Hawaii Bar Journal - October 2022

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SOME UNKNOWNS IN MARITIME LAW THAT MAY BE WORTH KNOWING

by R alph J. O’Neill

Lawyer s work to avoid pitfalls and identify issues, but it is impossible to do either if we do not even know they exist. Awareness of the importance of avoiding problems for our clients and our selves is why we strive to practice in areas with which we are familiar. T his article aims to identify potential issues that may exist in maritime law for commercial disputes, per sonal injur y, products liability, and even bankruptcy matter s.

You represent Cater pillar, which man ufactures, services, and provides parts for diesel en gines Your client comes to you be cause a cus tomer has failed to pay the $40,000 bill and claims that your mechanic’s work was deficient and caused problems with the tour boat’s propulsion system A simple collection action in state court. The rub is that he perfor med work on or supplied parts for an engine on a boat There may be a breach of con tract claim, but, if maritime law applies and you choose the proper court, a maritime lien against the vessel may also be available If so, the vessel is quite literally subject to arrest to satisfy the potential judgment This is akin to a mechanic’s lien The debt in the for m of a lien may also not be discharge able in bankruptcy as recently established by a Ninth Circuit Court of A ppeals decision on a Hawaii case. See Bar nes v. Sea Hawaii Rafting, LLC, 889 F 3d 517, 534 (9th Cir 2018), dis cussed below

A potential client comes to you after being injured in a jet ski accident on Moanalua Bay You are concer ned that his ac tions may make him more than fifty percent at fault, and thus subject to a defense verdict under Hawaii’s comparative negli gence statute The concer n likely is misplaced because mar itime law probably applies Under maritime law, contributory negligence is not a defense but instead only mitigates damages So if he is sixty percent at fault, he only takes forty percent of his damages Pope & Talbot v Hawn, 346 U S 406, 409, 74 S Ct 202, 204 (1953)

On the other hand, the owner of the jet ski involved in the same accident sees an attor ney because he is concer ned that the man who was injured may sue him. The owner explains that he was not riding the jet ski or even in the water, but in stead had simply lent it to a friend A sur prising outcome is that, regardless of any insurance that may apply, the owner may be able to limit his liability for the incident to the value of the jet ski, under a 170 year old federal statute (now codified as 46 U S C § 30505), but only so long as the owner asserts the

defense within six months of being on notice of a potential claim 46 U S C § 30511. Fail ing to recog nize this possible de fense and its time limita tion may have signifi cant ramifi cations

given the difference between the hypothetical $10,000 value of the jet ski and the six or seven figure damages incurred

On top of this, neither attor ney can opt in or out of the application of federal law. Maritime law applies regardless of whether a case is in state or federal court though it does not al ways completely exclude application of state law, especially as to the availability of certain remedies. Yamaha Motor Corp., U S A v Calhoun, 516 U S 199, 216, 116 S Ct 619, 629 (1996) Cf Erie v Tompkins, 304 U S 64, 78, 58 S Ct 817 (1938), under which federal courts sitting in diversity apply state substantive and federal procedural law: once the circum stances satisfy the criteria for maritime jurisdiction in federal court and application of federal maritime law, state courts must apply federal maritime law.

I. W hat is maritime law?

Maritime law consists of federal common law that has de veloped over literally centuries subject to statutes that the Con g ress has enacted The Federal Judicial Center’s treatise “Admiralty and Maritime Law” is available online for free

A g reat deal of confusion has stemmed from the lack of recognition that maritime law applies and remains the same so long as the criteria for maritime jurisdiction exist, in other words, regardless of whether the suit is in state or federal court. Ker marec v Compa gnie Generale Transatlantique, 358 U.S. 625, 628, 79 S Ct 406 (1959); Galentine v Holland Am Line West ours, Inc , 333 F Supp 2d 991, 995 (W D Wash 2004)

Maritime jurisdiction over torts arises when the incident: (a) occurs on navigable waters, (b) relates to traditional mar itime activities, and (c) may substantially affect maritime com merce. “To invoke federal admiralty jurisdiction for a tort claim, a claimant must satisfy (1) a locality test; and (2) a relationship, or nexus, test to show a connection between the incident and maritime activity ” Jerome B Gr ubart, Inc v Great

Lakes Dredge & Dock Co. (Gr ubart), 513 U S 527, 534 (1995) “The locality test is met if the tort occurred on navigable water or if an injury suffered on land was caused by a vessel on navigable water Id For deter mining admiralty ju risdiction, the tort occurs “in the place where the injury occurs. ” Taghadomi v. U.S., 401 F 3d 1080, 1084 (9th Cir 2005)

“The relationship test requires two deter minations: (a) ‘whether the inci dent has a potentially disruptive impact on maritime commerce; ’ and (b) ‘whether the general character of the ac tivity giving rise to the incident shows a substantial relationship to traditional maritime activity ’” Specker v Kazma, 2016 WL 3924106 (S.D. Ca.) (admiralty juris diction existed in suit brought by plaintiff bitten by a shark during an out of cage shark diving excursion in an action against operator and vessel in rem).

With the existence of the bases for maritime jurisdiction comes the applica tion of maritime law. E. River S.S. Corp. v. Transamerica Delaval, Inc , 476 U S 858, 864, 106 S Ct 2295, 2298 (1986); Ghotra by Ghotra v Bandila Shipping, Inc , 113 F 3d 1050, 1055 (9th Cir. 1997) (“The same substantive law pertains to the claim re gardless of the forum, a type of ‘ reverse Erie’ to ensure the unifor m application of admiralty law ”); W hite v Sabatino, 526 F Supp 2d 1135, 1142 (D Haw 2007) (federal admiralty law preempted state law on contribution); Strickert v. Neal, No. CV 14 00513 DKW RLP, 2015 WL 7737312, at *4 (D Haw Nov 30, 2015)

The U.S. Supreme Court has stated that a state court has no more authority to contradict principles of maritime law that it has established than a state can override acts of Cong ress. Wilbur n Boat Co v Fireman’s Fund Ins Co , 348 U S 310, 314, 75 S Ct 368, 370 (1955)

that satisfying the criteria for maritime jurisdiction in federal court does not mean that a plaintiff, whether in a commercial or tort matter, must file suit in federal court The plaintiff has the option of seeking relief in state or federal court, though additional and

potentially important remedies are avail able exclusively in federal court

Article III § 2, cl 1 of the Constitu tion broadly authorizes the federal courts to exercise jurisdiction over mar itime disputes In 1789, the first Con g ress passed and President George Washington signed a bill that created the federal judiciary, including the statute now codified and reworded as 28 U S C Section 1333, which provides statutory authority for federal courts to exercise jurisdiction over maritime matters The statute exercises the constitutional au thority, but not entirely.

