September 2016 Hawaii Bar Journal

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION S EPTEMBER , 2016 $5.00

Law Firm Records Retention 2017 HSBA Board Candidates The Unauthorized Practice of Law

Peter A. Donahoe 1931-2016 We have lost a dear friend, mentor, and valued colleague. The Attorneys and Judges Assistance Program Director Emeritus, Peter A. Donahoe passed away on March 8, 2016. He was 84. Pete was the program director from 1993 to 2004, but served the program when called upon up until he left Hawai`i for the final time in 2014. Pete was born in Pittsburgh, Pennsylvania on May 12, 1931. He is married to Jane Tudor-Williams and is survived by his four children: Michael, Thomas, Peter D., Elizabeth and his sister Lucille Eonta. Below is an excerpt from 2004, written by then ABOTA-Hawai`i President Gerald Y. Sekiya, when Pete was awarded the ABOTA-Hawai`i Ha`aheo Award, that describes some of Pete’s professional accomplishments: Peter’s love for Hawai`i began in 1954, when he was stationed at Schofield Barracks, after returning from the Korean War where he served as a Captain in the Signal Corps with the 25th Infantry Division, and he vowed to return to Hawai`i. He did in 1960, after graduating from the University of Washington with a Bachelors degree in Political Science in 1957 and obtaining his Juris Doctor degree from Harvard Law School.

He began his legal career as an associate with Carlsmith, Carlsmith, Wichman, & Case in Hilo from 1960 to 1963. Then, he served as staff attorney for the Hawai`i State Senate Majority in 1963; joined the Anti-Trust Division of the State Attorney General’s office (1963-65); was Assistant U.S. Attorney, Department of Justice (1965-67); joined the firm and was a partner of Robinson, Castle & Anthony (currently, O’Connor Playdon & Guben) (1967-71); was a visiting professor of Political Science at the American College of Switzerland (1971-73); and opened his own practice in 1973 until retiring in 1991...

Hawaii Supreme Court Justice Steven Levinson (1991-2008) writes: In 1972, when Peter was a visiting professor at the American College of Switzerland, the Hawai`i Supreme Court heard oral argument in Tittle v. Hurlbutt, a matter in which Peter had represented the defendant at trial. Appellate counsel arguing for his position in the Supreme Court made some clearly inaccurate factual assertions, to the great frustration of the plaintiffs' lawyer, future Justice Frank Padgett. "If Mr. Donahoe were here," Padgett declared, "he would never make such claims. Mr. Donahoe is an honorable man." First and foremost, Peter Donahoe was an honorable man.

Current Chief Justice Mark Recktenwald says, "We appreciate Peter's dedication and commitment to making the Attorneys and Judges Assistance Program a valuable resource for the legal profession."

One of Pete’s personal accomplishments that he was very proud of and a story he often told was that he was responsible for the Royal Hawaiian Band’s Friday noon performances in the Coronation Pavilion on the ‘Iolani Palace grounds. The performances started half a century ago and continues today. He was also a published poet and an artist.

Final words are from AAP’s Administrative Assistant, Kahi Deeley, who worked closely with Pete for the last 10 years: “I am so thankful to have had the opportunity to learn from Pete as a mentor and friend. I have his delightful smile imprinted in my memory and will miss his charm the most. Pete will be greatly missed and forever loved by all who has encountered his Aloha.”

Aloha A Hui Hou

We welcome you to share an Aloha message for Peter Donahoe at www.hawaiiaap.com.

TA B L E O F C O N T E N T S VO L U M E 2 0 , N U M B E R 9

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

ARTICLES 44

Law Firm Records Retention

by Stacy P. Rezentes

20 19

HSBA Board 2017 Candidates

25 24 28

YLD Board 2017 Candidates The Unauthorized Practice of Law in Hawaii

by Lennes N. Omuro

HSBA OFFICERS President Jodi Kimura Yi President-Elect Nadine Ando Vice President Howard Luke Secretary Russ Awakuni Treasurer Mark M. Murakami YLD OFFICERS President Ryan Hew Vice President/President-Elect Trejur Bordenave Secretary Catherine Taschner Treasurer Ryan Loeffers

OF NOTE 18

HSBA Happenings

30 20 34 22 35 28 36 30 37

Case Notes

Writing Legal Articles for CLE Credits

31 38

Off the Record

39

Classifieds

Court Briefs United States Magistrate Judge Kevin S.C. Chang Reappointed Joint Bar Conference with the Dai Ichi Tokyo Bar Association

EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

On the cover: Captain and crew original oil painting by Susie Anderson. Anderson is a juried member of Oil Painters of America (OPA) and a Signature Member of the Plein Air Painters of Hawaii (PAPOH). Her paintings are found in numerous private and corporate collections worldwide , and the permanent collections of the Hawaii State Foundation on Culture and the Arts, and the City & County of Honolulu. The cover art is now offered in Limited Edition GiclĂŠe Print on Canvas. For more information she invites you to visit her website at www.susieanderson.com

Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

The practice of law today is not what it was a generation ago. The information revolution brought increased productivity through technology, which led to the downsizing of support staffs who heretofore were the workhorses of law firm records management.

The result, sadly, is the offset of this productivity by the inefficiencies that result when lawyers neglect the administrative side of their practices, by failing to devote time to the organization and maintenance of their files and to systematic disposition of those files. Wasting otherwise bill-

ed to this topic, all day, every day.

Let us begin with the analogy of “Farmer Brown.”

Why We Keep Law Firm Records Farmer Brown turns to the almanac before every planting season.

Attorneys’ almanacs come in the form of regulatory, professional, ethical, and

the lawyer’s own property, as a fiduciary. The lawyer shall not commingle such funds or property with his or her own or misappropriate such funds or property to his or own her

Law Firm Records Retention

by Stacy P. Rezentes1

able hours looking for materials because you cannot remember where it is only hurts you and your clients. And wasting valuable office space on old, dusty, cockroach-eaten files that have outlasted their required retention periods is just bad business. So what is a conscientious attorney to do? The short answer is: remember why you keep law firm files, know what you keep in them, choose how you keep them, decide where you keep them, determine for how long you keep them, and resolve how you let go of them at the proper time.

Practitioners in small- to mid-sized firms will benefit the most from this article. Large firms do not need this kind of help if they have full-time staff dedicat4 September 2016

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statutory guidance.

The first is the Hawaii Rules of Professional Conduct. The Hawaii Rules of Professional Conduct, amended in June 2013, effective January 2014, mentions files and records in two relevant places.

1. Rule 1.15 on preserving identity of funds and property of a client or third person provides in pertinent part (emphasis added): (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from

use or benefit. Funds shall be kept in a separate account in Hawaii in accordance with Rule 11 of the Rules of the Supreme Court of the State of Hawaii, and Rule 4 of the Hawaii Rules Governing Trust Accounting. Other tangible property owned by a client or third person shall be identified as such, appropriately safeguarded, and a record kept of the item’s receipt and disbursement. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a

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period of 6 years after the termination of the representation.

2. Rule 1.17 on the sale of a law practice provides in pertinent part (emphasis added): (a) A lawyer or a law firm may sell or purchase a law practice, or an area of a law practice, including good will, if the following conditions are satisfied: (a) The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, in the State of Hawaii; (b)The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms; (c) The seller gives written notice to each of the seller’s clients regarding: (1) the proposed sale; (2) the client’s right to retain other counsel or to take possession of the file; and (3) the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within 90 days of receipt of the notice.

specified in the advertisement, and that unclaimed items will be destroyed; (iii) send form notices by regular mail to all of the attorney’s clients, informing them of the attorney’s status and that those clients may obtain their files by contacting the trustee at an address and telephone number specified in the notices; and

The Rules of the Supreme Court of the State of Hawaii, amended in and effective 1984, mention files and records in three relevant places: 1. Rule 2.20(c) on trustee proceedings, where an attorney has been transferred to inactive status due to incapacity, disability, disappearance, death, suspension or disbarment, provides in pertinent part as follows (emphasis added): (c) Duties of trustees.

(1) A trustee appointed under this rule shall: (i) take custody of all client files and records of the attorney; (ii) publish one (1) advertisement in a newspaper of general circulation announcing that the trustee has been appointed to inventory the attorney’s client files, that the attorney’s clients may contact the trustee to retrieve their files within the time 6 September 2016

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(iv) obtain and maintain written records and verification of all files released to the attorney’s clients.

ject of the trusteeship may, by order of the supreme court, be suspended from the practice of law in this state until the trusteeship is completed and may be required to pay to the Board all costs ordered and incurred, together with interest at the Hawaii statutory judgment rate.

2. Rule 11(f)(2) on the interest-bearing trust accounts program provides in pertinent part as follows (emphasis added): Records. An attorney or law firm shall preserve or cause to be preserved the records of all financial depository institution accounts or other records pertaining to the funds of a client maintained by the attorney or law firm in compliance with this Rule and Rule 4 of the Hawaii Rules Governing Trust Accounting for a period of not less than 6 years subsequent to the completion of the employment to which they relate or the last transaction on the account, whichever comes last.

Failure to file the required certificate, filing of a trust account certificate showing non-compliance with either this Rule or Rule 4 of the Hawaii Rules Governing Trust Accounting, or return of a trust account check for insufficient funds shall be good cause for the Office of Disciplinary Counsel to undertake an investigation and pursue disciplinary action, if appropriate, against the attorney or law firm.

*** (d) Disposition of unclaimed files.

Following discharge of the trustee, the attorney’s client files shall be stored by Counsel for a period of one (1) year. At any time thereafter, Counsel may publish a legal notice in a newspaper of general circulation announcing that the attorney’s client files will be destroyed in thirty (30) days if unclaimed. Upon expiration of the thirty (30) day period, Counsel may destroy any unclaimed files which, in the exercise of discretion, Counsel concludes do not contain original documents of value to the attorney’s clients (e) Upon appointment of a trustee, the attorney whose files are the sub-

3. Rule 22 on continuing legal education provides in pertinent part (emphasis added): (d) Mandatory Certification, Reporting, and Record Keeping.

Each active Bar member shall certify on the annual registration form whether the member is in compliance with this Rule by reporting the number of approved credit hours of Continuing Legal Education completed in the previous year, including the specific number of hours of ethics or professional responsibility education, and shall maintain certification records for the three most recent reporting periods. These records shall be

subject to audit by the Hawaii State Bar. Non-cooperation with an audit shall be deemed noncompliance with this Rule.

The American Bar Association published an entire book in 2006 devoted to the subject, in The Lawyer’s Guide to Records Management and Retention. It is a comprehensive resource with more than 300 pages that would be a great addition to your practice management library for reference. Finally, the primary statutes of limitation on contract and tort claims are a helpful fallback if you cannot find any other statutory or regulatory guidance. If the files could give rise to contract-based claims, you would retain them for six years. If they could give rise to tort-based claims, you would retain them for two years.

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Framework for Law Firm Records Before Farmer Brown plants the wheat crop, the workers prepare the soil.

Lawyers lay their initial groundwork by understanding records management terms of art, documenting their records retention program, and gathering basic data.

The terms of art are: • Active means the record or file is still being used on a regular basis.

• Inactive means the record or file is only being referred to once in a great while.

• Open files pertain to projects or client matters that the lawyer is working on.

• Closed files pertain to projects or client matters that the lawyer is no longer working on and is not likely to work on in the future, usually because the matter is completed or the client suspends work on the matter indefinitely.

• Retention is the specific time period for which a record or file is maintained during its active and inactive status until final disposition.

• On-site means in the office, easily accessible.

• Off-site means in storage, not-so-easily accessible.

• Disposition is the final action taken regarding a record or file. This would be destruction, return to the client, or transfer to third parties.

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The program documents are: • A written records management program charter; • A formal policy statement; • A records retention schedule, which documents the time frames for maintenance of all the records in the firm; and • Procedures for executing and enforcing the policy and guidelines.

The basic data are: • What you have: Types of kinds of records used in each practice and business function, including record titles and functional descriptions.

• Its medium: Whether the records exist in hard copy, microform, or electronic format.

• Where it is: The locations of records repositories such as hard-copy file rooms, work rooms, and staging areas, including electronic repositories.

• Operational life: The period of time a record has some sort of real business utility to the firm; how long a given record is needed to satisfy real business purposes.

• Compliance life: How long you need to keep records to satisfy both legal and ethics requirements; and • Risk management life: How long a given record might be needed to satisfy the demands of dispute resolution, litigation, audit, or investigation, and at what point its continued retention might start creating risk for your client.

What’s in Law Firm Records When Farmer Brown harvests the wheat crop, the workers mound the cut stalks in a haystack. Unorganized law firm files can be very much like a haystack. How to tame the chaos?

Start with a records inventory. The purpose of the inventory is to identify exactly what you have, so you can figure out what to do with it. Assuming that you already keep firm or practice files separate from client matter or project files, this is what you do: 1. Identify all of your physical repositories, every desk drawer, file cabinet, file room, work room, vacant office, garage, or storage facility where law firm files might be lurking. Ideally, you

will have or create floor plans of the repository areas, too, in order to pinpoint more precise locations.

