RULES OF THE

SUPREME COURT

OF THE

STATE OF HAWAIʻI

(SCRU-11-0000068)

 

 

 

 

 

Adopted and Promulgated by

the Supreme Court

of the State of Hawaiʻi

 

 

 

 

As amended April 16, 1984

Effective June 1, 1984

With Amendments as Noted

 

The Judiciary

State of Hawaiʻi



RULES OF THE SUPREME COURT

OF THE STATE OF HAWAIʻI

 

 

Table of Contents

 

 

Rule 1.         ADMISSION TO THE BAR

         1.1.      Authority of Hawaiʻi Supreme Court

         1.2.      Board of Examiners

                     (a)     Composition and Reimbursement

                     (b)     Officers of the Board

                     (c)     Duties

                     (d)    Governance

         1.3.      Requirements for admission

                     (a)     Applications

                     (b)     Legal Education or Experience Requirements

                     (c)     Good Character and Fitness

                              (1)     Standard of Character and Fitness

                              (2)     Burden of Proving Character

                              (3)     Resolution of Character and Fitness Issues

                     (d)    Investigation of Applications

                     (e)     Review of Adverse Recommendations as to Good

                              Character and Fitness

                     (f)     Non-Standard Testing Accommodations

                     (g)     Examinations

                     (h)     Child Support Enforcement

                     (i)      Student Loan Enforcement

         1.4.      Fees

         1.5.      Oath and admission

         1.6.      Attorney’s license, form of

         1.7.      Limited admission of military attorneys

                     (a)     Full-time active duty officers

                     (b)     Term limitation; extensions

                     (c)     Client and compensation limitation

                     (d)    Discipline; dues

         1.8.      Law school faculty members; Pro tem membership

         1.9.      Pro hac vice appearance of counsel for court proceedings


         1.9A.   Pro hac vice appearance of counsel for arbitration proceedings

                     (a)     Approval to appear pro hac vice

                     (b)     Contents of the application or petition

                              (1)     Required information.

                              (2)     Required declaration by out-of-state attorney

                              (3)     Required declaration by Hawaiʻi attorney

                     (c)     Disposition of the petition

                     (d)    Duties of the pro hac vice attorney

                     (e)     Duties of the Hawaiʻi attorney

                     (f)     Unauthorized practice of law

                     (g)     The pro hac vice attorney is subject to Hawaiʻi

                              jurisdiction

                     (h)     Limits of this Rule

         1.10.    Resignation or retirement from the bar while in good standing

         1.11.    Readmission after resignation

         1.12.    Immunity

         1.13.    Specialization

                     (a)     Petition for Certificate of Specialization

                     (b)     Contents of Petition

                     (c)     Nature of Proceeding; Filing Fee

                     (d)    Form of Certificate

                     (e)     Limitations

                     (f)     Revocation of Certification

                     (g)     Renewal

         1.14.    Mandatory professionalism course

                     (a)     Professionalism Course

                     (b)     Proof of Compliance

                     (c)     Administrative Suspension

                     (d)    Reinstatement

                     (e)     Fees

                     (f)     CLE Compliance

         1.15.    Effect of Hawaiʻi Electronic Filing and Service Rules

         1.16.    Limited Admission of Attorneys Employed by Non-profit

                     Organizations Providing Civil Legal Services to Economically

                     Disadvantaged Persons

                     (a)     Employees

                     (b)     Term Limitation; Extensions

                     (c)     Client and Compensation Limitation

                     (d)    Discipline; Dues


         1.17.    Limited admission of United States Uniformed Services

                     spouse-attorneys

                     (a)     Eligibility

                     (b)     Practice requirements

                     (c)     Term Limitation; Extensions

                     (d)    Duties upon termination of the license

                     (e)     Discipline; Dues

 

Rule 2.         DISCIPLINARY RULES

         2.1.      Jurisdiction

         2.2.      Grounds for discipline  

         2.3.      Types of discipline

         2.4.      Disciplinary board

         2.5.      Hearing committees

         2.6.      Disciplinary counsel

                     (a)     Private practice not permitted

                     (b)     Powers and duties of Chief Cousel

                     (c)     Delegation

         2.7.      Procedure

                     (a)     Investigation

                     (b)     Minor misconduct

                     (c)     Formal hearing

                     (d)    Review by Board and Supreme Court

                     (e)     Elimination or suspension of hearing proceedings

         2.8.      Immunity

         2.9.      Refusal of complainant to proceed, compromise, etc.

         2.10.    Matters involving related pending civil or criminal litigation

         2.11.    Service

         2.12.    Power to subpoena respondents and witnesses; pretrial proceedings

         2.12A. Failure to cooperate

                     (a)     Grounds for suspension

                     (b)     Petition; order to appear; findings

                     (c)     Application to defend

                     (d)    Reinstatement

         2.13.    Attorneys convicted of crimes

         2.14.    Resignation in lieu of discipline or disbarment by consent of

                     attorneys under disciplinary investigation or prosecution

         2.15.    Reciprocal Action

         2.16.    Disbarred or suspended attorneys


         2.17.    Reinstatement

                     (a)     Resumption of Practice

                     (b)     Time to Apply

                              (1)     Disbarred attorney

                              (2)     Attorney suspended 1 year or less

                              (3)     Attorney suspended more than 1 year

                              (4)     Burden of proof; eligibility

                              (5)     Evidence costs, lawyers’ fund paid

                              (6)     Required evidence

                              (7)     Subsequent petitions

                     (c)     Petition the board; serve counsel; investigation; hearing;

                              reports

                     (d)    Expenses

         2.18.    Deleted

         2.19.    Proceedings where an attorney is declared to be incompetent

                     or is alleged to be incapacitated

         2.20.    Trustee proceedings

                     (a)     Definitions

                     (b)     Grounds for appointment of trustee

                     (c)     Procedure

                              (1)     Motion for appointment

                              (2)     Service of motion

                              (3)     Response to motion

                              (4)     Appointment

                              (5)     Limited appointment

                              (6)     Partner access to client trust account

                     (d)    Duties of trustees

                     (e)     Reimbursement and compensation of trustee

                     (f)     Confidentiality

                     (g)     Role of Disciplinary Counsel in trustee proceedings

                     (h)     Disposition of property

                     (i)      Suspension during the trusteeship

                     (j)      Responsibility for fees and costs incurred

         2.21.    Deleted

         2.22.    Confidentiality

                     (a)     General rule

                     (b)     Disclosure of evidence of a crime

                     (c)     Disclosure of evidence of infirmity

                     (d)    Disclosure of resignation affidavit

                     (e)     Authorized statements

                     (f)     Supreme Court records are generally public

                     (g)     ABA databank coordination


         2.23.    Interim suspension

         2.24.    Audit of trust accounts

                     (a)     When audit may be ordered

                     (b)     Random audits

                     (c)     Cost of audit

                     (d)    Examination of other financial accounts

                     (e)     Review

 

         2.25.    Effect of Hawaiʻi Electronic Filing and Service Rules

         2.26.    Effective date

 

Rule 3.         ATTORNEY AND CLIENT FIDUCIARIES

 

Rule 4.         JUDICIAL COUNCIL

                     (a)     Appointment

                     (b)     Functions

                     (c)     Continuing functions

                     (d)    Quorum

 

Rule 5.         HAWAIʻI REVISED CODE OF JUDICIAL CONDUCT

 

Rule 5.1.      ELECTRONIC AND PHOTOGRAPHIC COVERAGE OF

                     COURT PROCEEDINGS

                     (a)     Reserved

                     (b)     Reserved

                     (c)     Definitions

                     (d)    General provisions and exclusions

                     (e)     Request for extended coverage

                     (f)     Process for deciding extended coverage

                     (g)     Restrictions on extended coverage

                     (h)     Procedure for extended coverage

 

Rule 5.2.      USE OF ELECTRONIC DEVICES IN COURT.

(a)         Use of professional-grade audiovisual equipment

(1)         Camera, sound, and lighting equipment

(A)       Television or video camera equipment criteria

(B)        Sound and lighting equipment criteria

(2)         Audio systems

(3)         Minimizing disruption

(4)         Still camera equipment criteria

                     (b)     Recording and storage mediums

                     (c)     Use of mobile devices and all other forms of

                              non-professional audiovisual equipment

 


Rule 5.3.      USE OF ELECTRONIC DEVICES IN COURTROOMS BY

                     THE BAR, JUDICIARY PERSONNEL, AND

                     SELF-REPRESENTED LITIGANTS

                     (a)     Application

                     (b)     Requirements for use

 

Rule 6.         LAWYER’S PROFESSIONAL BUSINESS ORGANIZATIONS

                     (a)     Compliance with this Rule and applicable statutes

                     (b)     Name

                     (c)     Limitation to the practice of law

                     (d)    Shares; ownership and transfer

                     (e)     Directors

                     (f)     Officers

                     (g)     Financial responsibility

                              (1)     Liability notice

                              (2)     General rule on liability

                              (3)     Unacceptable errors and omissions coverage

                     (h)     Compliance with law and rules of court

                     (i)      Attorney-client relationship unchanged

                     (j)      Discipline and enforcement

 

Rule 7.         SUPERVISED STUDENT PRACTICE OF LAW

         7.1.      Definitions

         7.2.      Activities of law student interns

         7.3.      Qualification procedures for law student interns

         7.4.      Duration of law student intern authorization and compensation

                     limitations

         7.5.      Other law student intern activities

         7.6.      Supervision of law student practice

         7.7.      Miscellaneous

 

Rule 8.         JUDICIAL DISCIPLINE

         8.1.      Organization of commission

                     (a)     Membership; chairperson

                     (b)     Terms

                     (c)     Compensation

                     (d)    Quorum; number of votes for action

                     (e)     Meetings

                     (f)     Annual report

                     (g)     Non-participation by members


         8.2.      Jurisdiction and powers of Commission

                     (a)     Powers in general

                     (b)     Persons subject to discipline

                     (c)     Jurisdiction of Commission

                     (d)    Subpoena and discovery

                     (e)     Rules of procedure and forms

         8.3.      Immunity

         8.4.      Confidentiality

                     (a)     In general

                     (b)     Disclosure

                     (c)     Public statements by commission

         8.5.      Grounds for discipline

                     (a)     In general

                     (b)     Proceedings not substitute for appeal

         8.6.      Complaint procedure

                     (a)     Initiation of procedure

                     (b)     Privilege

                     (c)     Discretionary notice

                     (d)    Screening of complaints

                     (e)     Mandatory notice

                     (f)     Preliminary investigation and evaluation

                     (g)     Determination

                     (h)     Insufficient cause to proceed

                     (i)      Disposition in lieu of further proceedings

         8.7.      Appointment of special counsel

         8.8.      Determination on report of special counsel

         8.9.      Formal hearing

                     (a)     Formal Complaint or Statement of the Allegations

                     (b)     Answer

                     (c)     Termination after answer

                     (d)    Hearing officer and notice of hearing

                     (e)     Presentation; cross-examination; evidence

                     (f)     Findings and recommendations

         8.10.    Review by supreme court

         8.11.    Charge against supreme court justice

         8.12.    Interim sanctions

                     (a)     Suspension for felony

                     (b)     Suspension for misdemeanor

                     (c)     Misdemeanor suspension review

                     (d)    Other interim suspension

                     (e)     Disability suspension

         8.13.    Special provisions for cases involving mental or physical disability

                     (a)     Procedure

                     (b)     Representation by counsel

                     (c)     Medical privilege


         8.14.    Involuntary retirement

                     (a)     Procedure

                     (b)     Effect of involuntary retirement

         8.15.    Advisory Opinions

                     (a)     Rendering Opinions

                     (b)     Who May Request; Types of Opinions

                              (i)      Informal Written Opinions

                              (ii)     Formal Written Opinions

                              (iii)    Discussions

                     (c)     Use and Effect

                     (d)    Modification

         8.16.    Effect of Hawaiʻi Electronic Filing and Service Rules

 

Rule 9.         TIME LIMITS FOR DISPOSITION

 

Rule 10.       LAWYERS’ FUND FOR CLIENT PROTECTION

         10.1.    Purpose; trustees; administration

                     (a)     Purpose; definition of "dishonest conduct"

                     (b)     Appointment of trustees

                     (c)     Organization; meetings

                     (d)    Rules

                     (e)     Reimbursement

         10.2.    Deleted

         10.3.    Payment of claims

                     (a)     Eligible claims

                     (b)     Nonreimbursable losses

                     (c)     Discretion of trustees

                     (d)    Consideration of trustees

                     (e)     Limitation on payments

                     (f)     Rights to fund

                     (g)     Conditions of payment

                     (h)     Attorney’s fee

                     (i)      Investments

         10.4.    Powers and duties of the trustees

         10.5.    Claims for reimbursement

                     (a)     Application

                     (b)     Investigation

                     (c)     Report

                     (d)    Action by trustees upon report

                     (e)     Notice of determination

         10.6.    Subpoenas; noncompliance


         10.7.    Subrogation for reimbursement made

                     (a)     Subrogation; legal action by Fund

                     (b)     Direct action by claimant

                     (c)     Claimant’s right to amounts in excess of subrogated amount

                     (d)    Written agreement by claimant prior to receipt of payments

         10.8.    Confidentiality

                     (a)     General rules of confidentiality

                     (b)     Exchange of information and sharing of investigative and

                              administrative resources with Disciplinary Board

                     (c)     Communication with the claimant and the attorney claimed

                              against

                     (d)    Public statements by trustees

                     (e)     Disclosure of evidence of a crime

         10.9.    Immunity

         10.10.  Automatic suspension

 

Rule 11.       INTEREST-BEARING TRUST ACCOUNTS PROGRAM

                     (a)     Purpose

                     (b)     Required participation

                     (c)     Administration

                              (1)     Deposits of clients’ funds

                              (2)     IOLTA trust accounts

                              (3)     Non-IOLTA client trust accounts

                     (d)    Use of funds derived from IOLTA trust accounts

                     (e)     Exemptions

                     (f)     Attorney filings and records

                              (1)     Attorney filings

                              (2)     Records

                     (g)     Rules and Policies of the Hawaiʻi Justice Foundation

                     (h)     Implementation

 

Rule 12.       SUPREME COURT LAW LIBRARY

                     (a)     Availability

                     (b)     Regulations

                     (c)     Withdrawals

                     (d)    Penalties

 

Rule 13.       REPEALED

 

Rule 14.       LICENSING OF FOREIGN LAW CONSULTANTS

         14.1.    Eligibility

         14.2.    Applications

         14.3.    Hardship waiver

         14.4.    Scope of practice

         14.5.    Jurisdiction and Requirements

 


Rule 15.       JUDICIAL FINANCIAL DISCLOSURE

                     (a)     Filing of annual financial disclosure statement

                     (b)     Time for filing

                              (1)     Extensions of Time

                              (2)     Monitoring by Chief Clerk

                     (c)     Imposition of discipline for untimely or incomplete statements

                     (d)    Matters to be disclosed

                     (e)     Disclosure of amounts by range; number of stock shares

                     (f)     Short form statement

                     (g)     Statements open to public inspection

                     (h)     Filing of statement not to limit ethical responsibilities of

                              a judge

 

Rule 16.       ATTORNEYS AND JUDGES ASSISTANCE PROGRAM

         16.1.    Purpose; scope

         16.2.    Attorneys and Judges Assistance Program Board

         16.3.    The director

         16.4.    Voluntary program

         16.5.    Intervention program

         16.6.    Confidentiality; privilege not to disclose

         16.7.    Immunity

         16.8.    Deleted

 

Rule 17.       THE HAWAIʻI STATE BAR

                     (a)     Creation, name and status

                     (b)     Purposes and powers

                     (c)     Membership and classes of members

                     (d)    Member registration, information, assessment, suspension and

                              status

                              (1      Member registration

                              (2)     Information to Disciplinary Counsel          

                              (3)     Dues, fees and charges

                                       (A)    Hawaiʻi State Bar dues

                                       (B)    Disciplinary Board fee

                                       (C)    Lawyers’ Fund for Client Protection fee

                                       (D)    Attorneys and Judges Assistance Program fee

                              (4)     Administrative suspension

                                       (A)    Failure to file, cooperate with an audit, or pay

                                       (B)    Failure to meet CLE requirements; notice of

                                                noncompliance; subsequent acquisition of hours;

                                                contest; suspension

                              (5)     Reinstatement

                                       (A)    After failure to file or pay

                                       (B)    After failure to comply with CLE requirements

                                       (C)    Review by supreme court


                              (6)     Exemptions

                                       (A)    Judges’ exemption

                                       (B)    Government attorneys’ exemption

                                       (C)    "Inactive" members’ exemption

                              (7)     Proof of payment

                              (8)     Inactive status

                              (9)     Return from voluntary inactive status

                     (e)     Composition, powers and responsibilities of governing body

                     (f)     Powers and responsibilities of governing body

                     (g)     Adoption and amendment of rules regarding Bar

         17.1.    Child support enforcement

                     (a)     Suspension of license to practice law

                     (b)     Reinstatement to practice

                     (c)     Fee assessment

 

Rule 18.       CALENDAR CONFLICTS BETWEEN THE UNITED STATES

                     DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI AND

                     HAWAIʻI STATE COURTS

                     (a)     Counsel’s duty to notify the courts

                     (b)     Resolution of scheduling conflicts

 

Rule 19.       JUDICIAL PERFORMANCE PROGRAM

         19.1.    Purposes of Judicial Performance Program

         19.2.    Jurisdiction

         19.3.    Special committee to implement and administer the program

         19.4.    Judicial performance evaluation criteria

         19.5.    Confidentiality

                     (a)     Respondent confidentiality

                     (b)     Confidentiality of information and data

                     (c)     Furnishing of information and data to the judicial selection

                              commission

                     (d)    Furnishing of summary to the evaluated judge

         19.6.    Immunity

         19.7.    Effective date

 

Rule 20.       PRO BONO PUBLICUS ATTORNEY

                     (a)     Purpose

                     (b)     Waiver of active fees, dues and charges

                     (c)     Definitions

                     (d)    Limitations

                     (e)     Duties of qualified legal services provider

 


Rule 21.       ACCESS TO JUSTICE COMMISSION

                     (a)     Creation

                     (b)     Purpose

                     (c)     Membership

                              (1)     Number of Members and Terms of Office

                              (2)     Vacancies

                              (3)     Appointment of Members

                              (4)     Community Wide Representation

                     (d)    Officers

                     (e)     Bylaws, Rules and Procedures

                     (f)     Committees and Task Forces

                     (g)     Meetings, Quorum, and Voting

                     (h)     Staff and Funding Support

                     (i)      Recommendations

                     (j)      Reports and Review

                              (1)     Annual Reports

                              (2)     Three-year Review

 

Rule 22.       MANDATORY CONTINUING LEGAL EDUCATION

                     (a)     Mandatory Continuing Legal Education

                     (b)     Ethics and Professional Responsibility Minimum

                     (c)     Carry Forward of Credit Hours

                     (d)    Mandatory Certification, Reporting, and Record Keeping

                     (e)     Courses and Activities

                     (f)     Approved Courses or Activities

                     (g)     Approval and Accreditation Authorization

                     (h)     Full-time Judges

                     (i)      Inactive members

                     (j)      Newly licensed members

                     (k)     Good Cause Exemption or Modification

                    

 


Rule 23.       COMMISSION TO PROMOTE AND ADVANCE

                     CIVIC EDUCATION

                     (a)     Creation

                     (b)     Purpose

                     (c)     Membership

                              (1)     Number of Members and Terms of Office

                              (2)     Appointment of Members

                              (3)     Community-Wide Representation

                              (4)     Vacancies

                     (d)    Officers

                     (e)     Bylaws, Rules, and Procedures

                     (f)     Committees and Task Forces

                     (g)     Meetings, Quorum, and Voting

                     (h)     Staff and Funding Support

                     (i)      Recommendations

                     (j)      Reports and Review

                              (1)     Annual Reports

                              (2)     Three-Year Review

 

 

Appendix A.        Rules & Regulations Concerning the Lawyers’ Fund for

                              Client Protection of the Supreme Court of Hawaiʻi

 

Exhibit A.            Hawaiʻi Rules of Professional Conduct

 

Exhibit B.             Hawaiʻi Revised Code of Judicial Conduct

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Rule 1.          ADMISSION TO THE BAR.