Section 1333 authorizes federal courts to exercise jurisdiction over mar itime matters, but not to the exclusion of concurrent state court jurisdiction. Sec tion 1333 states:

§1333 Admiralty, maritime and prize cases

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suit ors in all cases all other remedies to which they are otherwise entitled

(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize

On the issue of jurisdiction of state courts, the key phrase is “saving to suit ors in all cases all other remedies to which they are otherwise entitled ” Courts have inter preted this text to per mit a plaintiff to opt for either state or fed eral court A decision from the Wester n District of Washington discusses this issue in useful detail. Coronel v. AK Victor y, 1 F Supp 3d 1175, 1181 82 (W D Wash 2014) However, while “in personam ” remedies may be available in both state and federal court, only the federal courts may provide “in rem ” remedies, one of which is brief ly discussed below.

II. Unifor mity

Unifor mity is a hallmark of mar itime law The pur pose is not just to pro vide for consistent outcomes within the United States, but also inter nationally. The courts have recognized the impor tance of striving for unifor mity since be fore for mation of the country and adoption of the Constitution

It has always been well established that maritime law is a “unifor m and spe cialized body of federal law.” Cabasug v. Crane Co , 989 F Supp 2d 1027, 1036 (D Haw 2013) In 1874, the United States Supreme Court, in a statement that is just as valid today, stated: “It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have de feated the unifor mity and consistency at which the Constitution aimed … . ” T he Lottawanna, 88 U S 558, 575 (1874)

“[I]ndeed, the reason for the conferral of fe

protect the maritime industry through the development of a unifor m body of admiralty law ” State Trading Corp of India, Ltd v Assuranceforeningen Skuld, 921 F.2d 409, 414 (2d Cir. 1990); see also Mor a gne v States Marine Lines, Inc , 398 U S 375, 401 02, 90 S Ct 1772, 1788, 26 L.Ed.2d 339 (1970) (“[U]nifor mity … will give effect to the constitutionally based principle that federal admiralty law should be ‘ a system of law coexten sive with, and operating unifor mly in, the whole country ”)

III. Maritime Liens

Imagine the plight of a repair per son who works on a vessel, a merchant who sells provisions, or a seaman who goes without wages in the 18th century, only to watch the vessel and thus its obli gations sail away from the port So mar itime law developed a vigorous remedy: a claim against the vessel itself, “in rem ” (“against a thing”) which quite literally includes the right to arrest a vessel under

certain conditions. You may have acci dentally seen supplemental rules at the end of the Federal Rules of Civil Proce dure, which look arcane Those are largely the admiralty rules of procedure that were incor porated into the civil pro cedure rules in 1966 Those rules in clude provisions for vessel seizures.

The existence of a claim against the vessel itself and related remedies con tinue to this day and have significant im pact. An “in rem ” claim may create a maritime lien Consider it a species in the same legal genus as a mechanic’s lien, but with g reater force. A plaintiff may seek to arrest a vessel at the outset of a lawsuit rather than to enforce a judgment, and the district court must take action against the vessel at the initi ation of the action for the court to have jurisdiction in rem Ventura Packers, Inc v F/V Jeanine Kathleen, 424 F.3d 852, 860 (9th Cir 2005)

Maritime liens arise in both the c o m m e r c i a l a n d t o r t c o n t e x t s . T h e

above examples of businesses that pro vide services to vessels hold true today

F W F , Inc v Detroit Diesel Corp , 494 F Supp 2d 1342, 1354 (S D F la 2007), af f ’d, 308 F. A pp ’ x 389 (11th Cir. 2009).

A n o t h e r i m p o r t a n t i n s t a n c e i s a seaman ’ s claim for “maintenance and cure. ” Maintenance and cure is an im plied contractual obligation of the em ployer of the crew of a vessel to provide daily living expenses and medical care until maximum medical improvement for seaman who are injured in the service of the vessel Lewis v Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S.Ct. 993 (2001); Atlantic Sounding Co v To wnsend, 557 U S 404, 407 08, 129 S Ct 2561, 2565 (2009).

It is well established that the failure to pay maintenance and cure may be a tort that gives rise to a maritime lien for dam ages resulting from the failure to pay.

Bar nes v Sea ’Hawai’i Rafting, LLC, 358

F Supp 3d 1083, 1088 (D Haw 2018); At lantic Sounding Co., 557 U.S. at 407 08, 129

S.Ct. 2561 (holding hat punitive dam ages can be awarded if a shipowner’s fail ure to timely pay maintenance and cure was “willful”) The wrongfully denied seaman may also be entitled to attor ney ’ s fees Vaughan v Atkinson, 369 U S 527, 530 31, 82 S Ct 997 (1962) (hold ing that attor ney ’ s fees can be awarded if a seaman proves that a shipowner failed to timely provide

maintenance and cure); Aadland v. Boat S a n t a R i t a I I , I n c , 4 2 F 4 t h 3 4 , 4 0 ( 1 s t C i r 2 0 2 2 )

The existence of a maritime lien quite literally allows the lienholder to sell an arrested vessel to satisfy the claim Gowen, Inc. v. F/V Quality One, 244 F.3d 64, 67 (1st Cir. 2001).

IV. Bankruptcy

It may sur prise readers familiar with bankruptcy to read that a maritime lien may not be subject to discharge in bank ruptcy. The Ninth Circuit ruled a few years ago, in a Hawaii case brought by long time Hawaii maritime lawyer Jay Friedheim that, according to the court of appeals, raised an “ open question,” the bankruptcy court could not sell a boat as an asset of a bankrupt debtor’s estate free and clear of a lien for a seaman ’ s mainte nance and cure claim Put differently, the maritime lien was not dischargeable in bankruptcy Bar nes v Sea Hawaii Rafting, LLC, 889 F.3d 517, 534 (9th Cir. 2018).

The court of appeals explained that a maritime lien remains attached to a vessel despite a sale to a bona fide purchaser. Only a federal court exercising admiralty jurisdiction has authority to adjudicate a maritime lien. Therefore, a bankruptcy court lacks jurisdiction to extinguish a maritime lien Id

The seaman obtained a partial deter mination by the District Court in Hawaii that he was entitled to maintenance and cure, but not as to the amount He had as serted an “in rem ” claim against the ves sel, which was available because he had filed suit in federal court The owner eventually sought refuge in bankruptcy The bankruptcy court proceeded over

objection by the seaman to sell the in volved vessel If the sale of the vessel in the bankruptcy court had succeeded, it would have effectively extinguished the lien, which is by nature an in rem claim. The seaman also lost at the District Court level

Mr. Friedheim successfully argued to the Court of Appeals that the bankruptcy could not extinguish the lien due to the nature of a maritime lien based on the reasoning stated above. The principle could prove significant in cases in future bankruptcy proceedings For example, if the tour company in the Cater pillar ex ample seeks to avoid paying for the repair work on the diesel engines on one of its boats in bankruptcy, it is unlikely that it will be successful, but that would depend on Cater pillar objecting to discharge

That this was new law suggests that, as a practical matter, the issue may arise

rarely Perhaps the circumstances are un usual However, one can also speculate

that other claimants acquiesced to a bank ruptcy court discharge order due to the perceived futility.