2. Identify all of your electronic repositories, every computer hard drive, email system, file server, and internet or “cloud” based system, wherever electronic folders might be lurking. Do not forget USB disks. Ideally, you will have or create a technology map in order to pinpoint precise locations.

3. Going repository by repository, fill as many columns on the inventory as you can with whatever data you can collect. If listening to upbeat music on your iPod helps to keep you going, by all means get your groove on. If hunger or thirst slows you down, by all means keep your tank full.

4. For paper records, use the file name; for electronic records, use the folder name. Even if some files or folders are segregated and secured by court order, make sure to list them on the inventory. Perfection is not the goal, comprehensiveness is. This is important because it allows you to sort the aggregated data by whatever field you need, and also pre-populates data fields in any technology system you may be considering.

Once you have the completed inventory, you are done for the moment. But remember, every time a new file is created or destroyed afterward, you must update the inventory to keep the information in it current.

Here are examples of client and administrative files inventories.

In the client matter inventory above, the headings are defined as: 1. Matter Name: The name of the matter for which the client engaged such as “Kakaako you, Redevelopment.”

2. Matter No.: Ideally, you would assign a number to the particular engagement, in order to prevent confusion if you have more than one matter with similar names. For every new matter the firm accepts, a matter number should be assigned serially. If you wanted to get really fancy, you could assign each client an acronym and then assign the matter number an alpha-numeric combination such as “KS-001.”

3. Matter Type: Ideally, you would have a separate table of the types of matters your firm handles, abbreviated for space efficiency. For example, BNK for bankruptcy, DIV for divorce, CRM for criminal misdemeanor, PI-A for auto-related personal injury, and so forth.

4. File Type: This would be the different documentary components of the matter, such as pleadings and correspondence.

5. Volume No.: This would be the serial number assigned to overflow files of the same type. For example, “Pleadings Vol. 3.”

6. Date Opened: This is the date you opened the matter, not the date you opened the file. This is because the matter has one inception date, but files under it may be created on many different dates.

7. Date Closed: This is the date you closed the matter. This is because the matter has one closure date, the trigger for your retention period.

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Inventory look like? Kind of like this: More on this later.

2. File Location: Since this is the inventory, you want to identify exactly where it is AT THIS POINT IN TIME. If you decide to relocate it elsewhere as part of an office space reorganization, just remember to update your inventory too.

In the firm admin file inventory above, the column headings are defined as: 1. File Name: The subject of the file, such as “Space Lease.”

2. Description: The description or subheading of the subject, such as “Rent Renegotiation.”

3. File Type: This would identify the administrative documentary component of the subject, such as accounting or office space.

4. Record Date Start: This is the earliest date of the records in the file.

5. Record Date End: This is the latest date of the records in the file.

Depending upon the volume of records in the file, the end date may be a week later, a month later, a quarter later, or a year later.

The remaining descriptors above apply to both client matter files and admin files: 1. Retention Series: Placeholder for now.

More on this later.

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3. Box No.: Once you complete a matter, you will want to box all of the files related to the matter for inactive retention, and assign the box its own serial number. More on this later.

4. Box Location: Once you have boxed inactive files, you will need to know where you put the box in order to find it later.

5. Eligible Destruction Date: This is the date that you can destroy the file according to your retention schedule.

6. Actual Disposition Date: This is the date that you complete physical disposition according to your retention schedule. It could be destruction, or it could be transfer to the client.

Okay, so what does a completed Inventory look like? Kind of like this:

The first file pertains to a client matter for Darling Dairy, and its desire to enter into an agreement to purchase 100 gallons of milk per week from Farmer Brown’s cows. This is the first matter that the firm has ever accepted, so its matter number is 00001. The matter type is a contract, and the file type of drafts of the agreement. The volume number is one because it is a pretty straightforward matter. The matter opened on January 20, 2010, and closed on October 15, 2010. The file’s retention series is Closed Projects, and no longer has a file location, since it has been placed into Box No. 0005, located in the basement. It will not be eligible for destruction until October 15, 2017.

Here are some other examples:

You can pretty much follow the logic for the rest of the file examples. Where there are blank cells, there is no data and thus an implied “not applicable” or “N/A.” How We Keep Law Firm Records Now that Farmer Brown has carefully inventoried the contents of the haystack, the workers are ready to divide it into bales. Lawyers wrestling with their new comprehensive inventories use bales, too, in the form of a file plan and naming conventions. The file plan is merely a structure or chart with enough logic and detail that anyone with a minimum of training can understand and comply with it. Legal matter files can be organized by client name, by legal subject matter, or any other grouping. The important thing is that whatever structure you use for paper files, you should also apply to electronic folders on hard drives, file servers, and e-mail systems.

Naming conventions are merely rules with enough logic and detail that anyone with a minimum of training can

understand and comply with them.

Paper files can be named by client name, matter name, matter number, file type, and volume number. The important thing is that whatever naming conventions you use for paper files, you should also apply to electronic folders. Naming conventions can also extend to electronic document names, depending upon how much detail there is in the folder structure in which they are stored. For example, if the level one folder is named “Firm Governance,” the level two folder is named “Partnership Meetings,” and the level three folder is named “Agendas,” then the document name for a particular meeting date could merely be “2013-08-30.” If you only had the first two levels, then the document name could be “Agenda 2013-08-30” or “2013-08-30 Minutes.” The file path should make it easy to locate what you need, such as Firm Governance/ Partnership Meetings/Agendas/201308-30. It all depends upon what makes the most sense to the firm.

This is what a file plan for paper records might look like. As we can see, client matters are sorted by client name, then by matter name, then by file type.

Fairly straightforward. It can also be applied as a folder structure for computer hard drives, e-mail systems, file servers, and USB drives. Note that the computer sorts folders alpha-numerically, so if you want them to be in a certain order, you have to give them numeric prefixes.

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This is an example of naming conventions for paper file labels. All of the information that’s needed to identify the file is on the outside, so you don’t have to open it up to confirm.

Below are examples of naming conventions for data, whether paper or electronic. It doesn’t matter what you choose, as long as you use the same format consistently for indices or electronic document names.

• Name: First, Last or First M.I. Last • Date: YYYY-MM-DD or August 30, 2016 • Time: 01:00 PM or 13:00 hours Where We Keep Law Firm Records Now that Farmer Brown has harvested and baled the wheat crop, the workers are ready to move them to the barn. Lawyers use barns as well to store and access their client and administrative files. Paper files can be stored either on-site or off-site, as mentioned earlier in the terms of art enumerated in the Framework for Law Firm Records section. Files that should be kept on-site, or in the office space, are those active administrative and client files that pertain to open cycles or matters, or otherwise need to be accessed frequently.

Files that should be kept off-site, or in bulk storage areas, are those inactive administrative and client files that pertain to closed cycles or matters, or otherwise do not need to be accessed frequently. This is because office space per square foot can be very expensive, so you do not want to waste it on files that do 12 September 2016

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not support your current workload.

Bear in mind that not all bulk storage facilities are equal; depending upon the total volume of your inactive files, you also need to consider security, climate control, and costs for pick-up, storage, and delivery.

Electronic documents are extremely difficult to store because they are everywhere and nowhere. Kind of like Farmer Brown’s cows, who can roam all over creation if there is no paddock to contain them. This is why we as lawyers need to exercise the same discipline with our electronic documents as we do with our paper files. So let us inspect the pasture, if you will. Watch out for cow pies…

E-mail messages in Microsoft Outlook can be managed fairly easily if we take the following steps: 1. Set up folders for administrative and client matters using the same structure as your file plan.

2. Move messages from your Inbox into the appropriate matter folders.

3. Do not forget to move messages from your Sent Items folder as well into the appropriate matter folders.

4. Move only those messages that you need to keep for business or legal reasons.

5. Do not move so-called “transitory” messages, such as the ubiquitous replyto-all “thanks”; delete these immediately when no longer needed.

If you are using Outlook Exchange 2010 or later, there is an ever greater benefit in that you can assign retention periods to folders. That way, when a matter is closed and you update the inventory with box numbers and destruction dates, you can assign the same destruction date to the corresponding Outlook folder. In the unlikely event of electronic discovery of your email messages, the fact that you have taken the time to organize them will cut costs drastically.

Computer hard drives, shared drive or file servers, and SharePoint or other collaborative sites, also often contain

electronic documents belonging to the firm. Apply the same file plan to these repositories as the firm does its paper files. Social networking, websites, and text messages are a different can of worms, so to speak, with seminars devoted entirely to the subject. Thus, they are out of the scope of this article. The purpose of mentioning them here is just to remind you that, in the event of litigation, they are subject to electronic discovery, too, although not as aggressively as e-mail messages.

There are also robust technology systems to manage electronic documents and files.

The first is an imaging system, which scans paper documents into electronic format. One solo practitioner I know scans everything into his system, so he can access it anywhere via his iPad. If this is something you are interested in, keep the following considerations in mind: • When you scan the images, the most commonly used format is PDF or portable document format. The benefit of PDF is that generally you can search typed text by keyword.

• Establishing an index that aligns to your file plan is critical, otherwise you will simply have another electronic haystack.

• Whether you have all the scanning and indexing done in-house, or whether you outsource, will depend upon your staffing resources and the total volume of documents you want to image.

Finally, there are many electronic document management systems. If this is something you are interested in, keep the following considerations in mind: • Technology evolves very rapidly, so what is readable today in native format (such as Microsoft Word or Excel) may no longer be readable in five years. If you want your system to hold documents for a long time, save them in PDF/A format, an archival standard of PDF. • Again, the index is critical for the same reasons as outlined on imaging systems.

As we wrap up our discussion of

repositories, please do not overlook several additional considerations: 1. The location of any electronic repository. “Hosted” systems are those that reside on your firm’s servers, while “cloud” systems are those that reside on the vendor’s servers. The advantage of hosted systems is their customization capabilities. The advantage of cloud systems is the maintenance and backup support. Whether the location is hosted or cloud-based, it’s also important to check the history of the vendor: Where do they derive their funding? How stable are they financially?

2. Protection and Backup. If you are using a cloud system: • Does the online data storage provider have an enforceable obligation to preserve confidentiality and security? How does the vendor safeguard the privacy/confidentiality of stored data?

• How often is the user’s data backed up?

Does the vendor back up data in multiple data centers in different geographic locations to safeguard against natural disaster?

• Can the vendor guarantee restoration after a system crash or other disaster within an acceptable time frame? How long can your firm afford to be “down” without irreparable losses?

• Are the vendor’s data and application servers within the geographic boundaries and jurisdiction of the United States? If not, enforcement of the vendor’s obligations can become very problematic.

• Will the provider notify the lawyer if the cloud provider is requested to produce client information to a third party?

• Can you get your data “off ” their servers for your own off-line use/backup? If you cancel your subscription, will you get your data back? Is data supplied in a non-proprietary format compatible with other software?

3. Finally, security. Is there sufficient physical security of your paper repositories, and sufficient physical and electronic

security of your electronic repositories?

• Physical security relates to locks on file drawers, file cabinets, file rooms and the like.

• Electronic security relates to passwords, fire walls, data encryption and the like.

What technology does the provider use to guard against reasonably foreseeable attempts to infiltrate the data, and whatare the provider’s security measures, policies and recoverability methods?

How Long to Keep Law Firm

How Long to Keep Law Firm Records Farmer Brown stores the wheat crop and pastures the cows according to annual seasons. Lawyers’ files are also stored according to seasons known as retention schedules. At a high level, there are three principles to follow.

• First, files pertaining to ongoing or current clients should be retained at least until the representation is completed or terminated; files pertaining to past

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www.bonemarrowhawaii.com September 2016

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clients should be retained for a period of years after the date of termination in the unlikely event of litigation concerning the representation.

• Second, the same analysis applies to client legal matters that are ongoing or current, versus matters that are completed or terminated.

• And third, client matter files and firm administrative files should never be commingled.

In the day-to-day practice of law, it is easy to overlook the ministerial tasks at the conclusion of a client representation or a client matter. This is why I recommend that you set aside one day every year, when your staff can come dressed in casual attire, you provide pizza and soft drinks, upbeat music is playing, and everyone reviews the files on representations and matters that have been completed or terminated within the last year and stages them for transfer to your offsite storage facility.

There are two options to keep on top of this. The first is the periodic option, where you run a billing report on all the matters you worked on during the previous month or quarter; you should be able to identify which of them were completed, and accordingly which paper files and electronic folders should move to inactive status. The other option is to just wait until a week or so before the annual clean-files day to run the report in order to identify which matters were closed and which files and folders to move to inactive status; if you choose this option, you might also want to compare the list to a report of all of your active matters to make sure nothing falls through the cracks.

When you are ready to develop a retention schedule, it begins with the inventory you created earlier. When you look over the completed inventory, you will begin to see logical groupings.

Create a separate worksheet with the first column for these logical groupings, and add columns to the right for the following considerations: • Who has access to these files? How are 14 September 2016

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access restrictions enforced?