        1.1.        Authority of Hawaiʻi Supreme Court.

        The Hawaiʻi Supreme Court (Supreme Court) shall appoint a Board of Examiners (Board) to administer the process of admission to the bar of the state. Nothing in this rule, however, shall be construed to alter or limit the ultimate authority of the Supreme Court to oversee and control the privilege of the practice of law in this state.

 

        1.2.        Board of Examiners.

        (a)   Composition and Reimbursement. Members of the Board shall be appointed for staggered three-year terms by the Supreme Court from nominations submitted by the Nominating Committee of the Hawaiʻi Supreme Court. Members of the Board shall not receive compensation for their services but may be reimbursed for travel and other expenses incidental to the performance of their duties.

        (b)   Officers of the Board. The Supreme Court shall appoint a chairperson and vice-chairperson of the Board from its members. The Clerk of the Supreme Court (Clerk) shall be the secretary to the Board and the Clerk’s office shall furnish administrative and clerical assistance to the Board.

        (c)   Duties. The Board shall examine the qualifications of each applicant, his or her knowledge of legal ethics, and his or her moral character, and shall administer a written examination. The record of the examination shall be filed with the Clerk and the Board shall report its recommendations to the Supreme Court which shall make the final decision for all admissions to the bar.

        (d)   Governance. The Board shall promulgate procedural rules within the scope of its powers and authority, subject to the approval of the Supreme Court. All decisions of the Board shall be made in accordance with the procedural rules promulgated by the Board. The chairperson of the Board may appoint committees and subcommittees to assist the Board in fulfilling its responsibilities under this rule. The Board may delegate its authority to act to the chairperson, or to its committees or subcommittees, provided that a majority of the members of the Board concurs with the delegation of authority.

        (Amended April 8, 2002, effective July 1, 2002.)

 


        1.3.        Requirements for admission.

        (a)   Applications.

        (1)   Each applicant for admission to the bar shall file either:

        (i)    a verified, typewritten or machine printed application with the Clerk on the forms furnished by the Board in accordance with Board’s Rules of Procedure or

        (ii)   a completed electronic application through the Judiciary Electronic Filing System.

        (2)   At a minimum, the forms shall require the applicant to submit:

        (i)    his or her name and date of birth,

        (ii)   his or her last place of residence,

        (iii)  the character and term of his or her study,

        (iv)  the institution of law from which he or she graduated and with what degree,

        (v)   the names of all courts to which he or she has made applications to practice,

        (vi)  the dates of applications to practice,

        (vii) the dates of examinations and the dates of admission to practice,

        (viii) whether he or she has been the subject of any investigation or proceeding for professional misconduct,

        (ix)  whether he or she has ever been rejected upon an application to practice before any court, and

        (x)   information required by the Board that relates to the applicant’s character and fitness to practice law.

        (b)   Legal Education or Experience Requirements.

        (1)   Unless otherwise provided by this rule, to be eligible for examination and admission to the bar, each applicant shall have graduated from a law school accredited by the Council of the American Bar Association on Legal Education and Admission to the Bar (accredited law school) with a J.D. or L.L.B. degree. The applicant shall have his or her first professional legal degree (J.D. or L.L.B.) from an accredited law school to satisfy the legal education requirement. A graduate degree in law (L.L.M., M.C.L., S.J.D.) is not a satisfactory substitute for the J.D. or L.L.B. degree.


        (2)   An attorney who is not a graduate of an accredited law school but who is admitted to practice before the highest court of another state, a territory, or the District of Columbia, shall be eligible for examination and admission, provided that he or she has actively practiced law in such state, territory or the District of Columbia for five of the six years immediately preceding his or her application.

        (3)   An attorney admitted to practice and is in good standing before the highest court of a foreign country, where the English common law substantially forms the basis of that country’s jurisprudence, and where English is the language of instruction and practice in the courts of that jurisdiction, shall be eligible for examination and admission provided he or she presents satisfactory proof that he or she has actively practiced law in such jurisdiction for five of the six years immediately preceding his or her application.

        (4)   Service as a judge of a court of record shall be considered equivalent to the active practice of law within the meaning of this rule.

        (5)   Good Standing in Foreign Jurisdiction. An applicant shall not be allowed to sit for the examination or be admitted to the Hawaiʻi bar during any period in which the applicant is suspended or disbarred or allowed to practice only with supervision in any other jurisdiction. For purposes of these rules a resignation in lieu of discipline is a disbarment.

        (c)   Good Character and Fitness.

        (1)   Standard of Character and Fitness.  A lawyer should be one whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them. A record manifesting a deficiency in:

        (i)    honesty,

        (ii)   trustworthiness,

        (iii)  diligence,

        (iv)  reliability,

        (v)   financial responsibility,

        (vi)  professional responsibility, or

        (vii) respect for the law

shall be grounds for denying an application.

        (2)   Burden of Proving Character.  The burden of proving good character and fitness is on the applicant.

        (3)   Resolution of Character and Fitness Issues.  The supreme court may refuse to allow an applicant to sit for an examination pending resolution of character or fitness issues and may refuse to release or consider examination results until character and fitness issues are resolved.

        (d)   Investigation of Applications. The Board, any delegated committee, or designee shall investigate the applications, and may inquire into the information included in, and relevant to, each application. The Board may conduct proceedings necessary for a full and fair review of each application in accordance with its Rules of Procedure. The Clerk may issue subpoenas to compel the attendance of witnesses or the production of documents or other information in connection with such proceedings. An application may be held in abeyance by the Board pending the receipt of additional information to complete the investigation. If an applicant refuses or is unable to provide additional requested information, the recommendation to the Supreme Court shall be made on the basis of the existing information. The Board, any delegated committee, or designee shall report the results of the investigation and recommendations to the Supreme Court.

        (e)   Review of Adverse Recommendations as to Good Character and Fitness. An applicant may petition the Supreme Court for review of an adverse recommendation that is based upon the applicant’s failure to establish good character and fitness by filing with the Clerk a petition for review within twenty (20) days after receiving the adverse recommendation relating to character and fitness.

        (f)    Non-Standard Testing Accommodations. An applicant may file a request for non-standard testing accommodations with the Board in accordance with the Board’s Rules of Procedure.


        (g)   Examinations.

        (1)   Unless otherwise provided by this rule, an applicant shall be admitted to practice only after he or she has passed examinations that satisfy the supreme court that the applicant has the necessary legal and educational qualifications to practice law in this jurisdiction.

        (2)   Hawaiʻi Bar Examinations will be held in the City and County of Honolulu, Hawaiʻi.

        (3)   Unless otherwise directed by the supreme court, the Hawaiʻi Bar Examinations will be held during the week of the last Wednesday of February and July.

        (4)   Within thirty (30) days after the results of the Hawaiʻi Bar Examination are filed by the Supreme Court, the Clerk may transmit a copy of examination scores to any unsuccessful applicant. However, there shall be no right of appeal as to the examination or its results.

        (5)   Unless otherwise ordered by the supreme court, the files, records and proceedings of the Board are confidential and may not be disclosed except in furtherance of the Board’s duties under this rule; provided that the Board may, without a court order, release files and records at the request of an attorney admission, or disciplinary authority or judicial selection authority of any jurisdiction in which the applicant is admitted to practice or seeks to practice and provided further that the names of applicants shall not be confidential.  The Board or the court may post the names of all applicants, including former names and aliases, and seek comment about the applicants.

        (6)   In addition to the Hawaiʻi Bar Examination administered by the Board, each applicant for examination and admission must also take and pass the Multistate Professional Responsibility Examination (MPRE). The MPRE must be taken and passed not earlier than two years before the Hawaiʻi Bar Examination and the MPRE score must be officially reported to the Board not later than one year after date of notification of passing the Hawaiʻi Bar Examination.

        (h)   Child Support Enforcement. An applicant shall not be allowed to sit for a Hawaiʻi Bar Examination or be admitted to the Hawaiʻi Bar during any period in which the applicant has not complied with a court order for child support or in which Hawaii’s Child Support Enforcement Agency or like body in another jurisdiction has certified the applicant is not in compliance with an order of child support or is not in compliance with a subpoena or warrant relating to a paternity or child support proceeding.

        (i)    Student Loan Enforcement. An applicant shall not be allowed to sit for a Hawaiʻi Bar Examination or be admitted to the Hawaiʻi Bar during any period in which the applicant is not in compliance with an obligation under a student loan, student loan repayment contract, scholarship contract, or repayment plan.

        (Amended effective September 27, 1996; further amended January 5, 1998, effective January 1, 1998; further amended August 14, 2003, and corrected September 29, 2003, effective January 1, 2004; further amended December 7, 2005, effective January 1, 2006; further amended August 30, 2010; effective September 27, 2010.)

 

        1.4.        Fees.

        (a)   Each applicant shall pay to the Clerk a filing fee with his or her application in such amount as may be determined by the Supreme Court.

        (b)   A successful applicant shall pay any additional fee as may be determined by the Supreme Court for the applicant’s certificate of admission to the bar.

        (c)   Upon request the Clerk of the Court may issue a replacement certificate of admission to the bar. The fee for the replacement certificate shall be in such amount as may be determined by the Supreme Court.

        (d)   The cost of a character report from the National Conference of Bar Examiners, if required, shall be borne by the applicant; except that the uniformed service judge advocate seeking limited admission pursuant to Rule 1.7 shall not be required to submit a character report.


        (e)   The Board shall prepare an annual budget for the expenditure of those funds; shall develop appropriate financial policies for the management of such funds; shall have exclusive control and responsibility over all financial transactions involving such funds; and shall develop and maintain accounting records showing receipt and disposition of such funds, which records shall be subject to audit.

        (Amended November 17, 1995, effective March 18, 1996; further amended effective February 27, 1997; further amended April 18, 2011, effective July 1, 2011.)

 

        1.5.        Oath and admission.

        (a)   Deadline for Admissions.

        (1)   Any applicant who has not been admitted to the bar within one (1) year after the order granting issuance of licenses has been filed in the Supreme Court will be subject to the entire admissions process, including the passing of the bar exam, before the applicant will be considered again for admission to the bar. As to any applicant who became eligible for admission prior to 1995, such applicant shall have one (1) year from the date of the letter of notification, described below, from the Clerk of the Supreme Court in which to become admitted to the bar.

        (2)   As soon as practicable following the effective date of this rule, the Clerk of the Supreme Court shall transmit to each applicant who became eligible for admission prior to 1995 a written notice informing such applicant of the one-year deadline for admission. The notice shall be mailed via certified mail to the most current address shown in the applicant’s bar application file. The applicant shall have one (1) year from the date indicated on the return receipt, showing either the date of receipt or the date of return of the letter unclaimed, in which to comply with all requirements for admission to the bar.

        (3)   The application is of a continuing nature and must be correct as of the date of admission to the bar.

        (b)   Upon compliance with the requirements of this rule and upon taking the prescribed oath of office, the applicant shall be admitted to the bar.

        (c)   The oath of office to be taken and subscribed by each attorney shall be as follows:

 


Supreme Court of Hawaiʻi

 

         I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of Hawaiʻi, and that I will at all times conduct myself in accordance with the Hawaiʻi Rules of Professional Conduct.

         As an officer of the courts to which I am admitted to practice, I will conduct myself with dignity and civility towards judicial officers, court staff, and my fellow professionals.

         I will faithfully discharge my duties as attorney, counselor, and solicitor in the courts of the state to the best of my ability, giving due consideration to the legal needs of those without access to justice.

 

        1.6.  Attorney’s license, form of.

        (a)   The license to be given to an attorney shall be in the following form:

 

Supreme Court of Hawaiʻi

 

         _________, having been examined and found to be of good moral character and to possess the necessary legal and educational qualifications, is hereby licensed to practice in all the courts of the State of Hawaiʻi as an attorney, counselor and solicitor during good behavior.

 

         Given under the seal of the Supreme Court, this _________ day of ______________, 20___.

 

                              FOR THE COURT:

 

                              Chief Justice

 


        (b)   A replacement license shall be in the following form:

 

Supreme Court of Hawaiʻi

 

  ____________, was examined and found to be of good moral character and to possess the necessary legal and educational qualifications and licensed to practice in all the courts of the State of Hawaiʻi as an attorney, counselor and solicitor on ______________.

 

         This replacement certificate is given under the seal of the Supreme Court, this ____ day of _______________, 20___.

 

                              FOR THE COURT:

 

                              Chief Justice

        (Amended effective February 27, 1997.)

 

        1.7.        Limited admission of military attorneys.

        (a)   Full-time active duty officers. A full-time active duty military officer serving in the office of the Staff Judge Advocate of the United States Army, Air Force, Navy, Marines, or Coast Guard or in the Naval Legal Service Office (hereafter "uniformed service judge advocate"), who has been admitted to practice by the highest court of another state, the District of Columbia, or a territory of the United States, whose license to practice in that jurisdiction is active, and who is a graduate of a law school approved by the American Bar Association Council on Legal Education and Admissions to the Bar may apply for limited admission and be accorded limited admission without examination. In all other respects the application shall be made adjudged, and conditioned as provided by Rules 1.3(a), (b), (c), (d), (e), (h) and (i), 1.4 and 1.5 of this Rule 1.

        (b)   Term limitation; extensions. The term of admission under this rule shall be limited to a period of 4 years. The term may be extended one time at the request of the Staff Judge Advocate or the Commanding Officer, Naval Legal Service Office, provided the uniformed service judge advocate has not been disciplined under Rule 2 of these rules. The license shall expire at the end of the 4 year term or any extension thereof or when the uniformed service judge advocate admitted under this Rule 1.7 ends active duty service in Hawaiʻi. The license admitting such uniform service judge advocate shall be in the form provided by Rule 1.6 herein, except that the words "engage in limited military" shall be inserted between the words "to" and "practice" in the phrase ". . . hereby licensed to practice in all the courts of the State . . ." so that the phrase reads ". . . hereby licensed to engage in limited military practice in all the courts of the State. . . ."

        (c)   Client and compensation limitation. Uniform service judge advocates admitted pursuant to this Rule 1.7 may represent only active duty military personnel in enlisted grades E-1 through E-5 and their dependents to the extent such representation is permitted by the Staff Judge Advocate or the Commanding Officer, Naval Legal Service Office. Uniformed service judge advocates admitted pursuant to this Rule 1.7 may not demand or receive any compensation from clients in addition to usual military pay already received.

        (d)   Discipline; dues. Uniform service judge advocates admitted pursuant to this Rule 1.7 shall be subject to discipline under Rule 2, Rules of the Supreme Court of the State of Hawaiʻi, may claim to be employed full-time by the United States Government for purposes of assessment of dues and fees, and shall be required to pay dues, fees, and charges imposed on bar applicants and attorneys licensed to practice law in the State of Hawaiʻi, except the character check from the National Conference of Bar Examiners shall not be required.

        (Amended April 18, 2011, effective July 1, 2011.)

 

        1.8.        Law school faculty members; Pro tem membership.

        (a)   A full-time member of the University of Hawaiʻi Law School (Law School) faculty who has graduated from an accredited law school and who has been admitted to practice in the highest court of another state or territory of the United States or the District of Columbia may apply for admission and be admitted to the bar without examination. In all other respects his or her application shall be made, adjudged and conditioned pursuant to Rules 1.3(a), (c), (d), (e), (h), (i), 1.4, and 1.5 of these Rules, provided that if admission is granted without examination, the term of admission shall be limited to a period of 3 years during which the individual shall have all rights and obligations of a full member of the bar and shall be a pro tem member.

        (b)   At the end of such pro tem membership, the Dean of the Law School may, upon motion and affidavit, certify that the individual has continued as a full-time member of the Law School faculty during the period of pro tem membership and has complied with all other applicable rules governing the practice of law. The Board may grant such individual admission to the bar without limitation of time unless found to have become disqualified pursuant to Rule 2 of these Rules.

        (c)   The fees for application and certificate of admission shall be assessed and paid on application to pro tem membership.

        (d)   The fees determined under Rule 17(d) (3) of these Rules, shall be assessed and paid from and after admission to the bar without limitation of time.

