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4 19 24 20 22 28 30 31 T A B L E O F C O N T E N T S V O L U M E 2 6 , N U M B E R 9 A R T I C L E S 4 The Prosecuting Attor ney Circa 2022 by Steven S. Alm 19 Chief Justice Mark E. Recktenwald’s Response to the Report of the 2021 Bench Bar Conference 28 HSBA Board 2022 Candidates 34 Gifts From Clients: Yes or No by Lennes N Omuro 26 HSBA Happenings 27 Case Notes 31 Writing Legal Articles for CLE Credits 32 Court Briefs 39 Classifieds O F N O T E
I ran to become the Honolulu Prosecuting Attor ney to restore trust in the Honolulu Prosecutor’s office It had been rocked by scandal for years There was a cloud hanging over the office and, in spite of the hard, honest work of deputy prosecutors and other staff, many in the public did not trust the office I wanted to make the Honolulu Prosecutor’s Office a place where many law school g raduates want to work and where the public could see that things were back on track and that they could trust the office once again. The Ethical Prosecutor I sought to instill an ethic that our job as prosecutors was following the admonition in Berger v United States1 of Doing Justice, not winning cases. We will be agg ressive advocates for the people while, at the same time, being fair and doing the right thing I could see that across the country (and in the race for Honolulu Prosecutor in 2020), those wanting to be Prosecutor or District Attor ney often had polarized views. Generalizing only a bit, some wanted to let many out of jail or prison or not want to hold them accountable to begin with, while others wanted to lock everyone up.
First, the Honolulu Prosecutor’s Office handles approxi mately 70% of all criminal prosecutions in state court in Hawaii, from parking tickets to murder cases What we do or don’t do has a big impact on the criminal justice system in Hawaii.
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Introduction/Philosophy
I, instead, saw a different path Given my law career in the Hawaii Criminal Justice System, in several different roles, including as a Circuit Court judge for 15 years, I had seen how my views had changed and evolved I also became a big be liever that criminal justice system policy should be based on data and research, not on anecdote, hearsay, wishful thinking, “gut feelings,” or “ we ’ ve always done it this way. ” This is very important for two reasons: one that applies to the Honolulu P ro s e c u t o r ’ s O f f i c e i n p a r t i c u l a r, a n d t h e o t h e r re g a rd i n g prosecutors in general.
Second, in the American criminal justice system, a prosecu tor wields tremendous power and authority including whether or not to charge someone with a crime, and, if so, what charges are brought If charged, the prosecutor’s office handles the case from arrest through adjudication These charging decisions are, for all intents and pur poses, not reviewed or reviewable by anyone I fir mly believe that to be an ethical prosecutor, in trying t o d o j u s t i c e i n eve r y c a s e, i f yo u d o d e c i d e t o ch a rg e s o m e o n e w i t h a c r i m e, yo u s h o u l d a lw ay s b e a bl e t o a n s we r t wo q u e s t i o n s
First, are you convinced beyond a reasonable doubt that a crime was committed and that the suspect committed the crime Second, do you have admissible evidence to prove those charges beyond a reasonable doubt? Unless the answer to both questions is “Yes,” no charges should be brought The fact of being indicted or charged alone can hurt a person ’ s reputation forever because no matter what happens to the case in the judicial process, many people will always believe the person to be guilty or charges never would have been brought.
Prosecuting Attor ney Circa 2022 by Steven S Alm T he
When attor neys work at the public defender’s office, on the other hand, their contact is with defendants and their fami lies They get to know them as human beings and lear n about their challenges That also can have an effect of for ming a dif ferent world view. Some can then have a negative view of all police officers and believe none of their clients should ever go to jail or prison. While a number of attor neys in either office can have a more nuanced, sophisticated view, others may see things in a very black and white way and end up thinking that virtually everyone or virtually no one should be in jail or prison (jail being pretrial confinement or for probation violations and prison being for multi year sentences) Both positions are wrong I fir mly believe my primary obligation as the Honolulu Prosecutor is to keep Honolulu residents and visitors safe, while representing the victims’ interests The best way to do that is to look at each defendant individually and decide which outcome at sentencing, prison or probation, is most appropri ate and work towards that goal both in prosecuting the case and in making sentencing recommendations Some defendants should be sent to prison at sentencing
The most important job of the Honolulu Prosecutor is keeping people safe by sending the violent and dangerous and those who won’t stop stealing to prison I knew that for most charges (unless the sentencing was mandatory, such as murder or ar med robbery), it will be up to the judge whether to send the defendant to prison or place him or her on probation I wanted our DPAs to argue in all cases for the appropriate sen tence I also reminded them that while I was the toughest
At the same time, the culture in the office of those handling felony cases was basically to send as many people to prison for as long as possible because that is what was believed to keep the community safe.
6 September 2022 HAWAII BAR JOURNAL People’s World View is Often Shaped by Their Surroundings.
This balanced approach, of identifying who we believe belongs in prison (the violent and dangerous and those who won’t stop stealing) and who should be on probation (all the rest, a majority) has been an emphasis for me in working with our deputy prosecutors since I have been in office for the past year and a half That had not been the case in this office be fore I recall being a judge and speaking to the attor neys before sentencing and having the deputy prosecutor say “Judge, this guy should be on probation but you know my office I have to ask for prison ” And the deputy prosecutor went and did just that at the sentencing hearing
Not everyone is appropriate for probation The violent and dangerous and those who just won’t stop stealing belong in prison. They need to be removed from society for a period of time to protect the rest of us
At the same time, when people are sent to prison, the cor rectional system needs to think about their release from the first day of their incarceration Concerted re entry efforts should be made for rehabilitation with classes and prog rams and humane treatment during the inmates’ incarceration Op portunities to lear n a trade, get a GED, or take college classes, should be offered I have found it sad to have defendants tell me they would rather do their time at the private prison in Saguaro, AZ, rather than in Hawaii, even though it is more disruptive for their families and limits visitations, because that private prison offers more classes and prog rams for them to take Instead, all of these Hawaii inmates should do their time in Hawaii, stay connected to their families, and be given op portunities to better themselves. Most sentenced inmates will be released in a few years and will be back among us. Research has shown that by enhancing important “protective factors,” those characteristics that will help people lead law abiding lives and avoid problems in the criminal justice system, will lead to better outcomes. Re entry should focus on the inmates’ personal satisfaction (education/employment), and developing meaningful social supports (family/marital) The better adjusted and more pre pared these inmates are to re enter society, the better off we will all be. We all win when inmates succeed on parole and are able to rejoin society Improving our corrections system will take the right leadership and needed funding to, among other things, offer the appropriate prog rams and to improve the physical condition of the jail and prison facilities across the state. While some defendants should be sent to prison at sen tencing, many can and should be placed on probation or given a deferred sentence to give them a chance to keep their records clean In doing so, we should use proven strategies like Drug Court, Mental Health Court and HOPE Probation to help de fendants succeed on probation
We all win when people succeed on probation, when it is done right 2. Making A ppropriate Sentencing Recommendations
When attor neys work at the Prosecutor’s Office, their only contact is with police officers and crime victims. They lear n about the hard job police officers have and how the victims have been affected by the crime. That can have an effect of for ming one type of world view and of seeing all the criminal defendants as “bad guys ” While as a supervisor at the Prose cutor’s office, from 1988 1994, I stressed Doing Justice, not winning cases, and of striking hard blows but not foul ones
September 2022 HAWAII BAR JOURNAL 7 sentencing judge when I was on the bench, it still meant that only about 35 40% of Defendants should be sent to prison at sentencing. For the remaining 60 65% of the defendants, probation or a deferral (where the Defendant could keep his or her record clean if he or she complied with supervision conditions) is appropri ate and the deputies should feel free to recommend that at sentencing. I assured them if that was the right recommenda tion, when the defendant did not have an extensive or violent record, and the defendant then went out and committed a violent crime, I would take the heat for it I stressed we should make our sen tencing recommendations based on what is right. I knew from my years on the bench that the best predictor of future behavior is past and current behavior As a result, our office’s sentencing recommendations should be individualized for each defen dant The net result of asking for prison so often is the judges would end up ig noring the deputy prosecutor because they sounded like a broken record By showing the court we are looking at each case individually, judges will hopefully be more inclined to listen to our arguments on those 35 40% of the cases where we believe the defendant belongs in prison Encouraging a Culture of Mutual Respect and A ppropriate Behavior I met with all of the deputies and staff in the office, in small g roups due to COVID, in the first two weeks of my tenure in January 2021 I told all of them that I had zero tol erance for any sort of bullying, sex ha rassment or creating a hostile work environment and that I had dealt with that type of behavior immediately, both when I was a supervisor in this office and in deciding who not to retain when I got elected in November 2020 I also talked about how I didn’t want to see any cases involving prosecutorial
I wanted to make our office a place where many lawyers would want to work I have made it a point to speak to students from the William S. Richardson School of Law on a regular basis to dis cuss the work of a prosecutor and ex plain our job involves more than just trying to put people in jail or prison Rather, wh i l e o u r f i r s t re s p o n s i b i l i t y i s t o p ro t e c t t h e re s i d e n t s a n d v i s i t o r s t o
4. Restoring Trust in the Honolulu Prosecutor’s Of fice
misconduct. I had asked the appellate division director to prepare a summary of recent prosecutorial misconduct cases, many involving statements by deputies in closing argument I told them such statements are wrong. They won’t change the outcome of the case in any event, and having a prosecutorial misconduct case in their history might prevent them from becoming a judge in the future.
When I took office in January 2021, we knew we had our work cut out for us. In spite of a lot of hard, honest work by the deputies and staff, the office had a bad reputation from the various scandals associated with it COVID was raging, and the deputy prosecutors had been working from home for the past year
After deter mining that it would be safe, I had all of the deputies physically retur n to work Being back at the office would allow them to re establish connec tions with each other; be available for meetings, conferences, round table dis cussions, and case reviews; and to start preparing for the eventual opening of the courts and the trials to follow
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In addition to meeting with all deputies and staff (260+) about my hap piness at retur ning to the office, I was also able to lay out my expectations It involved meeting many people for the first time as there were only a minority of deputies or staff I knew from my prior time working at the office or my years on the bench
I was very pleased that for mer United States Attor ney F lorence Nakakuni wanted to join the office right from the start She is Chief of the Misdemeanor Division She con ducts training with her deputies on an ongoing basis as well as with newer Honolulu Police Officers on Saturdays Soon after taking office, I asked Chief Justice Recktenwald for a week off from court for training (as the Public Defenders have done for years) and he ag reed We held a full week of trial skills and criminal justice training at the end of May in 2021 and it was the first office wide training here since 1987 We did so again on May 23 27, 2022, bringing in ten trainers from the National District Attor ney ’ s Association We will continue to have that whole week of training every May from now on. There are also ongoing training events that take place in the office during the year.
