiation was not an adversarial battle for positions but rather a mutual problem-solving process aimed at uncovering and integrating needs and interests. The needs-andinterests language, essentially absent from early mediation literature, appeared in texts on mediation soon after 1980 and gradually became central to an understanding of what mediation does.”). 42 Menkel-Meadow, Carrie, From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context, 54 J. LEGAL EDUC. 7, 21 (2004). 43 Kirgis, Paul F., Bargaining with Consequences: Leverage and Coercion in Negotiation, 19 HARV. NEGOT. L. REV. 69, 87-88 (2014). 44 GETTING TO YES, supra note 35, at 100. 45 Id. 46 Mediators may use some or all aspects of these approaches as they deem necessary. 47

Menkel-Meadow, When Winning Isn’t Everything, supra note 17, at 915.

36 Roger Fisher, the architect of the program, brought many years of negotiation and conflict resolution studies to bear on the project. He is probably most well-known for his efforts in mediation in the Mideast. See generally, In Memoriam: Roger Fisher, 126 HARV. L. REV. 875 (2013).

48 Gerald S. Clay & James K. Hoenig, The Complete Guide to Creative Mediation, 52 DISP. RESOL. J. 4 (1997) (“[T]he ‘presence’ or ‘gravitas’ of the mediator is perhaps the most important yet most difficult element to understand and evaluate. The respect which the mediator generates and the trust which the parties place in the mediator’s opinions and suggestions can and often do result in success.”).

37 GETTING TO YES, supra note 35, at 44-47.

38 Menkel-Meadow, Carrie, Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections, 22 NEGOT. J. 485, 496 (2006).

FLETCHER KNEBEL & GERALD S. CLAY, BEFORE YOU SUE: HOW TO GET JUSTICE WITHOUT GOING TO COURT (William Morrow & Co. 1987). 50 Id. at 87-107.

39 Id. at 485. 51 Id. at 101. 40 Reframing seeks to re-word or re-state what the client has said more constructively. Active listening is a communication technique which requires the listener to fully concentrate upon, understand, respond and then remember what is being said. Reflecting is the process of paraphrasing and restating both the feelings and words of the speaker.

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HAWAII BAR JOURNAL

COURT BRIEFS CONNECT-A-VET: First Circuit Reaches Out to Veterans

On March 18, 2016, the First Circuit Veterans Treatment Court teamed up with community service providers to host the Hawaii State Judiciary’s first “Connect-A-Vet” resource fair. The event provided information on Veterans Treatment Court and offered assistance with completing applications and other documents to help expedite access to veterans’ services. The service providers who helped make this resource fair possible were: The Army Substance Abuse Program; Veterans Benefits Administration; Veterans to Nurses; Catholic Charities Hawaii; U.S. Army Hawaii-Suicide Prevention Program; Cloudbreak Hawaii; Department of Veterans Affairs (“VA”); VA Pacific Islands Health Care System; the Salvation Army; Disabled American Veterans; and the City and County of Honolulu’s Office of Housing. U.S. Senators Mazie Hirono and

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Brian Schatz, U.S. Representative Mark Takai, and the City and County of Honolulu City Council commended the Veterans Treatment Court team for their outstanding outreach to veterans in the community. Judge Takase Recognized As Distinguished Alumnus at UH Hilo

Third Circuit Deputy Chief Judge Barbara Takase was recognized as one of the Distinguished Alumni by University of Hawaii, Hilo campus at a special awards banquet held on February 27, 2016. She was recognized for her many contributions to the community as a social worker, victim/witness counselor,

prosecuting attorney, administrative hearings officer, District Court Judge, and Deputy Chief Judge of the Third Circuit. She has been serving on the bench for about 17 years and is described by friends and colleagues as humble, dedicated, and compassionate. “I believe she is an excellent candidate for the award,” said Third Circuit Chief Judge Ronald Ibarra. “Her professional accomplishments coupled with her personal achievements are amazing. She takes everything in stride and does not shy away from the tough cases. She is very dedicated to her position and we can rely on her as a Deputy Chief Judge to carry out the policies of the Third Circuit.” Congratulations to Judge Takase for this prestigious recognition. Loo Reappointed as Fifth Circuit Per Diem Judge

Congratulations to Laurel Loo who was recently reappointed and designated to preside as a per diem district family judge of the District Family Court of the Fifth Circuit. Judge Loo was reappointed by Chief

Justice Mark Recktenwald on March 9, 2016 to a new four-year term, effective April 1, 2016 to March 31, 2020. Kobayashi and Moss Reappointed as Per Diem Judges

Congratulations to Joseph Kobayashi and Joe Moss who were both reappointed and designated to preside as a per diem district family judges of the District Family Court of the Fifth Circuit. Judge Kobayashi was reappointed to a new four-year term effective March 12, 2016 to March 11, 2020. Judge Moss was reappointed to a new fouryear term effective March 24, 2016 to March 23, 2020. Michael J. Udovic Reappointed as Third Circuit District Court Per Diem Judge

Congratulations to Michael J. Udovic, who was reappointed and designated to preside as a per diem district family judge of the District Family Court of the Third Circuit. Judge Udovic was reappointed by Chief Justice Mark Recktenwald on March 1, 2016 to a new two-year term,

effective March 2, 2016 to March 1, 2018. Jonathan Chun Appointed as Fifth Circuit Per Diem Judge

Jonathan J. Chun was sworn in on February 22, 2016 by Chief Judge Randal Valenciano, to serve a four-year term as a per diem judge of the District Court, Fifth Circuit. His term is from March 2, 2016 to March 1, 2020. Congratulations to Judge Chun. Appointments of Iwamoto and Morikami to the Commission on Judicial Conduct

On March 3, 2016, the Supreme Court of the State of Hawaii reappointed Shige Iwamoto to the Commission on Judicial Conduct, for a three-year term, effective nunc pro tunc February 11, 2016 and expiring on February 10, 2019. The Court also ordered that Michele T. Morikami will serve as Vice Chair of the Commission, effective March 3, 2016. Students Visit Third Circuit Courts

District and Circuit Courts in Kona where they met with Chief Judge Ronald Ibarra, Judge Margaret Masunaga, and Judiciary staff to learn about Hawaiiâ&#x20AC;&#x2122;s court system. The students observed the first court appearance of three defendants for driving under the influence of drugs, failure to appear, and contempt of court. In preparation for their visit, the students went through simulated cases at school and learned the different roles and rights of those involved. Deputy Prosecuting Attorney Britani Barker and Deputy Public Defender Frederick Macapinlac spoke to the students about the process of becoming a lawyer and shared some of their experiences as attorneys. The students also received a handout on how to put together a portfolio and start planning for college. The Hawaii State Judiciary thanks everyone in the Third Circuit and Kohala Middle School who made this educational opportunity available to the students.