        (Amended October 16, 2007, effective December 1, 2007; further amended May 14, 2015, effective July 1, 2015.)

 

        1.9.        Pro hac vice appearance of counsel for court proceedings.

        (a)   Any attorney actively licensed to practice law by the highest court of a state or territory of the United States or the District of Columbia may be permitted to associate with a member or members of the Hawaiʻi bar (local counsel) in the presentation of a specific case at the discretion of the presiding judge or judges.

        (1)   The petition or motion for pro hac vice appearance and any subsequent documents submitted on behalf of a party must be filed by local counsel and must comply with subsection (b) of this Rule. An attorney allowed to appear pro hac vice in a case may continue on appeal or upon remand in the same case without filing a new petition or motion for pro hac vice admission so long as the attorney complies with all applicable Hawaiʻi statutes, laws, and rules of the court in addition to other provisions of this Rule.

        (2)   An attorney allowed to appear pro hac vice shall, for each year the order is effective, pay to the Hawaiʻi State Bar an annual Disciplinary Board fee and an annual Lawyers’ Fund for Client Protection fee authorized by the supreme court, provided that if the attorney is allowed to appear in more than one case, only one set of annual fees shall be paid. The Hawaiʻi State Bar may assess a reasonable fee to register and collect these fees on an annual basis.  Within 10 days after entry of an order granting a petition or motion for pro hac vice appearance, and also within 10 days of making subsequent fee payments in January of each year, the attorney shall file proof of payment of the required fees in the record of the court in which the case is then pending.

        (3)   Failure to pay the required fees within 10 days after entry of the order approving the petition or motion, and in January of each subsequent year, renders the order approving the petition or motion no longer valid, and a new petition or motion must be filed.

        (b)   Local counsel shall file the petition or motion for pro hac vice appearance in the court to which the authorization to appear is sought and provide a copy to the Office of Disciplinary Counsel.  The petition or motion shall be supported by:

        (1)   the declaration of local counsel that provides, at minimum, the following:

        (A)  local counsel’s business address and address for service of documents; and

        (B)   affirmation that local counsel is to be the attorney of record and is responsible for all phases of the litigation;

        (2)   the declaration of the applicant for pro hac vice admission that provides, at minimum, the following:

        (A)  the applicant’s business address, e-mail address, the name of the law firm the attorney is associated with and the address of the law firm;

        (B)   every state and federal jurisdiction to which the applicant has been admitted to practice law and a statement attesting that the attorney is in good standing in those jurisdictions;

        (C)   a statement that the applicant is not currently, and has not been, suspended or disbarred from the practice of law before any court or otherwise disciplined, and if the applicant has been disciplined or is subject to a pending disciplinary proceeding, material information about those proceedings must be provided;


        (D)  the title and case number of each case, and the court or other forum in this state, in which the applicant has sought and/or been allowed to appear pro hac vice and the present status of each case;

        (E)   if the applicant has made more than one appearance as counsel in Hawaiʻi during the preceding 5 years, the special circumstances that warrant the approval of the applicant’s appearance in the subject case;

        (F)   an affirmation that, if admitted, the applicant will comply with all applicable Hawaiʻi statutes, laws, and rules of the courts including the Hawaiʻi Rules of Professional Conduct and Guidelines of Professional Courtesy and Civility for Hawaiʻi Lawyers;

        (G)  an affirmation that, if admitted, the applicant shall be subject to all applicable Hawaiʻi statutes, laws, rules of the court, and the Hawaiʻi disciplinary process with respect to any acts or omissions occurring during representation pursuant to this Rule; and

        (H)  designation of local counsel as agent for service of Hawaiʻi disciplinary process.

        (c)   An attorney approved to appear pro hac vice pursuant to this Rule is subject to the jurisdiction of Hawaiʻi courts with respect to all applicable Hawaiʻi statutes, laws, and rules of the courts to the same extent as any other attorney admitted to practice in the courts of this state.  The attorney approved to appear pro hac vice is subject to the disciplinary jurisdiction of the supreme court.  The court in which an attorney is approved to appear pro hac vice or the supreme court may, for violations of Hawaiʻi law, the Hawaiʻi Rules of Professional Conduct, or orders of the court, revoke the permission for the attorney to appear pro hac vice, or impose any other appropriate sanction.

        (d)   Local counsel of record shall sign all pleadings, motions, briefs, or any other documents submitted in the case, and shall participate actively in all phases of the case and be prepared to go forward with the case as required.  Service of all documents, including pleadings, shall be upon local counsel, and shall constitute service upon pro hac vice counsel and their client(s).

        (e)   Local counsel shall provide a copy of the order allowing the appearance of counsel pro hac vice to the Hawaiʻi State Bar and the Office of Disciplinary Counsel, and shall notify the Hawaiʻi State Bar and the Office of Disciplinary Counsel when the pro hac vice attorney’s involvement is terminated, the case is closed, or the order granting pro hac vice admission is no longer valid.

        (f)    An attorney not licensed in Hawaiʻi who fails to obtain approval to represent a party in a court proceeding as required by this Rule, and who proceeds to represent a party in a court proceeding, is subject to the disciplinary jurisdiction of the supreme court and may be subject to referral to appropriate authorities for potential violation of Hawaiʻi Revised Statutes § 605-14 (Unauthorized practice of law prohibited) and other applicable laws.

        (Amended September 5, 1996, effective October 1, 1996; further amended October 21, 1996, effective October 1, 1996; further amended and effective October 27, 1997; further amended July 25, 2007, effective January 1, 2008; further amended August 30, 2010, effective September 27, 2010; further amended May 14, 2015, effective July 1, 2015; further amended February 15, 2018, effective July 1, 2018; further amended August 29, 2018, effective January 1, 2019; further amended November 7, 2022, effective January 1, 2023.)

 

        1.9A.     Pro hac vice appearance of counsel for arbitration proceedings.

        (a)   Approval to appear pro hac vice.

        (1)   An attorney not licensed in Hawaiʻi, but who is admitted to practice and in good standing with the highest court of a state or territory of the United States or the District of Columbia, may associate with a licensed Hawaiʻi attorney (Hawaiʻi attorney) to represent parties in the course of or in connection with an arbitration proceeding in Hawaiʻi that concerns a legal dispute over a Hawaiʻi-related matter, provided that the petition to appear, accompanied by the materials set forth in subsection (b) of this Rule, is approved in writing by the arbitrator or, if there are multiple arbitrators, a majority of the arbitrators.

        (2)   If the subject arbitration results in a judicial proceeding, the out-of-state attorney must comply with Rule 1.9 of these Rules to appear as counsel in the court proceeding.


        (b)   Contents of the application or petition.  The Hawaiʻi attorney to the arbitration shall submit to the arbitrator(s) in the subject arbitration a petition for pro hac vice appearance by the out-of-state attorney, and shall serve the petition upon all parties to the arbitration, along with the following in support of the petition:

        (1)   Required information.  The petition shall provide the following information:

        (A)  the case name and number, the name of the arbitrator(s), and the arbitral forum for the proceeding in which the out-of-state attorney seeks to appear;

        (B)   the out-of-state attorney’s law firm name, office address, email address, and telephone number;

        (C)   the courts in which the out-of-state attorney has been admitted to practice and the dates of admission; and

        (D)  the title of all courts and other forums in Hawaiʻi in which the out-of-state attorney has sought to appear as counsel pro hac vice in the preceding 5 years (including but not limited to petitions pursuant to this Rule); the name and number of each such case or proceeding; the date of each application or petition; and whether or not the application or petition was approved.  If the attorney has made more than one appearance as counsel in Hawaiʻi during the preceding 5 years, the petition shall reflect the special circumstances that warrant the approval of the attorney’s appearance in the subject arbitration.

        (2)   Required declaration by out-of-state attorney.  In addition, the out-of-state attorney shall provide a declaration that declares accurately and truthfully to the best of the attorney’s knowledge, under penalty of law, that the out-of-state attorney:

        (A)  is in good standing before the courts where the attorney’s license to practice law is active;

        (B)   is not currently, and has not been in the past, suspended or disbarred from the practice of law before any court or has otherwise been disciplined or, if the attorney has been disciplined or is subject to a pending disciplinary proceeding, providing material information about those proceedings;

        (C)   is not a resident of the State of Hawaiʻi, and is not regularly engaged or employed as an attorney in Hawaiʻi;

        (D)  if given approval to represent a party in the arbitration, agrees to be subject to the jurisdiction of the courts of this state with respect to the laws of this state governing the conduct of attorneys, including the disciplinary jurisdiction of the supreme court and the Disciplinary Board of the Hawaiʻi Supreme Court, and will comply with applicable Hawaiʻi laws, arbitration rules, the Hawaiʻi Rules of Professional Conduct, and the Guidelines of Professional Courtesy and Civility for Hawaiʻi Lawyers; and

        (E)   designates the Hawaiʻi attorney as agent for service of any Hawaiʻi disciplinary process.

        (3)   Required declaration by Hawaiʻi attorney.  The Hawaiʻi attorney submitting the petition shall provide a declaration that declares accurately and truthfully to the best of the attorney’s knowledge, under penalty of law:

        (A)  the business address, e-mail address and address for service of documents for the Hawaiʻi attorney; and

        (B)   an affirmation that the Hawaiʻi attorney is the attorney of record and is responsible for all phases of the subject arbitration.

        (c)   Disposition of the petition.

        (1)   The arbitrator(s) shall respond to the petition in writing.  The arbitrator(s) may approve the petition if the requirements in subsection (b) of this Rule have been satisfied.  The petition shall be disapproved for failure to submit and serve the petition as described in subsection (b) of this Rule.  In the absence of special circumstances, multiple appearances as counsel in Hawaiʻi during the preceding 5 years may be grounds for disapproval of the petition and disqualification from serving as an attorney in the subject arbitration.  Upon written approval of the petition by the arbitrator(s), the Hawaiʻi attorney shall forthwith submit a copy of the order approving the petition, along with a copy of the petition, to the Hawaiʻi State Bar and the Office of Disciplinary Counsel.

        (2)   The arbitrator(s) in the subject arbitration or the supreme court may revoke the permission for the attorney to appear in the subject arbitration if the attorney submitted a declaration containing false information or a material omission, violated Hawaiʻi law, violated the Hawaiʻi Rules of Professional Conduct, or violated an order of the arbitrator(s).


        (d)   Duties of the pro hac vice attorney.

        (1)   The out-of-state attorney admitted pro hac vice in an arbitration shall pay to the Hawaiʻi State Bar the annual Disciplinary Board fee and the annual Lawyers’ Fund for Client Protection fee authorized by the supreme court, provided that if the attorney is allowed to appear in more than one case, only one set of annual fees shall be paid.  The Hawaiʻi State Bar may assess a reasonable fee to register and collect these fees on an annual basis.  Proof of payment of the required fees shall be served on the arbitrator(s), the parties to the subject arbitration, the arbitral forum, and the Office of Disciplinary Counsel.  For each subsequent year that the approved petition is effective, the out-of-state attorney shall pay the annual fees in January and serve proof of payment upon the arbitrator(s), the parties to the subject arbitration, the arbitral forum, and the Office of Disciplinary Counsel.

        (2)   Failure to pay the annual fees within 10 days after entry of the order approving the petition, and in January of each subsequent year, renders the order approving the petition no longer valid, and a new petition must be filed.

        (3)   The out-of-state attorney shall notify the Hawaiʻi attorney, the arbitrator(s), and the parties to the subject arbitration when there is any material change to the information provided under subsections (b)(1) and (b)(2) of this Rule.

        (e)   Duties of the Hawaiʻi attorney.

        (1)   The Hawaiʻi attorney shall sign all pleadings, motions, briefs, or any other documents submitted in the subject arbitration, and shall participate actively in all phases of the arbitration and be prepared to go forward with the arbitration as required.  Service of all document, including pleadings, shall be upon the Hawaiʻi attorney and shall constitute service upon the out-of-state attorney and their client(s).

        (2)   The Hawaiʻi attorney shall notify the Hawaiʻi State Bar and the Office of Disciplinary Counsel when the engagement of the out-of-state attorney is terminated, the arbitration is completed, or the order approving the petition is no longer valid.

        (f)    Unauthorized practice of law.  An attorney not licensed in Hawaiʻi who fails to obtain approval to represent a party in an arbitration proceeding as required by this Rule, and who proceeds to represent a party in an arbitration proceeding, is subject to the disciplinary jurisdiction of the supreme court and may be subject to referral to appropriate authorities for potential violation of Hawaii Revised Statutes § 605-14 (Unauthorized practice of law prohibited) and other applicable laws.

        (g)   The pro hac vice attorney is subject to Hawaiʻi jurisdiction.  An attorney approved to appear in an arbitration proceeding under this Rule is subject to the jurisdiction of Hawaiʻi courts with respect to all applicable Hawaiʻi laws and rules to the same extent as any other attorney admitted to practice in this state.  The attorney approved to appear in an arbitration proceeding under this Rule is also subject to the disciplinary jurisdiction of the supreme court and the Disciplinary Board of the Hawaiʻi Supreme Court.

        (h)   Limits of this Rule.

        (1)   Any party to an arbitration arising under a collective bargaining agreement subject to either state or federal law may be represented in the course of and in connection with those proceedings by any person, regardless of whether that person is licensed to practice law in Hawaiʻi, if the representation is consistent with the laws governing such proceedings.

        (2)   This Rule does not apply to proceedings before state or federal administrative boards or agencies that are authorized to establish their own rules governing the practice of out-of-state attorneys before those bodies.

        (3)   This Rule does not negate the rights of parties to be represented by a person of their choosing so long as that right is established as a matter of a specific state or federal law.

        (Added August 29, 2018, effective January 1, 2019; further amended November 7, 2022, effective January 1, 2023.)

 


        1.10.      Resignation or retirement from the bar while in good standing.

        (a)   An attorney who is not the subject of a disciplinary investigation, proceeding, or order in any jurisdiction; who is not the subject of a disciplinary order issued by Disciplinary Counsel, the Disciplinary Board, or the Supreme Court; who is not the subject of a pending investigation or right of subrogation on a claim filed with the Lawyers’ Fund for Client Protection; and who is otherwise in good standing may petition to resign and surrender the attorney’s license to practice law.

        (b)   The Petition to Resign and Surrender License (Petition) shall be filed with the Clerk, upon the payment of the filing fee for an original action.  The Petition may include a request for permission to retain the paper license as a memento.

        (c)   The Petition shall be accompanied by 4 declarations

        (i)    the petitioner’s declaration attesting to the fact the petitioner is not the subject of a disciplinary investigation, proceeding, or order in any jurisdiction and is no longer counsel in any pending matter, and, if the Petition includes a request for permission to retain the paper license as a memento, declaring that the paper license will not be misused to misrepresent the attorney’s status;

        (ii)   a declaration of the Executive Director of the Hawaiʻi State Bar attesting to the petitioner’s current status;

        (iii)  Disciplinary Counsel’s declaration attesting to the fact the petitioner is not the subject of a pending disciplinary investigation, proceeding, or order in Hawaiʻi; and

        (iv)  a declaration of the Administrator or Trustees’ designee of the Lawyers’ Fund for Client Protection attesting that no claims against the petitioner have been made or are pending with the Lawyers’ Fund for Client Protection.  The petitioner shall be responsible for obtaining the declarations and submitting them to the clerk at the time the Petition is submitted.

        (d)   A copy of the completed Petition and accompanying declarations shall also be served in person or by certified mail upon the Chief Disciplinary Counsel, the Executive Director of the Hawaiʻi State Bar Association, and the Administrator or Trustees’ designee of the Lawyers’ Fund for Client Protection at or before the time it is filed with the Clerk, and proof of completed service upon all 3 entities shall be included with the Petition submitted to the court.

        (e)   Within 10 days after the Petition is filed, Disciplinary Counsel may file objections thereto.

        (f)    The Supreme Court shall consider the Petition and any objections thereto and shall issue an appropriate order.

        (g)   Attorneys who have been allowed to resign shall comply with the notice, affidavit, and record requirements of Rule 2.16(a), (b), (d), and (g) of these Rules.

        (Amended effective August 1, 1998; further amended December 19, 2018, effective January 1, 2019; further amended July 15, 2019, effective January 1, 2020.)

 

        1.11.      Readmission after resignation.

        An attorney who has resigned in good standing may be readmitted to the bar upon satisfying the same requirements as an initial applicant as provided in this Rule 1.

 

        1.12.      Immunity.

        (a)   The Board, its members, employees, and agents are immune from all civil liability for conduct and communications occurring in the performance of their official duties, and civil suits predicated thereon may not be instituted.

        (b)   Records, statements of opinion, and other information regarding an applicant for admission to the bar, communicated by any entity, including a person, firm, or institution, without malice, to the Board or to its members, employees, or agents are privileged, and civil suits predicated thereon may not be instituted.

 


COMMENT:

        This immunity rule is patterned from a model immunity rule adopted by the House of Delegates of the American Bar Association. Part (a) of the rule provides absolute immunity from civil liability to members of the Board of Law Examiners, employees of the Board, and agents of the Board in the performance of their official duties. Part (b) of the rule grants immunity to those who provide information about an applicant as long as the information is provided "without malice." The purpose of part (b) is to encourage and protect the reporting of truthful information and candid evaluation. Intentional reporting of false information, without just cause, excuse, or justification, is not protected.

        (Amended January 8, 1981, effective January 8, 1981; further amended January 23, 1981, and February 3, 1981, effective January 23, 1981; renumbered September 1984; further amended February 27, 1985, effective February 27, 1985; further amended October 23, 1985, effective October 23, 1985; further amended February 13, 1987, effective February 13, 1987; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended August 1, 1990, effective August 1, 1990; further amended September 28, 1990, effective September 28, 1990; further amended February 7, 1992, effective February 7, 1992; further amended May 14, 1993, effective May 14, 1993; further amended August 1, 1994, effective August 1, 1994; further amended February 6, 1995, effective February 6, 1995; further amended July 1, 1999.)

 

        1.13.      Specialization.

        (a)   Petition for Certificate of Specialization. Upon successful completion of a program of study accredited by the American Bar Association (ABA) for certification as a specialist in a subject of the law, an active Hawaiʻi lawyer in good standing may petition the court for a Hawaiʻi Certificate of Specialization in that subject of the law.