5. Improvements to the Of fice
10 September 2022 HAWAII BAR JOURNAL Honolulu, and represent vic tims’ rights, we should always strive to do justice and not just win cases. At the same time, given that my first obligation is to protect Honolulu residents and visitors, if a case is charged correctly, we want to seek jus tice for the victim and be suc cessful in court
The Leadership Team examined the different parts of the office and the following changes have been implemented: A. Increased Training for the Deputy Prosecutors
B. New Hiring Practices for Deputies
This serves two pur poses First, it means that when a deputy in the office decides to leave, that position can then be filled from within the office giving those within a chance for promotion Second, it is a skills building approach that allows new deputy prosecutors to lear n basic and court trials skills within a high volume setting, and what it means to be an ethi cal prosecutor who believes in doing justice from the start It is important for them to start off the right way, with the right work ethic and attitude As a result, most deputies start in the Misdemeanor Traffic Division and Division Chief F lo Nakakuni is on most of the panels
C. Deputy Prosecutor Salary Structure
I tell the students that if they have any interest in litiga tion whether as a prosecutor, a defense attor ney, or in civil practice, the Honolulu Prosecu tor’s Office is a g reat place to become a trial attor ney They will be able to lear n from such teachers as Tiffany Kaeo, Scott Bell, Chris Van Marter, and F lorence Nakakuni.
The City Salary Commission sets my and the First Deputy’s salary and sets the range for all of the deputy prose cutors between $59,000 and $164,000 per year I could then decide how much to pay each deputy prosecutor anywhere within that range As of a few years ago, Civil Beat started publishing the salaries of all city and state workers. This ap parently caused a couple of deputy prosecutors to quit every
I will interview the applicants if they are approved by the hiring panel. If there is ag reement by them, that person is likely to get hired If there is a disag reement, I will dive deeper and make the call
I was also able to introduce the Leadership Team: First Deputy Tom Brady, who had seven years as a Deputy and Team Captain with this office and then twenty six with the United States Attor ney ’ s Office; Senior Advisor Cheryl In ouye, who had 30+ years with the State of Hawaii Judiciary as a probation supervisor and was co creator and implementer of HOPE Probation, then most recently on the Board of the Hawaii Paroling Authority; Chief of Staff Paul Mow, who had four years at this office as IT Support, 20 years as a Deputy Prosecutor/Attor ney General in Honolulu and on Hawaii Is land; and Special Counsel Matt Dvonch, who had three years of private practice with Paul Johnson and then 10 years as a Deputy with the Attor ney General’s Office.
My two predecessors as Honolulu Prosecutor over the last 30 years did all the hiring of new deputies themselves. Instead, I wanted to take advantage of the expertise around me and instituted the practice of using hiring panels for all new deputy hires. This procedure enhances transparency and reduces bias These panels consist of two members of the Leadership Team and the Division Chief where the new deputy would be working if hired I have a strong preference for hiring new lawyers to start at the front end of the office, in the Misdemeanor Traffic Division
This is the fairest, most transparent way to operate In addition, when there is an opening for a team captain, or potentially, for a division chief, that position is now adver tised and deputies from within the office can now apply for these positions These are real changes from past practice While this meant giving up some of my discretion in those areas, these n e w p o l i c i e s a r e mu c h m o r e t r a n s p a r e n t a n d m a k e a l o t o f s e n s e
D. Improved Deputy Prosecutor Salaries
After our first Zoom meeting regarding the audit with the Ethics Commission, Family Division Chief Tiffany Kaeo told me she believed that our office was in the minority of jurisdic tions around the country that still followed a rigid “ no drop” policy She gave me some policy documents from the two large national prosecutor g roups: the National District Attor ney ’ s Association (NDAA) and the Association of Prosecuting Attor neys (APA).
During this year, we also instituted a “first in, first out” of the division policy to avoid complaints of playing favorites, gender or racial discrimination and the like Now, when there is an opening in a division, we look at the prior division in the “path,” and, if the deputy is doing well and handling their as signments appropriately, he or she is asked if they want to be promoted to the next division Occasionally a deputy will choose to stay where they are but they are given a choice
In an effort to lear n more about ideas and concer ns to im prove the office and the way cases are handled, two members of the Leadership Team met with all of the line deputies in small g roups They also met with the Team Captains and Di vision Chiefs separately. These meetings produced a lot of helpful infor mation and led to a number of changes in office policies and procedures (e g , plea ag reement approvals, the creation of a wellness committee, etc ) More changes are planned, including more opportunities for telework
To increase transparency and fair ness, Senior Advisor Cheryl Inouye suggested two factors to deter mine DPA salaries First, we created a “path” through the office with the Misdemeanor Traffic Division being Level 1 and the vertical teams (where the same deputy handles the case from charging through trial Sex Assault, Career Criminal, White Collar, Domestic Violence Felony, and Elder Abuse) being Level 5 Second, we adopted the HGEA Bargaining Unit 13 pay sched ule for Professionals and Scientists as a guide.
By looking at both the “path” and the HGEA salary schedule, we were able to place all of the deputies in the office on the schedule as of December 1, 2021 This meant, based on salary savings during the year (many of those not retained were making large salaries), the vast majority of deputies got a substantial raise on that date Ever since, as deputies moved from division to division, prog ressing through the office, it meant a raise for them as well Creating new paths for pro g ression through the office have also been created for certain clerical staff positions.
In my first week in office in January 2021, I got a letter from the City Ethics Commission wanting to do a follow up to their audit of our Domestic Violence (Family) Division done three years earlier. One of the audit recommendations was to temporarily suspend the office’s rigid “ no drop” policy for workload reasons This policy meant that when police officers make a misdemeanor domestic violence arrest, this office would typically charge the defendant and then proceed to prosecute the case, regardless of the victim’s/survivor’s wishes regarding pursuing the case and whether she or he would rather not testify in the case
I located the Domestic Violence working g roups of both
During this past year we lost several deputy prosecutors to neighbor island prosecutor’s offices and one to the Attor ney General’s Office because they could offer more pay We worked with Mayor Blangiardi, Managing Director Michael For mby and Budget Director Andrew Kawano, and found sympathetic ears to our situation about substantial raises for the deputies to remain competitive They included these raises in the City’s budget, and the City Council was very sup portive and approved the budget As a result, our deputies got a 2 step raise of about 8% on September 1, 2022 In addition to the raise on December 1, 2021, that means the vast major ity of deputies got raises of approximately 11 12% in my first 18 months in office. The work at the Honolulu Prosecutor’s Office is stressful and taxing and the deputy prosecutors work hard With COVID and the suspension of jury trials for almost two years, and the resulting reduction in plea ag reements, the number of cases the felony deputies were carrying really increased. While nobody joined this office to get rich, it’s only right the deputy prosecutors are adequately compensated for their work We recognize that and are working closely with Mayor Blangiardi, the Managing Director, the Budget Director and the City Council to make that happen and are g rateful for their help in this process E. Lear ning from the Deputies
September 2022 HAWAII BAR JOURNAL 11 year saying “That person makes more than me? What’s up with that?” This also led to some deputies being seen as ad ministration favorites who were financially rewarded while other deputies, whose work wasn’t noticed, were passed over for promotions and raises for years
F. Misdemeanor Domestic Violence Policy Update
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12 September 2022 HAWAII BAR JOURNAL decides to testify. This led to a pilot project and a partnership with the Domestic Violence Action Center (DVAC) to provide serv ices for those affected by the modifica tion of the “No Drop” policy. As our Victim/Witness counselors could no longer be asked to provide services for those victims/survivors who chose not to pursue the case and we moved to dismiss the case, arrangements were made to have a DVAC provider based in our of fice one mor ning a week to assist those victims/survivors with services.
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The change of policy has been very successful. Not only are we listening to victims more, but the cases that now go to trial have willing victims and better outcomes. Due to the success of the pilot, a g rant proposal was submitted and awarded to fund a full time position from DVAC for this effort organizations and spoke to their chairs about the Best Practices in handling these cases I lear ned that it was only our office and a couple of small counties in Georgia that still followed a rigid “No Drop” policy That was extremely con cer ning and really made us re think how we were handling the large number of these cases (approximately 2,000 arrests in 2021) We discussed the matter with our victim/witness counselors and brought in the advocacy g roups like the Domestic Violence Action Center and the Coali tion Against Domestic Violence We wanted to see what their thoughts were regarding making our approach more victim centered and abolishing the rigid “No Drop” policy We also invited indi viduals who had worked in the Domestic Violence area for years including Lynne McGiver n, Loretta Sheehan and Jan Tamura to get their perspective on our changing our policy Based on all these conversations, we realized that in spite of having this pol icy for 30+ years, and how accustomed people were to it, the policy was pater nalistic and did not provide victims/sur vivors with free agency, and we needed to change it. As a result, we instituted a more victim centered approach If the victim chooses not to testify, we will re spect that decision and not force her or him to do so. After all, the victim in do mestic violence cases is in the best posi tion to know how dangerous it will be if she or he testifies and should be able to decide if she or he wants to testify. If they don’t, and we can’t prove the case without their testimony (a rare but possi ble situation), we will move to dismiss the case without prejudice and then bring it b c k t e f u t u r e i f t h e v i c t
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We have done these independent in vestigations from the start of my tenure as Honolulu Prosecutor and I have as signed our felony division chiefs to lead these investigations While there may well be some disag reement with our findings and conclusions in any particu lar case, people can rest assured that each case is being closely and independ ently investigated and evaluated and that any decision to prosecute or not prose cute is a fully infor med decision of expe rienced division chiefs along with First Deputy Tom Brady, myself, and the rest of the leadership team.