• Are these considered “vital” records?

If so, how soon after a disaster would you need them restored in order to resume business?

• Have these records been imaged or micrographed? If so, are the paper originals still needed?

These considerations you can place in the parking lot to address later. The next considerations you really cannot: • What operational value do these files have to the firm? In other words, how long does the firm need them to operate on a day-to-day basis?

• What financial value do these files have to the firm? In other words, how long does the firm need them to enforce financial obligations?

• What historical value do these files have to the firm? In other words, are these files or portions of them important to tell the story of the firm?

• What legal value do these files have to the firm? In other words, are there statutory, regulatory or compliance requirements associated with these files?

This last consideration is the most problematic, because there are thousands upon thousands of obscure laws on records retention. There are just too many to keep track of. So, again, what’s a conscientious lawyer to do? Risk adjust.

You have a practice to run, so do not boil the ocean researching every last statute and regulation that happens to mention the keyword “records.” Instead, identify the areas of your practice that have involved or are most likely to involve a risk of litigation, investigation or audit.

Research those areas of the law for records retention requirements, and identify them on your worksheet. Then look at the four time periods you have set for operational, financial, historical and legal value. Choose the one that is the longest, because it will subsume the others. Beware the trap of keeping everything indefinitely “just in case.” Aside from legal requirements, you are not obligated to keep everything just because

someone, someday, for some unknown reason might ask for it; you run a business, not an archive. If you still cannot decide, use a generic schedule like this: Retention series name / description / on-site retention period / off-site retention period. Again, due to column width limitations, the schedule cannot be presented in the more useful table format.

The generic schedule uses the contract and tort statutes of limitation, and adds a one-year buffer.

• Firm Assets / Space leases and equipment leases / 2 years after expiration / 5 years thereafter.

• Firm Governance / Organic documents (articles, bylaws, etc.), service mark registrations, and partnership meeting agendas, packets, minutes and resolutions / life of the firm / 7 years thereafter.

• Firm Governance / Annual Filings / 2 years from record date/ 5 years thereafter.

• Professional Licensing / HSBE annual registrations, pro bono and CLE tracking, ethics opinions, disciplinary rulings / 2 years from record date / 5 years thereafter.

• Risk Management - Malpractice and general insurance policies (claims accrued) / life of the firm / 7 years thereafter.

- Malpractice and general insurance policies (claims made) / 2 years from policy period / 5 years thereafter.

• Bus iness Management - Marketing / 3 years from record date / none.

- Technology contracts / 2 years after expiration / 5 years thereafter.

- Employee Files / 2 years after termination / 5 years thereafter.

- Employment compensation and benefits / life of the firm / 7 years thereafter - Budget, accounts receivable, accounts payable, tax filings, audits and audit reports, credit accounts and loans, and IOLTA records / 2 years from record date/ 5 years thereafter - Retention schedules and disposi-

tion certificates / life of the firm / 7 years thereafter.

- Client retention files and conflict checks / life of the retention / 7 years thereafter - Closed matters / 2 years after closure / 5 years thereafter - Settlement agreements involving minors / 2 years after age of majority / 5 years thereafter.

In this sample retention schedule, we are in keeping with the industry trend toward so-called “big buckets.� The first bucket is firm assets files, such as space leases and equipment leases. Since these are straightforward contracts, it is suggested that they be kept in the office for reference for two years after the expiration of the particular lease, followed by five years off-site retention. Assuming that there are no covenants in the particular leases that survive expiration, such as indemnifications related to hazardous materials, and assuming there are no legal holds on them, you would destroy

them after the total seven-year period.

The second bucket is firm governance files. These are the documents that created your firm, as amended from time to time, and that demonstrate how it operated over time, all in order to preserve the corporate veil. These should be retained in-office for the life of the firm, and held for seven years afterward in the event of any claims. For the annual DCCA filings, it would be sufficient to retain them in-office for two years from the record date, then destroy five years afterward. The third bucket is professional licensing. Your annual HSBA license renewals, pro bono tracking, continuing legal education tracking, ethics opinions and disciplinary rulings could be kept in-office for two years from the record date, then destroyed five years afterward.

The fourth bucket is risk management. The periods for malpractice and general liability insurance depend upon whether the policies are claims-accrued basis or claims-made basis. If they are

claims accrued, you should keep the policies for the life of the firm, then destroy seven years afterward. If they are claims made, you can keep them inoffice for two years after the policy coverage period, then destroy five years afterward. Waivers and releases can be kept for three years from the record date, then destroy without sending off-site.

Indemnifications can be tricky, so retain these for the life of the risk, then destroy seven years afterward.

The fifth bucket is business management. Keep your marketing materials for three years from the record date, then destroy without sending off-site. Keep technology contracts in-office for two years after expiration, then destroy five years afterward.

The sixth bucket is human resources. Keep your employee files inoffice for two years after they leave, then destroy five years afterward.

Employment compensation and benefits files are problematic now due to the Lily Ledbetter Equal Pay Act of 2009 (PL

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111-2); pending regulatory guidance, you may want to keep these files for the life of the firm, then destroy seven years afterward.

The seventh bucket is accounting and finance. These are your garden variety budget, accounts receivable, accounts payable, tax filings, audits, credit accounts and IOLTA records.

These you can keep in-office for two years from the record date, followed by destruction five years afterward.

The eighth bucket is records management.

Keep your retention schedules, with version dates, and your disposition certificates for the life of the firm, followed by destruction seven years afterward. The ninth bucket is client management. Keep client retention files and conflict checks in-office for the life of the retention, followed by destruction seven years afterward.

Keep client billing and payment in office for two years from the record date, followed by destruction five years afterward. The tenth and final bucket is client matters. Keep closed case and project files in-office for two years from the closure date, followed by disposition five years afterward. The only exception is settlement agreements involving minors, because minors can challenge such contracts once they reach the age of majority. So use the date that they reach majority as the trigger for the seven-year total retention period. And that’s it. Please remember that this is a generic retention schedule based on one person’s experience only.

Now that you know why you retain files, what files you retain, how you retain them, where you retain them, and for how long you retain them, remember that the files need to camp out some16 September 2016

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where during their inactive retention period. As we discussed before, sort your Inventory annually to identify all files that are ready to move from active status to inactive status. For efficiency purposes, group them by destruction year.

As much as possible, pack files with the same destruction year together; this will make it easier when it is time to destroy them. As for the boxes, it is

important to use quality boxes. Doublewall corrugated boxes with lids, in the standard 1.5 cubic foot size, hold up the best. Poor quality boxes cannot hold much weight, so the hand-holes rip easily; they also cannot withstand much weight, so they crush easily if stacked.

Another benefit of quality boxes is that you can re-use them after destruction, as long as you remove the box number.

Place the files in the box according to letter- or legal-size configuration.

This is so that you fill the box efficiently, with minimal empty space, because halfempty boxes take up more room and cost more money to store. Fill the box until you can fit one hand flat between the last file and the inside edge of the box. That way, if you locate another file afterward that should have gone into the

box, there is still a little space left.

Assign a serial number to each box, and do not re-use numbers. You can either keep a running log of box numbers, or sort your Inventory by box numbers, in order to identify which number comes next. Then, remember to write the number on the outside of the box with permanent marker or use labels.

Finally, for each file that you have boxed, remember to update the Inventory with the number of the box that it is in. Then delete the FILE location data and insert the BOX location data.

How to Let Go of Law Firm Records The wheat crop leaves Farmer Brown after the harvest, the grain in one direction, the bales of hay in another.

Lawyers dispose of their files, too, administrative files in one direction, client matter files in another.

Whichever direction the files go, make sure to be systematic and consistent in how you treat them. A checklist can be of tremendous help.

Administrative files are fairly straightforward to destroy. Although written notice to the other members of your firm is not required, it is still a good idea in case someone else knows of a reason why the files cannot be destroyed just yet (such as a legal hold) and they have not told you. After you have sent out the heads-up, either destroy the files yourself, or hire a trustworthy contractor to destroy them, and document the destruction date and method.

Client matter files follow a different process. Depending upon whether you are able to contact the client, you may end up shredding the files, or returning them to the client. Please bear in mind, however, that the old straight-line shred-

ders of yesterday do not “cut it” today (pun intended); make sure to use a crosscut shredder so that nothing can be reconstructed.

First, you need to send the client written notice that you intend to dispose of the files according to your duly adopted retention schedule, unless the client gives you written notice by a date certain that they want the files returned instead.

Certified mail, return receipt requested, is highly recommended. This is serious business, so treat it like service of summons.

If you don’t get a return receipt, make a reasonable effort to locate the client through other sources, and document all of your efforts. Your last effort would be to publish a notice in a newspaper of general circulation.

If you do obtain a delivery receipt and no response from the client, you can proceed to destroy. If the client responds with no objections, you can proceed to destroy. If the response includes a request for return of the files, make arrangements with the client that satisfy your mutual convenience and cost efficiency, and obtain a written receipt from the client. And remember to document, document, document! Now that you are ready to destroy, you want to make sure that you leave no repository unattended, so here is a sample checklist for you to follow: • Create a list of those files that are eligible for destruction under your duly adopted retention schedule, as reflected in your handy-dandy Inventory.

• Separate the list by firm administrative files and client matter files. Give courtesy notice to the other members of your firm concerning the administrative files, and give formal written notice (certified mail return receipt requested) to the client concerning matter files.

• Gather all the paper files listed and put them in a staging area for the other members of the firm to conduct any last-

chance review.

• Identify all electronic repositories from your previously developed file plan.

• If the client wants its materials returned, remember to scrub the paper files and the electronic repositories of all firm-confidential information.

You would not want clients to read your impressions of their character or trustworthiness.

• Dispose of paper files by cross-cut shredder or by return to the client.

• Dispose of hard drive folders by double-deleting them (first from the folder list, then from the deleted items folder), or moving them to portable storage media for the client.

• Dispose of e-mail folders by doubledeleting, or moving them to portable storage media for the client.

• Dispose of shared drive folders by double-deleting, or moving them to portable storage media for the client.

• Dispose of portable storage media using the angry hammer method, or better yet, having a qualified vendor destroy them via special media shredders; or give them to the client directly.

• Remember again to document all of these steps, including when they were completed and by whom. Keep this documentation with the firm’s permanent files.

Conclusion And now we come to the end of our analogy. Farmer Brown has planted the wheat crop, harvested it into haystacks, gathered it into bales, stored it in the barn, kept the cows in the paddock, and finally sent the wheat, hay and cows on their merry ways. So, too, will you complete the life cycle of your paper files and electronic folders from cradle to grave.

If you remember nothing else from this

article, please remember these three key points: 1. Have a written records retention program • Policy and procedures • Comprehensive inventory • Retention schedule based on riskadjusted research 2. Do what your written program says, and document how you did it • Database report or spreadsheet sort from inventory • Which legal/administrative matters you moved to inactive status • Which legal/administrative matters completed their inactive period and how you disposed of their paper files and electronic folders 3. Be systematic and consistent (remember Enron?)

• Increases cost efficiencies in office space, paper storage, and electronic storage • Reduces risk of sanctions, penalties and fines for spoliation • Still allows suspended destruction due to legal hold Now go forth and conquer. _________________ 1 This article is adapted from an HSBA CLE seminar presented by the author on August 30, 2013.

Stacy Rezentes has led the records management program at the Kamehameha Schools for eight years, with particular focus on legal requirements related to, e.g., personally identifiable information and electronic discovery. She is a member of ARMA International (“Association of Records Managers and Administrators”) and AIIM (“Association for Image and Information Management”). In her spare time, she provides consulting services to professionals and business organizations.

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HSBA HAPPENINGS HSBA Bar Convention

nominating committee hereby publishes its list of nominees for officers and directors. Voting will be conducted electronically.

Election results will be announced at the Annual Meeting at the Bar Convention on Friday, October 14, 2016.

Reserve Friday, October 14, 2016 for the 2016 Annual Meeting and Bar Convention at the Hawaii Convention Center. Come join us for CLE credits, the exhibitors expo, and networking opportunities. Honor HSBA award recipients at the business luncheon with keynote speaker and 2016-2017 ABA President, Linda Klein and welcome the new 2017 HSBA and YLD officers.

Vice President/President Elect Jamila Jarmon Ryan Loeffers

Vacancies on Commission on Professionalism

Secretary Summer Kaiawe

The Hawaii Supreme Court will have vacancies on its Commission on Professionalism for two HSBA representatives. General qualifications for these positions include: affirmative interest in the organization; willing and able to devote time to perform necessary duties; conscientious, studious, thorough and diligent in learning methods and problems of the organization. These positions have four-year terms to begin on March 14, 2017. Please refer to this link for more information on the Commission on Professionalism: http://www.courts.state.hi.us/courts /supreme/professionalism.

Anyone interested in serving in this capacity should submit a resume, including their area of concentration, and a reason for wanting to serve to: nominations@hsba.org or HSBA Nominating Committee, 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. Applications must be received at the HSBA no later than October 31, 2016; nominations will be made at the February 2017 HSBA Board meeting.