        (b)   Contents of Petition. The Petition shall be verified and shall state

        (i)    the date the Petitioner was admitted to practice in Hawaiʻi,

        (ii)   Petitioner’s Hawaiʻi attorney identification number,

        (iii)  Petitioner’s current office address and telephone number,

        (iv)  the nature of the ABA accredited program of study (including the requirements thereof), and     (v)        the date the Petitioner was certified by the ABA accredited program.

        Petitioner shall attach to the Petition

        (1)   a copy of Petitioner’s Hawaiʻi license to practice law,

        (2)   and affidavit or declaration from the Executive Director of the Hawaiʻi State Bar Association stating the Petitioner is in good standing with the Hawaiʻi Bar,

        (3)   an affidavit or declaration from Disciplinary Counsel stating that Petitioner is not currently suspended or disbarred and that no disciplinary matters against Petitioner are pending,

        (4)   an affidavit or declaration from the administrator of the Lawyers’ Fund for Client Protection stating there are no pending claims against the Petitioner and the Petitioner owes no reimbursement to the Lawyers’ Fund for Client Protection, and

        (5)   a copy of the specialist certificate issued by the ABA accredited specialization program. Petitioner is responsible for preparing all affidavits or declarations for signature.

        (c)   Nature of Proceeding; Filing Fee. The Petition for Certificate of Specialization shall be docketed as an original proceeding and the Clerk shall assess and collect the filing fee for an original proceeding.

        (d)   Form of Certificate. Upon approval by the court and Petitioner’s payment of a $25.00 certification fee, the Clerk shall issue a five-year specialization certificate in the following form:

 


No. ________

Supreme Court of Hawaiʻi

 

CERTIFICATE OF SPECIALIZATION

 

        [Petitioner’s Name] having Petitioned for Specialty Certification in [law subject], having successfully completed the American Bar Association accredited program prescribed for such specialization, having been found to be a lawyer in good standing in the State of Hawaiʻi, and having met the requirements for such certification, is hereby Certified as a Specialist in [law subject] in the State of Hawaiʻi.

 

        This Certificate expires on ________.

 

        Given under the seal of the Supreme Court, this ___ day of _________, 20____.

 

                             FOR THE COURT:

 

                             Chief Justice

 

        (e)   Limitations. No lawyer admitted to practice law in this jurisdiction shall be required to be certified as a specialist to practice in any field of law. Specialty certification neither increases nor decreases a lawyer’s duties to the lawyer’s clients, the courts, and the profession.

        (f)    Revocation of Certification. A Certificate of Specialization is automatically revoked upon the suspension or disbarment of the lawyer so certified.

        (g)   Renewal. The Certificate of Specialization may be renewed, without limitation, for periods of five (5) years upon the filing of a Petition for Renewal of Specialty Certification. A Petition for Renewal must be supported by proof Petitioner has completed at least six (6) hours of ABA accredited Continuing Legal Education courses in the subject area for each of the five years preceding the application for renewal, has maintained certification by the ABA accredited program by which certification was initially granted, remains an active member in good standing of the Hawaiʻi Bar, and has not been disciplined by this court or the Disciplinary Board during the previous five (5) year period. A Petition for Renewal shall be filed as an original petition and the Clerk shall assess and collect the fee for such filing. Upon entry of an order granting the Petition for Renewal, the Clerk shall issue a certificate as provided by subsection (d) of this Rule 1.13.

        (Added effective July 1, 1999.)

 

        1.14.      Mandatory professionalism course.

        (a)   Professionalism Course. Each person licensed to practice law after July 1, 2001, shall, no later than December 31 of the year following the year of election of active status, complete the Hawaiʻi Professionalism course conducted under the joint sponsorship of the Hawaiʻi State Bar and the Supreme Court of Hawaiʻi. This rule applies to every license issued after July 1, 2001, pursuant to any part of Rule 1 of the Rules of the Supreme Court of the State of Hawaiʻi, except Rules 1.9 and 1.13.  Completion of the required Hawaiʻi Professionalism course is separate and distinct from other Mandatory Continuing Legal Education (CLE) programs available through the Hawaiʻi State Bar or other legal ethics associations and is traditionally offered only bi-annually, in November and June. The Hawaiʻi State Bar shall notify attorneys facing administrative suspension pursuant to section (c) of this Rule, 1 month prior to the final opportunity to complete the professionalism course, of the attorney’s impending administrative suspension.  Failure to notify an attorney shall not, however, constitute grounds upon which the attorney may contest the imposition of administrative suspension.

        (b)   Proof of Compliance. Proof of compliance shall be in accordance with procedures established by the Hawaiʻi State Bar.

        (c)   Administrative Suspension. Failure to complete the professionalism course within the time period specified above in (a) shall result in automatic suspension of the license to practice law. The Hawaiʻi State Bar shall give written notice of the suspension, but failure to give notice will not justify or excuse practicing while suspended.

        (d)   Reinstatement. An attorney suspended under paragraph (c) shall be reinstated upon proof of completion of the course.

        (e)   Fees. The Hawaiʻi State Bar may assess and collect reasonable fees for attending the course, for providing notice of suspension, and for processing reinstatement requests.


        (f)    CLE Compliance. Completion of the Professionalism Course awards 3 CLE credits for ethics that may be used to comply with the ethics CLE requirement imposed by Rule 22(b) of these Rules.  Newly licensed members who are exempt from CLE requirements in the year of their admission, pursuant to Rule 22(j) of these Rules, may carry forward these 3 CLE credits for ethics, earned by completing the Professionalism Course, into the subsequent year in which they are required to complete CLE credits.  See Rule 22(j) and Rule 22(c) of these Rules.

        (Added July 17, 2001, effective nunc pro tunc July 1, 2001; amended September 19, 2008, effective nunc pro tunc January 1, 2008; further amended May 8, 2012, effective July 1, 2012; further amended September 25, 2018, effective January 1, 2019.)

 

        1.15.      Effect of Hawaiʻi Electronic Filing and Service Rules.

        Documents filed and notices given in accordance with the Hawaiʻi Electronic Filing and Service Rules shall be deemed to comply with the filing, mailing, certified mailing, notice, and service requirements of any part of this Rule 1.

        (Added August 30, 2010, effective September 27, 2010.)

 

        1.16.      Limited Admission of Attorneys Employed by Non-profit Organizations Providing Civil Legal Services to Economically Disadvantaged Persons.

        (a)   Employees.  An attorney employed by a civil legal service provider recognized by the Internal Revenue Service as a 501(c)(3) non-profit organization (“Legal Service Provider”) that is eligible to receive funds from the Indigent Legal Assistance Fund, who has been admitted to practice by the highest court of another state, the District of Columbia, or a territory of the United States, and whose license to practice in that jurisdiction is active, who is a graduate of a law school approved by the American Bar Association Council on Legal Education and Admissions to the Bar, and who is in good standing in every jurisdiction where the attorney is licensed may apply for limited admission and be accorded limited admission without examination.  In all other respects the application shall be made, adjudged, and conditioned as provided by Rules 1.3(a), (b), (c), (d), (e), (h), (i), 1.4 and 1.5 of this Rule 1.  Pending completion by the Board, and approval by the court, of the full character and fitness report, limited admission may be provisionally granted upon submission by the applicant of a declaration containing the following information and declarations:

        (1)   the applicant’s contact information;

        (2)   every state and federal jurisdiction to which the applicant has in the past been admitted to practice law and a statement attesting that the attorney is in good standing in those jurisdictions or has resigned in good standing;

        (3)   a statement that the applicant is not currently, and has not been, suspended or disbarred from the practice of law before any court or otherwise disciplined, and if the applicant has been disciplined or is subject to a pending disciplinary proceeding, material information about those proceedings must be provided;

        (4)   an affirmation that, if admitted, the applicant will comply with all applicable Hawaiʻi statutes, laws, and rules, of the courts including the Hawaiʻi Rules of Professional Conduct and Guidelines of Professional Courtesy and Civility for Hawaiʻi Lawyers; and

        (5)   an affirmation that, if admitted, that the applicant understands that the applicant is subject to all applicable Hawaiʻi statutes, laws, rules of the court, and the Hawaiʻi disciplinary process with respect to any acts or omissions occurring during representation pursuant to this Rule.


        (b)   Term Limitation; Extensions.  The term of admission under this Rule 1.16 shall be limited to a period of 2 years.  The term may be extended one time for a period of 2 years at the request of the Executive Director or highest executive of the Legal Service Provider, provided the attorney has not been disciplined under Rule 2 of these rules.  The license given under this Rule 1.16 shall expire at the end of the term or any extension thereof, when the attorney admitted under this Rule 1.16 ends employment with the Legal Service Provider, or when the Legal Service Provider ceases to be eligible to receive funds from the Indigent Legal Assistance Fund, whichever occurs earliest.  The license admitting such employee shall be in the form provided by Rule 1.6.  If an attorney admitted under this rule separates from his or her employment with the Legal Service Provider, or if the status of the Legal Service Provider changes so that it is not eligible to receive funds from the Indigent Legal Assistance Fund, then both the attorney and the Legal Service Provider shall immediately notify the Clerk of the Supreme Court and the attorney shall immediately cease and desist from the practice of law in the State of Hawaiʻi.

        (c)   Client and Compensation Limitation.  Attorneys admitted pursuant to this Rule 1.16 may represent only clients of the Legal Service Provider.  Attorneys admitted pursuant to this Rule 1.16 may not demand or receive any compensation from clients other than the compensation received from the Legal Service Provider.

        (d)   Discipline; Dues.  Attorneys admitted pursuant to this Rule 1.16 shall be subject to discipline under Rule 2, and shall in all other respects be required to pay dues and fees lawfully imposed on attorneys licensed to practice law in the State of Hawaiʻi.  The fees for application and certificate of admission shall be assessed and paid on application for admission under this Rule 1.16.  The fees determined under Rule 17(d)(3) shall be assessed and paid from and after admission to the bar without limitation of time.

        (Added February 24, 2011, effective July 1, 2011; further amended September 9, 2022, effective January 1, 2023.)

 

        1.17.      Limited admission of United States Uniformed Services spouse-attorneys.

        (a)   Eligibility.  Due to the unique mobility requirements of members of the United States Uniformed Services (USUS), an attorney who is a spouse of such a service member assigned to active duty in the State of Hawaiʻi may be provisionally admitted as an attorney of this State, without written examination, if the following conditions are fulfilled.

        (1)   Requirements for admission under this Rule.  The applicant must establish to the satisfaction of the Board of Bar Examiners (Board) that the applicant:

        (A)  is a graduate of a law school approved by the American Bar Association Council on Legal Education and Admissions to the Bar;

        (B)   has been admitted, after successful completion of a written examination, to practice by the highest court of another state, the District of Columbia, or a territory of the United States;

        (C)   is active and in good standing in at least one other jurisdiction in the United States;

        (D)  is at the time of application a member of the bar in good standing in every jurisdiction to which the applicant has been admitted to practice, or has resigned in good standing without any pending or later disciplinary actions;

        (E)   faces no current or pending discipline in any jurisdiction and has fully disclosed, for the consideration of the Board, any past discipline imposed upon the applicant in any jurisdiction;

        (F)   possesses the good character and fitness required of all applicants for admission in this State and has not had admission to any bar denied on character and fitness grounds;

        (G)  achieved a passing score on the Multistate Professional Responsibility Examination in another jurisdiction in which the applicant has received a license to practice law;

        (H)  has not failed the Hawaiʻi State bar examination without subsequent success;

        (I)    avers the applicant has read the Hawaiʻi Rules of Professional Conduct and Rule 2 of these Rules, and acknowledges the jurisdiction of the Hawaiʻi disciplinary authorities over the applicant’s professional conduct; and

        (J)    demonstrates that the applicant currently resides in this jurisdiction as a spouse of, and due to the active duty assignment of, the USUS member.


        (2)   Board review of the application.  The Board shall adjudge the application as provided by the applicable sections of Rules 1.3, 1.4, and 1.5 of these Rules, except that:

        (A)  the Board may modify the requirements of Rule 1.3(a) of these Rules to reflect the unique demands of military life but shall, at a minimum, require a copy of the applicant’s USUS Spouse Dependent Identification, documentation evidencing a spousal relationship with the USUS member, and a copy of the service member’s USUS orders to a USUS installation in Hawaiʻi authorizing dependents to accompany the service member to Hawaiʻi;

        (B)   with regard to Rule 1.3(c) of these Rules, the Board shall require submission of a character and fitness report at the applicant’s expense, issued by the National Conference of Bar Examiners; and

        (C)   pursuant to Rule 1.4 of these Rules, the Board, with supreme court approval, may set a separate fee for application under this Rule.

        (3)   Form of license.  The license to be given to an attorney issued pursuant to this Rule 1.17 shall be in the following form:

 

 

Supreme Court of Hawaiʻi

 

        ______________, having been examined and found to be of good moral character and to possess the necessary legal and educational qualifications, is hereby licensed to practice in all the courts of the State of Hawaiʻi, pursuant to and subject to the terms set forth in Rule 1.17 of the Rules of the Supreme Court of the State of Hawaiʻi, as an attorney, counselor and solicitor during good behavior, until such time as, pursuant to Rule 1.17(c) of the Rules of the Supreme Court of the State of Hawaiʻi, this provisional license expires.

 

        This license shall expire no later than four years from the date of issuance.

 

        Given under the seal of the Supreme Court, this ____ day of _________, 20__.

 

                             FOR THE COURT:

 

                             Chief Justice

 

        (4)   Duty to report change in bar status.  The applicant shall, within 30 days, report to the bar any change in bar membership in any other jurisdiction where the applicant has been admitted to practice, or of the imposition of any permanent or temporary professional disciplinary sanction by any federal or state court or agency or bar association.

        (5)   Time and Manner of Admission.  If, after such investigation as the Board may deem appropriate, it concludes that the applicant possesses the qualifications required of all other applicants for admission to practice law in this jurisdiction, the applicant shall be provisionally licensed to practice law and provisionally enrolled as a member of the bar of this jurisdiction, subject to the terms, duties, and limitations set forth in this Rule.  The Board shall promptly act upon any application filed under this Rule.

        (b)   Practice requirements.  An attorney admitted under this Rule shall comply with the registration requirements and payment of annual assessments as required of all licensed Hawaiʻi attorneys under Rule 17(d) of these Rules, during the duration of the provisional license.  In addition, the applicant:

        (1)   shall complete, within 1 year of admission under this Rule, the Hawaiʻi Professionalism Course, sponsored by the Hawaiʻi Supreme Court, as further described in Rule 1.14 of these Rules;

        (2)   shall fulfill the annual Continuing Legal Education requirements, as further described in Rule 22 of these Rules;

        (3)   shall practice under the direct supervision, pursuant to Rule 5.1 of the Hawaiʻi Rules of Professional Conduct, of an actively licensed Hawaiʻi attorney practicing in Hawaiʻi;

        Failure to comply with these limitations on practice may constitute the unauthorized practice of law; and

        (4)   shall report to the supreme court, within 30 days, any change in bar membership status in any jurisdiction where the attorney has been admitted to practice or any imposition of any permanent or temporary professional disciplinary sanction by any federal or state court or agency or bar association. The provisions of this Rule do not relieve the attorney of any other duties imposed by Rule 2.15 of these Rules.


        (c)   Term Limitation; Extensions.  The provisional license granted under this Rule shall terminate 30 days after the earliest occurrence of any of the following events:

        (1)   the passage of 4 years from the date of issuance;

        (2)   the USUS spouse of the attorney admitted under this Rule ceases to be an active member of the Uniformed Services (either through discharge, separation, retirement, death, or disability) provided, however, that if the separation from service is due to the death or disability of the service member, or due to domestic abuse as defined in Hawaiʻi Revised Statutes § 586-1 by the service member, the deadline shall extend to 1 year following the terminating event or until the swearing-in date of the next Hawaiʻi bar exam for which the attorney was eligible, whichever is later;

        (3)   the attorney ceases to be a dependent spouse of the USUS member, as defined by that branch of service, unless the attorney is no longer a dependent spouse due to domestic abuse as defined by Hawaiʻi Revised Statutes §586-1 by the service member, in which case the deadline shall extend to 1 year following the terminating event or until the swearing-in date of the next Hawaiʻi bar exam for which the attorney was eligible, whichever is later;

        (4)   the effective date for any orders received by the service member posting the service member outside of this jurisdiction, unless the service member’s subsequent assignment specifies that dependents are not authorized to accompany the service member, in which case the attorney may continue to practice pursuant to this Rule until the occurrence of another terminating event set forth in this Rule (c);

        (5)   the attorney, independent of the spouse’s orders, establishes permanent physical residency outside of this jurisdiction;

        (6)   the attorney successfully completes the standard admission process for full admission to the Hawaiʻi Bar, pursuant to Rule 1.3 et seq. of these Rules;

        (7)   the attorney is no longer licensed and in good standing in at least 1 other U.S. jurisdiction; or

        (8)   the attorney resigns the provisional license, pursuant to Rule 1.10 of these Rules.

        Failure to timely report any terminating event to the Board may result in the unauthorized practice of law and/or disciplinary referral.

        If the exception set forth in section (c)(2) of this Rule applies to extend the license past the standard 30 days of the triggering event, the applicant must notify the Board regarding the extension and submit any supporting documentation required by the Board at its discretion.

        This provisional license cannot be renewed.

        (d)   Duties upon termination of the license.  Upon termination of the license granted under this Rule, if the attorney thereafter shall not be licensed to practice in this jurisdiction under some other authority, the attorney shall, within the 30-day deadline for termination of the license, notify or cause to be notified, by registered or certified mail, return receipt requested, the supreme court and the Hawaiʻi State Bar Association, as well as each of the attorney’s clients involved in pending litigation or administrative proceedings and the attorney or attorneys for each party in such litigation or proceedings, and any self-represented parties, of the impending termination of the license and consequent inability to act as an attorney after the effective date of the termination.  The notice given to the client shall advise the client of the desirability of the prompt substitution of another attorney or attorneys in the withdrawing attorney’s place.  The notice given to other counsel or self-represented parties shall state the place of residence or other address at which the client of the withdrawing attorney can be contacted.