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6. Of ficer-Involved Shootings (OIS)
We understood from the start that when a law enforcement agency is in volved in a shooting, it is not the best policy to have that agency investigate it self This is not a knock on the ability of that law enforcement agency to do such an investigation. It is the appearance of a conf lict of interest that will lead many to question the outcome of any such in vestigation If one of our investigators at the Honolulu Prosecutor’s Office were involved in a shooting, we wouldn’t in vestigate it We would ask HPD to do the investigation and the Attor ney Gen eral’s Office or a neighbor island prose cutor’s office to handle any prosecution, if warranted. In an ideal world, there would be an independent agency, not answerable to me, the Hawaii Attor ney General, or the United States Attor ney, staffed with ex pert investigators and prosecutors, who would handle all OIS shooting cases Unfortunately no such entity exists or is on the horizon That leaves the Hon olulu Prosecutor’s Office as the place best situated to handle these investiga tions of Officer Involved Shootings
7. Body Wor n Camera (BWC) Footage Body Wor n Cameras have become an important part of the criminal justice landscape, here in Hawaii and nation wide. Their use in Hawaii started here in 2017 BWC footage can be very use ful to clear officers of bogus allegations against them and provide valuable “ you are there” evidence in various police en counters. However, the use of BWC footage in OIS has presented a number of chal lenges nation wide in how and when such footage is released I spoke to a number of prosecuting and district attor neys around the country to see how their offices were handling the release of this footage in OIS situa tions The results were varied and the decisions in some cases were being made by Mayors to diffuse racially charged sit uations Often I found there really was
When I was assigned to take over Criminal Court Judge Marie Milks’ calendar in June of 2004, I saw that the sanctions component of felony probation was broken. We had smart, caring probation officers (POs) who believed in rehabilitation bu t t h e e x i s t i n g p ro b a t i o n s y s t e m w a s f a i l i n g w i t h a h i g h recidivism rate Logic (and common sense) would tell you that in order to change behavior you must impose consequences for bad be havior that are swift, certain, consistent, and proportionate It is Parenting 101. The existing probation system was none of those things When you have no appropriate consequences for bad behavior, you get more bad behavior I partnered with then Probation Section Administrator Cheryl Inouye to devise and implement a new probation strat eg y which came to be called Hawaii’s Opportunity Probation with Enforcement or HOPE Probation Felony defendants in HOPE were encouraged to succeed but were told that all targeted violations of probation would be met with a consistent jail sanction, one proportionate to the vi olation. A key component was “pairing” a bad choice (e.g. drug use) with an immediate consequence so the probationer could lear n from it Positive drug test with an admission to use? Two days in jail. Positive drug test with a denial of use and a subsequent lab confir mation? Fifteen days in jail, served the first time on weekends if the probation was working or in school Abscond and law enforcement has to look for you? Thirty days in jail Repeated absconding? The “ open ” prison ter m of five or ten years. Ms Inouye had to figure out how to blend these swift, cer tain, consistent, and proportionate sanctions with the other, re search based rehabilitative supervision strategies the POs were employing like Motivational Interviewing She, and her pro bation officers, discovered that this new sanctions regime worked very well with their clients The clients liked being treated consistently and the POs felt empowered This gave the probation officers a chance to really work with their clients to help them succeed on probation and in life Finally, and importantly, the HOPE probationers felt they were being treated fairly Previously, discretion by probation officers and judges often led to arbitrary results HOPE’s fair ness was demonstrated by the fact that in 12 years of my han dling HOPE cases, in the tens of thousands of violation hearings, only about 35 of the hearings were contested by the probationer In all of the others, the probationer admitted to the violation whether it meant going to jail or even to prison HOPE probation stood out from the beginning with its focus on high risk probationers Research tells us that you get the best results, the best bang for your buck, when you focus your efforts on the highest risk, most troubled probationers
HOPE Probation
8. Using Evidence – Based Principles to Infor m Criminal Justice System Policy
2) On the other hand, if our office decides to charge an officer or officers with a crime in connection with the shooting, the BWC footage will not be released right away Those offi cer(s) deserve a fair trial. As lawyers in Hawaii, we are bound by the Hawaii Supreme Court’s Rules of Professional Conduct Rule 3 6 regarding Trial (and Investigation) Publicity That rule prohibits those involved in the investigation or litigation to say [or do] anything which could materially prejudice a future hearing. Releasing this type of trial evidence prematurely (includ ing BWC footage, confessions, DNA evidence etc ) which would be shown repeatedly on the news, with accompanying “expert” commentary, will lead people to pre judge the cases and the officer(s)’ guilt or innocence and will serve to poison the jury pool Officers charged with a crime, like any other defendant, deserve to be treated fairly and have the right to a fair and impartial jury. We believe this policy protects both interests fairly
Over the years, I have lear ned that too many criminal jus tice decisions by prosecutors and others are based on anecdote, hearsay, wishful thinking, “gut feelings,” and “ we ’ ve always done it this way. ” Fortunately, the criminal justice system, as with most other disciplines, is now starting to favor data and research to infor m criminal justice policy Being a public funded Department, we have a responsibility to do our best to measure outcomes and to promote efforts that have positive results As a result, the Honolulu Prosecutor’s Office supports the following strategies:
14 September 2022 HAWAII BAR JOURNAL no policy and that decisions to release were often based on po litical considerations on a case by case basis I found that very troubling We are fully committed to transparency and believe this BWC footage is important and should be released The only question is when. Our office developed a policy regard ing the appropriate timing of the release of BWC footage The issue here is balancing the public and the press ’ interest in seeing the workings of their police department right away against an officer’s right to a fair trial. We developed the following policy to fairly balance these interests:
1) If our office deter mined through our independent OIS in vestigation the shooting was justified (a vast majority of the cases) then we would hold a press conference and explain our decision behind not charging the police officers in the case That happens in a timely basis after the event and the BWC footage will get released at that time or soon afterwards.
At Chief Justice Moon’s direction, HOPE was then implemented with all 9 felony trial judges, and the sanctions model was followed with fidelity by pro bation and the judges All the judges got good results. As the number of proba tioners in HOPE increased, however, there were problems with consistency and logistics The deputy prosecutors, deputy public defenders and private counsel had to move from courtroom to courtroom for HOPE hearings In addi tion, some judges and court staff liked HOPE better than others To improve consistency and aid logistics, all the HOPE cases (over 1,000 by this time) were consolidated with a single judge (me) Pepperdine University and UCLA conducted a gold standard, randomized controlled evaluation of HOPE Proba tion in 2007 2008 (and a follow up
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Many court prog rams, instead, cherry pick the easy cases so they get good out comes We started HOPE on October 1, 2014 with 34 high risk probationers: 18 sex offenders and 16 heavily involved drug offenders who had been convicted of a variety of felonies and were failing at probation. The Hawaii Attor ney General’s Of fice did research on HOPE from the very start and the results were outstand ing After 15 months (and with now 93 felony probationers in HOPE), the pro bationers tested positive 90% less often and missed probation appointments 89% less often Chief Justice Moon championed HOPE with Senate President Colleen Hanabusa for the 2006 Legislative Ses sion. The Legislators were impressed with the research findings, and the fact that we had started HOPE Probation with zero new funding and no publicity. The Legislature gave the Judiciary 1 2 million dollars to expand HOPE ($770,000 for treatment slots and the rest for additional POs and drug testers)
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September 2022 HAWAII BAR JOURNAL 15
evaluation in 2014) with 330 probation ers in the HOPE treatment g roup and 163 in the probation as usual control g roup. The research showed that the HOPE g roup, when compared to those in the control g roup on regular proba tion: Were arrested for new crimes 55% less often Tested positive for drugs 72% less often and Failed at probation and were sent to prison, for 48% fewer days/years. No tably, the jail bed days for the two g roups was the same. Research has also shown that Native Hawaiians in HOPE Probation failed at probation and were sent to prison 42% less often than Native Hawaiians in the control g roup on regular probation. At the same time, women in HOPE failed and went to prison 50% less often than women in the control g roup on regular probation In the criminal justice system, a 10% reduction in recidivism is consid ered cause for celebration A 50% re duction is unheard of. Until HOPE Probation A single HOPE Probation judge can supervise more than 2,000 felony proba tioners at the same time (out of approxi mately 3,600 on active probation supervision) As a result, strategies like HOPE Probation (and with similar re search results by the University of Cali for nia, Berkeley, in HOPE Pretrial) can have a real positive impact on the system as a whole HOPE means fewer victims, fewer police investigations and arrests, fewer cases for my office to prosecute and the defense to defend, and fewer people on probation or in prison. With fewer people going to prison and more families staying intact, this results in sig nificant financial and social cost savings Given these outcomes, it is no sur prise that evidenced based strategies based on HOPE have begun in more
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The Honolulu Prosecutor’s Office worked very closely with HPD to investi gate, arrest, and prosecute all manner of crime starting in July of 2021 Mayor Blangiardi and the city administration have demonstrated a real commitment to Chinatown This included providing federal money for more police patrols and repeated cleaning, and implement ing beautification projects in Chinatown The city’s efforts to work with River of Life to move their feeding operation out
At the same time, we knew that many of those chronically homeless were resistant to voluntary efforts that would address protective factors such as hous ing and sobriety They had no desire to go to a shelter where there were no dogs or other pets allowed and had many rules to follow, such as no drinking or using drugs. They were frequently in de nial about their mental health and sub stance abuse issues. We brainstor med about how to work with other agencies to help those who didn’t want to accept other offers for help. This led to SUDA Fast C. SUDA-Fast (Substance Use Disorder Assessment-Fast)
One of the most important initia tives during my tenure as the United States Attor ney was Weed & Seed. It is a collaborative strateg y bringing to gether HPD, prosecutors, neighborhood residents, businesses, workers and visitors to “Weed” out the crime in an area and then, in this now safer environment, “Seed” the neighborhood with pro social prog rams and quality of life improve ments. The focus regarding which crimes to target and social service gaps to address, is based on input from area residents and businesses
September 2022 HAWAII BAR JOURNAL 17 of Chinatown at the end of A pril 2022 has been very helpful, as well Our office was convinced the many chronically homeless on the streets of Chinatown almost invariably had mental health and/or substance abuse issues. We fully supported the efforts of com munity g roups like Mental Health Kokua, HPD’s HONU project, and the city was active in setting up the CORE prog ram to assist the homeless with physical and mental health issues and trying to develop relationships with the homeless to help them get into shelters or housing
SUDA Fast is a collaborative ap proach our office has been spearheading for several months. The primary popu lation for this pilot is those homeless in dividuals arrested in Chinatown for a felony (typically drug possession Promot ing a Dangerous Drug in the Third De g ree) From July 2021 through July 2022, more than 120 homeless people have been arrested for in Chinatown for felonies, and taken to OCCC. In SUDA Fast, a Department of Health contracted assessor goes to OCCC soon after the arrest, does an assessment of the person, identifies the appropriate treatment prog ram in the community (e g , Salvation Ar my ATS, Hina Mauka, than 33 states and one territory (Guam). Notably, the HOPE strateg y is supported by law enforcement as well as substance abuse, mental health, and sex offender treatment prog rams When HOPE Probation is done right, with one primary HOPE Judge (and a back up) and with POs and judges following the HOPE sanctions model, tremendous recidivism reduc tions are achieved. B. Weed & Seed
This survey helped to infor m us of crim inal activity and areas perceived to be dangerous and of community gaps and needs. From looking at crime and homeless data, and our own observations, we could tell that while crime was not nearly as bad as when Weed & Seed was implemented the first time in China town, the homeless situation was much worse
Those efforts in 1997 2001, com bined with other neighborhood pro g rams led to a 70% reduction in crime in Chinatown and Kalihi Palama. It also led to after school tutoring and sports prog rams at Kaiulani Elementary School, a Head Start prog ram at Kukui Gardens, and a Weed & Seed Commu nity house with computers and study areas at Mayor Wright Homes This success led to additional Weed and Seed efforts in Waipahu and Kalihi Palama Unfortunately, soon after I left as U S Attor ney, the Weed portion of the strateg y was discontinued Fortu nately, the Seed efforts continued in all the sites. A Weed and Seed Hawaii, Inc. Board was for med to help guide those Seed efforts With the Weed component gone, crime started to retur n to Chinatown and Kalihi Palama and the other two sites I always told myself that, if I were ever in a position to help bring the Weed efforts back to join the Seed efforts for the full Weed & Seed strateg y, I would do so. As a result, soon after I took office in January 2021, we started to reach out to HPD, businesses, residents, and others to again bring the Weed & Seed strateg y, at first, to Chinatown and Kalihi Palama While we lear ned about the needs of the community the first time over stew and rice at Kaiulani Elementary School, COVID prevented that kind of face to face interaction this time To substitute and lear n again from the com munity, the area banks, led by American Savings Bank and including Central Pa cific Bank, First Hawaiian Bank, Bank of Hawaii and Hawaii State Federal Credit Union, paid for a survey to be done. Created and implemented by Antholog y Research, over 400 Chinatown and Kalihi Palama residents, businesses, workers, and visitors were surveyed to lear n what they thought about China town, A‘ala Park, and Kalihi Palama
SUDA FAST is unique in that it provides services and treatment at the front end of the system, soon after arrest. Without SUDA Fast, the arrested defendant either gets re leased by the court right away to go right back to the streets, or he or she sits in jail for months until a guilty plea or verdict. After being placed on probation, the assigned PO would then work with him or her to get into treatment. That process is slow and unwieldy We are convinced housing is critical for the homeless but unless people take care of their behavioral health issues, they are unlikely to succeed and stay in housing and off the streets While we support all of the current efforts to help the home less get off the street, we also recognize many of the chroni cally homeless are not amenable to voluntary efforts and will reject offers for help. SUDA Fast has been a g reat collabora tion and efforts continue to improve the process as we know Waikiki and other areas on the island will have a tremendous need for it. 9. Legislative Initiatives
Both prosecutors and public defenders sign a stipulated order and, after the judge signs, the defendant is picked up at OCCC by DOH or the treatment prog ram, and taken directly to the treatment facility.