2017 YLD Board Nominees

In accordance with Article VI, Section 1, of the HSBA’s Young Lawyers Division (“YLD”) Bylaws, the YLD 18 September 2016

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Treasurer Marissa Machida Director: Oahu Morgan L. Early Jeffrey Hu Katherine Lukela E. Kumau Pineda-Akiona David Van Acker Director: East Hawaii Ryan Caday Director: Kauai George White The following Board members are currently serving two-year terms set to expire at the end of 2017: Noah Gibson (Oahu), Sommerset Wong (Oahu), Clayton Leonard (West Hawaii), and Brandon Segal (Maui).

Trejur Bordenave will serve as YLD President in 2017.

2017 SCD Board Nominees

In accordance with Article VI, Section 1 of HSBA Senior Counsel Division (“SCD”) Bylaws, the SCD Nominating Committee publishes the following list of nominees for HSBA SCD Officer and Director Positions.

Ballots will be distributed in midOctober, and the election results will be announced at the SCD Annual Meeting at the Plaza Club in November 2016.

Vice President/President Elect William M. Tam Secretary Michele Alarcon Treasurer Tim Lui-Kwan Director: Oahu Charles Crumpton Rosemary Fazio Carole Richelieu The following Board Members are currently serving two-year terms set to expire at the end of 2017: Roseanna K. Goo (Oahu), Kenneth K.P. Wong (Oahu), Michael J.Y. Wong (Oahu), Charlene Y. Iboshi (Big Island), Jonathan J. Chun (Kauai), and Judith Neustadter Naone (Maui). Ian Sandison will serve as SCD President in 2017.

Member Benefits Spotlight

Aston at the Executive Centre Hotel HSBA members can stay in downtown Honolulu at the Executive Centre, 1088 Bishop St. For more information or reservations, please call 808-539-3000 or visit their website. HSBA members can enjoy discounted rates to all Aston properties in Hawaii. Visit their website and enter the Corporate/Promotions Code JX4963 if making reservations online or give to an agent if making reservations by phone.

Starwood Hotels & Resorts Waikiki HSBA special “Kamaaina” rates on Starwood properties in Waikiki. Call the 24-hour reservation line at 1-800-7829488 and ask for rate code: HSBA. You may also book your special rates online; “SET/Corporate Account #” in the “Rate Preferences/Promotion Codes” drop-down menu. Enter code: 327811.

Proof of Hawaii residence ID required upon check-in.

Waikiki Sand Villa Hotel - HSBA members can stay at the Waikiki Sand Villa Hotel with special “Mahalo

Package”. See flyer to find out more about the benefits of the Mahalo Package here: http://bit.ly/29UtmPd. Rates also available for HSBA members’ relatives and friends. For more information on hotel, please go to www.sandvillahotel.com. Book online and enter code: CORP. For reservation or inquiry, please contact 808-921-3203 or email reserve@principlehotels.com.

Maui Ocean Center - HSBA members receive a 10% discount on kamaaina one-day journey pass tickets. Tickets must be purchased at Maui Ocean Center’s front gate. Please present your HSBA Bar Card to take advantage of this offer.

CLE Corner

How do I report the total number of CLE credits I completed during the calendar year?

Active members of the Bar must certify on the annual registration and renewal statement that they have completed at least three credit hours of continuing legal education (“CLE”). Each attorney should keep a proper record and keep certificate(s) of completion/attendance for submittal to the HSBA if requested. It is recommended that members complete their CLE requirement prior to submitting their annual renewal form so that they may answer the CLE completion question affirmatively.

The Legal Aid Society of Hawai’i extends its gratitude to the law firms of Perkin & How long should I keep my certificates of completion/attendance?

You are required to keep certificates of completion/attendance for three years. Your credits may be subject to audit by the HSBA, and you may be required to submit your certificate(s) upon request.

Faria and Bickerton Dang for their work in designating Legal Aid as the recipient of Cy Pres funds totaling $107,169.52.

The award was part of a class action settlement and will go towards helping launch a workers' rights enforcement program at Legal Aid. Legal Aid also presented John Perkin and Brandee Faria with the Betty Vitousek Access to Justice Award and a plaque recognizing their contributions to Legal Aid's Leadership Circle.

For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1, please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org

Please contact Debbie Blanton, MCLE Administrator, at dblanton@ hsba.org for CLE related questions and concerns.

September 2016

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HSBA BOARD 2017 CANDIDATES Brief biographies of the candidates running for a position on the HSBA Board follows.

VICE PRESIDENT CANDIDATE Derek Kobayashi I am honored to be nominated as a candidate for the position of Vice President. I am in my fourth term as an Oahu Director and if elected, would benefit from eight consecutive years on the HSBA Board of Directors and an established working rapport with the other directors and HSBA office staff.

Throughout my 25 years in practice, I have been motivated by HSBA’s mission “to unite and inspire Hawaii’s lawyers to promote justice, serve the public and improve the legal profession.” I remain passionate about collaborating on initiatives to provide meaningful access to justice; to deliver pro bono legal service; and to enhance the professional image of the bar.

Some examples of my involvement are listed below.

Since October 2007 I have been a member of the Schlack Ito law firm maintaining a general litigation practice. After graduation from William S. Richardson School of Law in 1990, I practiced in the Kona office of Goodsill Anderson Quinn & Stifel where I was inspired by the deep commitment to community and public service of both my mentoring partner Richard Ishida, and The Honorable Ronald Ibarra who had appointed me to serve on criminal defense cases, as a guardianad-litem and as a CAAP arbitrator. In April 1998 when the Kona office closed, I returned to Honolulu and practiced as a litigation partner at Goodsill until September 2007. Thus, I also benefit from experiences shaped by years of neighbor island small office, large Honolulu law firm and mid-size law firm practices.

In order to continue actively serving our bar, I respectfully request your vote and support.

Hawaii State Bar Association • Board of Directors, Director (2009-present) • Delivery of Legal Services to the Public Committee (2009present) • Courts in the Community, Volunteer (2014, 2015)

Darolyn Lendio I humbly ask for your vote. During the past 32 years, I have strived to actively work with the HSBA and other professional organizations towards the betterment of our profession and the unique and special community in which we live.

I hope you find me qualified to represent my fellow bar members in the continuation of this work. If elected as Vice President/President, I will examine the high cost of bar fees, programs to better facilitate the mentorship of young attorneys by senior attorneys, and the matter of “succession” in our profession, both in the public and private sectors, as many of us retire. The legacy of our work as attorneys in formulating solutions which fairly and equitably address the social, economic, and environmental issues facing our community are critical to our future as residents of Hawaii.

Mahalo!

• McCorriston Miller Mukai MacKinnon LLP, Partner • University of Hawaii, Vice President for Legal Affairs and University General Counsel; Interim Executive Administrator and Secretary of the Board of Regents • City & County of Honolulu, Department of the Corporation Counsel, Director; Outstanding City Administrator • Goodsill Anderson Quinn & Stifel, Honolulu, Hawaii, Associate • Supreme Court of the State of Hawaii, Extern, Associate Justice Yoshimi Hayashi Educational Background: • Juris Doctor, 1983, Boalt Hall School of Law, University of California at Berkeley

Basic Legal Training Program - Lawyer’s Assistant, Presenter (2013-2015)

• A.B., magna cum laude, Journalism/Political Science, 1980, University of Southern California; Phi Beta Kappa, Phi Kappa Phi, Outstanding Senior (USC 1980)

American Judicature Society Working Committee to Improve the Judicial Nomination Process, HSBA Representative (2014)

• Waialua High School, 1976

Committee on Strategic Planning (2012) Outstanding Volunteer of the Month (February 2005) Kie Kie Award in recognition of pro bono service (1999) Hawaii Access to Justice Commission • Vice Chair (present), Commissioner (2011–present) • Committee on Self-Representation and Unbundling 20 September 2016

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Professional Ratings: • Martindale-Hubbell – AV Preeminent • Best Lawyers in America Teaching and Lecturing: • WSR School of Law, Advanced Torts, Guest Speaker •Wahine Forum, Hawaii Business Magazine, Guest Speaker • Shidler College of Business, Executive MBA, Guest Speaker • Motor Vehicle Accident Update (Hawaii Institute for

inter-office disputes... make sure everyone has their own Bar Directory!

The 2016-2017 HSBA Directory is coming out shortly with new addresses, phone numbers and photos. Every active attorney in Hawaii (who requested) will be mailed a copy. The Directory is a quick and easy reference tool for attorneys and their support staffs. You can show your staff that you value their time and efforts by

providing them with the most current Directory, instead of an outdated hand-medown. This year there will be a limited number of extra directories available. Place your pre-order for extra Bar Directories on or before September 1, 2016 to ensure that your firm receives enough copies of the 2016-2017 Bar Directory.

Name of Individual or Firm Address Email

Phone

Cost Per Directory $41.88

Number of Extra Directories Ordered

❏ Will pick up at publishers office ❏ Please mail ($8.00 Per Directory for Postage & Handling) ❏ Payment by check (Grass Shack Productions) ❏ Will contact Publisher with credit card Information Please mail or Email your order form to: Brett@grassshack.net Grass Shack Productions P.O.Box 37247 Honolulu, HI 96837 808.521-1929

Derek Kobayashi (continued) (2008–present), Chair (2012-present) • Committee on Increasing Pro Bono Legal Services (2008-present) • Administration Committee (2009-present)

for Continuing Legal Institute Education, Faculty Speaker) • Motor Vehicle Collision Law (Hawaii Institute for Continuing Legal Education, Faculty Speaker)

Hawaii Appellate Pro Bono Project – Mentor (present)

Volunteer Organizations: Present: • Hawaii State Bar Association (Board of Directors, 1996 – 1998, 1994 – 1996; President, Young Lawyers Division 1991, Professionalism Committee 2000)

Hawaii Supreme Court Rule 1.14 Professionalism Course (2013-present) – Panel Presenter on pro bono opportunities and access to justice initiatives

•American Bar Association (District 27 Representative, Executive Council of the Young Lawyers Division, 1992; Member since 1984)

Hawaii State Bar Foundation – Ex Officio Director (present)

William S. Richardson School of Law Lecturer-In-Law, Adjunct Faculty, Pretrial Litigation (1999-present) The Mediation Center of the Pacific • Foreclosure Mediator (2012) • Foreclosure Mediation Training, Presenter (2010) Legal Aid Society of Hawaii • Partnership in Pro Bono Program, Participating Attorney (2008-present) • Pretrial Discovery on the Cheap Training, Presenter (2008, 2011, 2013) • Pro Bono Achievement Award (2010) Self-Help Center Organizing Committee, Conference Facilitator (2010) Access to Justice Hui • Member (2006 – 2008) • Community Wide Action Plan, Conference Facilitator (2007) Volunteer Legal Services of Hawaii Board of Directors (2000-2009), President (2002) Worldwide Uchinanchu Business (WUB) Hawaii, Okinawan Chamber of Commerce – Member (2005-present), President (2012)

• Aloha United Way Allocation Panel •Friends of Waialua Library TREASURER CANDIDATE Karin Holma

• Honolulu Board of Water Supply • Honolulu Police Commission

Gregory Kugle

• American Inns of Court, Aloha Chapter

I am a Director of the Damon Key firm, where I’ve worked since 1995, after graduating from the William S. Richardson School of Law. I have been active in the HSBA Real Property and Financial Services section, having served as an officer and director, including serving as Chair in 2009. I am on the board of Make A Wish-Hawaii, and I’ve also served on the boards of Honolulu Theatre for Youth, CCIM and Meritas Law Firms Worldwide. If elected, I will be an advocate for the sections, which are the heart and soul of the HSBA.

•Judicial Council •Permanent Committee on Rules of Civil Procedure and Circuit Courts •Court Annexed Arbitration Program, Circuit Courts of the State of Hawaii •Hawaii Filipino Lawyers •Honolulu Commerce

Japanese

Chamber

of

Past: • Honolulu Charter Commission

• William S. Richardson School of Law Mentor Program • President’s Emerging Leaders Program Mentor, University of Hawaii • Commission on Judicial Conduct • Committee on Rules of the Circuit Court of the State of Hawaii • Hawaii Judicial Conference

Darolyn Lendio (continued)

• American Judicature Society

Continuing Legal Education, Faculty Speaker) • Bad Faith Litigation in Hawaii (NBI, Faculty Speaker) • New Hawaii No-Fault Law (Hawaii

• Hawaii Institute for Continuing Legal Education (Board of Directors)

HAWAII BAR JOURNAL

• USC and Cal Hawaii Alumni Clubs (USC President; USC/Cal Board of Directors)

Aloha! I am running for Treasurer of the HSBA and ask for your support and vote. I served one term on the HSBA and would be honored to serve again. I am the managing partner of Bays Lung Rose & Holma, where I have worked as a construction lawyer and litigator since 1992. I am running for Treasurer because I believe in service to our profession and to the HSBA, and I believe I have the background to serve in the position. I am committed to transparency, doing what is fair and right, and helping to improve the HSBA for all of its members.