        The attorney shall also make reasonable efforts to withdraw from any pending court matters prior to the expiration of the license but, in the event a client does not obtain substitute counsel before the

effective date of the termination of the license, the

attorney shall nevertheless withdraw.

        Within 10 days after the effective date of the termination of the license, the attorney shall file with the Board an affidavit showing that the attorney has fully complied with the duties of withdrawal set forth in this subsection (d).


        (e)   Discipline; Dues.  Attorneys admitted pursuant to this Rule shall be subject to the jurisdiction of the supreme court and the Disciplinary Board of the Hawaiʻi Supreme Court, pursuant to proceedings under Rule 2 of these Rules and to administrative suspension for failure to comply with the annual registration requirements of Rule 17(d) of these Rules.  Attorneys admitted under this Rule shall be required to pay dues and fees lawfully imposed on attorneys licensed to practice law in the State of Hawai’i. The fees for application and certificate of admission shall be assessed and paid on application for admission under this Rule. The fees determined under Rule 17(d)(3) of these Rules shall be assessed and paid from and after admission to the bar for the duration of the license.

        (Added February 9, 2018, effective July 1, 2018; further amended November 2, 2018, effective November 2, 2018; further amended March 18, 2019, effective July 1, 2019; further amended November 14, 2019, effective January 1, 2020; further amended June 5, 2020, effective July 1, 2020; further amended October 16, 2020, effective January 1, 2021.)

 

Rule 2.          DISCIPLINARY RULES.

        2.1.        Jurisdiction.

        Any attorney admitted, specially admitted, or granted limited admission, under any provision of Rule 1.1, et seq. of these Rules, to practice law in this state, and any attorney licensed to practice law by the highest court of a state or territory of the United States or the District of Columbia, but not admitted in this state, who practices law or renders or offers to render any legal services in this state is subject to the disciplinary jurisdiction of the supreme court and the Board hereinafter established.

        Nothing herein contained shall be construed to deny to any court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt, nor to prohibit any bar association from censuring a member or suspending or expelling a member from membership in the association.  Further, nothing herein contained shall be construed to deny to any arbitrator or arbitration panel such powers as the arbitrator or arbitration panel may have that are necessary to maintain control over a particular arbitration proceeding.

        (Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended August 29, 2018, effective January 1, 2019; further amended June 14, 2022, effective July 1, 2022.)

 

        2.2.        Grounds for discipline.

        (a)   The Hawaiʻi Rules of Professional Conduct, attached hereto as Exhibit A, shall govern the conduct of all attorneys subject to discipline under this rule.

        (b)   Acts or omissions by an attorney which violate the Hawaiʻi Rules of Professional Conduct shall constitute misconduct and shall be ground for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship. Conviction of a crime shall similarly be ground for discipline as set forth in Rule 2.13.

        (Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended November 23, 2007, effective January 1, 2008.)

 

        2.3.        Types of discipline.

        (a)   Discipline may consist of:

        (1)   Disbarment by the supreme court; or

        (2)   Suspension by the supreme court for a period not exceeding five years; or

        (3)   Public censure by the supreme court; or

        (4)   Public reprimand by the Disciplinary Board with the consent of the respondent and Counsel; or

        (5)   Private reprimand by the Disciplinary Board with the consent of the respondent and Counsel; or

        (6)   Private informal admonition by Disciplinary Counsel or Disciplinary Board.

        A public or private reprimand, or a private informal admonition, may also be imposed directly by the supreme court in any disciplinary matter submitted to the court by the Disciplinary Board, without requiring consent of the parties.


        (b)   Where a respondent has, with the written concurrence of the Director of the Attorneys and Judges Assistance Program, proposed a program of monitoring of the respondent’s efforts toward rehabilitation from "substance abuse" (as that term is defined in Rule 16.1(a) of these Rules), the supreme court or the Board may impose such a monitoring program. The monitoring program, which shall in all cases be supervised by the Director of the Attorneys and Judges Assistance Program, may be in lieu of or in addition to a disciplinary sanction. The duration and conditions of monitoring shall be stated in the final order issued by the supreme court or the Board. Violation of any conditions shall result in the imposition of disciplinary sanctions, but only to the extent set forth in the order establishing the monitoring program.

        (c)   Restitution and/or payment of costs (exclusive of attorney’s fees) may also be ordered by the supreme court or by the Board.  Counsel shall file its verified bill of costs within 60 days after imposition of discipline.

        (d)   As a condition of reinstatement following suspension or disbarment or as a condition in connection with the imposition of any lesser discipline, the Disciplinary Board or the supreme court may require a respondent, at the respondent’s expense, to successfully complete

        (i)    the bar examination or some portion of it,

        (ii)   seminars or classes in particular subjects of the law,

        (iii)  a program specifically designated by the Board or the supreme court to meet some deficiency in the attorney’s understanding of the law or the practice of it,

        (iv)  a practice management audit, and/or

        (v)   a trust account audit. In addition, the Disciplinary Board or the supreme court may order the return to the client of all unearned fees or funds and unused deposits against future costs. The Board may consult with the Hawaiʻi State Bar or others to find or develop such seminars, classes, and programs.

        (Amended July 19, 1981, effective July 29, 1981, renumbered September 1984; amended November 8, 1991, effective November 8, 1991; amended March 8, 1995, effective March 23, 1995; further amended September 5, 1996, effective October 1, 1996; further amended effective March 10, 1998; further amended April 10, 2002, effective July 1, 2002; further amended November 23, 2007, effective January 1, 2008; further amended July 9, 2019, effective January 1, 2020.)

 

        2.4.        Disciplinary board.

        (a)   The supreme court shall appoint a board to be known as the "Disciplinary Board of the Hawaiʻi Supreme Court" (hereinafter referred to as the "Board") that shall consist of eighteen members, each of whom shall be nominated and appointed separately. At least one-third of the members shall not be lawyers.  To the extent possible, membership shall include at least one person from each of the four counties. All appointments shall be made from a list of nominees submitted by the Nominating Committee of the Hawaiʻi Supreme Court. The Disciplinary Board shall elect from among its members, a Chairperson, a Vice-Chairperson, a secretary, and a treasurer.

        (b)   All members shall be appointed to staggered three-year terms; however, to maintain a Board with staggered terms, initial appointments may be for less than three years. The Board shall act only with the concurrence of seven or more members. Members shall receive no compensation for their services but may be reimbursed for their traveling and other expenses incidental to the performance of their duties.

        (c)   Board members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. If, in any given case, it shall become necessary for the continuation of a case, or the orderly operation of the Board, the supreme court may appoint, for that case only, one or more ad hoc members as it deems necessary. Each ad hoc member shall fulfill all the responsibilities of a Board member.

        (d)   Periodically, the Chairperson shall designate at least two Board members to review the proposed decisions of the Disciplinary Counsel, as mentioned in subsection 2.7 hereof.


        (e)   The Board shall exercise the powers and perform the duties conferred and imposed upon it by these Disciplinary Rules, including the power and duty:

        (1)   To consider and investigate any alleged ground for discipline or alleged incapacity of any attorney called to its attention, or upon its own motion, and to take such action with respect thereto as shall be appropriate to effectuate the purposes of these Disciplinary Rules.

        (2)   To employ, supervise, and terminate a Chief Disciplinary Counsel, hereinafter Chief Counsel, a Deputy Chief Disciplinary Counsel, Assistant Disciplinary Counsel, and staff employees, and to appoint volunteers to assist the Board in the exercise of its duties.  The Board may delegate to Chief Counsel the authority to employ and supervise the Deputy Chief Counsel and Assistant Counsel, to employ, supervise and terminate staff, and to appoint volunteers.

        (3)   To appoint Special Assistant Disciplinary Counsel when Chief Disciplinary Counsel and all full time Assistant Disciplinary Counsel are disqualified.

        (4)   To appoint from time to time, and establish the terms of office of, an appropriate number of persons to serve as hearing committee members and officers.

        (5)   To approve assignments made annually by the Chairperson for rotation of members of the Board to review for stated periods all recommended dispositions by Counsel and to authorize changes in such assignments from time to time necessitated by unforeseen circumstances.

        (6)   To adopt rules of procedure governing the Board and hearing committees and officers which are not inconsistent with these rules.

        (7)   To adopt and publish advisory opinions interpreting the Hawaiʻi Rules of Professional Conduct.

        (8)(i) To develop an annual budget for operating the Office of Disciplinary Counsel and performing the functions of the Board, to develop appropriate financial policies for managing of all funds received by the Board, and to propose an annual fee;

        (ii)   to submit, no later than September 15 each year, the developed budget, financial policies, and fee structure to the Hawaiʻi State Bar to allow an opportunity for meaningful review, analysis, input, and comment by the Hawaiʻi State Bar prior to submission to the supreme court;

        (iii)  to receive written comments, if any, from the Hawaiʻi State Bar regarding the budget, financial policies, and fee structure;

        (iv)  to reply in a timely fashion in writing to any written comments from the Hawaiʻi State Bar regarding section (iii), provided the comments were received no later than October 15; and

        (v)   to submit, no later than November 1 each year, the budget, financial policies, and annual fee along with any and all written comments received from the Hawaiʻi State Bar, and any replies thereto, to the supreme court for its review and approval.

        (9)   To receive from the Bar all funds collected by the Bar for the Board, and to have exclusive control and responsibility over all financial transactions; and to develop and maintain appropriate accounting records showing the receipt and disposition of those funds, which records shall be subject to audit as directed by the supreme court.

        (10) To retain, as needed, private counsel to assist the Board in the performance of its duties.

        (11) To establish committees to assist the Board in the performance of its duties.

        (Amended November 20, 1979, effective November 20, 1979; renumbered September 1984; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended May 11, 1995, effective May 11, 1995; further amended and effective January 9, 1996; amended January 13, 1998, effective February 13, 1998; amended April 8, 2002, effective July 1, 2002; amended May 12, 2003, effective July 1, 2003; further amended November 23, 2007, effective January 1, 2008; further amended June 25, 2013, effective July 1, 2013.)

 


        2.5.        Hearing committees.

        (a)   Each hearing committee shall consist of three members, at least two of whom shall be members of the bar of this state. A hearing officer shall be a member of the bar of this state. Each hearing committee shall act only with the concurrence of a majority of its members. Hearing committee members and officers shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. Hearing committee members and officers shall receive no compensation for services but may be reimbursed for their traveling and other expenses incidental to the performance of their duties.

        (b)   Hearing committees and officers shall have the power to conduct hearings in formal disciplinary proceedings and on petitions for reinstatement of disbarred or suspended attorneys, upon assignment by the Chairperson of the Board, and to submit their findings and recommendations, together with the record of the proceeding, to the Board. Hearing committee members and officers may also serve as trustees under Rule 2.20 or may, upon appointment by the Chairperson of the Board, assist said trustees in carrying out their duties.

        (Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended September 5, 1996, effective October 1, 1996; further amended June 25, 2013, effective July 1, 2013.)

 

        2.6.        Disciplinary counsel.

        (a)   Private practice not permitted.  Chief Disciplinary Counsel, Deputy Chief Disciplinary Counsel, and salaried Deputy Disciplinary Counsel shall not engage in private practice, except that:

        (1)   The Board may agree to a reasonable period of transition after appointment; and

        (2)   Chief Disciplinary Counsel, Deputy Chief Disciplinary Counsel, and salaried Deputy Disciplinary Counsel may provide pro bono services consistent with Rule 6.1 of the Hawaiʻi Rules of Professional Conduct, subject to restrictions imposed by the Board.

        (b)   Powers and duties of Chief Counsel.  Chief Counsel shall have the power and duty:

        (1)   To investigate all matters involving alleged misconduct called to the Chief Counsel’s attention whether by complaint or otherwise.

        (2)   To dispose, subject to review by members of the Board assigned by the Chairperson, of all matters involving alleged misconduct by dismissal, private informal admonition, referral to a minor misconduct or assistance program, or the institution of formal disciplinary proceedings before a hearing committee or officer. Except in matters requiring dismissal because the complaint is frivolous on its face or falls outside the Board’s jurisdiction, no disposition shall be recommended or undertaken by Counsel until the accused attorney shall have been afforded the opportunity to state a position with respect to the allegations.

        (3)   To file with the supreme court certificates of conviction of attorneys for crimes.

        (4)   To prosecute all disciplinary proceedings and proceedings to determine incapacity of attorneys before hearing committees or officer, the Board and the supreme court.

        (5)   To appear at hearings conducted with respect to petitions for reinstatement of suspended or disbarred attorneys or attorneys transferred to inactive status because of disability, to examine witnesses and to submit evidence, if any, relevant thereto.

        (6)   To inform complainants and attorneys complained against of the status and disposition of their respective complaint matters.

        (7)   To maintain permanent records of all matters processed and the disposition thereof.

        (8)   To assist members of the public in preparation of requests for investigation.

        (9)   To perform such other duties and provide such reports as the Board shall direct.


        (c)   Delegation. Chief Counsel may delegate performance of the duties set out in sections (b)(1) through (b)(9) to Deputy Chief Counsel, Assistant Disciplinary Counsel, and staff.

        (Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended June 25, 2013, effective July 1, 2013; further amended November 14, 2013, effective November 14, 2013; further amended June 5, 2020, effective July 1, 2020; further amended August 18, 2021, effective January 1, 2022.)

 

        2.7.        Procedure.

        (a)   Investigation. All investigations, whether upon complaint or otherwise, shall be conducted under the supervision of Counsel. Each investigation shall be confined to the facts of the grievance and matters reasonably related thereto that could be violations of the Hawaiʻi Rules of Professional Conduct or other Rules of the Supreme Court that regulate the practice of law.  Upon motion, an attorney subject to an investigation may seek protective orders in the first instance from the Board and, if denied, then, within 10 days thereafter from the supreme court.  Upon the conclusion of an investigation, Counsel shall recommend dismissal, informal admonition of the attorney concerned, the institution of non-disciplinary proceedings for minor misconduct, or the institution of formal disciplinary proceedings before a hearing committee or officer. Counsel’s recommendation shall be reviewed by one of the two members of the Board assigned for that purpose. If the initial reviewing member of the Board approves Counsel’s recommendation, it shall be implemented. If the reviewing member of the Board disapproves Counsel’s recommendation, Counsel may request further review by the other reviewing member of the Board. In the event of such second review of Counsel’s recommendation, the decision by the second reviewing member of the Board shall be final. The member or members of the Board who review Counsel’s recommendation shall be disqualified in any formal disciplinary proceedings in relation to the same alleged misconduct.

        (b)   Minor misconduct.

        (1)   Notwithstanding the provisions of Rules 2.2 and 2.3 of these Rules, any act or omission by an attorney which, although violative of the Hawaiʻi Rules of Professional Conduct, is of a minor nature may be resolved by way of non-disciplinary proceedings or dismissal.

        (2)   In the absence of unusual circumstances, misconduct shall not be regarded as minor if any of the following conditions exists:

        (i)    The misconduct involved misappropriation of a client’s funds or property.

        (ii)   The misconduct resulted in or is likely to result in actual prejudice (loss of money, legal rights, or valuable property rights) to a client or other person.

        (iii)  The respondent was publicly disciplined within the past 3 years.

        (iv)  The misconduct involved is of the same nature as misconduct for which the respondent was disciplined within the past 5 years.

        (v)   The misconduct included dishonesty, misrepresentation, deceit, or fraud on the part of the respondent.

        (vi)  The misconduct constituted the commission of a felony under applicable law.

        (3)   Subject to the provisions of Rule 2.7(a) of this Rule, Counsel shall, in Counsel’s sole discretion, exclusively determine whether a matter constitutes minor misconduct. In that event, Counsel may reach agreement with the respondent to submit the matter to non-disciplinary proceedings. Such proceedings may consist of fee arbitration, arbitration, mediation,

lawyer practice assistance, substance abuse recovery programs, psychological counseling, mentoring, or any other non-disciplinary proceedings authorized by the supreme court. Counsel shall then refer the matter to the agency or agencies authorized by the supreme court to conduct the proceedings.


        (4)   If the respondent enters into an agreement for referral to a minor misconduct program established by the Hawaiʻi State Bar and enters into a mentoring relationship, all records and information maintained by the mentor relating to the minor misconduct of the respondent shall be deemed confidential and shall not be disclosed to the Counsel, the Board, the supreme court or any other person and shall not be subject to discovery or subpoena unless such confidentiality is waived in writing by the respondent; provided, however, that the mentor may compile and disclose to Counsel a final report summarizing the mentoring program and the completion thereof to the satisfaction of the mentor.  The mentor and the respondent have a privilege to refuse to disclose information shared or provided between the mentor and the respondent.  The limitations on disclosure set forth in this section will not apply to information relating to the respondent’s failure to cooperate with the mentoring program, or with a respondent’s unsuccessful completion of a mentoring program.

        (5)   If Counsel shall fail to reach agreement with the respondent to submit the matter of non-disciplinary proceedings, Counsel may undertake or resume disciplinary proceedings.

        (6)   If the respondent shall fail to comply with the terms of the agreement, Counsel may undertake or resume disciplinary proceedings.

        (7)   If the respondent shall fulfill the terms of the agreement, Counsel shall dismiss the disciplinary proceedings.