The Honolulu Prosecutor’s Office proposed the bills shown in the table on this page, four of which were passed and became law. 10. Conclusion Retur ning to the Prosecutor’s Office has been challenging and very rewarding It has been g reat to meet and work with the hard working deputy prosecutors as well as the victim witness counselors, the investigators, and the clerical staff. The strateg y that I ran on and have been im plementing, of trying to send the violent and dangerous and those who won’t stop stealing to prison, while helping the major ity of defendants to succeed on probation, is proving to be effective We are working hard with our part ners at HPD, and other law enforcement agencies to make Honolulu the safest city it can be At the same time, we will work to make the criminal justice system fairer and more equitable Both are achievable goals and we will do our best to accom plish them Restoring trust to the Hon olulu Prosecutor’s Office is our number one goal and we will work every day to make that a reality 1 295 U S 78 (1935)
Bill Number Description HB 1469 Creates an affir mative defense for defen dants charged with Unauthorized Control of a Propelled Vehicle, where the defen dant purchased the vehicle and reasonably believed themselves to be the lawful owner of the vehicle SB 2091 [vetoed] Establishes a comprehensive application process for executive pardons; requires prosecutors and victims to be notified of pardon applications and given an opportu nity to weigh in SB 416 Requires the State to reimburse county prosecutors and public defenders for expert witness fees HB 1541 Clarifies that the signature of the prosecut ing attor ney is sufficient to initiate a crimi nal complaint; overtur ns the Hawaii Supreme Court’s decision in State v. T homp son Enacted as Act 2 SB 2082 Adds felony Abuse of Family or Household Members to the repeat offender list for sen tencing Enacted as Act 18
Ste v en S Alm was s wor n in as the Prose cuting Attor ne y for the City and County of Hon olulu in Januar y 2021 Prior to that he ser v ed as a state Circuit Court judge, the United States Attor ne y for the District of Ha waii, and as a de puty prosecutor at the Honolulu Prosecutor’s Of fice.
18 September 2022 HAWAII BAR JOURNAL Poailani etc.), and arranges their admission therein. DOH then notifies the Department of Public Safety’s Intake Service Center (ISC) at the jail of the defendant’s acceptance into treatment and ISC then sends an updated bail report to the judge now approving the defendant’s release to treatment
Chief Justice Mark E. Recktenwald’s Response to the Report of the 2021 Bench Bar Conference
The common topics this past year focused on remote pro ceedings We have faced unprecedented challenges to the ad ministration of justice and the practice of law here in Hawai‘i The COVID 19 pandemic has undoubtedly changed the way the Judiciary operates, as we worked to balance maintaining es sential court functions and protecting public health and safety As we begin to resume more in person proceedings, g radu ally lift precautions, and move beyond the pandemic, we have the opportunity to shape what our courts will look like for years to come. A critical component of building a more moder n and responsive court system was the implementation of remote hearings, which has transfor med the way we do business Since August 2020, the Judiciary has conducted nearly 500,000 re mote proceedings For many, the ability to connect with the courts virtually, for both attor neys and self represented litigants, has advanced access to justice Allowing court users an alter nate way to at tend hearings that they may have otherwise missed due to work, childcare issues, or lack of transportation The f lexibility to ap pear remotely has shown promising initial outcomes as evi denced by the appearance rate and remote proceeding usage data we have been collecting in the District Court of the First Circuit We have seen appearance rates trend upwards over the past year, with certain courtrooms regularly experiencing 100% appearance rates each month. Recently, overall appearance rates across our Honolulu, ‘Ewa, Kane‘ohe, Wahiawa, and
September 2022 HAWAII BAR JOURNAL 19
INTRODUCTION
On behalf of the Hawai‘i State Judiciary, I want to thank all those who participated in the 2021 Bench Bar Conference In addition, I express my g ratitude to the Hawai‘i State Bar Association (“HSBA”) Committee on Judicial Administration (“JAC”), in particular co chairs Associate Justice Simeon R. Acoba (ret ) and Vladimir Devens, for organizing the confer ence and preparing the resulting report
The Bench Bar Conference always provides an invaluable opportunity for the Judiciary to receive feedback from the bar, and this year was no exception. Over 230 people attended the conference, which was held remotely through the Zoom meet ing platfor m on October 21, 2021 Participants included over 170 attor neys, 46 justices and judges, and 8 court administra tors The Judiciary is committed to carefully considering all of the ideas and comments raised at the conference. As in past years, the suggestions from the report of the 2021 Bench Bar Conference were reviewed and considered by me, our Chief Judges, and the Administrative Director of the Courts. The report has also been provided to all of our judges As I do every year, it is my privilege to provide this response to the conference report
COMMON TOPICS
20 September 2022 HAWAII BAR JOURNAL Wai‘anae district courtrooms have ranged between 88% and 90%, with remote hearings making up a significant portion of those appearances
Another point of conversation involved the suggestion that a “ g reeter” be available at remote hearings to assist with man aging the virtual courtroom and resolving minor technical is sues that arise This recommendation is well taken as early research indicates that courts could benefit from, what some have ter med, “technology bailiffs” to help with these proceedings
Based on discussion at the conference, the JAC report, and HSBA survey that we conducted last year, it is clear there is strong support from attor neys for remote proceedings to remain part of court operations in some capacity The recent rule changes are a way to ensure that remote proceedings continue, however, practitioners requested clarification on how these rules would be implemented In particular, questions arose about how scheduling and requests for remote or in person ap pearances would be handled as a practical matter, and some ex pressed a preference for more consistent procedures to be applied across each circuit While the differing resources, case loads, and circumstances of each circuit, courthouse, and divi sion prevent us from establishing unifor m procedures, we realize that some guidance would be helpful to navigate the process In response, we have created remote proceeding refer ence sheets for each circuit that will serve as a useful resource and will be posted on our updated remote proceedings page on the Judiciary website at https://www.courts.state.hi.us/remote court hearings via zoom or webex
One of the other comments that came up frequently was the request to make court calendars publicly available online for those appearing remotely Customary practice is to have printouts of court dockets posted outside of courtrooms and those will still be available as we g radually increase the number of in person proceedings Based on this feedback, the Judiciary is also open to exploring whether or not the JEFS system can be configured to make daily court calendars available electroni cally in the future.
We take your input seriously and your recommendations will be carefully considered as we chart a path forward There fore, I will address a few specific topics related to remote pro ceedings that came up in a number of the g roups and share an update on how we have been working to make improvements in those areas.