On March 4, 2016, students from Kohala Middle School visited the

A 45-minute drive from Bishop Street can change everything. Without distractions great things can be accomplished.

Firm Retreats w Strategic Planning w Training Workshops www.windwardretreat.org 808.551.1929

May 2016

HAWAII BAR JOURNAL

HSBA HAPPENINGS February Board Action Summary

Nadine Ando and Howard Luke

Call for Nominations for HSBA Awards

For your information, the HSBA Board took the following actions at its meeting in February 2016:

Civics Education - Troy Andrade, Ryan Hamaguchi, and Ruth Oh

Know of an unsung hero who is deserving of recognition? Nominate a colleague for one of these HSBA Awards:

• Determined that taking a position on the Judiciary’s Capital Improvement Project for fiscal year 2016-2017 Supplemental Budget funding request is germane to the purpose of “improving the quality of legal services available to the people of the State,” and therefore meets the Keller test; and authorized the preparation and transmittal of supportive legislative testimony, as needed; • Approved the Executive Committee’s recommendation to adopt proposed amendments to the Board Policy Manual to reflect actual practice of the circulation of the Hawaii Bar Journal and the Annual Directory Hawaii State Bar Association and to accommodate active members who a desire a digital version instead of a print version of the Hawaii Bar Journal; • Approved the creation of the Solo and Small Firm Hawaii Section of the HSBA; • Approved the Executive Committee’s recommendation to take no action on SB779. The issue is very limited in scope, and the Collection Law Section is in the best position to advocate for this measure; • Ratified the appointment of the 2016 HSBA Committee Chairs appointed by President Jodi Kimura Yi. 2016 HSBA Committee Chairs

Attorney/Client Relations Charles Crumpton and Beverly Hiramatsu Awards 18 May 2016

HAWAII BAR JOURNAL

Consumer Protection - Paul Alston, A. Bernard Bays, and Rebecca Copeland Continuing Legal Education Vladimir Devens and Jesse Souki Delivery of Legal Services to the Public - Justine Herrera Diversity, Equality and the Law Catherine Betts Judicial Administration - Justice Simeon Acoba (ret.) and Steven Chow Legislation and Public Policy - James Dixon Nominating - Judge Linda Luke Prof. Responsibility and Risk Management David Hayakawa and John Yamano Publications Cynthia Johiro and Carol Muranaka Staff and Facilities Christopher Cole and Paul Naso

• Golden Gavel Award recognizes an attorney or non-attorney for outstanding service to the state or federal judiciary in Hawaii. • C. Frederick Schutte Award recognizes an attorney for outstanding service to the legal community and the profession. • Ikena Award recognizes an attorney or non-attorney for exceptional service in legal education to the public or the profession. • Kie Kie Award recognizes an attorney for outstanding provision of professional legal services at no charge to the recipient. • Greeley Key Award for Innovation recognizes an attorney or non-attorney for promoting new and creative uses of, or approaches to, the law. • Champion for Social Justice Award recognizes an attorney for courageous legal work in the face of public controversy.

Technology - Damien Elefante Transitioning Lawyers Geraldine Hasegawa SAVE THE DATE FREE Bar Directory Photos

Get ready for the next edition of the Bar Directory with a complimentary photo shoot. Please contact Brett Pruitt at brett@Grassshack.net for your reservation on Thursday, June 4, 2016 or Friday, June 5, 2016 from 9:00 a.m. to 12:00 p.m. or 1:00 p.m. to 4:30 p.m. for your headshot. Photos will be taken at the Grass Shack Productions studio located at 1111 Nuuanu Avenue, #212 in downtown Honolulu.

• Malama Hawaii Award recognizes an attorney for effective non-legal community service activities that make a difference and improve the quality of life in Hawaii. For a full description of these awards, please refer to the HSBA website at www.hsba.org under the “About Us” tab. Please submit nominations to the Awards Committee, c/o HSBA, by mail or email (nominations@hsba.org), no later than July 6, 2016. Please call Debbie Blanton at the HSBA office if you need additional information.

Mandatory Continuing Legal Education Board Openings

The Hawaii State Board of Continuing Legal Education is looking for applicants to fill three expiring attorney terms on its Board beginning on October 2, 2016 and expiring October 1, 2019. Responsibilities and duties include but are not limited to: attending quarterly board meetings, reviewing applications for CLE credits, and providing recommendations to various oversight issues that arise. Board positions are uncompensated. If interested in serving, please submit a resume, cover letter, and area of law practice concentration to the Nominating Committee at nominations@hsba.org no later than Tuesday, May 31, 2016. Member Benefits Spotlight

Clio is a 100% web-based legal practice management system that is optimized to meet the needs of sole practitioners and small firms. HSBA members receive a 10% lifetime discount on their Clio subscription. Visit www.goclio.com /landing/hibar, and enter the promotional code: HIBAR. Secure DNA - 15% off e-discovery, computer forensics, security and investigative services. Phone: 808-533-3620; email: sales@secure-dna.com; website: www.secure-dna.com. ID Experts - Premier service for full recovery from the hazards of identity theft. To enroll, you must be logged in, click login in the upper left hand corner, then click here. Access Information Management - A complete suite of RIM Services: records storage management; shredding and destruction services; data protection services and digital access solutions. Phone: 808-673-3200; www.accesscorp.com.