        (c)   Formal hearing. Formal disciplinary proceedings shall be instituted by Counsel by filing with the Board a petition which shall be sufficiently clear and specific to inform the respondent of the alleged misconduct. A copy of the petition shall be served upon the respondent in accordance with Rule 2.11(a) of these Rules.  Notwithstanding Rule 2.22 of these Rules, if at the time the petition is served, the respondent is engaged in the act of the practice of law as a part of a firm, partnership, corporation or governmental entity or other group, Counsel shall provide a notice to the respondent’s employer of the fact that formal disciplinary proceedings have been filed with the Board. The respondent shall serve the respondent’s answer upon Counsel and file the original with the Board within 20 days after the service of the petition, unless such time is extended by the Board Chairperson. In the event the respondent fails to answer, the charges shall be deemed admitted; provided, however, that a respondent who fails to answer within the time provided may obtain permission of the Chairperson to file an answer if such failure to file an answer was attributable to mistake, inadvertence, surprise or excusable neglect. Following the service of the answer or upon failure to answer, the matter shall, unless the provisions of (e) below apply, be assigned by the Chairperson to a hearing committee or officer. The hearing committee or officer receiving the assignment shall serve a notice of hearing upon Counsel and the respondent, or the respondent’s counsel, stating the date, time, and place of the hearing. At every hearing wherein factual issues are to be resolved, the respondent shall have a full opportunity to confront and cross-examine such witnesses presented by Counsel and to present evidence on the respondent’s own behalf. Absent good cause warranting the use of a court reporter, Counsel shall electronically record disciplinary hearings for transcription at a later time, if appropriate.  The hearing committee or officer shall, in every case, submit a report containing findings and recommendations, together with a record of the proceedings, including a transcription of the audio recording of the hearing, to the Board within 30 days after the conclusion of the hearing unless such time is extended by the Board Chairperson for no more than 30 days for good cause shown. The findings of the hearing committee or officer shall be supported by clear and convincing evidence. The hearing committee or officer shall not be bound by the formal rules of evidence, but shall admit only trustworthy evidence. The hearing committee or officer shall not rely upon any evidence outside the formal record in reaching a decision.

        (d)   Review by Board and Supreme Court. Upon receipt of a report from a hearing committee or officer, the Board will not entertain briefs or oral argument except:

        (1)   within the Board Chairperson’s discretion upon application of Counsel or the respondent (submitted within 10 days after service of the report of the hearing committee or officer); or


        (2)   upon a vote of a majority of the Board.

If such application is granted or vote occurs, the Board Chairperson shall set the dates for submission of briefs and for any oral argument before the Board. After reviewing the report of the hearing committee or officer, the Board shall promptly either affirm or modify the report of the hearing committee or officer, remand the matter for further proceedings before the hearing committee or officer, or dismiss the petition with the consent of Counsel, provided that no such consent shall be required where the hearing committee or officer recommended dismissal of the petition. In the event the Board determines that the proceeding shall be concluded by informal admonition or private or public reprimand, such admonition or reprimand shall be imposed in accordance with procedures established by the Board.

        Unless the Board dismisses the petition with any required consent of Counsel, remands the petition, or concludes the matter by informal admonition or private or public reprimand, the Board shall promptly submit a report containing its findings and recommendations, together with the entire record, to the supreme court. After the filing of such report, a copy thereof shall be served on the parties in accordance with Rule 2.11(b) of these Rules. The supreme court will not entertain briefs or oral argument except:

        (1)   within its discretion upon application of the respondent or Counsel (submitted within 10 days after service of the Board’s report); or

        (2)   upon request of the supreme court.

If such application is granted or request is made, the supreme court shall set the dates for submission of briefs and for any oral argument before the supreme court. In its discretion, the supreme court may in all disciplinary cases issue and publish written opinions or by per curiam order adopt and publish the findings and conclusions contained in the written report of the Board.

        (e)   Elimination or suspension of hearing proceedings. All proceedings before the hearing committee or officer shall be eliminated or  suspended

        (1)   where the respondent has filed no answer (and the charges have thus been deemed admitted) because, after due and diligent effort by Counsel, the respondent cannot be located for personal service and does not receive registered or certified mail at any of the respondent’s addresses last known to Counsel; or

        (2)   where Counsel and the respondent at any time subsequent to the filing of a petition file with the Board a stipulation setting forth an admission by the respondent of the facts deemed relevant to a determination of the matter, the disciplinary violations which serve as grounds for discipline, and an agreement as to the recommended form of discipline which should be imposed upon the respondent based upon the admitted violations.

        The entire record in the case shall thereupon be transmitted directly to the Board for review in accordance with (d) above. The parties may request that the record be supplemented by documentary exhibits. In any event, the Board may accept a request by the parties that the submission of briefs and/or oral argument before the Board be waived. In the case of a stipulation filed by the parties, neither the Board nor the supreme court shall be bound to accept the parties’ stipulated factual and legal agreements or recommended disposition, and the Board or the supreme court may either decide the matter based upon the factual admissions set forth in the parties’ stipulation or may remand the matter for further proceedings before a hearing committee as outlined in (c) above.

        (Amended July 29, 1981, effective July 29, 1981; renumbered September 1984; further amended, March 7, 1986, effective March 7, 1986; further amended September 22, 1988, effective September 22, 1988; further amended July 3, 1989, effective July 3, 1989; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended January 11, 1991, effective January 11, 1991; further amended November 8, 1991, effective November 8, 1991; further amended February 7, 1992, effective February 7, 1992; further amended March 18, 1993, effective March 18, 1993; further amended December 6, 1993, effective January 1, 1994; further amended March 8, 1995, effective March 23, 1995; further amended and effective January 9, 1996; amended effective March 10, 1998; further amended December 10, 2003, effective January 1, 2004; further amended November 23, 2007, effective January 1, 2008; further amended April 5, 2010, effective July 1, 2010; further amended March 4, 2013, effective March 4, 2013; further amended December 19, 2018, effective January 1, 2019.)

 


        2.8.        Immunity.

        Complaints submitted to the Board or Counsel or testimony given with respect thereto or trustee proceedings conducted pursuant to Rule 2.20 shall be absolutely privileged and no lawsuit predicated thereon may be instituted. Members of the Board, members of the hearing committees, hearing officers, Counsel, counsel to the Board, staff, volunteers, experts appointed pursuant to Rule 2.19, trustees and assistants appointed pursuant to Rules 2.20 and 2.5, and mentors appointed pursuant to Rule 2.7(b)(4) shall be immune from suit and liability for any conduct in the course of their official duties.

 

COMMENT:

        The purpose of extending immunity to mentors appointed pursuant to Rule 2.7(b)(3) is to enhance the ability to attract participants to participate as mentors in minor misconduct programs and to provide to these mentors protections provided to those serving in other capacities under the auspices of the Disciplinary Board.

        (Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended May 7, 1990, effective May 7, 1990; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended effective August 1, 1998; further amended April 5, 2010, effective July 1, 2010; further amended February 20, 2013, effective July 1, 2013.)

 

        2.9.        Refusal of complainant to proceed, compromise, etc.

        Neither unwillingness nor neglect of the complainant to sign a complaint or to prosecute a charge, nor settlement, compromise between the complainant and the attorney or restitution by the attorney, shall, in itself, justify abatement of the processing of any complaint.

        (Renumbered September 1984.)

 

        2.10.      Matters involving related pending civil or criminal litigation.

        Processing of complaints shall not be deferred or abated because of substantial similarity to the material allegations of pending criminal or civil litigation, unless authorized by the Board in its discretion, for good cause shown.

        (Renumbered September 1984.)

 

        2.11.      Service.

        (a)   Service upon the respondent of the petition or order to show cause in any disciplinary, disability, or trustee proceeding shall be made by personal service by any person authorized by the Board Chairperson, except that in the event the respondent cannot be found within the state or has departed therefrom, service shall be made by registered or certified mail at the respondent’s address shown in his or her registration statement filed pursuant to Rule 17(d) or other last known address.  Service by mail is complete on mailing.

        (b)   Service of any other papers or notices required by these rules may be personal or by mail.  Personal service includes delivery of the copy to an attorney or a responsible person at the attorney’s office.  Service by mail at the respondent’s address shown in his or her registration statement filed pursuant to Rule 17(d) or other last known address is complete on mailing, if mailed by postage prepaid First Class mail or other class of mail that is at least as expeditious.

        (Amended July 29, 1981, effective July 29, 1981; renumbered September 1984; further amended July 3, 1989, effective July 3, 1989; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended effective May 7, 1990; further amended February 7, 1992, effective February 7, 1992; further amended November 23, 2007, effective January 1, 2008; further amended February 12, 2008, effective July 1, 2008.)

 


        2.12.      Power to subpoena respondents and witnesses; pretrial proceedings.

        Any member of a hearing committee or any hearing officer, in matters before it or them, and Counsel, in matters under investigation by him or her, may administer oaths and affirmations, and compel by subpoena the attendance of the respondent and witnesses and the production of pertinent books, papers and documents. A respondent may compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing committee or officer after formal disciplinary proceedings are instituted. Writs of subpoena shall be issued in blank by the clerk of the supreme court upon application by any member of a hearing committee or any hearing officer, Counsel or the respondent. The supreme court may, upon proper application pursuant to HRAP Rule 27, enforce the attendance and testimony of the respondent and may, as set forth in Rule 2.12A, immediately suspend the respondent from the practice of law for the failure to comply with any lawful demand of the supreme court, a hearing committee or officer, or Counsel made in connection with any investigation, hearing, or disciplinary proceeding. Upon application pursuant to HRAP Rule 27, the supreme court may also enforce the attendance and testimony of any witness and the production of any documents so subpoenaed. Subpoena and witness fees and mileage shall be the same as in criminal cases in the circuit courts.

        There shall be no discovery proceedings except upon the order of the Board Chairperson for good cause shown.

        At the discretion of the hearing committee or officer, a conference may be ordered for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings. Said conference may be held before the officer or the chairperson of the committee or any member of the committee designated by its chairperson.

        (Renumbered September 1984; amended April 4, 1988, effective April 4, 1988; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended November 23, 2007, effective January 1, 2008.)

 


        2.12A.   Failure to cooperate.

        (a)   Grounds for suspension.  An attorney who is the subject of an investigation by Counsel, or who is the subject of a disciplinary proceeding pending before a hearing committee or officer, the Disciplinary Board, or the supreme court, may be suspended from the practice of law, pending consideration of the charges against the attorney, upon a finding that the attorney is guilty of a failure to cooperate with the investigation or disciplinary proceeding. Such a finding shall be based upon the attorney’s default in responding to the petition or notice filed by Counsel, or the attorney’s failure to submit a written response to pending allegations of professional misconduct, or to comply with any lawful demand of the supreme court, the hearing committees, hearing officers, or Counsel made in connection with any investigation, hearing, or disciplinary proceeding, including failure to comply with a subpoena issued under Rule 2.12.

        (b)   Petition; order to appear; findings.  Upon the filing with the supreme court of a petition approved by the Board Chairperson or his or her designee on the Board, an order shall be issued directing the attorney to appear within ten days of the service of the order, and inform the supreme court as to why the attorney should not be immediately suspended. Service upon the attorney shall be made pursuant to Rule 2.11(a). The suspension shall be made upon the supreme court’s finding that the attorney has failed to cooperate, as outlined in (a) above. The supreme court shall briefly state its reasons for its order of suspension, which shall be effective immediately and until further order of the supreme court.

        (c)   Application to defend.  In all cases where the petition described in (b) above is served in any manner other than personally, and the attorney so served does not appear, an application may be made by such attorney to the chief justice at any time within one year after the rendition of the final order of suspension, and upon good cause shown and upon such terms as may be deemed just by the chief justice, such attorney shall be allowed to defend himself against such charges.


        (d)   Reinstatement.  An attorney suspended under this Rule 2.12A may move for reinstatement.  The motion shall be supported by proof respondent cured the failures to cooperate alleged in the petition.

If conventionally filed, a copy of the motion for reinstatement shall be served upon Counsel at or before the time of filing.  Counsel shall file a response to the motion within 20 days after the motion for reinstatement was filed.  Counsel’s response shall verify whether respondent has cured the allegations of non-cooperation.

        (Added April 4, 1988, effective April 4, 1988; amended February 7, 1992, effective February 7, 1992; further amended and effective January 9, 1996; further amended November 23, 2007, effective January 1, 2008; further amended June 25, 2013, effective July 1, 2013.)

 

        2.13.      Attorneys convicted of crimes.

        (a)   Upon learning an attorney has been found guilty of a crime that:

        (1)   is a felony;

        (2)   would have been a felony if committed in Hawaiʻi, or

        (3)   involves dishonesty or false statement, Counsel shall obtain proof of the finding of guilt and file it with the Board and with the clerk of the supreme court. For purposes of this Rule, a finding of guilt is a verdict or judgment of guilty, a guilty plea, or a no contest plea.  Deferred acceptance of a plea, a sentence suspension, or a conditional discharge does not change the definition of guilt for purposes of this Rule.

        (b)   When proof of a finding of guilt is filed with the supreme court, the court may issue an order providing the attorney the opportunity to respond within 20 days of the service of the order upon the attorney, informing the supreme court as to why the attorney should not be immediately suspended.  Manner of service shall be at the discretion of the supreme court.  However, the supreme court may enter an order immediately restraining the attorney from the practice of law, pending final disposition of a disciplinary proceeding based on the finding of guilt.

        (c)   The supreme court may set aside such order restraining the attorney from the practice of law in the interest of justice and for good cause shown. An order restraining an attorney from the practice of law shall not constitute a suspension of the attorney for the purposes of Rule 2.16 of these Rules unless the supreme court so orders.

        (d)   When proof of a finding of guilt is filed with the supreme court, the supreme court shall refer the matter to the Board for institution of a formal proceeding in which the sole issue to be determined shall be the discipline to be imposed. Such a disciplinary proceeding shall not be brought to hearing until the conviction is final, unless the respondent requests that the proceeding continue. For purposes of this Rule, a conviction is deemed final when:

        (1)   the availability of appeal has been exhausted and the time for filing a petition for certiorari in the United States Supreme Court on direct review of the judgment of conviction has elapsed and no petition has been filed or the petition has been denied; or

        (2)   the judgment of conviction has been affirmed.

        (e)   The final conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.

        (f)    If an attorney suspended solely under the provisions of paragraph (b) above demonstrates to the supreme court that the underlying finding of guilt has been reversed or vacated, the order for interim suspension shall be vacated and, upon payment of all required registration fees, the attorney may be placed on active status. Vacation of the interim suspension will not automatically prohibit or terminate any formal proceeding against the attorney and disposition of any formal proceeding against the attorney must be on the basis of the available evidence other than the finding of guilt.

        (Renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended January 13, 1998, effective February 13, 1998; further amended August 14, 2000, effective January 1, 2000; further amended November 29, 2005, effective January 1, 2006; further amended November 23, 2007, effective January 1, 2008; further amended March 11, 2020, effective July 1, 2020.)

 


        2.14.      Resignation in lieu of discipline or disbarment by consent of attorneys under disciplinary investigation or prosecution.

        (a)   An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of grounds for the attorney’s discipline may resign in lieu of discipline or consent to disbarment, but only by delivering to the Board Chairperson an affidavit stating that the attorney desires to resign in lieu of discipline or consent to disbarment and that:

        (1)   the attorney’s resignation in lieu of discipline or consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting the attorney’s resignation or consent;

        (2)   the attorney is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for the attorney’s discipline, the nature of which the attorney shall specifically set forth;

        (3)   the attorney acknowledges that the material facts so alleged are true; and

        (4)   the attorney resigns or submits the attorney’s consent because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend themselves.

        (b)   Upon receipt of the required affidavit, the Board shall file with the supreme court and the supreme court shall enter an order granting the request to resign in lieu of discipline or disbarring the attorney on consent.

        (c)   The order granting the request to resign in lieu of discipline or disbarring the attorney on consent shall be a matter of public record. The affidavit required under the provisions of (a) above shall be a matter of public record but shall not be used in any other proceeding except upon order of the supreme court or as otherwise allowed by these rules.

        (d)   Resignation in lieu of discipline is a disbarment for all purposes under these rules, including reinstatement.

        (Renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended May 14, 1993, effective May 14, 1993; further amended November 23, 2007, effective January 1, 2008; further amended June 25, 2013, effective July 1, 2013; further amended November 10, 2020, effective January 1, 2021.)

 

        2.15.      Reciprocal Action.

        (a)   An attorney who has, in any other jurisdiction:

        (1)   resigned in lieu of discipline;

        (2)   been disciplined;

        (3)   been transferred to inactive status; or

        (4)   been placed on interim suspension due to misconduct, incapacity, incompetence, or disability;

shall notify Counsel promptly of the foreign action.  Upon notification of the foreign action, Counsel shall obtain a certified copy of the order and file it with the supreme court.

        (b)   Upon receipt of a certified copy of an order demonstrating that an attorney admitted to practice in this state has been the subject of a foreign action as set out in (a), the supreme court shall forthwith issue a notice directed to the attorney containing:

        (1)   a copy of the order from the other jurisdiction; and

        (2)   an order directing that the attorney inform the supreme court, within 30 days from service of the notice, of any claim by the attorney that an equivalent or substantially equivalent order in this state would be unwarranted and the reasons therefor.

        (c)   Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of (b) above, the supreme court shall enter an order imposing the same or substantially equivalent discipline, or restrictions or conditions upon the attorney’s license to practice law in this jurisdiction, unless Counsel or the attorney demonstrates, or it clearly appears upon the face of the other jurisdiction’s record, that:

        (1)   the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

        (2)   there was such an infirmity of proof establishing the factual basis for the discipline, or restrictions or conditions as to give rise to the clear conviction that the supreme court could not, consistent with its duty, accept as final the other jurisdiction’s conclusion on that subject; or


        (3)   the reason for the other jurisdiction’s discipline, or restrictions or conditions no longer exist; or

        (4)   the conduct established warrants substantially different discipline, or restrictions or conditions in this state.  Where the supreme court determines that any of said elements exist, the

supreme court shall enter such other order as it deems appropriate.

        (d)   In all other respects, a final action in another jurisdiction, as set out in section (a), shall establish conclusively the factual basis for the same or substantially equivalent discipline, or restrictions or conditions on the attorney’s license to practice law in this state.

        (Amended July 29, 1981, effective July 29, 1981; renumbered September 1984; amended August 17, 1993, effective August 17, 1993; further amended November 29, 2005, effective January 1, 2006; further amended November 23, 2007, effective January 1, 2008.)

 

        2.16.      Disbarred or suspended attorneys.

        (a)   A disbarred or suspended attorney shall promptly notify by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of the attorney’s disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension and shall advise said clients to seek legal advice elsewhere.

        (b)   A disbarred or suspended attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, each of the attorney’s clients who is involved in pending litigation or administrative proceedings, and the attorney or attorneys for each party and each self-represented party in the pending litigation or administrative proceeding of the attorney’s  disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension. The notice to be given to the client shall advise the client of the desirability of the prompt substitution of another attorney or attorneys in place of the withdrawing attorney.