Our Access to Justice Rooms and Self Help Centers (“SHC”) throughout the state also transitioned to a remote model and have assisted over 5,000 individuals during the pan demic This enabled the Judiciary to maintain this essential service and individuals were able to seek legal assistance from the comfort and safety of their own homes. In August 2021, the Kaua‘i SHC initiated a hybrid model with the retur n of in person service one day a week. When it is safe to do so, we are open to bringing the hybrid SHC model to the other circuits as well This signature access to justice initiative only exists be cause of our strong community partnerships with the Hawai‘i Access to Justice Commission, Legal Aid Society of Hawai‘i, and the HSBA. I extend my g ratitude to all the attor neys who have volunteered to staff these locations and provide legal serv ices to those in our community who need it most The Judiciary is committed to evolving and adapting to meet the changing needs of those we serve We hope to incor porate remote proceedings seamlessly into court operations moving forward and continue to thoughtfully examine how to best achieve this objective To that end, the robust dialogue about the common topics offered valuable insight and will assist us in establishing appropriate practices for the sustainable, long ter m integ ration of remote proceedings into our vision for the future of the Judiciary Members of the bar acknowledged that numerous benefits accrue from the expanded use of technolog y Cost, efficiency, and convenience were identified as some of the primary advantages of remote proceedings At the same time, participants also recognized challenges and raised legitimate concer ns, including those substantive matters should not be heard remotely and the impact of remote appearances on fair ness and case outcomes is still unknown. In A pril 2020, the Judiciary created the Committee on Op erational Solutions (“COS”) that was initially tasked with in creasing the capacity to conduct court business remotely and developing a plan to retur n to nor mal operations safely Under the direction of subcommittee chairs Judge Paul Wong, Judge James Ashford, and Judge Sherri Iha (ret ), the Judiciary quickly effectuated the widespread use of remote hearings across the state When it became evident that remote hearings would be an integ ral part of how our courts function, the focus of the COS shifted to recommending strategies to make the use of re mote proceedings in the Circuit, District and Family courts per manent In furtherance of this goal, the COS recommended that a number of rule changes be made The Hawai‘i Supreme Court subsequently promulgated amendments to Rule 16 2 of the Hawai‘i Rules of Civil Procedure, Rule 58 of the Hawai‘i Rules of Penal Procedure, Rule 11 of the Hawai‘i Probate Rules, and adopted new District Court Rules of Civil Proce dure Rule 16 1, which became effective on July 1, 2022 This was an important first step in for malizing the Judiciary’s policy around remote proceedings. I want to express my appreciation to all the members of the COS for their collaborative efforts In particular, my thanks go out to Committee Co Chair Judge Ashford for leading the charge, and to HSBA President Shan non Sheldon, for mer HSBA President Levi Hookano, and HSBA Executive Director Pat Mau Shimizu for ensuring that the voices of the bar were heard
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The process to create such a position and define a completely new class of work would require substantial time and fund ing to develop. So, in the alter native, we have made other strategic operational adjustments. For instance, the District Court of the First Circuit created a “Vir tual Team” to facilitate Zoom hearings and provide services similar to what has been suggested As a result, a few key po sition descriptions have been updated to include duties related to assisting with re mote proceedings, in recognition of the value of this service to court users. Addi tionally, the First Circuit, Court Opera tions Division, Legal Documents Branch went through a reorganization last year and an Assistant Court Administrator position was created in part to assume re sponsibility for overseeing remote hear ings for the Honolulu Division. In addition to remote hearings, the Judiciary is pursuing other innovative ways to leverage technolog y. A prime ex ample of this is our Online Dispute Res olution (“ODR”) pilot prog ram ODR launched in the First and Second Cir cuits last year, and allows self represented litigants in small claims cases to file their documents online, pay filing fees or re quest fee waivers, and resolve their dis putes without having to come to court Notably, we have seen high usage during non business hours with approximately half of all cases electronically filed after work and on the weekends Over 645 small claims cases have been filed elec tronically through the ODR portal dur ing this initial phase, with statewide expansion to the Third and Fifth Circuits scheduled in the coming months We have all experienced unimagin able challenges during the pandemic, yet we have persevered and continue to pro vide justice to our community I am im mensely g rateful to all of the judges and Judiciary staff whose unwavering dedica tion and hard work enabled us to con tinue to fulfill our mission to administer
September 2022 HAWAII BAR JOURNAL 21
ISSUES
One of the specific topics in the Circuit Court Civil Group was the implementation and transition to the new civil rules. The work to refor m our civil court system began back in 2018 when we established the Task Force on Civil Justice Improve ments to look for ways to reduce the costs of civil litigation, simplify the litigation process, and make our courts more acces sible, affordable, and efficient. I am happy to share that all of the efforts over the past few years have led to significant proce dural and rule changes, including an expedited trial track op tion and streamlined discovery assistance Based on the recommendations of the Task Force, the Hawai‘i Supreme Court promulgated amendments to Rules 3, 4, 12, and 12 1 of the Rules of the Circuit Courts of the State of Hawai‘i (“RCCH”), adopted new RCCH Rules 12.1, 12.2, 12 3, and 15 1, promulgated amendments to Rules 16, 16 1, 26, and 29 of the Hawai‘i Rules of Civil Procedure (“HRCP”), and adopted new HRCP Rule 16.1. Thereafter, the Commit tee on the Implementation of Rules Promulgated for Civil Jus tice Improvements was created to ensure the smooth implementation of the new rules, which became effective on January 1, 2022 As part of the Committee’s work and in part nership with the HSBA, two Virtual Civil Town Hall Meetings were held in November 2021 to familiarize practitioners and their staff with the new process The response was overwhelm ing, with over 500 attendees at each event In case you missed it, the recordings of these events are still available for viewing on the HSBA website. Finally, statewide for ms, designed to make adherence to the new rule requirements easier, were ap proved by the Hawai‘i Supreme Court, and are available on the Judiciary website here: https://www courts state hi us/circuit court civil justice improvement for ms We will have the opportunity for further feedback and dis cussion about the new rules at the Civil Law Forum later this month More updates and statistical infor mation will be avail able later this year when we can better evaluate the effects these changes have had on civil trial practice This accomplishment would not have been possible without the contributions of all the members of both the Task Force and the Committee My heartfelt appreciation goes out to Task Force Chair Chief Judge Craig Nakamura (ret ) and Committee Chair Judge Jeannette Castagnetti for their outstanding leadership and deter mination to see this project come to fruition. The District Court Civil Group devoted part of their dis cussion to the status of eviction cases, which was a g rowing concer n due to the devastating economic impact of the pan demic Like many states across the nation, we anticipated that there would be a dramatic increase in evictions once the federal and state moratoriums were lifted
During this time, the Judiciary worked with community part ners to prepare for an increase in eviction filings. That surge of cases never came, because Act 57 worked as intended to slow and stagger the f low of these cases into the court before its ex piration in August 2022. I am pleased to report that our district courts statewide have been able to effectively manage their summary possession calendars with no backlog of eviction moratorium cases The mediation providers in each of the cir cuits deserve most of the credit, as they were able to resolve many of these cases before they ever came to court. I am so g rateful for their dedicated work to help those in our commu nity who have experienced these hardships. The success of Act 57 illustrates the remarkable things can be accomplished when stakeholders work together Another related point of conversation that came up involved the setting of retur n dates for summary possession cases When Act 57 was in operation, these cases were assigned a hearing date upon filing of the complaint in all of our district courts across the state I would note that this has been the prevailing practice in the Second and Fifth Circuits even before Act 57. Whereas, in the First and Third Circuits, the prior practice was to set the re tur n date based upon the date of service
During this time, the approach to set retur n hearings on a date certain was advantageous because it allowed courts to bet ter manage their calendars by giving them the ability to control the number of retur ns set each day and proved to be a useful tool in responding to eviction filings after the moratorium was lifted However, some attor neys who practice in the First Cir cuit reported that it can be difficult to serve parties before the date assigned and expressed a preference to retur n to the for mulaic method after service is made On the other hand, the District Court Civil Group also observed that the certainty of an assigned hearing date can offer benefits by reducing default judgments and promoting procedural justice The deputy chief judges of our district courts will ref lect on the comments shared, along with the operational and access to justice consid erations that were identified in deter mining the appropriate course of action for their circuit going forward
As part of a collaborative effort, Act 57 was signed into law on June 16, 2021, and set forth an eviction diversion strateg y that required parties to participate in mediation prior to filing an action for summary possession under a tiered approach.
Participants in the Family Law Group discussed alter native
22 September 2022 HAWAII BAR JOURNAL accessible manner, even in the face of a global pandemic. I also want to acknowledge the members of the bar for their f lex ibility and cooperation during these uncertain times and thank them for their willingness to engage on these important issues to improve the administration of justice RELATED TO CIVIL PRACTICE
ISSUES RELATED TO FAMILY PRACTICE
Adrianne Heely has started preliminary discussions with the Second Circuit Fam ily Court Bench Bar Planning Commit tee and others to explore interest and identify resources in their community I want to acknowledge Judge Heely and Judge Nagata for their initiative to ad vance the VSM process as an option on the neighbor islands and look forward to seeing how these prog rams develop Of course, the most significant de velopment in Family Court this year has been the successful launch of JEFS for Family Court civil cases on A pril 25, 2022 So far, thousands of Family Court civil cases have been created in JEFS and over 15,000 documents have been efiled through the system As we have done with the other prior rollouts, the Judiciary provided ex tensive training and support for members of the bar to ensure a smooth transition In March 2022, we held a number of dispute resolution and the consensus was that mediation has been successful in the family court context, even as mediation centers shifted to provide services re motely Specifically, the Volunteer Settle ment Master (“VSM”) process in the First Circuit was mentioned as something that worked well The VSM process was established in 2004, through a collabora tion between the Family Court of the First Circuit, the Family Law Section (“FLS”) of the bar, and later the Media tion Center of the Pacific (“MCP”) MCP provides administrative support for the prog ram and maintains a list of expe rienced family law practitioners who serve as VSMs and are appointed by the Family Court to resolve issues in divorce and pater nity cases. Many thanks to the VSMs, FLS, and MCP, whose self less service have been incredibly helpful to so many families over the years I am encouraged to hear the positive response to the VSM process and would like to update you on steps we have taken to build on this momentum and expand the model to the other circuits. With the assistance of the First Circuit Family Court and under the lead of Judge Darien Nagata, the Third Circuit began utilizing the VSM process for pater nity cases at the beginning of this year. Thus far, it has proven to be a useful tool, to gether with court ordered mediation and court appointed best interest fact finders, to resolve these particularly challenging cases. I want to recognize Dyan Mit suyama who has been coordinating the availability of the First Circuit VSMs to provide these services remotely to Hilo during this early stage We hope to g row to include other locations and case types within the Third Circuit, and we encour age members of the Hawai‘i County Bar Association to become involved and serve as VSMs locally Most recently, Judge
September 2022 HAWAII BAR JOURNAL 23
Finally, we set up a Help Desk support forum for JEFS users from A pril 25, 2022 through May 20, 2022, to trou bleshoot any issues encountered during the initial roll out pe riod As we work to resolve anything that comes up, we kindly ask for the patience and understanding of the family law practi tioners and our trusted agency partners. The family court docket includes a broad range of case types, which posed unique challenges in establishing electronic filing and required thoughtful planning to meet the specific needs of Family Court Thank you to the entire JEFS Team and Family Court staff who have dedicated so much time and effort to realize this monumental achievement I want to extend special recognition to Judge Paul Murakami (ret ) who has been devoted to this project even after his retirement
There is a lot to celebrate with regard to the operational efficiencies that JEFS case management system offers, and this milestone marks the culmination of over 10 years of work to es tablish and expand efiling across our court system to all public case types This accomplishment is not a finish line for the Ju diciary but represents the starting point for further innovation and we are committed to continue to improve the JEFS system and moder nize the courts for the future
Bench Bar participants in both the District Court and Cir cuit Court Criminal Groups examined how trials have been handled and brought up well founded points about how the precautionary measures the Judiciary established pose chal lenges to trial practice During the pandemic, the Judiciary pri oritized protecting the health and safety of the public, attor neys, and our employees, while balancing those interests against the need to maintain vital court functions Difficult de cisions had to be made, including the suspension of jury trials on two separate occasions when infection and hospitalization rates were high in our community For now, it seems as though the worst is behind us, and I am hopeful that we are entering a new phase I rescinded my statewide orders pertaining to entry into Judiciary facilities for the public and attor neys, and effective March 26, 2022, the Second, Third, and Fifth Circuits lifted their COVID 19 emer gency orders, relaxing some of their restrictions such as health screening and mask requirements These actions have effec tively resolved many of the specific issues discussed, where on the neighbor islands as a result of the reduction of restrictions, trial procedures have resumed close to the practice before the pandemic, and with trials being set in the nor mal course. In the First Circuit, precautions remain in place due to the large volume of court users and employees moving in and out of Ju diciary facilities each day Chief Judge Mark Browning and I are monitoring the situation closely and are mindful of the con cer ns that have been raised. In addition to your feedback, an other factor we consider is the results from juror surveys that are collected after a trial concludes. Overall, the responses re f lect that the majority of jurors support the mitigation measures that have been instituted, with 83% of respondents in favor of mask wearing and 79% of respondents in favor of social dis tancing for trials held this year We remain committed to work ing with attor neys to improve trial procedure and will reduce restrictions in the First Circuit when it is safe to do so based on case counts, risk indicators, and the volume of court users rela tive to courthouse capacity on O‘ahu.