Administrative Suspensions On March 1, 2016, the listed attorneys were administratively suspended for failure to complete the 2016 attorney licensing registration process required by the Hawaii Supreme Court, which includes payment of dues and fees for the Disciplinary Board, the Lawyersâ&#x20AC;&#x2122; Fund for Client Protection, and the Attorney and Judges Assistance Program. Falefatu J. Alailima-Utu AnnV. Burns Andreas Daniel Alfred Berger Tatiana Berger Lucia J. Berrones Scott Christopher Black Lisette Susan Blumhardt James S. Bostwick R. Michael Burke Pamela J. Byrne Laura Elizabeth Chipchase Nathan W.S. Choi Near Choi Mary J. Connell Michael R. Daniels Mandy Kaye Denson Walter Arthur Dods PaulJohn Finch Ernesto Montemayor Ganaden Robert Frank Gebbia Charles Kenyon Greenfield Glenn Eric Gromann Raymond E. Gurczynski Kerry S. Hada Margaret Hanson Nathan Alexander Hartman Cynthia Lynn Harvey Donna R. Harvey John H. Hersum Karl Brinton Hiatt John T. Hoshibata Joseph S.Y. Hu Jean M. Ireton Judith Jenya Jackman

Erling T. Johansen Dawn Marie Jordan Daniel W. Kelsberg Charles K.Y. Khim Michael K. Kirschner James F. Kolasinski Annie Marie Kopplin Philip Y. Kouyoumdjian Alan Anlun Ku Bree Meiko Kurihara Valerie J. Lam Jeffrey Dale Larson Adam Lee Stephen A. Lovejoy Richard Lee Lugge Ben Majoe Daren Keith Margolin John L. McDermott Ann Marie McKittrick Karen Rayne McLeod Erin Nealy Gary Lee Nelson Chelsea Ruth Olson Shannon Elise Pierce Jason Eric Rabinowitz William K. Richardson Eric N. Roose Henry Ramsey Ross lll Evan R. Shirley Sandra A. Simms Daphne Matayoshi Smith M. Robin Smith Terry Joan Stambler-Wolfe Brian Takahashi Stephen G. Thomas Virginia Lee Tice Sharnelle Aiko Tomita Brianne Alyson Ullman Viterbo Llopis Valera Joseph Thuan An Vo John D. Waihee III Paul M. Walsh Aubry Wand Vivien Mia Weber Maria Christine Weydemuller Darren J.W. Wong Kendall C.S. Wong Allen W. Wooddell Ronald W.K. Yee May 2016

HAWAII BAR JOURNAL

IOLTA FUNDING

AND PRIME PARTNER BANKS by Robert J. LeClair Under IOLTA, interest received from each IOLTA account is paid by the participating banks to the Hawaii Justice Foundation (“HJF”). Funding rates for IOLTA depend upon interest rates, which have been historically low since December of 2008. American Savings Bank, Bank of Hawaii, Central Pacific Bank, First Hawaiian Bank, and First Foundation Bank (formerly known as Pacific Rim Bank) continue their participation in the Prime Partner Program in the Interest on Lawyer Trust Accounts (“IOLTA”) Program under Rule 11 of the Rules of the Supreme Court of Hawaii. These five banks demonstrate their commitment to help meet critical civil legal services needs of Hawaii’s low-income population.

of lower income. These funds are unrestricted in its use by the organizations, so the funds may stretch further and can be used for expenses that are often not allowed under other types of grants. The programs listed below are receiving IOLTA funds in 2016:

The IOLTA Program, which is administered by the HJF, provides funding of needed civil legal services to low- and moderate-income residents in Hawaii. Currently, the HJF provides IOLTA funds to assist fourteen organizations that provide a wide range of services to those

•Advocates for Public Interest Law •Domestic Violence Action Center •Ethnic Education Foundation of Hawaii •Hale Opio Teen Court Project •Hawaii Appleseed Center for Law and Economic Justice •Kauai Economic Opportunity, Inc., •Mediation Services •Kuikahi Mediation Center (Hilo) •Legal Aid Society of Hawaii •Mediation Services of Maui

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•University of Hawaii Medical-Legal Partnership •University of Hawaii Elder Law Program •Volunteer Legal Services of Hawaii •West Hawaii Mediation Center •UH Incubator Project (joint project of William S. Richardson School of Law, Legal Aid, and Volunteer Legal) Attorneys seeking more information on the IOLTA process are encouraged to review Supreme Court Rule 11, Rule 1.15 of the Hawaii Rules of Professional Conduct, and the Hawaii Rules Governing Trust Accounting at <http://www.courts.state.hi.us/docs/co urt_rules/rules/rgta.pdf> and to check the HJF website at <http://www.hawaiijustice.org/welcome-to-the-hawaii-justice-foundation/info-for-lawyers.> __________________ Robert J. LeClair is Executive Director of Hawaii Justice Foundation and has served in that capacity since 2003.

NUTS AND BOLTS REGARDING YOUR IOLTA ACCOUNT It is critical that attorneys be aware of the requirements for establishing and maintaining an IOLTA account. Attorneys seeking more information on the IOLTA process are encouraged to review the source materials, which are Rule 11 of the Rules of the Hawaii Supreme Court, Rule 1.15 of the Hawaii Rules of Professional Conduct, the Hawaii Rules Governing Trust Accounting at http://www.courts.state. hi.us/docs/court_rules/rules/rgta.pdf and the HJF website at www.hawaiijustice.org. One of the biggest mistakes attorneys sometimes make is using the IOLTA account as a “bank” for a short-term loan. This is always a mistake. Any unearned fees or advancement of court or other costs should always be deposited in the IOLTA account. Funds can be removed by the attorney after billing the client for earned fees or payment of costs, and withdrawals from the IOLTA