Thus, in reviewing a client’s assets, a bankruptcy attor ney may want to con fir m the absence of a maritime lien if a boat (tour boat, jet ski, others) is among the assets, especially as a practical matter if the client is a business that includes boat operations

V. Some Different and Interesting Features of Maritime Tort Law

Pure comparative negligence princi ples are fir mly established in maritime law Edmonds v Compagnie Generale

Transatlantique, 443 U S 256, 258, 99 S Ct 2753, 2755, n 2 (1979); Vaccaro v Waterfront Homes Marina, 2012 WL 1744738, at *8 (S D N Y May 15, 2012)

The exceptions do not favor the de fense, but instead the plaintiff For exam ple, in cases brought by “ seaman ” against the employer, if the defendant is found liable for negligence per se based on

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violating a safety statute causally con nected to the injury, the employer can not assert the plaintiff ’ s fault to mitigate damages. It is even worse for the defen dant employer because Restatement principles that establish prerequisites for application of negligence per se do not apply if a causal connection between the violation and injury exists Ker nan v Am Dredging Co , 355 U S 426, 430, 78 S Ct 394, 397 (1958)

The notion of contribution is a fur ther oddity Lawyers over the last fifty plus years take its existence for granted since the enactment of contribution statutes (Chapter 663, Hawaii Revised Statutes) by Hawaii and most states Recall that the common law allowed for indemnity but not contribution Contribution is a crea ture of statutory There is no such statute in maritime law and, again, it is unlikely that a defendant desiring a crossclaim can rely on state law While this is an area under development, contribution is not

currently available and may remain so. Li ability is based on the respective fault of each party. McDer mott, Inc. v. AmClyde, 511 U.S. 202, 114 S. Ct. 1461 (1994); Foss Mar. Co. v. Cor vus Energ y Ltd., 878 F.3d 1144 (9th Cir. 2017) (Non settling defendants in ad miralty cases may not seek contribution from settling defendant)

Many states including Hawaii have enacted good faith settlement statutes, which are a modification to the right of contribution Just as with state law com parative fault laws, such statutes do not apply to maritime torts White v Sabatino, 526 F Supp 2d 1135, 1142 (D Haw 2007)

Thus, plaintiffs may continue to face the “empty chair” defense as was the case be fore Section 663 15 5 existed

Plaintiff has more time to file Hawaii’s two year tort statute will not apply if the claim is considered maritime The federal three year statute gover ns: “Except as otherwise provided by law, a

injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose. ” 46 U.S.C.A. § 30106.

VI. Limitation of Liability to Value of the Involved Vessel

An owner of a vessel, not in “privity” with the negligence of the crew, may seek an order to limit liability to the value of the vessel 28 U S C Section 30505 Our federal district has recently explained that, “The Limitation of Liability Act limits shipowner liability arising from the unsea worthiness of the ‘shipowner’s vessel or the negligence of the’ vessel’s crew unless the condition of unseaworthiness or the act of negligence was within the shipowner’s privity or knowledge.” Matter of Lava Ocean Tours Inc , 2021 WL 2599664, at *2 (D Haw Jan 20, 2021)

The original pur pose of the limita tion statute was to promote shipbuilding and ownership Complaint of Paradise Hold ings, Inc , 795 F 2d 756, 761 (9th Cir 1986);

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Est of Lewis, 683 F Supp 217, 219 (N D Cal. 1987). The statute is controversial due to the potential for a drastic effect on the available remedy Many courts across the country have chafed at their separa tion of powers obligation to follow the 19th century law See In re Hawaiian Water sports, LLC, No CV 07 00617 ACKBMK, 2008 WL 3065381, at *2 (D. Haw. Feb. 29, 2008)

Section 30505, “General limit of lia bility,” states: (a) In General. Except as provided in section 30506 of this title, the lia bility of the owner of a vessel for any claim, debt, or liability de scribed in subsection (b) shall not ex ceed the value of the vessel and pending freight If the vessel has more than one owner, the propor tionate share of the liability of any one owner shall not exceed that owner ’ s proportionate interest in the vessel and pending freight

(b) Claims Subject to Limitation. Unless otherwise excluded by law, claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzle ment, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damage, or injury by colli sion, or any act, matter, or thing, loss, damage, or forfeiture, done, oc casioned, or incurred, without the privity or knowledge of the owner

(c) Wages Subsection (a) does not apply to a claim for wages

Despite its origin and disfavoring commentary, courts have broadly inter preted the statute to apply to vessels from jet skis to ships In re Aloha Jetski, LLC, 920 F.Supp.2d 1143, 1149 (D. Haw. 2013).

While relief is generally available only to vessel owners (Matter of Star & Crescent Boat Co , Inc , 519 F Supp 3d 752, 757 (S D Cal 2021)), the injunction of

actions that results from the federal court granting the petition may also ex tend to employees of the owner Id In re Aloha Jetski, LLC, 920 F Supp 2d 1143, 1149 (D Haw 2013)

The Ninth Circuit Court of Appeals has recently held that the six month limi tations period to file a petition for limita tion of liability is a claims processing rule and not jurisdictional. Martz v. Horazdovsky, 33 F.4th 1157, 1163 (9th Cir. 2022). How ever, the court of appeals recognized a split in the circuits The available time within which to file may prove to be a cru cial issue to bear in mind

The limitation defense can be as serted both as an affir mative defense and by a separate action “A shipowner can as sert its right to limitation of liability in one of two ways: (1) by petitioning the district court, pursuant to 46 U.S.C. app. § 185, for limitation of liability; or (2) by plead ing limitation of liability as a defense in an answer to an earlier filed damage suit

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pursuant to 46 U.S.C. app. § 183 [the for mer 46 U S C § 30505] ” Louisiana ex rel Dep’t of Transp & Dev v Kition Shipping Co , 653 F Supp 2d 633, 645 (M D La 2009)