ISSUES RELATED TO CRIMINAL PRACTICE
JEFS Introductory Training Sessions for those who were new JEFS users, as well as Family Court Civil JEFS User Training Sessions to prepare practitioners for the launch We also con vened two Town Hall Meetings on the Zoom meeting platfor m, on A pril 1, 2022 and A pril 8, 2022, to provide guidance on re lated court rule and operational changes. My sincere g ratitude goes out to the HSBA who was instrumental in coordinating these educational opportunities for attor neys, and the judges and staff who worked so hard to put together the presentations. Additional resources, including system manuals, user guides, and recordings of the trainings are can be accessed here: https://www courts state hi us/family court civil jefs info page
24 September 2022 HAWAII BAR JOURNAL
It was reported that access to defendants in custody with the Department of Public Safety (“DPS”) has been inconsistent and unreliable On an administrative level, the Judiciary has worked closely with DPS to improve access to inmates while still being responsive to COVID 19 exposure and adhering to protocols at the correctional facilities Each individual circuit also engages with their respective facilities to coordinate trans ports and remote appearances on a daily basis The Judiciary will continue to work with DPS to facilitate connecting defen dants with counsel and will make every effort to accommodate requests from attor neys to communicate with their clients in custody
There was further discussion in the criminal g roups re garding the status and impact of bail refor m measures In 2017, the Legislature adopted a resolution requesting that the Judiciary convene a task force to examine and make recom mendations regarding criminal pretrial practices and proce dures A year later, the Criminal Pretrial Task Force provided recommendations in their final report, which prompted a num ber of pretrial bail refor ms to be passed by the Legislature and codified under Act 179 in 2019 While the effects of these changes have not been fully realized due to the strain of the pandemic, we are actively involved and welcome further collab oration with stakeholders Judge Shirley Kawamura has been a key contributor to this process, first in her role as reporter for the Task Force and now as First Circuit Criminal Administrative
One of the recommendations from the Task Force Report that is beginning to take shape is the Criminal Justice Re search Institute (“CJRI”) The work of CJRI to examine all aspects of the crimi nal justice system will be critical as we as sess and identify areas that need improvement. CJRI’s work has begun in ear nest, and one of their main priorities is creating a centralized statewide crimi nal pretrial reporting system. Thank you to CJRI Director Dr Erin Harbinson, CJRI Board Chair and Senior Family Court Judge Matthew Viola, and the CJRI board for their leadership on this meaningful work.
CONCLUSION
September 2022 HAWAII BAR JOURNAL 25
Judge, and I am deeply appreciative of her dedication to improving the criminal justice system
In closing, I want to thank all of the conference participants for sharing their perspectives and engaging in this process The Judiciary looks forward to hearing from you every year and we remain steadfast in our shared goal to improve the administration of justice in Hawai‘i. We are g rateful for our continued part nership with the bar on these and other initiatives in the future
Lastly, there was an overwhelming consensus that the current court ap pointed attor ney ’ s fee rate, pursuant to Hawai‘i Revised Statutes §802 5, should be increased and the maximum fee amount be raised or eliminated The right to effective counsel in criminal cases is foundational to our judicial system and fundamental to the underlying principle of justice for all. It follows, that if court appointed counsel is underfunded, the promise of this right could be unfulfilled Consequently, the Judiciary would sup port an increase in the statutory rate as long as the requisite funding would be provided by the Legislature
The Special Committee on Judicial Perfor mance (aka Rule 19 Committee) will have 4 positions available next year To apply, submit a resume and cover let ter, including area of law practice con centration, and a reason for wanting to serve to nominations@hsba.org or the HSBA Nominating Committee at 1100 Alakea Street, Suite 1000, Honolulu, HI 96813
In accordance with Article IV, Sec tion 1 of the HSBA Constitution and Bylaws, this will serve as official notice to bar members that the HSBA Annual Meeting will be held virtually on Friday, October 14, 2022, in conjunction with the virtual bar convention 2023 SCD Board Nominees
H S B
As a HSBA member benefit, the Hawaii Business Magazine is offering a free two year digital magazine subscrip tion a $49 98 value Hawaii Business has been serving the Hawaii business community for over 65 years, providing coverage that is unique, useful and inter esting. To take advantage of this HSBA exclusive offer, simply visit their website at https://www1.hawaiibusiness.com/con tent/hsba qualified
In accordance with Article VI of the SCD Bylaws, a committee has made nominations for officer and director po sitions of the SCD Board and publishes its list of nominees below Ballots will be distributed in early to mid September, and the election results will be an nounced during the HSBA Annual Meeting.
Apply for Special Committee on Judicial Performance
These positions each have a three year ter m beginning March 30, 2023
Please refer to this link for more infor mation on the Commission on Profes sionalism: http://www courts state hi us/courts/supreme /professionalism.html
Treasurer Greg Lui Kwan
President Scott Makuakane Vice President Scott M Spallina
Hawaii Business Ma gazine
Qualifications for this position include being willing and able to devote time to perfor m necessary duties; and being conscientious, studious, thorough, and diligent in lear ning methods and prob lems of the organization Duties in clude implementing and administering a judicial perfor mance prog ram accord ing to such procedures deemed neces sary by the committee and approved by the Supreme Court Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions If there have been none, then state that such is the case A pplications must be received by the HSBA no later than October 31, 2022 Nominations will be made at the February 2023 HSBA Board meeting Member Benefits Spotlight Cintas Cintas contracts can save up to 65% off unifor ms, safety and facility services. Enrollees are also eligible for a free one time UltraClean service and free installation of hygiene dispensers. Enroll at https://mynpp com/association/hsba today and save on Cintas.
The Hawaii Supreme Court will have four positions available on its Com mission on Professionalism for four HSBA representatives, two beginning on March 14, 2023 and two beginning A pril 27, 2023, and all with four year A H A P P E N I N G S ter ms. Qualifications for this position in clude being willing and able to devote time to perfor m necessary duties; and being conscientious, studious, thorough, and diligent in lear ning methods and problems of the organization. Duties include enhancing profes sionalism (including competence, civility, legal ethics, integ rity, and commitment to the rule of law, to justice, and to the public good) among Hawaii’s lawyers.
26 September 2022 HAWAII BAR JOURNAL Hawaii State Bar Association Annual Meeting Notice
. Anyone interested in serving in this capacity should submit a resume, in cluding their area of concentration, and a reason for wanting to serve to nomina tions@hsba.org or the HSBA Nominating Committee at 1100 Alakea Street, Suite 1000, Honolulu, HI 96813
Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been none, then state that such is the case A pplications must be received by the HSBA no later than October 31 for the March ter m and no later than November 30 for the A pril ter m. Nomi nations will be made at the February 2023 and March 2023 HSBA Board meetings, respectively.
Secretary Gilbert Doles Director: Oahu (4) Michele Alarcon Harvey Demetrakopoulus Susan Hansen Jean Malia Orque Apply to Serve on Commission on Professionalism
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Prior to transmission of the record to the appellate court, corrections may be made by stipulation of the parties filed in the trial court or agency
HSBA conference rooms are avail able at the HSBA offices at 1100 Alakea Street, Suite 1000, for HSBA members at $25 per hour (small) and $50 per hour (large), including telephone and wireless service Call (808) 537 1868 for availabil ity and see our guidelines Notar y Ser vices Contact Evelyn Gomez at e gomez@hsba org or call (808) 792 7350 for an appointment Notarizations of HSBA member signatures are free and $5 for each non HSBA member signa ture The infor mation needed for such notary services are: name of document, number of pages in document, number of signatures needing notarization Of fice De pot / Of fice Max HSBA members now have access to exclusive free discount benefits at Office Depot® OfficeMax® to save on office essentials, ink and toner, paper, clean ing/breakroom items and more.
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CASE NOTES Supreme Court Administrative Flores v. Logan, No. SCWC 19 0000841, July 12, 2022, (Nakayama, J )
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September 2022 HAWAII BAR JOURNAL 27 HP HSBA members can take advantage of everyday savings on the hottest PC’s, printers and more, perfect for home or small office needs Enroll at https://mynpp com/association/hsba for up to 35% off with free shipping HSBA Conference Rooms
This case arose from the controversy sur rounding the construction of the Thirty Meter Telescope (TMT) on Mauna Kea, located on the Island of Hawaii. Peti tioner/Plaintiff A ppellant E Kalani F lo res (F lores) challenged the presence of police officers from the Honolulu Police Department (HPD) and Maui County Police Department (MPD), who were as sisting the Hawaii County Police De partment (HCPD) within the County of Hawaii The circuit court deter mined that Hawaii Revised Statutes § 52D 5 does not provide for a private right of action and dismissed F lores’s complaint
On certiorari, F lores argued that the ICA erroneously affir med the circuit court’s “Order Granting Defendant Susan Ballard’s Motion to Dismiss” (Order Granting Motion to Dismiss)
The Hawaii Supreme Court held that the circuit court did not err when it dis missed F lores’s complaint because there is no private right of action pursuant to Haw Rev Stat § 52D 5 In addition, the ICA correctly deter mined that mu tual aid between police departments of different counties is allowed under Hawaii law. Appeal Pointer Omissions from the record by error or accident may be corrected by stipulation of the parties filed in the appellate court HRAP 10(e)(2)(A)
Biog raphies of the candidates in the election for the 2023 HSBA Board follo w Ballots will be distributed in early mid September, and election results will be announced at the Annual Meeting at the virtual Bar Convention on October 14, 2022. matter before them Previously worked with the most talented attor neys and staff at the Public Defender’s Office, Reinwald O’Connor & Playdon, Kobayashi Sugita & Goda, Rush Moore.