        In the event the client does not obtain substitute counsel before the effective date of the disbarment or suspension, it shall be the responsibility of the disbarred or suspended attorney to move in the court or agency in which the proceeding is pending for leave to withdraw.

        The notice to be given to the attorney or attorneys for any other party and to any other self-represented party shall state the place of residence or other address at which the client of the disbarred or suspended attorney can be contacted.

        (c)   Orders imposing suspension or disbarment shall be effective 30 days after entry. The disbarred or suspended attorney, after entry of the disbarment or suspension order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, during the period from the entry date of the order and its effective date the attorney may wind up and complete, on behalf of any client, all matters that were pending on the entry date. By the effective date of the disbarment or suspension order, the disbarred or suspended attorney shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned.

        (d)   Within 10 days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney shall file with the supreme court an affidavit showing:

        (1)   that the attorney has fully complied with these rules and with the portions of the order requiring completion before the effective date of the order;

        (2)   all other state, federal and administrative jurisdictions to which the attorney is admitted to practice; and

        (3)   that the attorney has served a copy of such affidavit upon Counsel. Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications may thereafter be directed to the attorney.

        (e)   The Board shall cause a notice of the suspension or disbarment to be published on the Board’s or the Judiciary’s public website or in a newspaper of general circulation in the judicial circuit in which the disciplined attorney practiced and shall further cause a notice of reinstatement under Rule 2.17 of these Rules to be similarly published.


        (f)    The Board or the court shall promptly transmit by electronic means a copy of the certified order of suspension or disbarment to all judges of the State of Hawaiʻi, and the administrative judge of each judicial circuit shall make such further order as the administrative judge deems necessary to fully protect the rights of the clients of the suspended or disbarred attorney.

        (g)   A disbarred or suspended attorney shall keep and maintain records of the various steps taken by the attorney under these Rules so that, upon any subsequent proceeding instituted by or against the attorney, proof of compliance with these Rules and with the disbarment or suspension order will be available. Proof of compliance with these Rules shall be a condition precedent to any petition for reinstatement.

        (h)   In the event the disbarred or suspended attorney should maintain a presence in an office where the practice of law is conducted, the disbarred or suspended attorney shall not have any contact with the clients of the office either in person, by telephone, or in writing, or have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.

        (Renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended June 8, 2001, effective July 1, 2001; further amended October 24, 2005, effective January 1, 2006; further amended November 23, 2007, effective January 1, 2008; further amended March 5, 2008, effective March 5, 2008; further amended August 30, 2010, effective September 27, 2010; further amended October 26, 2012, effective January 1, 2013; further amended May 23, 2017, effective July 1, 2017; further amended June 6, 2019, effective July 1, 2019; further amended November 21, 2019, effective January 1, 2020; further amended June 5, 2020, effective July 1, 2020; further amended June 16, 2021, effective July 1, 2021.)

 

        2.17.      Reinstatement.

        (a)   Resumption of Practice.  No suspended or disbarred attorney may resume practice until reinstated by order of the supreme court except as provided in Rule 17(d).

        (b)   Time to Apply.

        (1)   Disbarred attorney.  An attorney who has been disbarred may not apply for reinstatement until the expiration of at least five years after the effective date of the disbarment.

        (2)   Attorney suspended 1 year or less.  An attorney suspended from practice for one year or less who has complied with the suspension order and has paid all required fees shall be reinstated by order of the supreme court at the end of the period of suspension by filing with the supreme court and serving upon Counsel an affidavit to that effect.

        (3)   Attorney suspended more than 1 year.  An attorney suspended from practice for more than one year may not apply for reinstatement until the expiration of at least one-half of the period of suspension.

        (4)   Burden of proof; eligibility.  A disbarred attorney or an attorney suspended from practice for more than one year shall not be reinstated unless he or she can show proof of the following by clear and convincing evidence: rehabilitation, fitness to practice law, competence and compliance with all applicable disciplinary or disability orders and rules, and compliance with any other requirements imposed by the supreme court, which may include the successful completion of requirements for passing the bar examination.

        (5)   Evidence costs, lawyers’ fund paid.  No suspended or disbarred attorney shall be eligible for reinstatement except upon a showing that he or she has reimbursed both the Board for all costs ordered including those incurred under RSCH 2.20, if any, and the Lawyers’ Fund for Client Protection for monies paid out on account of the attorney’s conduct, together with interest at the Hawaiʻi statutory judgment rate.

        (6)   Required evidence. A petitioner under parts (b)(1) and (b)(3) of this Rule 2.17 shall support the petition with the following information, submitted under seal:

        (A)  the petitioner’s current residence address and telephone number;

        (B)   the address of each of petitioner’s places of residence during the period of discipline, along with the dates the petitioner resided at each address;


        (C)   the name, address and, telephone number of each of petitioner’s employers, associates, or partners during the period of discipline, including the dates of each employment and position held,

        (D)  the names of all supervisors and reasons for leaving the employment, association, or partnership;

        (E)   the case caption, general nature and disposition of every civil and criminal action initiated, pending, or resolved during the period of discipline to which the petitioner was party or claimed an interest;

        (F)   a statement of monthly earnings and other income during the period of discipline, including the source of the earnings/income;

        (G)  a statement of assets and financial obligations during the period of discipline, including the dates acquired or incurred and the names and addresses of all creditors;

        (H)  a state verifying that restitution, or reimbursement of costs, including to the client protection fund, if appropriate, has been made and in what amount(s);

        (I)    a statement as to whether during the period of discipline the petitioner applied for reinstatement in any other jurisdiction and the results of any such proceedings;

        (J)    a statement identifying any other licenses or certificates for business or occupation applied for during the period of discipline;

        (K)  the names and addresses of all financial institutions at which petitioner had, or was a signatory to, accounts, safety deposit boxes, deposits or loans during the period of discipline;

        (L)   written authorization for the ODC to secure any financial records relating to those accounts, safety deposit boxes, deposits or loans; and

        (M)  copies of petitioner’s state and federal income tax returns for the three years preceding the period of discipline and during the period of discipline along with written authorization for the ODC to obtain certified copies of the originals.

        (7)   Subsequent petitions.  If a petition for reinstatement is denied, the petitioner may reapply for reinstatement no earlier than 1 year after entry of the supreme court’s order denying reinstatement.

        (c)   Petition the board; serve counsel; investigation; hearing; reports.  Petitions for reinstatement by a disbarred attorney or an attorney suspended for more than one year shall be filed with the Board and served upon Counsel. Upon receipt of the petition, the Board shall, following a reasonable investigation by counsel of the attorney’s fitness for reinstatement, refer the petition to a hearing committee or officer. The investigation shall be completed within 180 days unless the Board Chairperson, upon a showing of good cause, extends the time to complete the investigation. The hearing committee or officer shall promptly schedule a hearing, unless the petitioner requests the matter be heard upon the pleadings and exhibits and Chief Disciplinary Counsel agrees.  Petitioner and Chief Disciplinary Counsel may stipulate to facts. Within 30 days after the conclusion of the hearing, the hearing committee or officer shall submit to the Board a report containing its findings and recommendations, together with the record of the proceedings unless such time is extended by the Board Chairperson for no more than 30 days for good cause shown. The Board shall review the report of the hearing committee or officer and the record and shall either:

        (1)   remand the matter for further proceedings before the hearing committee or officer or

        (2)   submit a report containing its findings and recommendations, together with the record, to the supreme court.  The supreme court may grant briefing and oral argument at its discretion, either sua sponte or in response to a motion timely filed by either party within 10 days after the filing of the report with the court.

        (d)   Expenses.  The supreme court shall, absent good cause to the contrary, direct that the necessary expenses incurred in the investigation and processing of a petition for reinstatement be paid by the attorney seeking reinstatement, upon the filing by Counsel of a verified bill of costs within 60 days after final disposition of the petition.

        (Amended July 29, 1981, effective July 29, 1981, renumbered September 1984, further amended September 22, 1988, effective September 22, 1988; further amended February 7, 1992, effective February 7, 1992; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended and effective December 3, 1997; amended January 13, 1998, effective February 13, 1998; further amended June 8, 2001, effective July 1, 2001; further amended November 23, 2007, effective January 1, 2008; further amended June 25, 2013, effective July 1, 2013; further amended December 3, 2013, effective January 1, 2014.)


        2.18.      Deleted.

 

        2.19.      Proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated.

        (a)   Where an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability, the supreme court, upon proper proof of the fact, shall enter an order transferring such attorney to inactive status effective immediately and for an indefinite period until further order of the supreme court. A copy of such order shall be served upon such attorney, the attorney’s guardian, and/or the director of the institution to which the attorney has been committed in such manner as the supreme court may direct.

        (b)   Whenever the Board shall petition the supreme court to determine whether an attorney is incapacitated from continuing the practice of law by reason of physical or mental infirmity or illness or because of the use of drugs or intoxicants, the supreme court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the supreme court shall designate. If, upon due consideration of the matter, the supreme court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order transferring the attorney to inactive status on the ground of such disability for an indefinite period and until the further order of the supreme court.

        The supreme court shall provide for such notice to the respondent attorney of proceedings in the manner as it deems proper and advisable and shall appoint an attorney to represent the respondent if the attorney is without adequate representation.

        (c)   If, during the course of a disciplinary proceeding, the respondent contends that the respondent is suffering from a disability by reason of mental or physical infirmity or illness, or because of the use of drugs or intoxicants, which makes it impossible for the respondent to present an adequate defense, the supreme court thereupon shall enter an interim order immediately transferring the respondent to inactive status until a determination is made of the respondent’s capacity to continue to practice law in a proceeding instituted in accordance with the provisions of (b) above.

        If the supreme court shall determine that the respondent is not incapacitated from practicing law, it shall take such action as it deems proper and advisable including a direction for the resumption of the disciplinary proceeding against the respondent.

        (d)   The Board shall cause a notice of interim or final transfer to inactive status to be published on the Board’s or the Judiciary’s public website or in a newspaper of general circulation in the judicial circuit in which the disabled attorney practiced and shall further cause a notice of a return to active status to be similarly published.

        (e)   The Board or the court shall promptly transmit a certified copy of the interim or final order of transfer to inactive status to all judges of the State of Hawaiʻi and shall request such action under the provisions of Rule 2.20 of these Rules as may be indicated in order to protect the interests of the disabled attorney and the attorney’s client.

        (f)    No attorney transferred to inactive status under the provisions of this Rule may resume active status until reinstated by order of the supreme court. Any attorney transferred to inactive status under the provisions of this Rule shall be entitled to apply for reinstatement to active status once a year or at such shorter intervals as the supreme court may direct in the order transferring the respondent to inactive status or any modification thereof. Such application shall be granted by the supreme court upon a showing that the attorney’s disability has been removed and the attorney is fit to resume the practice of law. Upon such application, the supreme court may take or direct such action as it deems necessary or proper to a determination of whether the attorney’s disability has been removed including a direction for an examination of the attorney by such qualified medical experts as the supreme court shall designate. In its discretion, the supreme court may direct that the expense of such an examination shall be paid by the attorney.


        Where an attorney has been transferred to inactive status by an order in accordance with the provisions of (a) above, and, thereafter, in proceedings duly taken, the attorney has been judicially declared to be competent, the supreme court may dispense with further evidence that the attorney’s disability has been removed and may direct the attorney’s reinstatement to active status upon such terms as are deemed proper and advisable.

        (g)   The filing of an application for reinstatement to active status by an attorney transferred to inactive status because of disability shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the attorney during the period of the attorney’s disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution by whom or in which the attorney has been examined or treated since the attorney’s transfer to inactive status and the attorney shall furnish to the supreme court written consent to each to divulge such information and records as requested by court-appointed medical experts.

        (h)   Transfer of an attorney to inactive status pursuant to this Rule shall not preclude Counsel’s investigation of the attorney’s conduct, including but not limited to, the gathering and preserving of evidence, provided that no disciplinary proceeding shall be commenced and any pending disciplinary proceeding against the attorney shall be held in abeyance while the attorney remains on inactive status pursuant to this Rule.

        (i)    Pursuant to Rule 2.22(f) of these Rules, the record of proceedings undertaken pursuant to this Rule shall be confidential, except for interim and final orders transferring an attorney to inactive status, and any subsequent order returning the attorney to active status.

        (Amended July 29, 1981, effective July 29, 1981, renumbered September 1984; amended February 7, 1992, effective February 7, 1992; amended effective July 1, 1999; further amended November 23, 2007, effective January 1, 2008; further amended March 7, 2016, effective July 1, 2016; further amended May 23, 2017, effective July 1, 2017; further amended June 16, 2021, effective July 1, 2021.)

 


        2.20.      Trustee proceedings.

        (a)   Definitions. As used in this Rule and for other purposes:

        (1)   “Designated Practice Administrator” means a Hawaiʻi licensed attorney designated in the subject attorney’s member registration with the Hawaiʻi State Bar to oversee the responsible closure of the subject attorney’s practice, including by serving as trustee in the event that grounds exist to appoint a trustee for the subject attorney.

        (2)   “Legally operative original documents” means an original document that impacts legal rights, but is not a matter of public record (e.g., original will, unrecorded deed).

        (3)   “Property” means property of clients or third persons that a subject attorney holds as a fiduciary in connection with a representation within the scope of Rule 1.15 of the Hawaiʻi Rules of Professional Conduct.

        (4)   “Subject attorney” means an attorney who is the subject or potential subject of trustee proceedings under this Rule.

        (5)   “Unavailable” means an attorney who has disappeared, died, been suspended or disbarred without complying with Rule 2.16 of these Rules, or been transferred to inactive status because of incapacity or disability.

        (b)   Grounds for appointment of trustee. Grounds for appointment of a trustee exist whenever:

        (1)   a subject attorney does not have a partner as defined by Rule 1.0(g) of the Hawaiʻi Rules of Professional Conduct; and

        (2)   the subject attorney is unavailable or there is other good cause to protect the interests of the subject attorney’s clients.

        (c)   Procedure.

        (1)   Motion for appointment. When appointment of a trustee is warranted, Disciplinary Counsel shall file with the supreme court a motion for appointment of an attorney to serve as trustee with proper proof that grounds exist for the appointment.  The Motion shall include a declaration from the putative trustee, disclosing any conflicts or business relations with the subject attorney or the subject attorney’s clients.

        (2)   Service of motion. Disciplinary Counsel shall serve the motion on the subject attorney pursuant to section 2.11(a) of these Rules, and serve by regular mail any representative, or reasonably anticipated representative, of the subject attorney’s estate, to their last known address.

        (3)   Response to motion. The subject attorney or any interested person may file a response to the motion within 14 days after service of the motion, though this period may be shortened at the court’s discretion, for good cause.

        (4)   Appointment. When grounds exist for appointment of a trustee, the supreme court may appoint a Hawaiʻi licensed attorney as trustee to inventory and administer property in the possession of the subject attorney and to take such action as seems indicated to protect the interests of the subject attorney’s clients as well as third parties for whom the subject attorney was holding property as a fiduciary. If the subject attorney has a Designated Practice Administrator or if another responsible party who is a licensed Hawaiʻi attorney is known to exist who is willing to conduct the subject attorney’s affairs, the supreme court may appoint that person.

        (5)   Limited appointment. When the appointment of a trustee is warranted, upon showing of good cause to protect the interests of the subject attorney’s clients, but the subject attorney is not yet unavailable, the supreme court in appointing a trustee may modify the trustee’s duties consistent with the circumstances. A limited appointment shall specify whether, and from whom, the trustee is entitled to reimbursement and compensation under this Rule and whether the trustee must provide notice of the appointment to the subject attorney’s clients and third parties for whom the subject attorney holds property.

        (6)   Partner access to client trust account. Where property is held in a trust account under the exclusive control of the subject attorney, a subject attorney’s partner, or other associated attorney, who is not a signatory to the trust account may apply to the supreme court, with notice to Disciplinary Counsel, for an order allowing access to such trust account.

        (d)   Duties of trustees.

        (1)   A trustee appointed under this Rule shall:

        (A)  promptly take custody of, and inventory, all client files and records of the subject attorney, identifying all legally operative original documents or other items of value.

        (B)   promptly determine if the subject attorney has any active matters or cases and, as trustee, notify all parties and any relevant tribunals of the trusteeship.

        (C)   promptly take legal possession, including possession by substitution of the trustee as signatory and custodian, of any trust and other bank accounts found or known to exist into which property has been deposited, and shall determine amounts therein and amounts due the clients or third persons for whom the accounts are held. The trustee shall not make any disbursements or transfers from any account without the permission of the supreme court;

        (D)  publish 1 advertisement in a newspaper of general circulation announcing that the trustee has been appointed to inventory the subject attorney’s client files, that the subject attorney’s clients may contact the trustee to retrieve their files within 90 days of the publication date of the notice and that unclaimed items will be destroyed thereafter;

        (E)   send form notices by regular mail to the last known mailing address, or in the manner designated in the subject attorney’s client files, to all of the subject attorney’s clients, informing them of the subject attorney’s status, that those clients may obtain their files by contacting the trustee at an address and telephone number specified in the notice, and that unclaimed items will be destroyed. The trustee, however, need not send notification to a subject attorney’s client where it appears after inspection of the file that the underlying legal matter has been inactive for 7 years or more and the file contains no legally operative original documents or other items of value to the client;

        (F)   file with the supreme court periodic reports as to the status of the trustee’s administration, listing issues and tasks needed for resolution, and projecting a schedule of estimated completion.  Such reports shall be filed as necessary, but not less than annually; and

        (G) comply with applicable rules of the Disciplinary Board concerning trustees appointed under this Rule.