VII. Products Liability

Maritime law applies to products lia bility claims to which maritime law ap plies. The test does not differ from any other tort claim. Cabasug v. Crane Co., 956 F.Supp.2d 1178, 1190 (D. Haw. 2013); The Supreme Court has recognized that federal maritime law incor porates actions for products liability, including those that sound in strict liability; McIndoe v Hunting ton Ingalls Inc , 817 F 3d 1170, 1173 (9th Cir 2016); E River S S Corp v Transamerica Delaval, Inc , 476 U S 858, 865 (1986)

This means any claim that occurs on a vessel that meets the maritime jurisdic tional criteria described above. Examples abound, but for illustration may include allegedly defective gear, asbestos exposure aboard a vessel on navigable waters, the list is infinite

VIII. Removal

Do not remove a state court case to federal court based on 28 U.S.C. Section 1333 absent an independent basis for fed eral subject matter jurisdiction Section 1333 does not create a unilateral right of removal. Coronel, 1 F.Supp.3d at 1179. In other words, Section 1333 does not consti tute a for m of federal question jurisdiction under Section 1331. The reason is the “saving to suitors” provision in Section 1333 addressed above

However, the generally non remov ability is not jurisdictional, and thus the parties can stipulate to or waive their ob jection to remaining in federal court be cause Section 1333 creates original jurisdiction, unlike other instances of fed eral subject matter jurisdiction Mor ris v Princess Cruises, Inc , 236 F 3d 1061, 1068 (9th Cir. 2001) (“The Supreme Court has held that removal jurisdiction, unlike orig inal subject matter jurisdiction, can, in fact, be waived.”); Gonzalez v. Car nival Corp., 2021 WL 4844073, at *2 (N D Cal Oct 18, 2021)

C

T ION

IX. Releases of Liability Are Generally Enforceable in Maritime Law

Courts applying maritime law generally enforce releases of ordinary negligence when the release applies to the circum stances Courts consider three factors: (a) the nature of services covered by the contract; (b) whether the exculpatory clause is being applied to intentional, reckless, or g rossly negligent be havior or rather to ordinary negligence; and (c) whether the exculpatory provisions were obtained through overreaching. Certain Underwriters at Lloyd’s of London v Bre wer Fer r y Point Ma rina, Inc., 2022 WL 1624041, at *9 (D. Conn. May 20, 2022).

Releases of g ross negligence, to be distinguished from in demnity ag reements for g ross negligence, are unenforceable

R o ya l I n s. C o. o f A m . v. S w. M a r i n e , 1 9 4 F. 3 d 1 0 0 9 , 1 0 1 6 ( 9 t h C i r 1 9 9 9 )

Plaintiffs have asserted that 46 U.S.C. Section 30509 voids releases in recreational activities departing from and retur ning to the same port

46 U.S.C.A. § 30509(a) states:

(a) Prohibition (1) In general The owner, master, manager, or agent of a vessel transporting passengers be tween ports in the United States, or between a port in the United States and a port in a foreign country, may not in clude in a regulation or contract a provision limiting (A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the ’ ’ owner ’ s employees or agents; or(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.

( 2 ) Vo i d n e s s A p r o v i s i o n d e s c r i b e d i n p a r a g r a p h

( 1 ) i s v o i d

Neither the Ninth Circuit nor the Supreme Court has ruled on the statute Trial and appellate courts in seven other circuits, the First, Second, Third, Fourth, Sixth, Tenth, and Eleventh, have limited Section 30509 to vessels that transport passengers between two different ports, in other words, com mon carriers, not recreational excursions out and back to the same port are valid

The District of Hawaii has issued three decisions to the contrary, Matter of Pac Adventures, Inc , 5 F Supp 2d 874, 876, 881 2 (D Haw 1998); Hambrook v Smith, 2016 WL 4408991, at *26 (D. Haw. Aug. 17, 2016); Ehart v. Lahaina Divers Inc., No. CV 21 00475 SOM KJM, 2022 WL 1472048, at *12 (D Haw May 10, 2022), reconsideration denied, No CV 21 00475 SOM KJM, 2022 WL 2716219 (D Haw July 13, 2022) The Ehart decision is up on interlocutory appeal under the maritime spe cific statute that allows for interlocutory appeal as a matter of right 28 U S C Section 1292(a)(3)

X. Insurance Mutual Duty of Good Faith

We will end with an area that may sound particularly odd State law generally applies to inter pretation of marine insur ance policies. Wilbur n Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 320 21, 75 S Ct 368, 374 (1955) But an exception exists that can loom large and is not a relic that the courts disregard. If an established principle of maritime law applies, it may gov er n the general deference to state courts

Policyholders are familiar with asserting that insurers owe them a duty of good faith In the maritime context, the duty is mutual. The search phrase is “uberrimae fidei.” Recent deci sions have enforced this duty to the detriment of insureds in cluding voiding coverage Under the doctrine of uberrimae fidei, the insurer was justified in voiding vessel pollution insurance contract by insured’s failure to disclose material facts about its loss history, including sinking of one vessel, oil spill from second vessel, fact of and reason for previous insurer’s cancellation of coverage, “listing at dock” condition of third vessel shortly before policy application, and insured’s financial troubles Certain Underwriters at Lloyds, London v Inlet Fisheries Inc., 518 F.3d 645 (9th Cir. 2008).

Another twist is that it is not necessary for the insurer to prove reliance on the insured’s representation or lack thereof when one is owed. QBE Se guros v. Morales Vazquez, 986 F.3d 1 (1st Cir )

XI. Conclusion

The above topics are based on practical issues that may arise in which identifying the possible application of maritime law could prove highly significant For example, without con sidering the concept of a maritime lien, an attor ney pursuing a collection action for services rendered to a vessel may miss en forcement opportunities Conversely, an attor ney who repre sents a client in bankruptcy may not be aware of the durability of a maritime lien in the face of requested discharge Parties in tort suits may make decisions that do not ref lect applicable maritime law on such basic issues as the statute of limitations The selected topics are in no way comprehensive but hopefully illuminate several issues that are relatively more likely to give readers pause, or which should do so

Ralph J O’Neill has been a member of the bars in Hawaii (1988) and Califor nia (1998) and practicing for more than thirty four years and is a partner of MacDonald Rudy O’Neill & Yamauchi, LLP

Lateral Hiring of Attor neys

Positives With Pitf alls

by Lennes N Omuro

T he lateral hiring of attor neys from other law fir ms or solo private practi tioner s often provides significant oppor tunities for fir ms to g row and provide better service to their clients T he lat eral hiring of attor neys, however, may also come with significant business, lia bility, ethical, and other practical issues and risks.1

Unsuccessful lateral hires can be ver y expensive. Lawyer s who claim to have a large book of business but fail to bring clients to the fir m obviously may cost the fir m many thousands of dollar s in direct and indirect costs Perhaps just as importantly, however, unsuccessful lateral hires can also har m a fir m ’ s cul ture and cause discontent among fir m attor neys who may not get along with the new hire or who may begin to ques tion their own place within the fir m. According ly, when recruiting lateral hires it is important to do due diligence on the potential lateral hire including conducting careful and thoughtful inter views, perfor ming inter net research on the lawyer, inde pendently verifying re sume infor mation, reviewing re presenta tive samples of the lawyer’s work, careful consideration of whatever rela tionships the lawyer may already have with member s of the fir m, and the lawyer’s involvement in the community

Be war y of lawyer s who change fir ms often or who cannot provide a re alistic business plan or model. Fir ms should also consider their previous suc cessful lateral hires and the attributes or qualities of those lawyer s that made them such a welcome and valuable ad dition to the fir m Does the potential lateral hire have those same attributes or qualities?