• Hawaii Judicial Foresight Congress

22 September 2016

• The Filipino Chamber of Commerce of Hawaii (Legal Counsel 1994) • Hawaii Community Foundation, Troy Barboza Scholarship Fund Committee

• Hawaii (Director)

State

Bar

Foundation

SECRETARY CANDIDATE

DIRECTOR CANDIDATE: MAUI

Russ Awakuni

Shannon Sheldon I am a partner of the firm McKeon Sheldon Mehling LLLC, admitted to the Hawaii State Bar in 2003 after practicing patent law in California since 2001. I am an active member of HSBA and MCBA. From 2008 to 2011, I was a director of the Maui County Bar Association and was President in 2010.

In 2011, I participated in the Hawaii State Bar Association Leadership Institute. My goals are to keep Maui Bar members apprised of HSBA and judiciary matters and events and represent the interests of Maui’s attorneys, legal community, and the public in need of legal assistance.

I manage the Legal Aid Society of Hawaii, Leeward Oahu office and received my law degree from Loyola Law School.

I am the current Secretary to the HSBA Board of Directors, and am a past Director of that Board. I am also a past President, Vice-President, and Director of the Young Lawyers Division of the HSBA. My participation with a sub-committee of the Access to Justice Commission since 2009 has fueled my desire to give back to the profession and to bring to the board a nonprofit attorney’s perspective. I hope to continue to serve as Secretary of the Board.

Georgia McMillen I seek reelection to the Board of Directors to continue improving HSBA’s important services to the bar and the public, including educational and service programs to bar members and access to justice for the public. I have an appellate, family law, and mediation practice.

Past service includes: per diem judge, District and Family Courts, Maui; Ninth Circuit Appellate Lawyer Representative; Native Hawaiian Bar, Board of Directors. I am a graduate of Kamehameha Schools, University of Hawaii, and New York Law School. I am admitted to practice law in Hawaii, New York, and New Jersey. Thanks for your consideration.

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

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

September 2016

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DIRECTOR CANDIDATE: East HAWAII Geraldine N. Hasegawa Having served as an HSBA Director since 2003, I am familiar with the board’s responsibilities and the difficult issues it faces. During my tenure as a director, I have coordinated various CLE programs and have consistently pushed for more outreach to the neighbor islands. In the past few years, the HSBA has increased its webcasting seminars to the neighbor islands and has made changes to the Bar Convention schedule to accommodate neighbor island travel. I am committed to representing the needs and concerns of my East Hawaii constituents and would be honored to continue to serve as your representative.

DIRECTOR CANDIDATES: OAHU Sarah Casken I am currently a Deputy Corporation Counsel with the City and County of Honolulu.

Prior to this position, I was a staff attorney at Legal Aid Society of Hawaii and a law clerk at the Intermediate Court of Appeals. I graduated from the William S. Richardson School of Law in 2010, after a previous career in the non-profit sector, where I served as executive director of a local non-profit and sat on several boards. I would welcome the opportunity to apply my skills, experience, and commitment to service on behalf of the legal community.

Cecelia Chang Mahalo for the opportunity to serve. My goal is to provide greater access to CLE credit courses.

Currently, Director for the Center for Alternative Dispute Resolution (State Judiciary) and a graduate instructor (University Nevada – Reno). Experience in criminal prose24 September 2016

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cution (Honolulu Prosecutor’s Office) and civil litigation (Goodsill, Corporation Counsel). Hawaii State Bar Association (Director 2013-present); Hawaii Supreme Court Committee on Equality and Access to the Courts (At Large, 2007-present); Native Hawaiian Bar Association (Director 2006-present); Hawaii Women Lawyers (Director 20122014). 2010 Ola Pono Award; 2009 HSBA-GLS Pro Bono Service Award; 2004 USDOJ National State Coordination Award.; J.D.1985, B. Ed 1982 Steven J.T. Chow: Partner, The Pacific Law Group. Graduated 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 work to improve HSBA benefits, increase community education, and ensure the HSBA is responsive to its membership.

Vladimir Devens My goal while serving on the Board has been to make the HSBA more responsive to your needs. I serve on the Judicial Administration Committee and participated as a lead attorney in the 2015 Bench-Bar Conference. Within that committee, we raised concerns related to Hoohiki and other issues that affect your everyday practice. I co-chaired the CLE committee with a vision to bring about changes that could be implemented to make the practice less burdensome on you. We strived to keep a lid on costs and accommodated our neighbor island colleagues where possible. If given the privilege to serve another term, I will continue to do my best for you.

Tom Farrell I am the managing attorney of a small firm practicing primarily in Family Court.

After admission in 1980, I served as a deputy attorney general until 1995 and then entered

private practice. I chaired the HSBA Government Lawyers Section and Family Law Section and am both a volunteer attorney and board member at VLSH. I have served on numerous Family Court committees, am a CAAP Arbitrator, a court-appointed Volunteer Settlement Master, and a board-certified specialist in family law. As a retired Army Reserve officer and an Iraq veteran, I bring a variety of experience to the board and would be humbled to serve our bar.

Tyler Gomes I was admitted to the Hawaii bar in 2012 and have spent the last three years working as a Deputy Public Defender. I am currently serving a second term as the President of the William S. Richardson School of Law Alumni Association. My experiences in both the public service and government sectors coupled with my four years working with the Alumni Association provide insight into the interests and concerns a large portion of our community.

Rhonda L. Griswold Partner Cades Schutte. Chair Trusts & Estates Dept.; Serves on firm’s Management Committee & Attorney Training Committee.

1984 Graduate William S. Richardson School of Law. Former President/Current Director, Hawaii Women’s Legal Foundation; Current Director/Secretary of the Hawaii Justice Foundation. It has been a privilege to serve as an HSBA Director since 2010.

The HSBA plays an important role in soliciting input from its members and addressing issues that affect our abilities to provide legal services to our clients and others in need. If elected, I will try to ensure that the HSBA is responsive to its members and the community.

Brenda Morris I have practiced law in Honolulu since 1983, clerking for then Chief Justice Herman T.F. Lum, worked at Lyons, Brandt,

Cook and Hiramatsu, as a Deputy Attorney General and as in-house counsel at First Insurance Company of Hawaii, Ltd. I have helped with HSBA projects including anti-drug counseling for children, counseling high school seniors about their civic responsibilities as adults, and coaching a high school mock trial team. I am a long-standing VLSH volunteer, helped with annual HSBA fundraisers, was a member of the original MCLE panel, and advised Big Island residents affected by recent hurricane(s).

I would like to assist the HSBA as a member of its Board of Directors and would really appreciate your vote.

Zale Okazaki I am presently a partner with Chong Nishimoto Sia Nakamura & Goya. I also sit on the boards of Hawaii Women Lawyers (board member since 2002; treasurer in 2005-2006, 20062007), Hawaii Women Legal Foundation (board member since 2005 and past fundraising chair), and Friends of the Family Specialty Courts (founding member since 2008). I have chaired the HSBA annual fundraiser dinners for several past bar presidents and been actively involved in its silent auction activities.

I would appreciate the opportunity to serve the bar by being a member of the HSBA board. I humbly ask for your vote.

Alika Piper I am a founding partner of Klevansky Piper, LLP and a 1997 graduate of the William S. Richardson School of Law. I was honored to serve as Treasurer (2013) and Chair of the Finance Committee (2013) of the HSBA, and as Director (2009-2010, 2012, 2015 - current). I have served on the Finance Committee and numerous other committees of the HSBA, and co-chaired the HSBA Annual Dinner, as well as organized the Silent Auction for the event (2014 and 2015). I am hard working, fair, and organized, and most importantly, dedicated to the members of our bar association.

YLD Board 2017 Candidates VICE PRESIDENT Jamila Jarmon I am a proud graduate of the William S. Richardson School of Law (2010). Prior to law school, I worked as an advocate at the Domestic Violence Action Center assisting survivors of domestic violence who had various social and legal issues. Upon graduation, I joined the Law School as a Junior Specialist with the Health Law Policy Center’s Medical-Legal Partnership for Children in Hawai`i, where my work included writing health law policy for the Kalihi community and doing pro bono legal clinic hours at the Kokua Kalihi Valley Community Health Center. From 2014 to the present, I have been an Oahu Director of the YLD, working with the High School Mock Trial Competition and chairing the Socials Committee.

The Young Lawyers Division is committed to community service and promoting the legal profession within our community, specifically programs involving youth. My work experience and time on the YLD Board has shown my commitment to these same goals, which I hope to continue as the Young Lawyers Division Vice-President.

law degree from the William S. Richardson School of Law. I also received an LL.M. in taxation, with a focus in employee benefits, from Georgetown University Law Center. I previously worked in a law firm setting, but am now applying what I have learned from the legal community as a benefits manager for the Hawaii Electricians Administrative Office, which serves the members of IBEW Local 1186.

Together with the other officers and directors, I hope to continue and expand the great opportunities that the YLD has to offer.

SECRETARY Summer Kaiawe I am an associate with Watanabe Ing, practicing in the areas of commercial litigation and intellectual property. I am a graduate of the William S. Richardson School of Law (2011) and served on its alumni board from 2011 to 2016. Before law school, I obtained a BBA in Accounting and a Master of Accounting from the University of Hawaii at Manoa. I currently serve as a Director for Aloha Harvest and the YLD. As a YLD Director, I served as co-chair of the Law Week program, and am a co-chair of the Junior Judges program. If elected, I look forward to continuing to serve my fellow bar members and community.

TREASURER

Ryan Loeffers I am very excited for the opportunity to run as Vice President of the HSBA YLD. I have been Treasurer of the YLD for two years and have enjoyed participating in and working to provide new opportunities to Hawaii’s young lawyers.

I am an alumnus of the University of Hawaii at Manoa, where I received my Master of Accounting degree from the Shidler College of Business and my

Marissa Machida I am an associate attorney at Hosoda & Morikone LLC, practicing in civil litigation. I was previously a Deputy Prosecuting Attorney and law clerk for Judge Derrick H.M. Chan and Judge Colleen K. Hirai.

For the past two years, I enjoyed serving as an Oahu Director, where I was a chairperson to facilitate the state-wide Mock Trial Competition and plan events September 2016

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to bring YLD members and other young professionals together. I would like to bring continuity to these committees and the board and carry on these projects if elected.

OAHU DIRECTOR Morgan L. Early I am excited to be running for a position on the YLD Board. This year I served on the Board’s committees for Law Week and Junior Judges. I hope to join the Board in 2017 as a full-term director, to continue working on these important programs that are focused on education and mentoring.

I am an associate with Alston Hunt Floyd & Ing and am passionate about working to make legal services available to everyone. I am also a proud mentor for Big Brothers Big Sisters Hawaii. I hope to be part of the YLD team for 2017.

Jeffrey Hu I am an associate with Yamamoto Kim LLP and a graduate of the William S. Richardson School of Law. During law school, I served on the Phi Delta Phi board as a treasurer and assisted with various projects and events. I also worked part-time at Volunteer Legal Services Hawaii. After graduating in 2014, I clerked for Circuit Court Judge Karen Nakasone who inspired me to become more active in the community. While volunteering at this year’s Law Week, I observed how even new attorneys like me can help and make a difference. I hope to have the opportunity to serve you and the community.

Katherine Lukela I am an associate at Kleintop & Luria, LLP, practicing in the area of family law. I am a proud graduate of Kamehameha Schools, and I obtained a 26 September 2016

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Bachelor of Arts degree from Loyola Marymount University. I received my law degree from California Western School of Law. Prior to joining Kleintop & Luria, LLP, I served as a Deputy Prosecuting Attorney for the City and County of Honolulu and a law clerk to Judge Mark Browning. I hope to bring a new perspective to the YLD projects to help further YLD’s mission of community service. It would be an honor for me to serve as one of the Oahu Directors.

E. Kumau Pineda-Akiona I am a litigation associate at Damon Key Leong Kupchak Hastert.

I received my JD from the William S. Richardson School of Law and my MBA from the Shidler College of Business. I currently serve as a board member for the Hookakoo Corporation, the non-profit governing body of three public charter schools in underserved communities. I also volunteer at the Access to Justice Room and have assisted with the YLD Junior Judges Program and Legal Line Hotline. If elected as a YLD Director, I would be honored to help further advance the invaluable services that the YLD already provides.

David Van Acker I am a Deputy Prosecuting Attorney in the Career Criminal Division at the Department of the Prosecuting Attorney for the City & County of Honolulu. I previously worked in civil litigation at Bronster Fujichaku Robbins and as a law clerk to Circuit Court Judge Jeanette Castagnetti. For the past few years, I have participated in several YLD programs including the High School Mock Trial tournament as a trial coach for McKinley High School and a volunteer for Legal Lines. As a seasoned prosecutor, I can help the YLD engage in further community programs, and I would like to represent government attorneys on the board.