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account should be deposited into the attorney’s business account. Funds can then be withdrawn by the attorney. Attorneys would be well advised to review the Hawaii Rules Governing Trust Accounting at the URL outlined in the first paragraph above. Below are some common questions and answers regarding the IOLTA process, and this information is also available on the HJF website at www.hawaiijustice.org. WHAT IS IOLTA? The Interest on Lawyers’ Trust Accounts Program (“IOLTA”) is a requirement of Hawaii Supreme Court Rule 11. Under this rule, attorneys who hold nominal or short-term client funds in trust must maintain an IOLTA account at any of Hawaii’s participating financial institutions. At each bank, interest payments from these small, pooled accounts are aggregated and sent to the Hawaii Justice Foundation (“HJF”) to be used for the charitable purposes authorized by Rule 11. Separate interest-bearing accounts set up for large amounts or funds or held for longer periods of time funds are not affected by IOLTA and may be created by the attorney if so desired. WHAT IS THE HAWAII JUSTICE FOUNDATION AND HOW IS IOLTA MONEY USED? HJF is a tax-exempt charitable organization established in 1969 by members of the Hawaii State Bar. In 1983, it was selected by the Supreme Court to administer IOLTA. The HJF is governed by a 21member Board of Directors. Membership in the Foundation is open to any attorney or others who make proper application. The Foundation monitors Rule 11 and disburses IOLTA funds in the form of competitive grants to nonprofit agencies that provide direct legal services to the poor, that help to educate the public and the legal profession, and that work to improve the administration of justice in Hawaii. WHO BENEFITS FROM IOLTA? You do. In fact, everyone does. Attorneys and cooperating banks benefit from the true goodwill that is generated 22 May 2016

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by the program. Not-for-profit law-related organizations derive benefit by having additional money for needed projects, services, and activities. The community as a whole benefits by having more resources available for essential lowincome legal services for those who often have no other place to receive legal assistance. WHICH ATTORNEYS MUST COMPLY WITH IOLTA? All members of the Hawaii State Bar practicing within the State of Hawaii who hold nominal or short-term funds in trust for clients or third persons, except as provided in Supreme Court Rule 11(e)(4), must comply by completing the HSBA Registration and Certification. Attorneys who certify that they (a) receive no client funds that would require a general trust account; (b) who do not practice law in Hawaii; (c) who are full-time judges, government attorneys, or military attorneys; or (d) who are inactive are exempted. HOW DO YOU COMPLY? Compliance is an annual event. If you and/or your firm already have an IOLTA account, you only need to provide the information being requested on the HSBA registration form. The information you provide is available to the Office of Disciplinary Counsel, so information on the registration form should be accurate. Alternatively, if you or your firm are opening an IOLTA account for the first time, or if you are changing the location of your IOLTA, a copy of “Notice To Financial Institution” (Form 2) is available at www.hawaiijustice.org. This form must be completed and given to your bank. Once the account is established, each November or December you will provide updated information as part of your annual HSBA attorney registration process. WHAT IF YOU DON’T COMPLY? The HJF and HSBA have combined their annual registrations to make this process as user-friendly as possible. However, failure to complete the HJF portion of the registration and certification (and the other portions of the HSBA

registration process) within the specified HSBA registration time will result in administrative suspension from the practice of law in the State of Hawaii. WHAT ARE THE TAX IMPLICATIONS OF IOLTA? There are none for participating attorneys and firms. W9 forms are required by the IRS to be filed by financial institutions with each interest-bearing account. The W-9 form lists the HJF as payee, bears HJF’s taxpayer identification number, and certifies that the IOLTA account is not subject to backup withholding. The HJF’s federal identification number is 23-7047345 and should be given by the bank to the IRS for each IOLTA account. WHAT IF YOU MISTAKENLY DEPOSIT FUNDS INTO YOUR IOLTA ACCOUNT? If a trust deposit intended to be invested for a client is deposited by mistake into your IOLTA account, contact the HJF if interest earned on the trust deposit has already been transferred to the HJF. A refund will be promptly issued by the HJF. WHAT IF YOUR FINANCIAL INSTITUTION MAKES AN ERROR IN YOUR IOLTA ACCOUNT? Over the years, Hawaii’s financial institutions have done an excellent job with their IOLTA accounts. However, if there are remittance errors, financial institutions — not attorneys or law firms — are responsible for their corrections. WHO DOES THE ACCOUNTING, BOOKKEEPING, AND DISBURSING FOR AN IOLTA ACCOUNT? The financial institution transfers interest earned on each attorney’s or firm’s IOLTA account to the HJF and reports interest payments from the account to the HJF. All other accounting aspects of handling the IOLTA account are the responsibility of the attorney. WHO HAS ACCESS TO YOUR IOLTA RECORDS? The HJF has access only to the information provided by the lawyer or law firm on the

Registration and Certification form and on the monthly reports submitted to the HJF from each bank. These monthly reports to the Foundation do not show any client deposits or withdrawals from the lawyer’s account. For all attorney accounts with that bank, the monthly reports show the average daily balance upon which interest is calculated, the percentage of interest applied to the average daily balance, the gross amount of interest earned, any service charges to the HJF, and the net interest earned. The Foundation’s policy has always been to protect the confidentiality of the IOLTA account information. The Office of Disciplinary Counsel does have the right to audit IOLTA accounts, in the event of an attorney’s involvement in the disciplinary process. WHICH FINANCIAL INSTITUTIONS MAINTAIN IOLTA ACCOUNTS? Currently, nine banks participate in the IOLTA program. They are: American Savings Bank, Bank of Hawaii, Bank of the Orient, Central Pacific Bank, First Foundation Bank, First Hawaiian Bank, Hawaii National Bank, Home Street Bank, and Ohana Pacific Bank. You are free to choose any of these nine banks that you wish. Of these nine banks, five are “Prime Partner Banks,” which means these five banks have made arrangements to pay higher rates of interest to HJF. These five banks are: American Savings Bank, Bank of Hawaii, Central Pacific Bank, First Foundation Bank, and First Hawaiian Bank. WHICH FINANCIAL INSTITUTIONS OFFER THE MOST FAVORABLE TERMS? As described above, there are currently five “Prime Partner Banks” that pay HJF higher rates of interest. Monthly service fees on IOLTA accounts are paid by the bank or by HJF, not by the attorney. However, HJF does not pay for service charges such as insufficient funds costs, stop payment charges, wire fees, or check printing charges. These special charges are the responsibility of the attorney.