In addition to the quality of the po tential lateral hire, fir ms should also consider the quality of the lawyer’s clients, especially the clients that the lawyer may bring to the fir m Are these the type of clients that the fir m wants to re present? Are the potential new clients

financially stable and able to pay their bills? Are they eng aged in risky activi ties such as raising money from other third parties and do they seek to use the fir m ’ s name and resources in their busi ness? Have they sued other lawyer s?

Law fir ms should not hesitate to let lateral hires know that some of their clients should remain with the old law fir m Remember too that if a lateral hire later decides to ag ain change fir ms, the fir m may be stuck with a problem client who came with the lateral hire

On the other hand, if a lateral hire has good clients, the lateral hire should be careful about soliciting clients before re signing from his or her old fir m and it is especially risky for the new fir m to be involved in such solicitation. Fir ms should also exercise care to avoid ob taining confidential infor mation during the hiring process

Potential conf licts of interest should also be fully evaluated and satisfactorily resolved before the lateral hire starts to work at the new fir m. ABA Model Rule 1 10(a) per mits the screening of a lateral hire to avoid the imputation of a con f lict of interest, at least with respect to for mer client conf licts arising under ABA Model Rule 1.9(a) or (b), even if the lawyer was involved in the matter at issue while at the old fir m Hawaii has not, however, adopted this ver sion of ABA Model Rule 1 10(a) Instead, Hawaii Rules of Professional Conduct (“HRPC”), Rule 1 10(c) only allows for screening to avoid imputation of a con f lict of interest if the lateral hire (1) did not participate in the matter creating the conf lict when working at the old fir m and has no confidential infor ma tion reg arding the matter, (2) the lateral hire is timely screened and is appor tioned no part of the fee from the mat ter, and (3) written notice is promptly given to the af fected for mer client to en able it to ascertain compliance with this rule. If these conditions are not met, then disqualification can only be

avoided by obtaining a waiver of the conf lict from the af fected client 2

Kee p in mind that under HRPC Rule 1.10(c)(1), not only must the lateral hire have not worked on the matter giv ing rise to the conf lict but he or she must also have no confidential infor ma tion about the matter So if the lawyer has obtained confidential infor mation through casual or infor mal discussion about the matter with other s in the fir m, screening cannot be implemented to avoid the imputation of a conf lict of in terest to the new fir m.

In addition, comment 6 to Rule 1.10 makes it clear that the restriction ag ainst the lawyer receiving an appor tionment of the fee from the matter pro hibits the lawyer from receiving compensation directly related to the matter for which the lawyer is disquali fied, but it does not prohibit the lawyer from receiving a salar y or partner ship share established by prior written ag ree ment T his same comment also reminds lawyer s that courts may impose more stringent requirements in ruling upon motions to disqualify a lawyer from pending litig ation and that the require ments for screening procedures are stated in Rule 1 0(l) 3 Moreover, notice to the af fected for mer client should be given as soon as practicable after the need for screening becomes apparent, and it should include a description of the for mer re presentation at issue as well as the screening procedures being employed 4

T herefore, when hiring a lawyer from another law fir m, a conf lict check should be run to deter mine whether the potential lateral hire must be screened from any matter s or if a waiver of a conf lict of interest must be obtained. T he conf lict check should not only be based on infor mation provided by the potential lateral hire but also on a sur vey of matter s handled by the new fir m in which the lawyer’s old fir m is or may have re presented an adver se party

After all, the potential hire may not know about all of the matter s that other attor neys in the old fir m have worked on or are working on that may give rise to the need for screening or a conf lict waiver.

Also keep in mind that when a lawyer actively involved in a representa tion decides to seek employment with the adverse fir m, the lawyer may have a duty to seek the client’s consent to explore such employment possibilities ABA For mal Opinion 96 400 concludes that a lawyer in such circumstances must obtain client consent to engage in employment negoti ations “ordinarily before he participates in a substantive discussion of his experi ence, clients or business potential” or the ter ms of employment or association with the new fir m The opinion also indicates that the prospective employer law fir m may also have a conflict that the fir m may need to resolve with its client if hiring the lawyer would disqualify or place a mate rial limitation on the fir m ’ s representation of the client. Likewise, the Restatement Third, The Law Gover ning Lawyers, Section 25, Comment d, provides that if the discussion of employment has be come concrete and the interest in such employment is mutual, then the lawyer must promptly infor m the client and, ab sent client consent, the lawyer must ter minate all further discussions or withdraw from representing the client

Finally, even after the lawyer is hired, fir ms should take active ste ps to integ rate the lawyer into the fir m Many fir ms will assign a per son or a team of per sons to assume responsibility for integ rating the lawyer into the fir m T his includes not only making sure that the lawyer gets to meet or interact so cially with other s in the fir m, but also that the lawyer gets the support needed to do the work and under stands the fir m ’ s policies, procedures, and practices

For example, it is important that the lawyer under stands what to do if a

problem arises even if the problem re lates to work done at the old fir m If the lawyer attempts to address a prob lem caused by a mistake at the old fir m, by perfor ming leg al work at the new fir m to tr y to fix the mistake, then the new fir m could become exposed to lia bility if the matter is not handled cor rectly. T herefore it makes sense not only for member s of the new fir m to visit with the new lawyer and involve the new lawyer in fir m meetings but the new lawyer s should under stand the fir m ’ s loss prevention practices and pro tocols Careful integ ration of the lawyer into the fir m is especially important if the new lawyer is practicing in an area that is new or outside of the fir m ’ s nor mal practice.

T his article does not address ever y issue that may arise when eng aging in the lateral hire of lawyer s Lateral hir ing presents many potential benefits to a law fir m but fir ms should carefully re view the applicable Rules of Profes sional Conduct and take ste ps to minimize the practical risks and costs that may also come with lateral hires

1 This article addresses the hiring of attor neys from other law fir ms or solo practitioner s en gaged in private practice For additional issues related to for mer gover nment officer s and em ployees, or a for mer judge, arbitrator, mediator or other third party neutral, refer to Rules 1 11 or 1.12 of the Hawaii Rules of Professional Conduct.