TREASURER CANDIDATE Alika Piper I am a founding member and partner of Klevansky Piper, LLP, with a practice focusing on bankruptcy and business litigation. I g raduated from the University of Hawaii with a BBA in Accounting (1994) and a Juris Doctor from the William S Richardson School of Law (1997) I am listed in Chambers and Partners as a leading lawyer in Bankruptcy/Restructuring in Hawaii I am the current Treasurer and Chair of the Finance Committee, and a past Director of the HSBA. I would be honored to serve again as Treasurer and would work diligently for Hawaii’s legal community in these challenging times
Currently, board of director of Hale Kipa and Damien Memorial School; continue to volunteer at non profit organizations Presently, a partner of Bronster Fujichaku Robbins with a focus on civil litigation If elected, I will do my very best to uphold the standards of the HSBA and the honored members who have served before me
I am running for Vice President because I would like to help our association navigate a retur n to nor malcy following the pandemic and bridge the generational transition of our membership I will also advocate for needed investment into our courtrooms, especially Kaahumanu Hale I promise to be a good steward of HSBA’s finances I was bor n on Maui and raised in Kailua where I graduated from Kailua High School. I am a graduate of the U.S. Coast Guard Academy and have served the U S Coast Guard for thirteen years on active duty and recently retired after seventeen years in the Reserve I was admitted to the Bar in 1999 after ear ning my degree from the William S Richardson School of Law. After graduation, I served as a judge advocate in the U.S. Coast Guard where I handled criminal and civil litigation, as well as various maritime and inter national law issues I have worked in private practice at Damon Key since 2005 and became a “partner” in 2008 My practice is primarily civil litigation, with an emphasis on real estate, land use, eminent domain, and probate/trust disputes. From 2012 to 2016, I served on the HSBA Board as an Oahu Director, then as Treasurer I have served on several non profit boards and am currently on the board of “I’m a Bright Kid Foundation” which focuses on musical theater and the arts. I serve as a CAAP arbitrator for First and Second Circuits and volunteer in the self help room at the Honolulu District Court every year I also have represented, Hawaiian Home Lands’ beneficiaries in trial court and on appeal on a pro bono basis
BOARD 2022 CANDIDATES
DIRECTOR CANDIDATE: EAST HAWAII Geraldine Hasegawa
28 September 2022 HAWAII BAR JOURNAL VICE PRESIDENT/ PRESIDENTELECT CANDIDATE Mark M. Murakami
SECRETARY CANDIDATE Lanson Kupau Admitted to HSBA 1992 Served as Family and District Court judge and witnessed first hand the dedication and compassion that the Judiciary staff and judges place in each HSBA
Having served as an HSBA Director for many years, I am familiar with the board’s responsibilities and the difficult issues it faces During my tenure as a director, I have coordinated CLE programs and have pushed for more inclusiveness of neighbor island attor neys. As chair of the Transitioning Lawyers Committee, I have worked to provide critical infor mation to our members The HSBA has continued to increase its webcasting seminars and has made positive changes to address neighbor island issues I am committed to representing the needs and concer ns of my East Hawaii constituents and would be honored to continue to serve as your representative
30 September 2022 HAWAII BAR JOURNAL
The strength of any gover nance board is the competence and diversity of its members Differing perspectives are good and ensure problems and chal lenges are resolved on the merits I be lieve my unique experience and perspective benefit the board and its membership. Perspective: As a General Counsel, I balance both legal and busi ness interests, often serving as a liaison between competing interests to find common g round if possible, but to
DIRECTOR CANDIDATE: MAUI Naomi Kusachi
I am a trial attor ney on the island of Maui and a co founder and managing partner of Lowenthal & Lowenthal. I currently serve as Hawaii State Bar Association’s Maui Director I previously served as the President for Maui County Bar Association I am also a federal delegate for the U S District Court of Hawaii and a board member for the Hawaii Association for Justice. I was bor n and raised on Maui and in my free time enjoy playing guitar and spending beach days with my wife and two kids
Now, more than ever, the HSBA has a sig nificant role to play in serving and sup porting its members and encouraging programs that provide and expand access to legal services for the community I am seeking re election to advance these and other efforts that serve to fulfill HSBA’s re sponsibility to its members Paul Naso
I am a co founder of Lukela & Kobayashi, LLP and practice primarily in the area of family law. I currently serve as an Oahu Director of the Hawaii State Bar Association (HSBA) and Treas urer of Hawai‘i Women Lawyers (HWL)
Erin K obayashi
I am an associate at The Law Offices of Jan K A po practicing personal injury law I was admitted in 2013 and have been practicing in Maui since 2016. Ifelected,I will advocate for and representthe interests of allattorneyson Maui, as wellasensurethatthe HSBA continues toplay apositiveroleforall members andresidents I will be committedto attend all boardmeetings and will make it a priority to be present and involved in all boardactivity on behalf of allMauiHSBA membersand ourcommunity Jacob Lowenthal
DIRECTOR CANDIDATES: OAHU Steven Chow 2022 current, Partner, Fukunaga Matayoshi Ching & Kon Herrera; 1995 2021 Owner, The Pa cific Law Group Gradu ated William S Richardson School of Law 1981; Adjunct Prof. William S. Richardson School of Law 1998 2004 Member: HSBA (Secretary 1995, Director 2001 present) and ABA I will continue to work to improve HSBA benefits, increase community education and insure the HSBA is responsive to its membership I have been the co chair of the Judicial Administration Committee from 2012 2020 which coordinates the annual Bench Bar Conference and Fo rums that brings together members of the HSBA Bar and the judiciary to discuss topics and issues to help improve the judi cial system Vladimir Devens My goal while serving on the board has been to make the HSBA more re sponsive to your needs I co chaired a committee that surveyed and reviewed the HSBA’s mission and services to im prove our organization I also co chaired the Judicial Administration Committee which organized last year ’ s Bench Bar Conference Implementation and transi tion to the new civil refor m rules and Covid procedural changes to court pro ceedings and jury trials were discussed at the conference along with retaining cer tain remote options favored by practition ers post Covid. If given the privilege to serve another ter m, I will continue to do my best for you. Ronette K awakami 1985 graduate William S Richardson School of Law; 1986 1987, Law Clerk to Honorable Marie Milks; 1987 2013, Deputy Public Defender, State of Hawai‘i; 2013 2021, Associate Dean for Student Services, WSRSL HSBA Direc tor and Secretary, 2000 2004; 2006 2014; Judicial Selection Commission, 2015 2021; Lecturer in Law, WSRSL. Current community work: Saturday mor ning breakfast preparation for the houseless at St Elizabeth’s church, Kalihi I believe my multi decade experience as an attor ney, legal educator/administrator, HSBA Director and Secretary, and JSC Commis sioner, provide a range of institutional knowledge, and a strong foundation for understanding the complexities of legal education, and issues facing the legal com munity and the Judiciary
wMediation wArbitration wMoot court wMock trial Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, H I 96813 Phone: 808.523 1234 judgefoley2000@hotmail com www dprhawaii com
Writing Legal Articles for CLE Credits Did you know? A Hawaii licensed at torney can earn two continuing legal edu cation (“CLE”) credits annually for writing a legal article of 1,500 words As of Janu ary 1, 2015, Hawaii Supreme Court Rule 22 was amended to include a new activity that may be entitled to credits: “writing scholarly legal articles that comply with Regulation 3 of the Continuing Legal Ed ucation Regulations of the State Board of Continuing Legal Education and are pub lished in a bar journal, law review, book, bar association or similar recognized jour nal, or other legal publication may qualify for 2 credit hours per 1500 published words per year ” RSCH Rule 22 (e)(4) CLE Regulation 3, inter alia, requires certain general standards: (1) The course or activity is an organ ized program of lear ning with signifi cant intellectual or practical content and deals with matters directly re lated to the practice of law; (2) The course or activity’s primary pur pose is to improve the partici pant’s professional competence as an attor ney Areas of professional com petence include substantive legal is sues, legal skills or practice, improving the attor ney ’ s delivery of legal services to clients, and improv ing the efficiency of the practicing at tor ney Accordingly, the scholarly legal article should be of “significant intellectual or practical content” and relate to the prac tice of law and an attorney’s professional competence An article may also relate to an attorney’s ethical obligations, or profes sional responsibility such as (1) the Rules of Professional Conduct; (2) the professional obligations of the lawyer to the client, the judicial system, the public and other lawyers; (3) substance abuse and its effects on lawyers and the practice of law; or (4) client trust administration, bias awareness and prevention, and access to justice A copy of an attor ney ’ s publication of a 1,500 word legal article in the Hawaii Bar Jour nal should be submitted to the CLE Administrator at the HSBA for ap proval of CLE credits R. Foley (ret.)
Zale Okazaki I have presently served 2 ter ms on the HSBA board and am running for a third I have served as fundraiser chair for at least ten years and presently serve on the Awards Committee I am also on the Hawaii Women Legal Foun dation Board and the Friends of the Family Specialty Courts Board. I am a partner of the law fir m Chong Nishi moto Sia Nakamura & Goya and have practiced since 1990 Ellen Swick I am a member of the HSBA’s business law, litiga tion, and probate and es tate planning sections. I focus my practice in the areas of commercial litiga tion and bankruptcy, representing lenders, secured creditors and debtors in various industries As the for mer Presi dent and Treasurer of the Hawai‘i Bank ruptcy Bar Association (HBBA), I have helped lead the HBBA in furthering its mission by coordinating and hosting a variety of CLE events, including the planning of a national symposium in 2020 (postponed) I am also currently serving as Treasurer of the Rotary Club of Honolulu, Pau Hana Chapter
Judge Daniel
September 2022 HAWAII BAR JOURNAL 31 ultimately solve problems. Experience: For over seven years, I worked with Gen eral Counsels to reconstitute the Cor po rate C o u n s e l S e c t i o n I c u r r e n t l y s e r ve a s a H S BA B o a r d D i r e c t o r a n d a p a s t Tr e a s u r e r
Ki mura Earns Nati onal Recognition
32 September 2022 HAWAII BAR JOURNAL
Hawaii’s Drug Court judges have observed that unem ployment is a common factor in drug related crimes The Big Island Drug Court therefore requires all participants be em ployed, pay taxes, and maintain payments towards restitutions and fines Participants have reported that being employed gives them the benefits of a more structured life schedule and personal pride in being able to do good for their families
o C O U R T B R I E F S
Brandon Kimura, Deputy Administrative Director of the Courts, Hawaii State Judiciary, has been certified as a Fellow of t h e I n s t i t u t e fo r C o u r t M a n a g e m e n t at t h e N at i o n a l C e n t e r fo r S t at e C o u r t s. H e s t h e f i r s t f ro m H aw a i i t o c o m p l e t e t h i s p ro g r a m . K i mu r a w a s p a r t o f t h e 5 0 t h c l a s s o f g r a d u at e s wh
i
Big Is land Drug Court Empl oyer Appreci ati on 2022 Employment is a vital part of the Hawaii Drug Court strateg y to enhance the education, housing, financial stability, and future job prospects of prog ram participants. It is also es sential to helping participants provide better support for their families. None of this would be possible without employers who are willing to hire individuals working toward completion of the Drug Court prog ram Judge Wendy DeWeese, Deputy Prosecutor Annaliese Wolf, Deputy Public Defender Rick Macapinlac, and Big Is land Drug Court staff showed their deep appreciation to these partners during National Drug Court Month by scheduling site visits to see, firsthand, how employers are helping Drug Court clients ear n a second chance at life On May 2, the team presented West Hawaii employers like Atlas Recycling Center Operations Manager Elias Allen with a certificate of appreciation
The entire Hawaii judiciary g rieves the loss of for mer Chief Justice Ronald Moon, who passed away on the evening of July 4, at age 81 “The judiciary has lost a legend Chief Justice Moon was a visionary leader and trailblazer in the legal profession But he never forgot his roots g rowing up in Wahiawa, and wanted e ve r y p e r s o n t o b e t r e a t e d f a i rl y a n d w i t h r e s p e c t w h e n t h ey c a m e i n t o o u r c o u r t ro o m s, ” s a i d C h i e f Ju s t i c e M a rk Re c k t e n w a l d . “Under his leadership, the Supreme Court decided land mark cases ranging from same sex marriage, to protecting na tive Hawaiian rights and the environment. He also worked tirelessly to make the judiciary more effective and accessible, and shaped us into the institution we are today,” said Chief Justice Recktenwald.