May 2016

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CASE NOTES Appeal Pointers

HRAP Rule 32(b), which governs quality and style of print for documents filed with the appellate court, provides that the print must be standard 12 point pica or equivalent and yield no more than14 characters per inch. No attempt shall be made to reduce or condense the print in a manner that would increase the content of the document.

Supreme Court Civil Procedure

Waltrip v. TS Enterps., No. SCWC-110000722, March 1, 2016, (McKenna, J.; Recktenwald, C.J. concurring in the result with whom Nakayama, J., joins). This case arises from an accident suffered by Appellant while she worked for Appellee. The Special Compensation Fund (“Fund”) established under Hawaii Revised Statutes § 386-151 (1993), was also an interested party. The Hawaii Supreme Court accepted certiorari to address certain procedural issues implicated by Appellant’s pro se appeal. In brief, Appellant was not given an award by the Director of the Department of Labor and Industrial Relations (DLIR) for certain aspects of her claimed injuries, and she appealed to the Labor and Industrial Relations Appeals Board (LIRAB). Following a hearing, LIRAB issued its Decision and Order (July 2011 Decision). Unsatisfied with LIRAB’s decision, Appellant, pro se, filed two separate motions, each of which was denied. Appellant appealed to the Intermediate Court of Appeals (“ICA”). Fund then filed a motion to dismiss Appellant’s appeal for lack of jurisdiction, arguing that her notice of appeal was untimely filed. The ICA issued an order stating that Appellant’s notice of appeal was untimely as to LIRAB’s July 2011 Decision, and was also untimely as to LIRAB’s order denying the August Request. As to Appellant’s appeal of LIRAB’s order denying her September Request, the ICA concluded that “it appears that we might have appellate jurisdiction over [it].” Accordingly, the ICA permitted the parties to proceed

with briefing. Ultimately, the ICA found LIRAB lacked subject matter jurisdiction over Appellant’s September Request when it construed that request as a second motion for reconsideration over which the Board lacked statutory or regulatory authority to rule. The Hawaii Supreme Court held: (1) (a) under Hawaii Rules of Appellate Procedure Rule 35(a), an order partially dismissing an appeal is not a “dispositional order”; (b) pursuant to Haw. Rev. Stat. § 60259(c) “[a]n application for a writ of certiorari may be filed with the supreme court no later than thirty days after the filing of the judgment or dismissal order of the intermediate appellate court,” and (c) Appellant timely filed her application for certiorari from the ICA’s Judgment on Appeal, the Hawaii Supreme Court has jurisdiction to review both the ICA’s Partial Dismissal Order and SDO that underpin the Judgment on Appeal; (2) the ICA did not err in issuing its Partial Dismissal Order, rather than wholly denying Fund’s Motion to Dismiss and later addressing any partial dismissal in its eventual SDO, as it has the power under Haw. Rev. Stat. § 602-57(3) “[t]o make or issue any order . . . necessary or appropriate in the aid of its jurisdiction . . . ,” and also because it referred to its partial dismissal in its subsequent SDO; (3) in reviewing the Partial Dismissal Order, the ICA did not err in dismissing Appellant’s appeal of LIRAB’s (a) July 2011 Decision and (b) Order Denying August Request, for untimeliness; and (4) pursuant to the fundamental tenets that “[p]leadings prepared by pro se litigants should be interpreted liberally.” The Judgment on Appeal was entered pursuant to the SDO; the SDO refers to the Partial Dismissal Order. The ICA erred in holding in its SDO that LIRAB had no authority to rule on the merits of Appellant’s September Request because it was essentially an unauthorized second motion for reconsideration under Haw. Rev. Stat. § 386-87(d) on the same grounds as the August Request, rather than viewing it as a motion to reopen under Haw. Rev. Stat. § 386-89(c) when Appellant’s September Request was filed more than a year after LIRAB’s hearing and she had attached post-hearing letters from her treating psychiatrist discussing both her physical and mental condition, which could be construed to constitute “substantial evidence . . . of a change in .

The Legal Aid Society of Hawaii thanks Carlsmith Ball LLP for being a member of the Leadership Circle and for volunteering during the month of April to staff the Honolulu District Court Access to Justice Room. For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1. Please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org

May 2016

HAWAII BAR JOURNAL

. . a determination of fact related to [her] physical condition” pursuant to Haw. Rev. Stat. § 386-89. Such a motion, however, should have been submitted to the Director of DLIR instead of LIRAB. Accordingly, the Hawaii Supreme Court affirmed the ICA’s Judgment on Appeal. Recktenwald, C.J. joined by Nakayama, J., concurred only in the result. Recktenwald, C.J. stated that LIRAB lacked jurisdiction over Appellant’s Motion to Vacate, and accordingly, this case should have been remanded to LIRAB for entry of an order dismissing the motion. First, Recktenwald, C.J. stated that he did not believe that the court had jurisdiction to review the May 31, 2012 Partial Dismissal Order, in which the ICA disposed of Appellant’s appeals of LIRAB’s July 25, 2011 Decision and Order and of LIRAB’s August 29, 2011 Order. Haw. Rev. Stat. § 602-59(c) plainly states, “An application for a writ of certiorari may be filed with the supreme court no later than thirty days after the filing of the judgment or dismissal order of the intermediate appellate court.” Appellant filed her application more than thirty days after May 31, 2012, so her application was untimely. Consequently, the court lacked appellate jurisdiction with respect to the Partial Dismissal Order. Moreover, the Hawaii Supreme Court need not and should not rule on an issue that was not raised or disputed by the parties. Second, Recktenwald, C. J. did not agree with the Majority that the ICA erred in construing Appellant’s Motion to Vacate as a second motion for reconsideration, since her Motion for Reconsideration and Motion to Vacate were substantially the same. Both were addressed to LIRAB, sought review of LIRAB’s July 25, 2011 Decision and Order, and argued that Appellant’s medical disabilities prevented her from adequately representing herself at the proceedings. Recktenwald, C.J. agreed that pleadings prepared by pro se litigants should be interpreted liberally, consistent with Hawaii’s commitment to access to justice. However, the ICA was not required to construe the Motion to Vacate as a motion to the Director to reopen her case pursuant to Haw. Rev. Stat. § 386-89, when nowhere in her Motion to Vacate or her briefings did she reference the Director or Haw. Rev. Stat. § 386-89. Further, nothing in the ICA’s 26 May 2016

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SDO unfairly prejudiced Appellant as a pro se litigant, as she retained the right to file a motion to reopen with the Director “at any time prior to eight years after date of the last payment of compensation[.]”