2 See HRPC. Rule 1.10(d).

3 See also Comments 9 and 10 to HRPC Rule 1 0(l), which provides:

[9] T he pur pose of screening is to protect the confidences of the client and assure inde pendent leg al counsel acting in the interest of the client T he disqualified lawyer should acknowledge the oblig ation not to communicate with any of the other lawyer s in the fir m with respect to the matter Similarly, other lawyer s in the fir m who are working on the matter should be infor med that the screening is in place and that they may not communi cate with the disqualified lawyer with re spect to the matter Additional screening m e a s u re s t h at a

particular matter will de pend on the cir cumstances To implement, reinforce, and remind all affected lawyer s of the pres ence of the screening, it may be appropri ate for the fir m to undertake such procedures as a written pledge by the screened lawyer to avoid any communica tion with other fir m per sonnel and any contact with any fir m files or other mate rials relating to the matter, written notice and instructions to all other fir m per son nel forbidding any communication related to the screened matter with the disquali fied lawyer, denial of access by the screened lawyer to fir m files or other ma terials relating to the matter, and periodic reminder s of the screen to the screened lawyer and all other fir m per sonnel. See Rules 1 6, 1 7, 1 9, 1 10, 1 11, and 1 12 of these Rules

[10] To be effective, screening measures must be implemented as soon as practical after a lawyer or law fir m knows or reasonably should know that there is a need for screening 4 Comment 6 to HRPC Rule 1 10 provides:

[6] Where the conditions of para g raph (c) are met, imputation is removed, and consent to the new re presentation is not required Lawyer s should be aware, however, that courts may impose more stringent obligations in ruling upon mo tions to disqualify a lawyer from pending litigation Requirements for screening procedures are stated in Rule 1 0(l) of these Rules Parag raph (c)(2) does not prohibit the screened lawyer from receiv ing a salar y or partner ship share estab lished by prior inde pendent ag reement, but that lawyer may not receive compen sation directly related to the matter in which the lawyer is disqualified Notice, including a description of the screened lawyer’s prior re presentation and of the screening procedures employed, generally should be given as soon as practicable a f t e r t h e n e e d f o r s c r e e n i n g b e c o m e s a p p a r e n t

Lennes N. Omuro is a partner at Goodsill Anderson Quinn & Stifel and a member of its litigation section He has also ser v ed as his fir m’s Professional Responsibility Committee Chairperson and as in fir m Counsel

[T his article was originall y published in the March 2016 issue of the Hawaii Bar Jour nal.]

The United States-China Ohana

In 2007, Larry Foster, Roger Ep stein, Alan W C Ma, and Mark Shklov began a prog ram aimed at developing professional relationships between lawyers in Hawaii and China Ben Lau, a New York lawyer who had moved to Oahu, joined these Hawaii lawyers in 2013. Over time, this g roup facilitated for mal Friendship Ag reements between bar associations in Shanghai and Suzhou and the Hawaii State Bar Association As part of the Friendship Ag reements, China based lawyers would come to Hawaii to be mentored by Foster, Ep stein, Ma, Shklov, and Lau

From this professional collaboration, excellent personal relationships have continued over the years All the partici pating lawyers now consider themselves to be part of what they call “The U S China Ohana” and have often met in different places to renew their friend ships Because of the Covid pan demic, Foster and Shklov recently set up a Zoom meeting with several of the China based lawyers The China lawyers who participated in the Zoom meeting were Lifeng Tao, Stephanie Wu, Andy Kuang, Kingward Gan, Michelle Chen, Sara Zhang, Jonathan You, Bruce Jiang, and Alick Jiang

The U S China Ohana had a won derful time re connecting, speaking about their families, sharing memories, and nurturing their friendships Despite Covid and inter national tensions, aloha prevailed, crossed the sea, and brought the ohana together.

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

HSBA Board Action

The HSBA Board took the follow ing actions at its meeting in July:

• Voted to infor m the Hawaii Supreme Court that the HSBA Board does not recommend lowering the passage rate of the Hawaii Bar Exam from 133 to 130;

• Voted to recommend to HSBA mem bers its approval of a proposed amend ment to the HSBA Constitution and Bylaws to add a Young Lawyers Division Delegate to the ABA House of Delegates (noting that such a recommendation documents a practice that was approved in 2015 by the HSBA Board, but with respect to which the corresponding bylaw amendment was overlooked); and

• Deter mined that proposed amend ments to Rule 1 9 and 1 9A of the Rules of the Supreme Court of the State of Hawaii, which seek to improve and ex tend the process for registering pro hac vice counsel, be the subject of a notice for members to comment to the Hawaii Supreme Court

Apply to Serve on Commission on Professionalism

The Hawaii Supreme Court will have four ter ms expiring on its Commis sion on Professionalism. As noted on its website at www courts state hi us/courts/ supreme/professionalism.html, the Commis sion is charged with enhancing profes sionalism among Hawaii’s lawyers HSBA members are eligible to apply for these four year ter m positions, two of which begin in March 2023, and the other two begin A pril 2023 A pply by October 31 and November 30, respec tively. For more detail, please refer to the calendar on the HSBA website at www.hsba.or g (in the “Events & Pro g rams ” tab), scroll down to October 31 and click on the “Deadline to A pply” entr y.

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2022 Pro Bono Celebration

On Thursday, October 27, 2022, at 4:00 p.m., the Hawai‘i Access to Justice Commission will host the tenth annual Pro Bono Celebration at the Hawai'i Supreme Court In addition to recognizing attor neys who so gener ously volunteered their time in 2022 for the District and Family Courts’ Access to Justice Self Help Centers, as well as the A ppellate Pro Bono Pro g ram, and the A ppellate Mediation Prog ram, eleven attor neys will be honored for volunteering their time for various legal service providers includ ing Mihoko Ito, William C Darrah, Caroline Belsom, Richard Norton, Clyde Namuo, Caitlin Moon, and Dentons US LLP’s team comprised of Erika Amatore, Janna Ahu, Nicholas Reyes, Cassandra Crawford, Kristin Holland, and Paul Alston

Seven student essay contest win ners from public and private high schools throughout the state will also be recognized The final judges for the essay contest, Hawai‘i Supreme Court Chief Justice Mark Reckten wald, Hawaii Schools Superintendent of Education, Keith Hayashi, and Hawaii State Bar Association Presi dent, Shannon Stacy Sheldon, will present the awards to the students.

Due to the continuing restrictions on the number of people in atten dance at the Supreme Court, the event will be live streamed via YouTube, for those who cannot attend in person.