EAST HAWAII DIRECTOR Ryan Caday I am a graduate of the William S. Richardson School of Law’s class of 2011. I initially moved to Hilo to clerk for Judge Greg Nakamura. I have been a deputy prosecuting attorney for the County of Hawaii since completing my clerkship. For the past two years, I have served as the YLD director for East Hawaii. I also served as the secretary for the Hawaii County Bar Association for a two-year term, participated in the Junior Judge program at a local school, and volunteered as a mock trial judge. I would like to use my experiences to foster relationships among bar members and promote equal access to justice.

KAUAI DIRECTOR George White Born and raised in Honolulu, I attended Georgetown University, am a graduate of the University of Hawaii Law School, and have been an HSBA member since November, 2009. As a transplant to Kauai, the efforts of the Kauai Bar Association has been an invaluable resource and inspiration for me. I have worked for years with the Mock Trial program in our local high schools and as your YLD representative to the Board, I will work diligently in continuing to engage and energize our members, informing them of opportunities and resources available through the HSBA, and encouraging continued participation in HSBA activities to extend our outreach into the community.

e

The Unauthorized Practice of Law in Hawaii

by Lennes N. Omuro All Hawaii attorneys should be aware that they should not engage in the unauthorized practice of law in other jurisdictions or assist others in engaging in the unauthorized practice of law in Hawaii. But what constitutes the practice of law? How do you know if you are violating the statutes or rules of another jurisdiction?

Hawaii Revised Statutes § 605-14 states as follows: It shall be unlawful for any person, firm, association, or corporation to engage in or attempt to engage in or to offer to engage in the practice of law, or to do or attempt to do or offer to do any act constituting the practice of law, except and to the extent that the person, firm, or association is licensed or authorized so to do by an appropriate court, agency, or office or by a statute of the State or of the United States.

Nothing in sections 605-14 to 605-17 contained shall be construed to prohibit the preparation or use by any party to a transaction of any legal or business form or document used in the transaction.

A violation of this statute is a misdemeanor1 and only the attorney general and any bar association in Hawaii have standing to maintain an action for violation of the statute.2 Hawaii Rules of Professional Conduct, Rule 5.5 further provides as follows: A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law; or (c) allow any person who has been suspended or disbarred and who maintains a presence in an office 28 September 2016

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where the practice of law is conducted by the lawyer to have any contact with the clients of the lawyer either in person, by telephone, or in writing or to have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.

Both the statute and the rule prohibit the unauthorized practice of law in Hawaii.

But what constitutes the practice of law in Hawaii? The legislative history to HRS § 605-14 supports the uncontroversial position that the practice of law is not limited to appearing before courts and consists of, among other things, the giving of advice, preparing documents and providing other services affecting the legal rights of a party where such advice, drafting or service requires the use of any degree of legal knowledge, skill or advocacy.3 The legislature, however, declined to define the “practice of law” by way of specific examples because “attempts to define the practice of law in enumerating the specific types of services that come within the phrase are fruitless because new developments in society, whether legislative, social, or scientific in nature, continually create new concepts and new legal problems.”4 In addition, the commentary to HRPC, Rule 5.5 merely provides, in part, that “the definition of the practice of law is established by law and varies from one jurisdiction to another.”5 Neither the legislative history to the statute nor the commentary to the rule provide comprehensive guidance on what constitutes the practice of law in Hawaii. Most of the relevant Hawaii case law also concern situations where the issue of whether there may have been unauthorized practice of law activity should be rather apparent – for example, situations where individuals who are not licensed attorneys, such as debt collectors or trustees, engage in activities such as appearing in court, or where suspended lawyers nonetheless continue to engage in their practice.

Often, however, the more perplexing situation involves attorneys who are licensed in other jurisdictions and who provide legal services either in or affecting matters in Hawaii.

In 1998, the Hawaii Supreme Court looked at the issue of whether an Oregon company’s general counsel, who was licensed and located in Oregon, engaged in the unauthorized practice of law by engaging in such activities as consulting with the client and the client’s Hawaii counsel regarding an appeal, preparing a statement in anticipation of mediation, assisting Hawaii counsel with legal research, analyzing briefs and papers submitted by other parties, planning strategy for the appeal, resolving supersedeas bond issues, and reviewing and critiquing briefs and papers prepared by Hawaii counsel. Fought & Company, Inc. v. Steel Engineering and Erection, Inc., 87 Haw. 37, 951 P.2d 487 (1998).6 On the other hand, the Oregon company’s general counsel performed all of its services in Oregon, did not draft or sign any of the papers filed in the appeal, did not appear in court, did not communicate with opposing counsel, and Hawaii counsel was at all times in charge of the representation.

In concluding that the general counsel located in Oregon did not engage in the unauthorized practice of law in Hawaii, under the circumstances described above, the Court declared that a commercial entity that serves interstate markets is likely to receive more effective and efficient representation when its general counsel based close to its home office and who is familiar with its operations supervises the work of local counsel.7 The Court also referred favorably to factors set forth in a California Supreme Court decision rendered earlier that year, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 949 P.2d 1, 70 Cal. Rptr. 2d 304 (Cal. 1998). In particular, the Court made its decision in light of the factors suggested by Birbrower where it was reasoned that: the practice of law “in California” entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer’s activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced

law “in California.” The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.8 The Fought decision therefore suggests that Hawaii courts may engage in a type of sufficient contacts analysis and look at the level of legal activity deemed to have been performed in Hawaii by an attorney licensed in another jurisdiction when evaluating whether that attorney is engaging in the unauthorized practice of law. The activity necessary rise to the level of practicing law in Hawaii, however, remains largely unresolved in this jurisdiction.

Interestingly, the Birbrower decision referred to favorably in Fought to support the conclusion that there was no unauthorized practice of law in Hawaii by mainland counsel, is a decision primarily referred to in the legal literature for raising an alarm over restrictions on multi-jurisdictional practice and triggering significant changes to ABA Model Rules of Professional Conduct, Rule 5.5.

This alarm was raised because the Birbrower court held that New York lawyers, who engaged in corporate counseling and filed an arbitration demand in California for a California client, could not collect fees under their engagement agreement with the client for work deemed to have been performed in California because they violated the California unauthorized practice of law statute in effect at the time.

There was also language in Birbrower suggesting that a lawyer could still practice law in the state and violate the California statute even if the lawyer was not physically present in the state by advising a California client by phone, fax, computer or other means.9 Indeed, following Birbrower, California enacted a new statute regarding an out of state lawyers’ ability to engage in arbitration in California and a number courts, including the Hawaii Supreme Court in Fought, have interpreted or distinguished Birbrower in ways to avoid its harsh result.10 Moreover, as indicated above, following Birbrower, the ABA substantially

changed Model Rule 5.5 to clarify rather liberally a lawyer’s ability to engage in multi-jurisdictional practice. For example, Model Rule 5.5(c) provides as follows: (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

Hawaii has not yet, however, adopted this version of Model Rule 5.5 and the extent to which Model Rule 5.5 may be persuasive has, to this author’s knowledge, not yet been significantly addressed in reported Hawaii appellate decisions.

Finally, besides avoiding participating in or assisting others to participate in the unauthorized practice of law in Hawaii, Hawaii lawyers should also be concerned about avoiding their own unauthorized practice of law in other jurisdictions. Most jurisdictions have adopted rules like Model Rule 5.5 referenced above.

The ABA maintains a detailed chart

containing information on the status of multi-jurisdictional practice rules in each jurisdiction, which can be accessed online. More practically, however, if you are working with mainland counsel and need to appear in another jurisdiction or perform work for a use by a mainland client in another jurisdiction, you should not hesitate to obtain the advice of mainland counsel on their relevant local statutes and rules.

This article is not intended to be a comprehensive overview of all unauthorized practice of law authorities or issues relevant to Hawaii attorneys. As always, you should seek appropriate legal advice as needed. _________________ 1 Haw. Rev. Stat. § 605-17.

2 Haw. Rev. Stat. § 605-15.1.

3 Sen. Stand. Comm. Rep. No. 700, in 1955 Senate Journal, at 661; Hse. Stand Comm. Rep. No. 612, in 1955 House Journal at 783.

4 Id. 5 The comment to Rule 5.5 does make it clear that the rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them so long as the lawyer is supervising and retains responsibility for the work. Likewise, the rule does not prohibit lawyers from providing advice or instruction to non-lawyers whose employment requires knowledge of the law: for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed by governmental agencies.

Lawyers may also counsel nonlawyers who wish to proceed pro se.

6 The Hawaii Supreme Court considered this issue in the context of whether the client could recover attorneys’ fees incurred for work performed by its mainland counsel.

7 Fought, 87 Haw. at 47.

8 Id. citing Birbrower, 17 Cal. 4th at 128.

9 Birbrower, 17 Cal. 4th at 128-129 (Conversely, the court also rejected the notion that a person automatically practices law in California whenever the person practices California law anywhere or “virtually” enters the state by telephone, fax, e-mail, or satellite.)

10 See also, Restatement Third, The Law Governing Lawyers (2000), which rejects the Birbrower result as being “unduly restrictive” at Reporter’s Note to Section 3, Comment e.

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

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CA S E N OT E S Supreme Court Civil Procedure

Weisenberg v. University of Haw., No. SCWC-15-0000711, June 30, 2016, (Per Curiam). The sole jurisdictional issue before the Hawaii Supreme Court concerned the effect of the entry of an amended judgment, entered after the filing of a post-judgment tolling order, on the timing to file an appeal under Rule 4 of the Hawaii Rules of Appellate Procedure.

Appellant Robert E. Wiesenberg applied for certiorari review of the Intermediate Court of Appeals’ February 16, 2016 order dismissing as untimely his appeal from a final amended judgment issued by the first circuit court following the entry of a post-judgment order relating to attorneys’ fees and costs. Appellant contended that the appeal was timely because the final amended judgment altered the original judgment in a material and substantive respect and, therefore, the filing of the final amended judgment triggered the date for filing the notice of appeal.

Appellee contended that the appeal was untimely because the final amended judgment did not alter the original judgment in such a way as to materially affect the substantive rights of the parties and, therefore, the post-judgment order on the attorneys’ fees and costs triggered the date for filing the notice of appeal. The Hawaii Supreme Court concluded that the final amended judgment amended the original judgment in a material and substantial respect such that the appeal deadline began to run from the date that the final amended judgment was filed by the circuit court.

Appellant’s appeal was, therefore, timely.

Criminal

State v. Alvarez, No. SCWC-120000438, June 30, 2016, (Recktenwald, C.J.). This case arises out of a routine traffic stop and the subsequent arrest of Appellant for possession of metham30 September 2016

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Elections Appeal Pointers

A motion for extension of time to file an opening, answering or reply brief will be approved only upon good cause shown. The submission of the motion does not toll the time for filing the brief. HRAP 29(b). phetamine. Prior to trial, Appellant filed a motion to suppress drug evidence recovered as a result of a canine screen that was performed on his vehicle.

Appellant argued that the evidence was obtained in violation of the Fourth Amendment to the United States Constitution and article I, section 7 of the Hawaii Constitution. All of the issues in Appellant’s appeal related to his motion to suppress.

Appellant was driving a vehicle that was stopped by police because one of the two passengers was not wearing a seatbelt. During the stop, police officers recognized Appellant as being involved in prior unrelated police investigations for drugs. Based on the police officers’ recognition of Appellant, the officers telephoned another officer to come to the scene with his police dog to conduct a canine drug screen on the car. The canine alerted the officers to the presence of contraband, and Appellant was arrested for possession of a controlled substance. Appellant filed a motion to suppress that evidence, which was denied by the circuit court. Appellant entered a conditional no contest plea, and was convicted and sentenced for promotion of a dangerous drug in the third degree. On appeal, the ICA affirmed Appellant’s conviction.

However, the Hawaii Supreme Court concluded that the ICA erred in affirming the denial of Appellant’s motion to suppress. The canine narcotics screen was a separate unlawful seizure that was not reasonably related in scope to the original traffic stop.

Green Party of Haw. v. Nago, No. SCWC-14-0001313, July 19, 2016, (Pollack, J.). This case involved an action by the Green Party of Hawaii and seven registered voters who voted in the 2012 General Elections (Green Party) seeking a declaratory judgment pursuant to Hawaii Revised Statute § 91-7 (2012) that certain methodologies and procedures used by the Office of Elections in the 2012 election were invalid under the Hawai i Administrative Procedure Act (HAPA).

Specifically, the Green Party contended that the Office of Elections violated rulemaking requirements because of its failure to adopt administrative rules pursuant to HAPA regarding the methodology and procedures used to (1) determine the number of election ballots to be delivered to the precincts, (2) request additional ballots when a precinct runs out of paper ballots, and (3) count the votes cast on a ballot for a precinct in which the voter is not entitled to vote.