Intermediate Court of Appeals Contract

Certified Constr. v. Crawford, No. CAAP-14-0001160, March 21, 2016, (Ginoza, J.; Foley, J. dissenting). The key question for purposes of whether Appellant submitted a timely bid protest was whether Appellant’s protest was “based upon the content of the solicitation.” The ICA concluded that Appellant’s protest was indeed based upon the content of the bid solicitation because it necessarily challenged and sought to omit material terms of the Bid Solicitation. Appellant’s bid was disqualified because its proposal specifically omitted a material provision. The bid protest clearly sought to revise the bid solicitation by completely omitting the requirements of a special instruction. Therefore, the ICA concluded that Appellant’s bid protest was untimely. The Hearings Officer properly dismissed the case. The Hearings Officer did not have jurisdiction to hear the matter because Appellant did not submit its bid protest prior to the date set for the receipt of offers. Foley, J. dissenting separately, would affirm the circuit court’s finding that the hearings officer’s finding that the bid proposal or solicitation required a specialty contractor license for the project. The bid protest was not based on the content of the solicitation because the protest letter challenged the rejection and disqualification of its bid as non-responsive. Moreover, Appellant’s bid was timely because its written protest was submitted within the five-working day requirement under Haw. Rev. Stat. § 103D-701(a). Criminal

State v. Williams, No. CAAP-130001285, February 29, 2016, (Nakamura, C.J.). Appellant was charged with attempted murder of his former housemate. On appeal, Appellant contended that the circuit court erred in “limiting and excluding“ certain evidence he sought to introduce.

The circuit court had ruled that Appellant would be allowed to introduce evidence that he heard his housemate say that the housemate had been convicted of murder, that the housemate knew how to fight, and that he had learned to fight in jail. Notwithstanding the circuit court’s ruling, Appellant was permitted to introduce additional evidence that his housemate said that he had killed somebody in the past but had gotten away with it. The ICA concluded that in light of the evidence the circuit court ruled would be permitted and the evidence that was actually presented at trial, any error in the limitations imposed by the circuit court on Appellant’s proffered evidence did not materially impair his claim of self-defense and was harmless beyond a reasonable doubt. Damages

Minton v. Quintal, No. CAAP-150000032, March 10, 2016, (Foley, J.). This case was remanded back to the circuit court to determine damages. On appeal, the City and County (C&C) contended the circuit court erred in calculating the amount of damages it awarded, and challenged the circuit court’s: (1) use of the “Worst Case” scenario to measure damages; (2) reliance on Appellants’ supplementary declarations; and (3) denial of C&C’s motion for supplemental discovery. Appellants also appealed, contending the circuit court erred in: (1) determining the scope of the remand from the Hawaii Supreme Court; (2) denying foreseeable non-pecuniary damages; and (3) striking parts of the Appellants’ declarations. The ICA concluded that: (1) C&C failed to demonstrate that the circuit court clearly exceeded the bounds of reason or disregarded rules or principles of law to its substantial detriment in denying its motion for further discovery; (2) C&C merely disagreed with the circuit court’s choice of earnings projection and did not provide a basis for the ICA to determine that the circuit court’s determination was either unsupported by substantial evidence or that the ICA should otherwise be left with a definite and firm conviction that a mistake was made; (3) the circuit court erroneously limited testimony upon remand from the Hawaii Supreme Court to “general, non-economic damages” and struck portions of Appellants’ Supplemental Declarations

that were relevant to their alleged noneconomic damages; and (4) Appellants did not provide any support as to why the circuit court erred when it struck certain portions of Appellants’ Supplemental Declarations and therefore, did not abuse its discretion when it did so. Tort

Yoneji v. Yoneji, No. CAAP-140000747, March 4, 2016, (Foley, J.). This case involved a family trust funded by rental income generated from two income-producing properties originally owned by grantor. The trust left interests in the real property (Properties) to grantors’ two sons, Neil and Owen, and any children grantor’s sons might have. Neil was married to Claire. Owen was married to Defendant with one child, Mary. Owen passed away before the start of the action. The Properties were co-owned by four family trusts in various amounts: the Mitsuo Trust, the Owen Trust, the Charlene Trust, and the Yoneji Family Trust. Neil and Claire (the Yonejis) filed an action alleging that Mary and Charlene improperly emptied the Mitsuo Trust Account and wrongly redirected the rental income from the Properties to Mary in her personal capacity. A special master was appointed. A trial was held in which a jury found that Mary converted profits from rents. The ICA concluded that: (1) summary judgment was improperly granted in favor of Mary on the Yoneji’s constructive fraud claim; (2) Mary’s motion presented no evidence to negate the Yoneji’s claim that she worked in concert with Charlene nor did Mary show that the Yonejis would be unable to prove that at trial. Instead, Mary improperly placed the burden of proof on the Yonejis; (3) the Yoneji’s prima facie tort claim failed because the alleged harm could be remedied by their conversion and conspiracy claims against Mary; (4) given the pending report from the special master, Mary’s msj failed to show that the Yonejis would have been unable to prove their constructive trust claim at trial; (5) the Yonejis’ claims in their individual capacities were not frivolous and therefore, Mary should not have been awarded attorneys’ fees; (6) the circuit court should have followed the procedures set forth in the stipulation. The ICA remanded the case back to the circuit court.