The Pro Bono Celebration is sup ported by the Hawai‘i Justice Founda tion, the Hawaii State Bar Association, and the Hawai’i State Bar Foundation

C O U R T B R I E F S

Supreme Court Convenes Special Session to Honor the Late Ronald T.Y. Moon

“We have indeed lost a legend,” remarked Chief Justice Recktenwald after the event, “and we are all better for having known him.”

Speakers in order of presentation were Judge Michael F Broderick (ret.); for mer Gover nor John D. Waihee III; First Circuit District Court Judge Karin L Holma, CJ Moon’s for mer law clerk; for mer Chair of the Hawaii Board of Bar Ex aminers Robert A. Chong; President of the Hawaii State Trial Judges Association Judge Summer M M Kupau Odo; Vice President of the Hawaii State Bar Association Jesse K. Souki; Gover nor David Y Ige; Dr Scott D M Moon, son of Chief Justice Moon; and Chief Justice Mark E Recktenwald

Sokolow and Meyers Sworn In

The Hawaii Supreme Court convened in special session on August 8, 2022, to honor the late Ronald T Y Moon, for mer Chief Justice of the Hawaii Supreme Court At the direc tion of Gover nor David Ige, f lags at state office buildings were f lown at half staff that day as a mark of respect

Family, friends, colleagues, and dignitaries gathered in the Supreme Court Courtroom at Aliiolani Hale, and hundreds more watched on the judiciary’s YouTube channel to hear spe cial guest speakers share their fond memories of “CJ Moon ”

Chief Justice Mark E Recktenwald called the session to order, and members of the Royal Order of Kamehameha I paid tribute to Chief Justice Moon, who had been elevated to Knighthood of the Royal Order in 2011

Each speaker extolled Chief Justice Moon’s many positive personal qualities, including his unmatched dedication to pub lic service and the people of Hawaii, his incredible work ethic, unwavering commitment to treating each person with dignity and respect, and his humility and genuine care for the people with whom he worked He was known to walk the halls of courthouses throughout the state to talk story with court staff

Chief Justice Moon was the first Korean American to serve as the chief justice of an American court He mentored and counseled many throughout their careers, always willing to guide and teach. Moreover, he was respected nationally for his leadership, particularly as a steadfast advocate of an inde pendent judiciary as a co equal branch in the American sys tem of democracy, and for ensuring that the most vulnerable of our community have access to the courts

Joanna E Sokolow was swor n in as Judge of the District Family Court of the Third Circuit on August 3. Gregory H. Meyers was swor n in as Judge of the District Court of the Fifth Circuit on August 16 and assigned as a District Family Court Judge Each will serve a six year ter m

Chief Justice Mark E Recktenwald presided over both ceremonies, which were livestreamed on the Judiciary’s YouTube channel so colleagues, family, and friends could watch remotely

CASE NOTES

Appeal Pointer

Any point raised on appeal that requires consideration of the oral pro ceedings requires that the transcript be made part of the record. HRAP 10(b)(1). A transcript obtained during the course of the trial court proceed ing for the personal use of the litigants is not made a part of the record Therefore, a separate request for the transcript of a proceeding for the record on appeal must be filed with the clerk of the court. HRAP 10(b)(1). A file marked copy of the re quest must be delivered or mailed to the reporter HRAP 10(b)(1)(D) Un less the appellant is exempt from the transcript payment or deposit require ment or the reporter has waived such payment, the reporter need not com mence preparation of the transcript until payment has been made. HRAP 10(b)(1)(C).

Supreme Court Criminal

State v Ishimine, No SCWC 18 0000691, August 4, 2022, (McKenna, J., with Nakayama, J., dissenting, with whom Recktenwald, C.J., joins). At issue in this appeal was whether the circuit court plainly erred in failing to give a “Shef field instruction” to a jury in a kid napping trial In this case, the defendant was charged with kidnapping under Hawaii Revised Statutes § 707 720(d)(1) (2014), which provides, “A person com mits the offense of kidnapping if the person intentionally or knowingly re strains another person with intent to [i]nf lict bodily injury upon that person or subject that person to a sexual offense

” Shef field held that a jury must be instructed that the “restraint” necessary

disputes...

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under Haw. Rev. Stat. § 707 720(d)(1) is “restraint in excess of any restraint inci dental to the inf liction or intended inf lic tion of bodily injury or subjection or intended subjection of a person to a sex ual offense ” State v Shef field, 146 Hawaii 49, 51, 456 P 3d 122, 124 (2020) The Hawaii Supreme Court held that the circuit court erred in failing to so in struct the jury, and such error was not har mless beyond a reasonable doubt. Nakayama, J , with whom Reckten wald, C J , joined, stated that the major ity invoked the Hawaii Supreme Court’s plain error jurisdiction to vacate Lorrin Y Ishimine’s (Ishimine) conviction for kidnapping because of an unchallenged deficiency in the circuit court’s jury in structions. In so doing, the majority eroded the jurisdictional guardrails that protect our adversarial system “Fur ther more, the majority silently dismisses our precedent identifying three tests for deter mining whether the jury instruction was necessary and, in tur n, whether the defect was har mless beyond a reasonable doubt. The proper application of these tests revealed that Ishimine could not have been har med by the missing jury instruction Under these circumstances, the majority’s invocation of plain error jurisdiction constitutes judicial over reach Accordingly, I respectfully dis sent.”

State v. Yamashita, No. SCWC 20 0000075, August 5, 2022, (Wilson, J ) Petitioner/Defendant A ppellant Joshua Yamashita (“Yamashita”) was convicted of various drug, theft, fraud, and prop erty crimes in the circuit court At sen tencing, in addition to a five year ter m of incarceration, Yamashita was ordered to pay a crime victim compensation (CVC) fee under Haw Rev Stat §§ 706 605(6) (Supp 2018) and 351 62 6 (2015) and a d r u g d e

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assessment under Haw Rev Stat § 706 650 (Supp 2018) He objected to impo sition of the CVC fee because he was presently unable to pay and would not be able to pay the CVC fee in the future. He also contended both the CVC fee and DDR assessment amounted to un constitutional taxes The ICA affir med the circuit court’s imposition of the CVC fee and DDR assessment, finding there was substantial evidence that Ya mashita would be able to pay the CVC fee in the future and that the CVC fee and DDR assessment were constitutional fines, not unconstitutional taxes The ICA’s judgment on appeal was affir med except as to the issue of Yamashita’s ability to pay the CVC fee His present inability to pay the CVC fee mandated waiver of the fee pursuant to Haw Rev Stat. §§ 706 605(6) and 351 62.6.