Chief Justice Moon served as Chief Justice for more than 17 years, before retiring in 2010 He was the first Korean American to become the chief justice of a state supreme court Before that, he served as a circuit court judge and then an as sociate justice of the supreme court, for a total of 28 years of service on the bench “Chief Justice Moon frequently quoted his father as say ing ‘Public service is the rent one pays for occupying the space here on earth ’ That sums up who CJ Moon was and what drove him to work so hard He put his heart and soul into the judiciary,” Chief Justice Recktenwald said “I am heartbroken by CJ Moon’s passing He was an in credible role model, a friend and a mentor, and always sup ported me in any way possible He genuinely cared about every employee in the judiciary, and would stop to talk story and ask how they were doing, or share a joke,” Recktenwald said “On behalf of the entire Hawaii judiciary ohana, I send our aloha and deepest sympathy to CJ’s wife, Mariko, and his children and g randchildren ” Under Chief Justice Moon’s leadership, the judiciary started many innovative prog rams which continue to this day, including drug court, mental health court, and girls court pro g rams, and a certification prog ram for court inter preters. Chief Justice Moon also worked effectively with the legislature, which provided funding for four new courthouses during his tenure. The last one, the family court complex in Kapolei, was opened in 2010 and bears his name. He received numerous awards and recognitions, including the National Center for State Courts’ Harry L. Carrico Award for Judicial Innovation, the Hawaii State Bar Association’s Golden Gavel Award, and the American Judicature Society’s Herbert Harley Award
The counseling, support, and supervision participants re ceive in Drug Court helps them serve as loyal, reliable mem bers of the workforce. This has been especially important to local businesses facing the pandemic labor shortage.
Statement on the Passing of Chief Justice Ronald T.Y. Moon
September 2022 HAWAII BAR JOURNAL 33 completed a rigorous prog ram focused on court management, research, and ex ecutive leadership, through three levels of certification. His work towards the last level of certification was largely completed before the pandemic began. He joins more than 1,300 alumni representing 49 states, the District of Co lumbia, Guam and 12 foreign countries Since 1970, the Institute has delivered training and education to judicial branch personnel in emerging areas of court lead ership and management concepts Kimura has been the Deputy Direc tor since 2017 He is a graduate of the William S Richardson School of Law, where he served as Co Editor in Chief of the University of Hawaii Law Review Hasegawa Sworn In Family, friends, and colleagues in the courtroom and around the state and beyond watched as Jill M Hasegawa was swor n in as District Family Court Judge of the Third Circuit Chief Justice Mark E Recktenwald presided over the July 1 ceremony, which was livestreamed on the Judiciary’s YouTube channel. Guest speakers were: West Hawaii Bar Association President Britani A. Baker; Hawaii County Bar Association Vice President William B. Hef lin; Hawaii State Bar Association President Shannon S. Sheldon; Hawaii State Trial Judges Association President Judge Summer M.M. Kupau Odo; Judi cial Selection Commission Chair Nadine Y Ando; Rep Mark M Nakashima; and Sen Lorraine R Inouye Hasegawa will serve a six year ter m Fifth Ci rcuit S eeki ng Applicants for Independent Grand Jury Couns el The Circuit Court of the Fifth Cir cuit is seeking applicants for independ ent Grand Jury Counsel If you are interested in being considered for a one year appointment, please submit a re sume by September 30, 2022, to Chief Judge Randal Valenciano, 3970 Kaana Street, Suite 306, Lihue, Hawaii, 96766, Fax number (808) 482 2662.
On its face, Rule 1 8(c) does not prohibit a lawyer from ac cepting an unsolicited substantial gift from the client Comment 6 to this Rule, however, indicates that such a gift “ may be void able by the client under the doctrine of undue influence which treats client gifts as presumptively fraudulent.” This presump tion puts the burden of proof on the lawyer to establish that the gift was not the product of undue influence Accordingly, the lawyer may want to consider advising the client to seek the ad vice of another lawyer in such situations
For example, the Restatement (Third) of the Law Gover n ing Lawyers (2000), Section 127(2) suggests a possible third ex ception to the general rule against receiving gifts from clients beyond the exceptions under Rule 1 8(c) for a gift that is not sub stantial or in circumstances where the lawyer is related to the client. The Restatement suggests that it may also be per missi ble for a lawyer to accept the gift when the client has received
You have done outstanding work for your client and made or saved your client a huge amount of money. After the work is finished and your last invoice is paid, your client sends you a flower arrangement, which you appreciate and looks nice in the office But what do you do if you open the card that comes with the flowers and there is a big fat check made out to you? Alter natively, you have done legal work for a wealthy client for many years The client has no close family members and asks you to prepare documents naming you to the lucrative position as executor of his or her estate or which provides a large testamentary gift for you Besides jumping for joy, what do you do? What should you do?
34 September 2022 HAWAII BAR JOURNAL
Yes or No
by Lennes N Omuro
Hawaii Rules of Professional Conduct (“HRPC”), Rule 1 8(c) provides as follows: Rule 1.8. Conflict of Interest: Prohibited transactions. *** (c) A lawyer shall not solicit any substantial gift from a client, in cluding a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client For pur poses of this paragraph, re lated persons include a spouse, child, grandchild, parent, grand parent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship Rule 1 8(c) makes it clear that a lawyer is prohibited from soliciting a substantial gift from a client, including a testamen tary gift, unless the lawyer and client are related But what is a substantial gift? Comment 6 to Rule 1 8 states that a lawyer may accept a gift from a client “if the transaction meets general standards of fair ness ” Examples of per missible gifts listed in the comment include “ a simple gift” such as “ a present given at a holiday” or “ as a token of appreciation ” Although this com ment provides some guidance, obviously dif ferent persons may have differing views on what is a “simple gift” or what meets “general standards of fair ness ” Some ethics committees in other jurisdictions have examined this issue in more detail For example, in Califor nia Opinion 2011 180 (undated), the committee indicated that the following factors should be deter mined in considering whether a gift is substantial: [T]he monetary value of the gift, nature of the gift, the fair ness of the transaction, the appropriateness of the lawyer’s actions or behavior, the sophistication of the client, the emotional or senti mental value of the gift, whether the gift is substantial from the perspective of the client, and whether the gift is substantial from the perspective of the attor ney 1
September 2022 HAWAII BAR JOURNAL 35 independent advice from another lawyer or has been encouraged to seek such ad vice Although this third exception is not specifically incor porated into Rule 1.8(c), having the client seek or advising the client to seek independent counsel should provide grounds for arguing against the presumption of undue influence Next, if the effectuation of a sub stantial gift requires preparing a legal in strument such as a will or conveyance, Comment 7 to Rule 1 8(c) states that the client “should have the detached advise that another lawyer can provide” and that the “sole exception to this Rule is where the client is a relative of the donee.” Therefore if a client wants to leave the lawyer or a person related to the lawyer a substantial bequest, the lawyer should, as a practical matter, generally avoid draft ing the will, trust or other instrument. The lawyer should also keep in mind that having another lawyer in the fir m draft the instrument may not avoid the conflict. Indeed Rule 1 8(k) provides that while lawyers are associated in a fir m, the pro hibitions set forth in paragraphs (a) through (i) of Rule 1 8 that apply to any one of them shall apply to all of them. On the other hand, Rule 1 8(c) does not prohibit the lawyer from being named as the executor of the client’s estate or to another potentially lucrative fiduciary po sition. Comment 8 to the Rule does, however, state that “such appointments will be subject to the general conflict of interest provision in Rule 1 7” when there is “ a significant risk that the lawyer’s in terest in obtaining the appointment will materially limit the lawyer’s independent professional judgment in advising the client concer ning the choice of an execu tor or other fiduciary ” The comment goes on to state that when obtaining the client’s consent to the conflict, the lawyer “should advise the client concer ning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alter native candidates for the position ” Finally, one of my partners recently
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September 2022 HAWAII BAR JOURNAL 37 reminded me of a lawyer’s joke where the lawyer tells his friend that the lawyer has an ethical dilemma because a client gave the lawyer a large gift. When asked what the dilemma was, the lawyer replied “do I have to tell my partners?” Lawyers should keep in mind not only fiduciary duties owed to their clients but also any duties that they may owe to their law fir m Although it is unlikely that any fir m would demand that a lawyer share a box of cookies given by a client (although it would be nice of the lawyer to leave the box at the coffee station), what happens if the lawyer gets a truly sizeable monetary gift or an extremely valuable painting or other extraordinary tangible gift? Con sideration should at least be given whether this is truly a gift to the individ ual lawyer or whether this is in lieu of compensation to the fir m for work pro vided by the fir m Gifts from clients should be evalu ated according to the particular circum stances of each gift True gifts from clients are always appreciated, but lawyers should be aware of the ethical prohibitions that may apply and seek ap propriate advice when needed. 1 The lawyer violated the Califor nia ethics rule when soliciting a gift consisting of a week at the client’s vacation home to “recharge the lawyer’s batteries” valued at $5,000 See also, New Hamp shire Opinion 2011 12/7 (April 11, 2012) (one time gift from a fairly wealthy client consisting of theater tickets and $200 for a lawyer and her husband to go to dinner in appreciation of the lawyer’s services over the years would probably be viewed as insubstantial and not prohibited by Rule 1 8(c)) Lennes Omuro is a partner at Goodsill An derson Quinn & Stifel and a member of its liti gation section. He has also ser ved as his fir m’s Professional Responsibility Committee Chairper son and as in fir m Counsel [T his article was originally published in the April 2016 issue of the Hawaii Bar Jour nal.] EMPOWER ATTORNEYSYOUR&STAFFWORKINGREMOTELY Learn more at AccessCorp.com/Hawaii Or call now: 808.673.3200* *Mention this ad for a Free Consultation and Quote Scan-on-Demand: Digital Mailroom: ACCESS DIGITIZATION & SCANNING SERVICES INCLUDE: WERE MPO SO RNEYTAT WORKINGTAFFTAFFS REMOTELYREMOTELY WORKINGSYOUR& SC CESA SCANNINGT ION Learn more at 808.673.3200 808.673.3200AccessCorp.com/Hawaii
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