NOTICE TO ATTORNEYS INTERESTED IN PROVIDING LEGAL SERVICES TO THE STATE OF HAWAII DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS Licensed attorneys who wish to provide legal services to the State of Hawaii Department of Commerce and Consumer Affairs (DCCA) for matters related to the enforcement of violations of Chapter 480 of the Hawaii Revised Statutes, focusing on unfair or deceptive trade practices, are invited to submit a Statement of Qualifications and Expression of Interest to the DCCA pursuant to Hawaii Revised Statutes §103D-304. Please submit your statement(s) to: Department of Commerce and Consumer Affairs, Office of Consumer Protection, 235 South Beretania Street, Suite 801, Honolulu, Hawaii 96813, Attention: Stephen H. Levins, Executive Director, Office of Consumer Protection. Attorneys from the same firm must submit separate statements. Statement forms are available at http:/cca.hawaii.gov/ Or may be requested by telephone at (808)586-2636 Your completed statements must be postmarked or received by the Department of Commerce and Consumer Affairs by June 30, 2016, to be eligible for consideration for the entire fiscal year commencing July 1, 2016, and ending June 30, 2017. A statement received after June 30, 2016, will be considered a “late submittal” for the balance of the fiscal year as follows: A late submittal received between: July 1, 2016 – September 2, 2016 September 3, 2016 – December 2, 2016 December 3, 2016 – March 3, 2017

Will be considered beginning: October 3, 2016 January 2, 2017 April 3, 2017

May 2016

HAWAII BAR JOURNAL

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American Judicature Society’s Annual Sidebar Program The American Judicature Society (“AJS”) invites summer associates and young lawyers to participate in their Annual Sidebar Program. The program offers a unique opportunity to observe a moderated panel discussion with some of Hawaii’s distinguished judges, engage in small group discussions with these jurists, and socialize with them and each other during the reception that follows. The date, time, and location of the Annual Sidebar Program is noted below: Thursday, July 7, 2016, 4:00 - 6:00 p.m. Supreme Court of Hawai‘i Aliiolani Hale (second floor courtroom) 417 South King Street Originally founded in 1913, the AJS is an independent, non-partisan, membership organization that has worked to protect the integrity of the American justice system. AJS continues in Hawaii as a diverse and broadly based group – including judges, lawyers, and members of the public – aiming to promote fair and impartial courts through research, publications, education, and advocacy for judicial reform. The work of AJS focuses primarily on judicial ethics, judicial selection, access to justice, criminal justice reform, and the jury system. For more information, contact Billie Hairston at 521-9279.

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May 2016

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OFF THE RECORD The Advocates for Public Interest Law (“APIL”) held its sixth Annual Gala on February 29, 2016 at Café Julia. APIL was established by the University of Hawaii, William S. Richardson School of Law Class of 1985. Since that time, APIL has raised funds to support over 125 APIL Summer grants to students who have in turn worked at various non-profit public interest law firms and agencies throughout Hawaii. This year, the APIL grantees were: Cassandra Chang (2L) who will be spending her summer at the Office of Hawaiian Affairs; Jenjeera Hail (1L), who will be at the Domestic Violence Action Center; and Kara Teng (2L) who will be at the Hawaii Immigrant Justice Center. In addition, APIL honored six awardees during their annual Community Awards. The Awardees were chosen for their work in advancing public interest support in our community. The 2016 Awardees were: Pick of the Year Award, Senator Maile Shimabukuro; Outstanding Faculty, Justin Levinson; Alumni Award, Elizabeth Kent; Non-Profit Sector Award, Volunteer Legal Services for the Pro Bono Appellate Project; and the Corporate Sector Award to Bronster Fujichaku Robbins for its collaborative efforts to maintain critical medical services for COFA citizens. Olu Campbell joined the Office of Hawaiian Affairs (“OHA”) as a Natural Resource Management Specialist. ‘Olu previously was the law clerk for Judge Richard T. Bissen on Maui. Coti Haia also joined OHA in January as its Washington D.C. Bureau Chief. Prior to OHA, she served as chief counsel in the Washington office of U.S. Senator Mazie Hirono. Teresa Kaneakua joined the OHA this month as a Compliance Specialist IV. She previously worked with the Research Corporation, University of Hawaii. 30 May 2016

HAWAII BAR JOURNAL

Lindsay Kukona joined OHA in October 2015 as a Governance Specialist. She previously clerked for Judge Greg K. Nakamura on the Big Island. Grant Tanimoto was named to the board of directors at the Hawaii State Federal Credit Union at their annual member meeting. Mary Wong was hired by the Hawaii State Federal Credit Union as senior vice president and general counsel. She was previously at Ashford & Wriston since 1991 and served most recently as a partner of the firm. D. Finn Pressly was recently elevated to shareholder status at Littler Mendelson, PC. His practice encompasses all areas of health and welfare benefit compliance, including ERISA, COBRA, HIPAA, the ACA, and the Hawaii Prepaid Health Care Act. Nancy H. Zhao joined Carlsmith Ball as an associate attorney, resident in its Maui office and a member of its Corporate and Business; Real Estate, Land Use and Hospitality; and Renewable Energy and Clean Technology Practice Groups. Prior to joining Carlsmith Ball, she served as Legal Counsel for EDF Renewable Energy, Inc., in San Diego. She received her J.D. degree, cum laude, from the University of Michigan Law School. Caron Ikeda, who was previously with Damon Key Leong Kupchak Hastert, is the vice president and financial planning manager in the Private Banking Division of Bank of Hawaii. The Natural Resources Section of the HSBA was officially renamed the Environment, Energy, and Resources Section in January 2016. The name change was proposed in 2015 to be the same as the American Bar Association section name and to better reflect the scope of legal services provided by section members in environment, energy, and natural resources law. The 2016 board of directors are: Douglas Codiga (Chair); Emily Gardner (Co-

Vice Chair); Ryan Hurley (Co-Vice Chair); Michele Matsuo (Program Director); Midori Akamine (Treasurer); and Kylie Wager (Secretary). Cecelia Chang is the new Director of the Judiciary’s Center for Alternative Dispute Resolution (“Center”). She joined the Center on January 28, 2016 and received her law degree from the William S. Richardson School of Law. She has worked as a deputy corporation counsel, was in private practice, and most recently served as a deputy prosecutor. She has experience in program development, facilitation, arbitration, and mediation. 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>. Per Diem Judge Applications

The deadline for applications has been extended to Monday, May 16, 2016. The District Court and District Family Court of the First Circuit is accepting applications from attorneys interested in serving as Per Diem District Judges. See notice in the March 2016 issue of the Hawaii Bar Journal. An original and three copies of completed applications may be mailed or hand-delivered to: Committee to Evaluate Qualifications of Per Diem Judges ATTN: Judge R. Mark Browning 4675 Kapolei Parkway Honolulu, HI 96707 An additional copy must be mailed or hand delivered directly to the Chief Justice, Aliiolani Hale, 417 South King Street, Honolulu, HI 96813.