Notice of Transfer to Interim Inactive Status

On September 6, 2022, the Hawai‘i Supreme Court transferred Hawai‘i county attor ney Michael Henry Garbarino (Hawai‘i bar num ber 10474) to inactive status due to in capacity pursuant to the Rules of the Supreme Court of Hawai‘i, Rule 2 19(b) and (c) as he is suffering from an infir mity which prevents him from adequately defending himself in a pending disciplinary matter Garbarino is no longer able to act as an attor ney for any of his clients, and those clients must seek legal advice elsewhere. Garbarino, age 59, was admitted to the Hawai‘i bar in 2016 and is a g raduate of the University of Texas

O F F T H E R E C O R D

Tate L. Castillo and Jocelyn M. Mills joined Goodsill Anderson Quinn & Stifel as Associates. Castillo is focused on cor porate and insurance regulatory law, with emphasis in captive insurance He is a g raduate of the University of Hawai‘i, William S. Richardson School of Law, Class of 2021 Mills focuses on business and cor porate law with empha sis on tax planning She will advise clients on tax planning, business entity for mations, business dealings, and cor porate reorganizations Prior to joining Goodsill, Mills was a Major in the United States Marine Cor ps with several unconventional assignments at the exec utive branch level

Carlsmith Ball announced the fol lowing promotions: Derek B. Simon was promoted to partner in the fir m ’ s Honolulu office and is a member of the fir m ’ s Real Estate and Project Develop ment practice g roup. Ian R. WesleySmith was promoted to partner in the fir m ’ s Hilo office He joined the fir m in 2016 and is a member of the fir m ’ s Liti gation and Alter native Dispute Resolu tion practice g roup. Patrick K. Wong was promoted to partner in the fir m ’ s Kona office He concentrates his prac tice in the areas of administrative and regulatory matters, business and cor po rate, litigation and alter native dispute resolution, and real estate and develop ment Prior to joining Carsmith in 2019, he served as cor poration counsel for Maui County

Paul B. Shimomoto was elected President of the Hawaii Captive Insur ance Council (HCIC) for 2022. For more than three decades, HCIC has been committed to promoting, develop ing, and maintaining a highly respected captive insurance industry in the State of Hawai‘i. In partnership with the State

of Hawaii Insurance Division, the HCIC provides infor mation and educa tion on issues affecting captives and as sists the state in globally promoting Hawai‘i as the premier captive domicile in the Pacific Rim Prior to his election as President, Shimoto served the HCIC as a director, officer, Chair of its Mar keting Committee and as its Gover n ment and Industry Liaison

Bruce Voss was appointed the chair person of the state Board of Edu cation by Gover nor David Ige.

Lisa A. Bail was appointed to serve as Chair of the American Bar As sociation’s Silver Gavel Awards for fiscal year 2022 2023. These awards recog nize work in media and the arts pub lished or presented during the preceding year that have been exemplary in help ing to foster the American public’s un derstanding of law and the legal system. Each year there is an awards ceremony at the National Press Club in Washing ton D C This is ABA’s highest honor in recognition of this pur pose.

The Hawaii Women Lawyers hon ored the following individuals for 2022: Outstanding Woman Lawyer: Repre sentative Sylvia Luke; Judicial Achievement: Honorable Dayna Dias Beamer (ret ); Lifetime Achievement: Dean Avi Soifer (ret ); Distinguished Service: Jenny Silbiger; and President’s Award: Lynn Costales

Naoko Miyamoto opened her own law practice, the Law Office of Naoko C. Miyamoto. After g raduating from William S Richardson School of Law and clerking for Hawaii Supreme Court Justice Simeon R. Acoba, Jr., she practiced family law for over 20 years at Kleintop & Luria (f ka Kleintop, Luria & Medeiros and Stirling & Klein top) She will continue to practice family

Miyoko Pettit Toledo joined the faculty at the William S Richardson School of Law in August 2022 where she currently teaches civil procedure and legal writing She was for merly the executive director and managing attor ney for Maximum Legal Services Cor poration

Professor Troy Andrade was ap pointed the inaugural recipient of the Joanna Lau Sullivan Professorship. He currently is an Associate Professor of Law, Director of the Ulu Lehua Schol ars Prog ram and teaches courses on the law and social justice, legal history of Hawai‘i, tort law, and legal writing.

News for “Off the Record”

Please send in infor mation about movement within the bar, about elec tions 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 Jo hiro@hawaii gov>

Articles Wanted

If you are interested in writing ei ther a short or long article of general in terest to members of the bar, please send your submissions to Ed Kemper at edracers@aol com; Cynthia M Johiro at cynthia m johiro@hawaii gov; or Carol K. Muranaka at carol.k.mu ranaka@gmail com; or to any of the volunteer editors on the editorial board All submitted articles should be of sig nificance to and of interest or concer n to members of the Hawaii legal com munity A short article is approximately 500 to 1,500 words

AT TO R N EY WA N T E D

ASSOCIATE ATTORNEY: Our growing Honolulu law firm is seeking Associate Attorneys to join our team. Position will involve handling all aspects of the litigation process, including strategy, drafting pleadings, motions, discovery, etc and cour t experience Must have good time management skills & be highly organized Ideal Candidate will have excellent written communication skills, strong analy tical and research skills as well as a thirst for personal and professional growth Salary commensu rate with experience Must be licensed in Hawaii. For immediate consideration, please submit resume and writing samples to: phann@hawaiilegal com

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ASSOCIATE ATTORNEY (Downtown Honolulu)

E s t a b l i s h e d m i d s i z e d f i r m i s s e e k i n g a n experienced Associate Attorney, licensed in Hawaii, to join our team We are looking for s o m e o n e w i t h 3 + y e a r s o f l i t i g a t i o n experience, and is looking to gain more expe rience in a wide variety of areas of law We hope to find someone with excellent writing skills, strong research skills, written and verbal communication skills, and who is able to multi task We need to add another team player to our already outstanding team We offer a very competitive salary and benefits package Please email your resume and writing sample for immediate consideration or mail to:

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Attention: Administrator

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All inquiries are held in strict confidence!

ESTABLI SH ED DOWNTOWN LAW FI RM is seeking a litigation associate attorney to join its d y n a m i c t e a m 2 8 y e a r s c i v i l l i t i g a t i o n experience preferred; Admission to Hawaii Bar Required Excellent benefits; Salary com mensurate with experience Please submit re sume a n d w r i t i n g s a m p l e s i n c o n f i d e n c e t o : R e c r u i t i n g Committee/HR Case Lom bardi & Pettit, A Law C o r p o r a tio n 737 Bis h o p S t r e e t , S u i t e 2 6 0 0 H o n o l u l u , H I 9 6 813 Email: recruitingdirector@caselombardi com

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