The Hawaii Supreme Court concluded that the procedures used to determine that there would be a sufficient number of ballots ordered for each precinct for a primary or general election and the policy for counting votes cast on ballots for the incorrect precinct are “rules” under HAPA and thus subject to the rulemaking requirements of HAPA. Ethics

Boyd v. Hawaii State Ethics Comm’n, No. SCWC-14-0000352, July 19, 2016, (Pollack, J.).

This case addressed whether the Hawai i State Ethics Commission (Commission) had authority to adjudicate proceedings against a charter school employee for conduct that occurred in 2006 and 2007 involving alleged conflict of interest violations of the code of ethics contained in Chapter 84 of the Haw. Rev. Stat. The Hawaii Supreme Court concluded that Haw. Rev. Stat. § 84-14 (1993), prescribing a code of conduct related to conflicts of interests for state employees, and

Haw. Rev. Stat. Chapter 302B (Supp.

2006 & 2007) (repealed 2012), encompassing comprehensive provisions that provided for charter schools to establish conflict of interest policies and procedures, resulted in conflicting statutory regimes for charter school employees as to standards of conduct involving conflicts of interests. In light of the inconsistency between these state laws, the Hawaii Supreme Court held that, in accordance with Haw. Rev. Stat. § 302B9(a) (Supp. 2006 & 2007) (repealed 2012), charter school employees were exempt from Haw. Rev. Stat. § 84-14 during the relevant time period in this case. Accordingly, the Commission did not have the authority to adjudicate proceedings against William Boyd, a charter school employee, for alleged violations of Haw. Rev. Stat. § 84-14 that occurred in 2006 and 2007.

Family

Hamilton v. Hamilton, No. SCWC-130001498, June 30, 2016, (McKenna, J.).

This case arose from an appeal and cross-appeal from monetary decisions in a Divorce Decree. Husband and Wife disputed the impact of a multi-million dollar inheritance received by Husband on the family court’s determinations of property division, alimony, and attorney’s fees and costs. With respect to property division, the family court found that a premarital economic partnership existed and implied that proceeds from an illegal marijuana operation may have constituted a portion of the marital real estate. In ultimately dividing and distributing the property, the family court awarded all inheritance funds remaining at trial to Husband as his marital separate property. It credited Husband for all sums withdrawn from his inheritance funds as a capital contribution to the marital estate. It then deducted these sums from the marital estate, thereby creating marital debt. That marital debt was then equally split between the parties, resulting in Wife owing Husband a substantial equalization payment. The family court then found that equitable considerations justified a deviation from marital partnership principles and cred-

ited Wife with an amount equal to her equalization payment. The family court awarded Wife spousal support during the pendency of the divorce proceedings and until December 2016, and the court also awarded her attorney’s fees and costs. On appeal, the ICA ruled that the family court’s premarital economic partnership finding was erroneous because it was based in part on an illegal business enterprise. ICA vacated and remanded the portions of the Divorce Decree pertaining to property division and spousal support to the family court for recalculation after segregating proceeds from the illegal marijuana operation.

The Hawaii Supreme Court held that, under the circumstances of this case, the ICA erred in vacating the property division and alimony awards to require a recalculation of these awards based on a segregation of proceeds from the illegal marijuana operation; that the family court erred, either by characterizing the entire $1,511,477 expended from Husband’s inheritance account as Marital Partnership Property or by char-

acterizing the $2,051,293 remaining in his inheritance account as Marital Separate Property, because the $1,511,447 expended included payment of inheritance taxes on Husband’s entire inheritance, and if inheritance taxes are paid out of Marital Partnership Property, the remaining inheritance cannot be classified as Marital Separate Property. The Hawaii Supreme Court further held that the family court erred in summarily ruling before trial that all funds expended by Husband from his Marital Separate Property inheritance constituted Category 3 Marital Partnership Property for which he was entitled to be repaid, without requiring Husband to fulfill his burden of establishing that such expenditures were in the nature of a contribution to or an investment in Marital Partnership Property, and then compounded the error by failing to allow and consider evidence of donative intent. The Hawaii Supreme Court also held that the family court erred in ordering an equal distribution of alleged partnership capital

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losses before deciding whether equitable considerations justified deviation from an equal distribution. Finally, the Hawaii Supreme Court also held that the family court improperly applied marital partnership principles to fashion a property division award that was not just and equitable.

Herrmann v. Herrmann, No. SCWC12-0000060, June 28, 2016, (Pollack, J.).

This case involved child support and education expenses for the two children of Wife and Husband: Son, born July 1, 1987, and Daughter, born June 16, 1991. The dispute revolved around the correct interpretation of the divorce decree and a subsequent amendment to that decree that governed Husband’s child support obligations to Son and Daughter. The issue presented was whether Husband overpaid child support per the terms of the divorce decree and the amendment and, if so, whether Husband should be allowed recovery of his overpayments. The Hawaii Supreme Court concluded that the ICA erred in determining that the circuit court abused its discretion in concluding that Husband was precluded from seeking reimbursement for his overpayment of child support for Son. Instead, the ICA should have remanded the case to the family court for a determination of whether Husband was estopped, under laches or other applicable legal principles, from seeking reimbursement for overpaid child support for Son. Additionally, the ICA erred by failing to address (1) the family court’s finding of inequity as to Husband’s reimbursement claim for overpaid child support for Daughter and (2) Wife’s argument that the family court was authorized under Haw. Rev. Stat. § 580-47(a) to order Husband to continue paying Daughter’s child support. The ICA should have remanded the case in order for the family court (1) to consider in the first instance whether it was appropriate to order child support payments for Daughter after the obligation expired under the 2004 Amendment and (2) as necessary, to clarify the basis for its conclusion of inequity as to reimbursement 32 September 2016

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of Daughter’s child support and to render adequate findings of fact to support this conclusion.

Probate

In the Matter of the Thomas H. Gentry Revocable Trust, No. SCWC-13-0000428, June 28, 2016, (Recktenwald, C.J.). The present appeal arose from a dispute over the administration of two trusts established by the late Thomas H. Gentry (THG): the THG Revocable Trust (Revocable Trust) and the Marital Trust.

Petitioner-Appellant Kiana E. Gentry (Kiana), a beneficiary of both trusts and the wife of the late Mr. Gentry, sought appellate review of a judgment entered by the probate court. However, the ICA dismissed that appeal and Kiana sought review of that dismissal. After THG’s death in 1998, the parties (the Beneficiaries and the Co-Trustees) disputed how the trust assets should be distributed. The largest remaining trust assets were THG’s real estate companies (Gentry Companies). In December 2007, as a result of several disputes in Probate Court regarding the CoTrustees’ accounting and the proper distribution of trust assets, all of the parties entered into a settlement agreement (Settlement Agreement). One of the terms of the Settlement Agreement required the Co-Trustees to sell the remaining trust assets within thirty months of the date of the Settlement Agreement, with a possible eighteenmonth extension, and to distribute the proceeds to the Beneficiaries. The Settlement Agreement did not provide for a course of action if the Co-Trustees were unable to sell all of the assets within that timeframe. The Co-Trustees sold most of the remaining trust assets, but due to the economic recession of 2008, claimed they were either unable to sell the remaining assets or unwilling because the market conditions would result in a sale of the assets far below their true values. Instead of selling, the Co-Trustees proposed distributing the remaining trust assets to the Beneficiaries and terminating the trusts.

Some of the Beneficiaries supported this plan, but some opposed it. Kiana,

THG’s wife at the time of his death and a beneficiary of both the Revocable Trust and the Marital Trust, strongly opposed the Co-Trustees’ distribution plan. Kiana filed a Petition to Enforce Settlement Agreement and Appoint Receiver (Petition to Enforce) in probate court, which would have required the Co-Trustees to liquidate the trust assets.

The Co-Trustees filed a Petition for Instructions Regarding Distribution of Remaining Assets and Termination of Trust or in the Alternative Resignation of Co-Trustees (Petition for Instructions), proposing a pro rata distribution of the remaining assets and requesting that the probate court order the proposed pro rata distribution, or in the alternative, allow the Co-Trustees to resign. Kiana opposed this petition on the grounds that the Co-Trustees’ proposed distribution violated the terms of the Settlement Agreement. In the Distribution Judgment, the probate court ordered the pro rata distribution of the trust assets on hand, and included a table showing specifically how many shares of each of the remaining Gentry Companies each Beneficiary was to receive. Kiana appealed from the Enforcement Judgment but did not appeal from the Distribution Judgment.

Before the ICA, Kiana argued that the probate court erred by refusing to grant her Petition to Enforce, because it meant the probate court must have either ignored the Settlement Agreement or found that it was invalid and unenforceable. However, the ICA found that reversing the probate court’s denial of the Enforcement Petition would require overturning the Distribution Judgment.

Because Kiana had failed to directly appeal the Distribution Judgment, the ICA determined that her appeal of the Enforcement Judgment constituted a collateral attack on the Distribution Judgment. Because the ICA concluded that it was unable to grant Kiana effective relief, the ICA dismissed Kiana’s appeal as moot.

Kiana filed an Application for Writ of Certiorari. She presented two questions for the Hawaii Supreme Court: (1) Whether the ICA erred when it held that Kiana’s appeal

was a collateral attack upon the [Distribution Judgment], when Kiana’s appeal merely addressed the probate court’s improper decision regarding the validity and enforceability of the Settlement Agreement; and (2) Whether the ICA erred when it dismissed Kiana’s appeal as moot based on its erroneous conclusion that Kiana’s appeal constituted a collateral attack upon the Distribution Judgment, thereby ignoring the merits of the appeal and ignoring the Settlement Agreement. The Hawaii Supreme Court held that the ICA erred in concluding that Kiana’s appeal was an impermissible collateral attack and that Kiana’s appeal was moot.

Intermediate Court of Appeals Contract

Ass’n of Apartment Owners of Royal Aloha v. Certified Mgmt., No. CAAP-150000445, June 30, 2016, (Foley, J.). On appeal, Appellants contended that: (1) the circuit court erred in applying the doctrine of laches to grant summary judgment in favor of the defendants; (2) the circuit court erroneously concluded that Haw. Rev. Stat. § 514A-15.5 required Appellants to send a bill to the commercial apartment owners as a condition precedent to the application of the commercial owners’ contractual indemnification obligation; and (3) the circuit court abused its discretion in awarding attorneys’ fees. The ICA concluded that because Appellants sought legal rather than equitable remedies, Appellees were precluded from using the defense of laches and therefore, Appellees were not entitled to summary judgment. Additionally, to the extent the commercial owners were never billed for their “separately metered� electricity usage or “otherwise charged,� the indemnification provision of the Bylaws was not enforceable.

Criminal

State v. Tran, No. CAAP-130005233, July 14, 2016, (Nakamura, (Continued on page 35)

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COURT BRIEFS Grassroots Effort to Help Curb Evictions Expands To Maui County

Tenants and landlords are being provided with resources designed to prevent disputes from escalating to eviction.

A grassroots effort called STAE (“Steps to Avoid Eviction”) is a campaign aimed at equipping tenants and landlords with more information about available resources to ensure that landlords get paid the rent they are owed and tenants are not evicted. The Hawaii State Judiciary partnered with the Legal Aid Society, Maui Office, and the Maui County Bar Association to put together a new informational brochure.

“By the time the landlord-tenant cases come to court, it is frequently too late to address the root of the problem,” said District Court Judge Adrianne Heely. “There are a lot of resources and organizations that landlords and tenants may not be aware of. That’s why we wanted to provide as much information to both parties, so problems can be addressed in a more timely and effective manner.”

The STAE initiative began on Oahu last year led by First Circuit District Court Judges Hilary B. Gangnes and Michael K. Tanigawa. It also included representatives from the city and state; University of Hawaii’s William S. Richardson School of Law, Students for Public Outreach and Civics Education; Consumer Credit Counseling Service of Hawaii; Legal Aid Society of Hawaii; Helping Hands Hawaii; Catholic Charities Hawaii; Mediation Center of the Pacific; and volunteer attorneys.

“I’d like to thank Judge Heely and Judge Kawano for their desire to help the community and for seeing the need to expand this program to Maui 34 September 2016

HAWAII BAR JOURNAL

County,” said Chief Judge Joseph Cardoza. “I also want to extend my appreciation and thanks to the city and state agencies, non-profit organizations, and community partners whose support has made this initiative possible.”

The informational brochure will be available at Maui’s Self-Help Center and online at: http://www.courts.state. hi.us/special_projects/stae.

Papa Hoike Kuleana: Accountability Program of the First Circuit Family Court

Photo: A tomato in the Hale Hilinai garden, grown by juvenile clients in Papa Hoike Kuleana, the Accountability Program.

A new unit within the First Circuit Family Court Juvenile Client Services Branch, the Accountability Program (Papa Hoike Kuleana), is taking an innovative approach to helping youth complete their court-ordered restitution and community service obligations, while instilling the values of forgiveness, healing and empowerment through mentorship.

Since 2014, when the Accountability Program began, social workers Shannon Kayatani and Tracy Alcoran have worked with the juvenile clients on maintaining a garden at Hale Hilinai (House of trust, resilience and reliance), the former Juvenile Detention Center.