ATTORNEY WANTED DOMESTIC VIOLENCE ACTION CENTER is

FORENSIC DOCUMENTS EXAMINATIONS

MCCANDLESS BUILDING at 925 Bethel St.

Detection of Forged & Fraudulent Documents.

Office spaces ranging in size from 297 sf to

Identification of Hand-writing. Expert Witness

343 sf (asking base rent is $1.00 psf).

sionate, family law representation to survivors

Testimony. JOSEY & ASSOCIATES, P.O. Box

Current operating expenses are $1.26 psf and

of domestic violence (DV). Qualifications:

22-563, Honolulu, HI. Ph. 808-593-1667.

include full service janitorial, security, air con-

seeking a Staff Attorney to provide compas-

ditioning, and electricity. Storage space avail-

Licensed to practice in Hawai‛i. No pending

LEGAL CONSULTING

disciplinary counsel complaints or prior disciplinary actions in any jurisdiction. Exp in

ENVIRONMENTAL DUE DILIGENCE for property

litigation or willingness to litigate

transactions. Investigation & hazard evaluation.

cases. Familiarity with D.V. issues, Family

Permitting & Compliance. Inclusion Consulting

Court in Hawai‛i. Cover letter and resume

(808)261-4444 www.inclusionhawaii.com

to: HR, P.O. Box 3198, Honolulu, HI 96801.

LEGAL NURSE CONSULTING Assistance in LITIGATION ATTORNEY.

Seeking associate

managing the medical aspects of your case.

with 2-3 years court experience and ready to

Legal Nurse Consulting, Life Care Planning, &

transition into a growing civil litigation practice.

Workers’ Compensation Nurse Case Manage-

Ex prosecutors and Public Defenders wel-

ment. Cynthia L. Fricke, RN, BSN, CCM, CLCP.

come.

Qualified candidates must have

strong legal research and writing skills.

AUTO DETAILING IS BILLABLE HOURS coming between you and keeping your car looking nice? Drive into work and park, and by the time you go to lunch your car will be in it’s parking space looking showroom spotless. Bo’s Auto Detailing, 1142 Bethel St. 782.1526

EXPERT WITNESS AQUATIC SAFETY EXPERT 28 years aquatic Experience. Qualified as an expert in state and federal courts. See our ad on page 56 of the HSBA Directory. Aquatics consulting Service

tance to courts.

Easy walking dis-

Check our website at

www.waiponoinvestment.com or call Lee Miller (S) at (808) 548-3358. UNION PLAZA at 1136 Union Mall. Office spaces from 400 sf to 2,500 sf (asking monthly base rent is $0.70 psf).

Current monthly

operating expense is $1.20 psf; includes full service janitorial, security, air conditioning and electricity. Conference room available for building tenants. Storage space available at reason-

(808) 253-0232. www.islandlegalnurse.com

able rates. Easy walking distance to courts,

frickec001@hawaii.rr.com

adjacent to US Bankruptcy court. Check our

Submit resume, writing samples and references to hi.lawprof@gmail.com.

able at reasonable rates.

LEGAL WRITING SPECIALIST

website at www.waiponoinvestment.com or call Lee Miller (S) at (808) 548-3358.

EXPERIENCED ATTORNEY will provide legal writing services. Motions, memos, complaints,

PARALEGAL SERVICES

appellate briefs, and other writing assign-

APEX PARALEGAL SERVICES Hourly or Flat

ments.

Reasonable rates. Writing samples,

rates. Claims Investigations, Client Interviews

and references provided on request. Call

Court Record Review, Legal Research, Filing,,

(808) 735-8701 or (808) 227-2141.

Document Preparation, Service of Process, Courier Service, 1188 Bishop St., Suite 604

OFFICE SPACE AVAILABLE

(808)265-9741 rmatthew664@gmail.com

EXECUTIVE CENTER Newly renovated office space with dedicated parking. Available now.

RECRUITING / TEMP STAFFING

183sf Office with private entrance. Shared

HiEmployment is Hawaii's best choice for

259sf common area. all inclusive $1575/Mo

finding top legal talent. Professional recruiting

265-9741 or rmatthew644@gmail.com

and temp staffing services available. 695-3974. email: info@hi-employment.com

808-960-9348 www.aquaticsconsulting.com

FINANCE FACTORS CENTER at 1164 Bishop BIG ISLAND Chiropractor / Massage Therapist

St. Beautiful ocean and mountain views avail-

Specializing in vehicle injuries. SRISD

able. Office spaces ranging from 523 sf to

whiplash certification. Available for house calls.

3,000 sf (asking base rent is $1.10 psf).

Rober R Holland DC, LMT 808-223-8243

Current full service operating expense is $1.43 psf. Conference room available for

DROWNING & TOUR BOAT SAFETY EXPERT

building tenants. Check out our website at

Former Hawaii ocean lifeguard and tour

www.waiponoinvestment.com or call Lee

boat captain Patrick Durkin. 30 plus years in

Miller (S) at (808) 548-3358.

Hawaii. Many local attorney references.

Advertise on this Page Classified advertisements are $8.00 per line with a four line min. For more information, or to place an ad, please contact Brett Pruitt at: 521.1929 or brett@grassshack,net

www.aquaticexpert.com. 808.651.SURF

May 2016

HAWAII BAR JOURNAL