In the Hale Hilinai garden, young people learn to care for native and foodbearing plants, and the surrounding garden areas, with activities that build their skills in proper watering techniques, pruning, trimming, and maintenance.

They also learn about mulch placement, composting, worming, fertilizing, planting, and harvest.

The Hale Hilinai garden currently yields a regular output of grape tomatoes and varieties of tomatoes such as roma and beefsteak. The garden also produces lettuce, cucumbers, and other vegetables. Interested youth are often sent home with harvest crops, such as kalo, to eat and plant for their families.

The Accountability Program views the Hale Hilinai garden as an ideal “learning lab.” Youth are exposed to skills and values such as planning, selfsufficiency, commitment, patience, thoroughness, hard work, and thoughtfulness. It is hoped that every client referred to the Accountability Program will ultimately experience all aspects of growing the food crops and have the option to take vegetables of their choice home to their families.

DWI Court: Increasing Public Safety, Saving Lives

Pictured above from the left: Attorney Jason Shimizu, Case Manager Tina Hamayasu, Attorney Brian Kim, Judge William M. Domingo, and DWI Court Coordinator Lisa Lum with two successful DWI Court graduates.

CASE NOTES (Continued on page 35)

On June 23, 2016, the Honolulu DWI (“Driving While Impaired”) Court held a graduation ceremony to acknowledge the hard work, commitment, and success of its latest graduates.

Since its founding in 2013, thirty individuals have completed the intensive program.

“A lot of us attorneys volunteer our time because we believe in the DWI Court Program. Participants hate it at first. It is not an easy process, but every one of my clients who have graduated say it changed them, and not one has reoffended,” said Honolulu criminal defense attorney Jonathan Burge.

By providing participants with support, court monitoring, and treatment services that aid in addiction recovery, the DWI Court is able to reduce recidivism and increase public safety.

For more information, or to apply to the DWI Court Program, go to: http://bit.ly/1S6eJax Seeking Grand Jury Counsel for Kauai

The Circuit Court of the Fifth Circuit is seeking application for Independent Grand Jury Counsel. If you are interested in being considered for a one-year appointment, please submit your cover letter with a resume to Chief Judge Randal Valenciano, 3970 Kaana Street, Suite 306, Lihue, Hawaii 96766, fax, (808) 482-2662, by October 28, 2016.

C.J.). Appellant, a minor at the time of his conviction, was sentenced to life imprisonment without the possibility of parole for attempted first degree murder.

Subsequently, Appellant was resentenced to life imprisonment with the possibility of parole. On appeal, Appellant argued that: (1) the circuit court erred in severing and reforming Haw. Rev. Stat. § 706-656 (in response to Miller v.

Alabama, 132 S.Ct. 2455 (2012); Graham v. Florida, 560 U.S. 48 (2005); and Roper v.

Simmons, 543 U.S. 551 and before it was amended by Act 202) to require the imposition of a sentence of life imprisonment with the possibility of parole; and (2) the circuit court abused its discretion in failing to consider the mitigating factors of youth in resentencing him.

Appellant also argued that the 2014 amendment to Haw. Rev. Stat. § 706656(1) by Act 202 to require a sentence of life imprisonment with the possibility of parole for juvenile offenders was unconstitutional because it failed to provide for individualized sentencing and consideration of the mitigating factors of youth. The ICA concluded that the Legislature’s 2014 amendment of Haw. Rev. Stat. § 706-656(1) effectively eliminated the need to address Appellant’s severability arguments.

Labor

Kauai Police Comm’n v. Carvalho, No. CAAP-13-0000015, June 30, 2016, (Ginoza, J.). The question presented in this case was whether, under the Kauai Charter, the authority to suspend and/or otherwise discipline the Kauai Police Chief rested with the Kauai County Mayor or the Kauai Police Commission. The Kauai Charter does not clearly address whether the Mayor or the Police Commission has the authority to suspend and/or otherwise discipline the Police Chief. The ICA held that, under the provisions of the

Kauai Charter, the Police Commission, which expressly has the right to appoint and remove the Police Chief and has the supervisory authority over the Police Chief pursuant to a number of provisions, has the authority to suspend and/or otherwise discipline the Police Chief.

United States Magistrate Judge Kevin S.C. Chang Reappointed The U.S. District Court, District of Hawaii, has reappointed federal Magistrate Judge Kevin S.C. Chang to a third eight-year term. The new term is effective December 19, 2016.

Magistrate Judge Chang received his law degree from Lewis and Clark College, Northwestern School of Law in 1978. After graduation he served as alaw clerk to the Honorable Robert C. Belloni, U.S. District Judge for the District of Oregon from 1978 to 1980.

In 1980, Judge Chang returned to Hawaii, working as a Deputy Prosecutor for the City and County of Honolulu. In March of 1981 he joined the law firm of Kobayashi, Watanabe, Ing and Kawashima. He was appointed to the Hawaii State Court as a Circuit Judge for the First Circuit Court in April 1993. Judge Chang served as a civil trial judge from 1993 until 1998 when he became the Civil Administrative Judge, First Circuit Court and continued to serve in that position until his appointment to an eight year term as a United States Magistrate Judge, District of Hawaii, in December 2000.

He was reappointed to a second eight-year term in December 2008.

United States Magistrate Judges are reappointed by the court after comments from the public and members of the bar.

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Joint Bar Conference with the Dai Ichi Tokyo Bar Association

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The HSBA’s 2016 Joint Bar Conference with the Dai Ichi Tokyo Bar Association (“DITBA”) in Tokyo, Japan took place from April 18 to 20, 2016. Led by Craig Wagnild, former HSBA President, and Rex Fujichaku, Chair of the HSBA International Law Section, thirty-four Hawaii attorneys, including thirteen Hawaii attorneys living and working in Tokyo, attended various legal education and social events over three days. The HSBA and the DITBA held a joint seminar where topics included transnational tax, real estate, and inheritance issues. Hawaii speakers were Christine Kubota, Judy Lee, and Junsuke Otsuka. Gay Miyake, a long-time Hawaii Japanese Language Interpreter, volunteered her services for this event, as she has done for other previous meetings between the two bar associations.

During their stay in Tokyo, the Hawaii attorneys also visited Tsukiji Market, the Japan Supreme Court, and Asakusa Shrine and attended a seminar for which they received three CLE credits. Shimpei Oki led the excursion to the Japan Supreme Court, and Christine Kubota acted as tour guide to Tsukiji Market and Asakusa Shrine. Craig Wagnild moderated the seminar where topics included current immigration issues, corporate international tax planning, and electronic ethics. The speakers were New York attorney Richard Goldstein and Hawaii attorneys Roger Epstein, Ryan Wilson, and Glenn Melchinger. On the final night of the program, the HSBA held a dinner at a convivial Japanese izakaya restaurant for the members of its delegation and friends in the DITBA. The HSBA and the DITBA entered into a Friendship Agreement in 2005 and have been holding biennial meetings in Tokyo and Honolulu ever since. Mark Shklov, Alan Fujimoto, and Keith Suzuka helped coordinate the events, which led to a successful, enjoyable, and educational excursion.

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Right: One of several tables of HSBA and DITBA friends at the farewell dinner at a Japanese izakaya restaurant.

Writing Legal Articles for CLE Credits Did you know? A Hawaii-licensed attorney can earn two continuing legal education (“CLE”) credits annually for writing a legal article of 1,500 words. As of January 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 Education Regulations of the State Board of Continuing Legal Education and are published in a bar journal, law review, book, bar association or similar recognized journal, 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 organized program of learning with significant intellectual or practical content and deals with matters directly related to the practice of law; (2) The course or activity’s primary purpose is to improve the participant’s professional competence as an attorney. Areas of professional competence include substantive legal issues, legal skills or practice, improving the attorney’s delivery of legal services to clients, and improving the efficiency of the practicing attorney.

Accordingly, the scholarly legal article should be of “significant intellectual or practical content” and relate to the practice of law and an attorney’s professional competence.

A copy of an attorney’s publication of a 1,500-word legal article in the Hawaii Bar Journal should be submitted to the CLE Administrator at the HSBA for approval of CLE credits.

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OFF THE RECORD Jeff Sia’s “Green Team” won the Championship in the Hawaii Lawyer’s Basketball League by beating Revolusun.

The Green Team is Casey Hines, Jeff Sia, Bob Mash, Andrei Plotnick, Todd Eddins, Michael Van Dyke, Dave Gruebner, Trisha Nishimoto, Todd Apo, Sergio Rufo, Tom Bush, Dexter Kaiama, and Tom Helper.

David A. Gruebner joined Goodsill Anderson Quinn & Stifel as a partner. He concentrates his practice in the areas of medical malpractice, products liability, construction litigation and other general civil litigation. He has been practicing law in Hawaii for over 20 years and was most recently with the law firm Chong Nishimoto Sia Nakamura & Goya LLP. A graduate of University of Illinois at UrbanaChampaign, he received a law degree from Drake University Law School.

Goodsill Anderson Quinn & Stifel LLP, founded in Hawaii in 1878, has over 60 attorneys representing local, national and international clients.

Dan A. Colon has been named President of the Hawaii Association of Justice (“HAJ”). The HAJ is the Hawaii affiliate of the American Association of Justice (“AAJ”). The mission of both AAJ and HAJ is to protect the rights of individuals, maintain judicial integrity and independence, preserve the jury system, and enhance trial practice efforts to ensure that any individual harmed by misconduct or neglect can obtain justice in our courtrooms. HAJ’s active members represent victims of negligence throughout the state with a focus on protecting the ordinary person in major injury, employment, and consumer protection matters. Anyone interested in obtaining more information about HAJ, including possible membership, can contact Dan A. Colon at (808) 526-1800, or by email: dancolon@hawaiiantel.net; or HAJ Director Cindy Adair at (808) 2629191, or at director@justicehawaii.com.

The Hawaii Women Lawyers announced its 2016 - 2017 Board of Directors. The officers are: H. Shan Wirt, President; Mihoko Ito, VicePresident/President-Elect; Jacquelyn Esser, Secretary; Kristine Yoo Nakamatsu, Treasurer; Natalie 38 September 2016

HAWAII BAR JOURNAL

Younoszai as Immediate Past President. The directors are: Lori Amano, Catherine Betts, Jill Hasegawa, Nalani Fujimori Kaina, Erin M. Kobayashi, Aimee Lum, Tricia Nakamatsu, Erica Chee Osterkamp, Shellie Park-Hoapili, and Jennifer Rose.

Student Representatives from William S. Richardson School of Law are: Erin Anding, Tara Buckley, AlyssaMarie Kau, Christina Lizzi, and Michele Nakata.

Sue Beitia, Clerk of the Court, U.S. District Court, announced that the Hawaii Federal Bar Association, along with the U.S. District Court, is planning a Hawaii Federal Trial Academy. It is expected that the Academy will be three days in early January 2017 and held at the federal court. It is anticipated that the Academy will take place annually. Also, the U.S. District Court and Friends of the Hawaii State Judiciary are hosting their third Teacher’s Workshop on November 9 and 10 at the U.S. District Court Courthouse. The theme for this year’s workshop is “The 2nd Amendment, Individual Rights vs.

Collective Rights.” Twenty-five teachers state-wide are expected to participate in this two-day event.

Anson Okimoto, Bankruptcy Analyst at the United States Trustee’s Office in Honolulu, received the Attorney General’s Volunteer Award for Community Service. He was honored at a ceremony on July 21, 2016 in Washington, D.C. in the Justice Department’s Great Hall for his work as co-founder of the Friends of the Children’s Justice Center of Oahu (“FCJC”). Okimoto co-founded the FCJC in 2010 to support the Children’s Justice Center of Oahu, which is part of a Hawaii state judiciary program and provides comprehensive, coordinated forensic interviews of children suspected to be victims of sexual or physical abuse, or who witnessed a serious crime. It serves more than 1,100 children each year ranging in age from 2 to 18. With Okimoto’s efforts, the FCJC now operates with a $350,000 annual budget supported by fundraisers, charitable donations, and grants.

Maui County Bar Association’s 24th Annual Arthur T. Ueoka Memorial Scholarship Golf Tournament will be held on Saturday, October 22, 2016, at the Maui Nui Golf Course. Check-in is at 11:00 a.m. and tee off is at noon. It is a two-person scramble. Entry fee is $150.00, and includes two mulligans, the par three contests, and the longest drive contest. A snack is provided before the tournament, and an awards dinner is held afterwards. Hole sponsorships are also available. The tournament raises funds for scholarships for law school students with Maui ties. Arthur T. Ueoka was a former Maui prosecutor and judge. All are welcome to participate.

Contact Paul Horikawa at (808) 2444671 or (phorikawa3316@gmail.com) for an application.

News for “Off the Record”

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

Articles Wanted

If you are interested in writing either a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov; or Carol K. Muranaka at carol.k.muranaka @gmail.com; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is between four and eight pages, double-spaced, approximately 500 to 1,500 words.

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

These articles exceed 6,000 words. The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

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