        (2)   A trustee appointed under this Rule may:

        (A)  employ locksmiths to open the subject attorney’s present and former law offices, as well as open any safes, cabinets, closets, or other secured areas located within the subject attorney’s present and former law offices and any other areas under the subject attorney’s control;


        (B)   where the trustee is designated by the trustees of the Lawyers’ Fund for Client Protection (“Fund”) to act on behalf of the trustees for the Fund, or where the trustee acts in coordination with Disciplinary Counsel, cause subpoenas to be issued pursuant to Rules 2.12 or 10.6 of these Rules for the subject attorney’s business and banking records to carry out the trustee’s duties under these Rules or consult with and advise the Fund trustees concerning the validity and propriety of claims brought by the subject attorney’s clients against the Fund;

        (C)   after strict compliance with the rules of professional conduct relating to business transactions with a client, filing with the supreme court a notice disclosing the transfer of the client matter to the trustee, and disclaiming any trustee immunity under these Rules for the transferred matter, substitute in place of the subject attorney in any given client matter;

        (D)  upon approval by the Disciplinary Board, employ assistants, accountants, or bookkeepers as necessary to determine the source and ownership of funds recovered by the trustee;

        (E)   upon approval by the Disciplinary Board, place any unclaimed files in storage (in the custody of the Disciplinary Board); or

        (F)   take such further action as the supreme court directs, including seeking an order of abandonment of property where a client or the client’s legal representative cannot be found and the property is either funds subject to escheat under Hawaiʻi Revised Statutes § 523A or non-monetary property of inconsequential value or otherwise burdensome to the estate.

        (e)   Reimbursement and compensation of trustee. Trustees may be reimbursed for traveling and other expenses incidental to the performance of their duties. Trustees, if authorized by an order of the court, may also be compensated for their services, and shall apply to the supreme court for compensation not more frequently than quarterly, or less than annually.

        (f)    Confidentiality. All client files in possession of a trustee are confidential in accordance with Rule 1.6 of the Hawaiʻi Rules of Professional Conduct. A trustee shall not be permitted to disclose any information contained in any files so inventoried without the consent of the client to whom such file relates, except as necessary to carry out the supreme court’s order appointing the trustee to make such inventory or to cooperate in investigations by Disciplinary Counsel or the Fund.

        (g)   Role of Disciplinary Counsel in trustee proceedings. The Disciplinary Board shall appoint a specific Disciplinary Counsel to serve as Trustee Administrator.

        (1)   The Trustee Administrator shall be a party to all trustee proceedings under this Rule 2.20, assist trustees in the performance of their duties, monitor the progress of proceedings, review trustee reports, scrutinize applications for compensation and expense reimbursement on behalf of the Disciplinary Board, file concurring or opposing statements where appropriate on behalf of the Disciplinary Board or the Fund, and do such other acts as may aid in the advancement of proceedings. The Trustee Administrator may also be appointed as interim or successor trustee where deemed appropriate by the supreme court.

        (2)   The Trustee Administrator is also empowered, concurrent with the trustee appointed under this Rule 2.20, to interpose claims on behalf of the Disciplinary Board or the Fund with the subject attorney or any personal representative, trustee, probate, other trust, estate, or property of the subject attorney.

        (3)   Notwithstanding the foregoing, Disciplinary Counsel, including the Trustee Administrator, shall not provide legal advice to trustees or any other person with regard to the trust estate.

        (h)   Disposition of property. Prior to discharge of the trustee, the trustee shall dispose of property as follows:

        (1)   For funds not held in a bank account, promptly deposit such funds in the subject attorney’s trust account and dispose of such funds as provided for in subsection (d)(1)(C) of this Rule;

        (2)   For property released to the subject attorney’s clients, express designee, or client’s legal representative(s), the trustee shall obtain and maintain written records and verification of the release;

        (3)   For property to be released to third persons other than the client’s designee or legal representative, the trustee shall obtain approval from the supreme court for release;


        (4)   For property that a subject attorney’s client expressly declined in writing to retrieve, the trustee shall destroy the file in a secure manner.

        (5)   For unclaimed legally operative original documents or other documents of value from any unclaimed client files, the trustee shall file copies of the documents under seal in the docket of the trustee proceeding and deliver the original documents to Disciplinary Counsel. Disciplinary Counsel shall maintain the original documents for 6 years, after which time Disciplinary Counsel may destroy any remaining unclaimed documents without returning to the supreme court for permission to do so. Original wills, in the alternative, may be deposited with the appropriate probate court, pursuant to Rule 74 of the Hawaiʻi Probate Rules.

        (6)   Where the trustee determines, pursuant to subsection (d)(1)(E) of this Rule, that direct written notice to the subject attorney’s client is not required, the trustee shall, after removing documents of value, destroy the file of that client in a secure manner after the time specified in the published advertisement has expired.

        (7)   For all remaining unclaimed property, the trustee, after culling them for legally operative original documents and other items of value, shall destroy the files in a secure manner after the time specified in the published advertisement and, if applicable, the direct written notice has expired.

        (i)    Suspension during the trusteeship. Upon appointment of a trustee, the subject attorney may, by order of the supreme court, be suspended from the practice of law in this jurisdiction until the trusteeship is completed. The Disciplinary Board or the supreme court shall promptly transmit a copy of the order of suspension to all judges of the State of Hawaiʻi and request such action as may be indicated in order to protect the interests of the subject attorney’s clients. Any subject attorney so suspended shall be entitled to apply to the supreme court for reinstatement to active status upon a showing that the grounds for commencing the trustee proceeding have been resolved, any monetary sums awarded in the trustee proceeding have been satisfied or an arrangement for their payment has been approved by the court, and that the subject attorney is fit to resume the practice of law. If the subject attorney remains suspended pursuant to another provision of this Rule 2, the subject attorney shall not be reinstated until the reinstatement process set forth in that other Rule is fulfilled.

        (j)    Responsibility for fees and costs incurred. The subject attorney or the subject attorney’s estate may be required to pay to or otherwise reimburse the Disciplinary Board and, where applicable, the Fund, all fees, costs and other amounts ordered and incurred, together with interest at the Hawaiʻi statutory judgment rate.

        (Renumbered September 1984; amended effective May 7, 1990; amended effective August 1, 1998; further amended June 8, 2001, effective July 1, 2001; further amended November 23, 2007, effective January 1, 2008; further amended November 14, 2013, effective November 14, 2013, further amended May 15, 2017, effective July 1, 2017; further amended January 29, 2019, effective July 1, 2019; further amended November 14, 2019, effective January 1, 2020; further amended February 3, 2020, effective July 1, 2020; further amended December 14, 2020, effective January 1, 2021.)

 

        2.21.      Deleted.

 

        2.22.      Confidentiality.

        (a)   General rule. The files, records and proceedings of the Board, the hearing committees or officers, and Counsel, and of mentors participating in minor misconduct programs pursuant to Rule 2.7(b) of these Rules, as they may relate to or arise out of any complaint or charge of unprofessional conduct against or investigation of an attorney, shall be deemed confidential and shall not be disclosed except under the following circumstances:

        (1)   As between Counsel, the committees or officers, the Board and the supreme court in the furtherance of their duties;

        (2)   As between the Board, Counsel and an attorney admission or disciplinary authority, or judicial selection or disciplinary authority, of any jurisdiction in which the attorney affected is admitted to practice or seeks to practice;

        (3)   Upon the request of the attorney affected;

        (4)   Where permitted by the supreme court;

        (5)   Where required or permitted by these Rules;

        (6)   Where the investigation is predicated upon a conviction of the respondent for a crime;

        (7)   Where 90 days have passed since the service on a respondent of a Petition for discipline, unless

        (A)  such time is extended by the Board Chairperson for no more than 45 days for good cause shown or

        (B)   the Board or the supreme court imposes a private reprimand or a private informal admonition, pursuant to Rule 2.3(a) of these Rules.

        (8)   Where reinstatement proceedings are initiated pursuant to Rule 2.17(c) of these Rules.

        (b)   Disclosure of evidence of a crime.  Upon receipt of trustworthy evidence that an attorney has committed a crime and to protect the interests of the public, the administration of justice, or the legal profession, the Chairperson of the Board may authorize Counsel to disclose the evidence to appropriate law enforcement or prosecuting authorities. Counsel may not disclose that an attorney voluntarily sought, received, or accepted treatment from the Attorneys and Judges Assistance Program or the record of such treatment.

        (c)   Disclosure of evidence of infirmity.  Disciplinary Counsel, in its discretion, may disclose an attorney’s possible substance abuse, physical or mental illness, or other infirmity to the Director of the Attorney and Judges Assistance Program.

        (d)   Disclosure of resignation affidavit.  An affidavit resigning in lieu of discipline or consenting to disbarment submitted pursuant to Rule 2.14 of these Rules shall be submitted to the hearing committee or officer, to the Board, and to the supreme court at any time that the attorney applies for reinstatement. Such affidavit shall also be supplied to an attorney admission or disciplinary authority or judicial selection authority of any jurisdiction in which the attorney affected is admitted to practice or seeks to practice.

        (e)   Authorized statements.  In any case in which the subject matter becomes public through independent sources or through a waiver of confidentiality by the respondent, the Board may issue statements as it deems appropriate in order to confirm the pendency of the investigation, to clarify the procedural aspects of the disciplinary proceedings, to explain the right of the respondent to a fair hearing without prejudgment, and to state that the respondent denies the allegations. The statement shall be first submitted to the respondent involved for his or her comments and criticisms prior to its release, but the Board in its discretion may release the statement as originally prepared.

        (f)    Supreme Court records are generally public.  Except as ordered by the supreme court, or as otherwise provided by these Rules, the files, records and proceedings filed with the supreme court by the Board, by Counsel or by a respondent, as well as any oral argument held before the supreme court in connection with any disciplinary proceedings, are not confidential, except that in proceedings under Rule 2.19 of these Rules, any order transferring an attorney to inactive status or subsequently to active status shall be a matter of public record, but otherwise, the record of the proceedings shall not be publicly disclosed.

        (g)   ABA databank coordination.  In addition, the Board shall transmit notice of all public discipline imposed by the supreme court, or transfer to inactive status due to disability, to the National Discipline Data Bank maintained by the American Bar Association.

        (Amended effective July 29, 1981; renumbered September 1984; amended effective November 23, 1987; further amended November 8, 1991, effective November 8, 1991; further amended February 7, 1992, effective February 7, 1992; further amended March 18, 1993, effective March 18, 1993; further amended March 8, 1995, effective March 23, 1995; further amended and effective January 9, 1996; further amended October 21, 1999, effective January 1, 2000; further amended September 16, 2002, effective January 1, 2003; further amended October 6, 2003, effective January 1, 2004; further amended November 23, 2007, effective January 1, 2008; further amended April 5, 2010, effective July 1, 2010; further amended June 25, 2013, effective July 1, 2013; further amended November 14, 2013, effective November 14, 2013; further amended August 22, 2014, effective January 1, 2015; further amended March 7, 2016, effective July 1, 2016; further amended February 4, 2021, effective February 4, 2021; further amended August 24, 2021, effective January 1, 2022.)

 


        2.23.      Interim suspension.

        (a)   Upon receipt of sufficient evidence demonstrating that an attorney has committed a violation of the Hawaiʻi Rules of Professional Conduct and poses a substantial threat of serious harm to the public, Counsel may:

        (i)    transmit the evidence to the supreme court; and

        (ii)   contemporaneously make a reasonable attempt to provide the attorney with notice, which may include notice by telephone, that a request for immediate interim suspension has been transmitted to the supreme court.

        (b)   Upon examination of the evidence transmitted to the supreme court by Counsel and of rebuttal evidence, if any, that the attorney has transmitted to the supreme court prior to the supreme court’s ruling, the supreme court may enter an order immediately suspending the attorney, pending final disposition of the disciplinary proceedings predicated upon the conduct of causing the harm, or may order such other action as it deems appropriate.

        (c)   On notice to Counsel, an attorney suspended pursuant to (b) may move for dissolution or modification of the order of suspension, and in that event, the motion shall be heard and determined as expeditiously as justice requires.

        (d) An order imposing an interim suspension on an attorney under this rule shall not constitute a suspension of the attorney for the purposes of Rule 2.16 unless the supreme court shall otherwise order.

        (Added July 29, 1981, effective July 29, 1981; renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended November 23, 2007, effective January 1, 2008.)

 

        2.24.      Audit of trust accounts.

        (a)   When audit may be ordered.

        (1)   The Chairperson may order an audit of any trust accounts maintained by an attorney upon:

        (i)    An attorney’s failure to file the trust account verification required by Rule 1.15 of the Hawaiʻi Rules of Professional Conduct;

        (ii)   The filing of a petition for creditor relief on behalf of an attorney;

        (iii)  The filing of felony charges against an attorney;

        (iv)  An allegation an attorney is incapacitated under Rule 2.19 of these rules, or a judicial determination the attorney is incompetent or upon involuntary commitment on grounds of incompetency or disability;

        (v)   The filing of a claim against the attorney with the Lawyers’ Fund for Client Protection;

        (vi)  Court order; or

        (vii) Counsel’s request for other good and sufficient reasons.

        (2)   Counsel may order and supervise an audit when an attorney’s trust account

        (i)    check is paid against insufficient funds or dishonored or

        (ii)   balance falls below zero.

        (b)   Random audits. The Board may randomly order audits of trust accounts.

        (c)   Cost of audit. Audits conducted in any of the circumstances enumerated in paragraph (a)(1) or (b) above shall be at the cost of the attorney audited only when the audit reveals that the attorney was not in substantial compliance with the trust accounting requirements. Audits conducted in either of the circumstances enumerated in paragraph (a)(2) shall be at the cost of the attorney unless the Chairperson determines upon trustworthy evidence, the financial institution erred.  It shall be the obligation of any attorney who is being audited to produce all records and papers concerning property and funds held in trust and to provide such explanations as may be required for the audit.

        (d)   Examination of other financial accounts.  Nothing in this rule shall preclude the examination of the other financial accounts of an attorney if the examination of the attorney’s trust accounts reveals to the satisfaction of the Chairperson or Counsel that the attorney is not in substantial compliance with trust accounting requirements.


        (e)   Review.  Counsel’s decision to order an audit may be appealed to the Chairperson.  The appeal must be filed in writing with the Chairperson within fifteen (15) days after Counsel notifies the attorney an audit has been ordered.  The decision of the Chairperson or the Chairperson’s designee is not further appealable.

        (Added September 22, 1988, effective September 22, 1988; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended and effective January 9, 1996; further amended October 2 & 4, 2007, effective January 1, 2008.)

 

        2.25.      Effect of Hawaiʻi Electronic Filing and Service Rules.

        Documents filed and notices given in accordance with the Hawaiʻi Electronic Filing and Service Rules shall be deemed to comply with the filing, mailing, certified mailing, notice, and service requirements of any part of this Rule 2.

        (Added August 30, 2010, effective September 27, 2010.)

 

        2.26.      Effective date.

        These rules shall become effective on July 1, 1974, and any disciplinary investigation pending on that date shall be transferred to the Board, provided that any case then pending with respect to which a formal hearing has been commenced shall be concluded under the procedure existing prior to the effective date of these rules.

        (Renumbered July 29, 1981, further renumbered September 1984 further renumbered September 22, 1988.)

 

Rule 3.          ATTORNEY AND CLIENT

                     FIDUCIARIES.

        (1)   An attorney who is under a general retainer from, or who is regularly employed by, or who is a director of a trust institution shall disclose the fact to any person who requests him to draft a will or trust instrument naming such trust institution as a fiduciary. If after this disclosure the person desires the attorney to advise him and draft the will or trust instrument the attorney may comply with his request.

        (2)   An attorney preparing a will or trust instrument for a testator or trustor shall not accept compensation from the fiduciary for drawing the document or for advice relative thereto.

        (3)   An attorney drawing a will or trust instrument shall establish the professional relationship of an attorney and client with the testator or trustor and shall receive his instructions from and give his advice to his client, preferably in personal interviews, or if that is impracticable, in such other manner as the attorney considers will satisfy his professional duty to his client and will enable him to represent and protect the interests of his client.

        (4)   An attorney shall reserve the right to advise his client with respect to the choice of a fiduciary.

        (5)   An attorney should not seek to displace the fiduciary of the client’s choice by inducing the appointment of another, unless the attorney believes the client’s affairs demand such substitution, or where the attorney believes that the interests of the client will suffer if such substitution is not made.

        (6)   An attorney under general retainer from, or regularly employed by, or who is a director of a trust institution shall, before recommending to a prospective testator or trustor that such trust institution be named as fiduciary, make a full disclosure of such relationship.

        (7)   No attorney who is actively carrying on executive or administrative activities of a trust institution shall act as attorney in the preparation of a will or trust instrument in which such institution is named as a fiduciary.

        (8)   As used herein the term "trust institution" shall mean any individual, partnership, or corporate fiduciary, including any bank having a trust department.

        (Renumbered September 1984.)

 


Rule 4.          JUDICIAL COUNCIL.

        (a)   Appointment. There shall be a judicial council consisting of the chief justice and not more than 15 other members appointed by this court. Except as provided by subsection (c) below, each member shall serve for a term of 3 years. Any vacancy shall be filled by the court for the unexpired term. The membership shall be fairly representative, including laymen as well as judges and lawyers.

        (b)   Functions. The council shall serve in an advisory capacity only, shall give continuing consideration to the administration of justice in the courts of the state, and shall make reports and recommendations biennially to this court and also whenever deemed advisable by this court.

        (c)   Continuing functions. The chief justice may, in his discretion, allow any member whose term has expired to continue to work with the council to complete a project or matter with which the member has been involved. The former member may vote upon the project or matter only if the council is composed of fewer than 15 members.

        (d)   Quorum. A majority of the total membership shall constitute a quorum. No action shall be taken unless a quorum is present. A majority vote of the members present shall be necessary to make any action of the Council valid. The Chief Justice shall abstain from voting on any measure, except in the event of a tie. The Chief Justice’s attendance shall be counted to determine a quorum.

        (Renumbered September 1984; amended effective October 23, 1996; amended effective October 13, 1998.)

 

Rule 5.          HAWAIʻI REVISED CODE OF

                     JUDICIAL CONDUCT

        The Hawaiʻi Revised Code of Judicial Conduct attached hereto as Exhibit B is adopted as the standard of conduct for members of the Hawaiʻi Judiciary.

        (Amended August 29, 1983, effective January 1, 1984; renumbered September 1984; amended effective May 10, 1988; further amended December 10, 2008, effective January 1, 2009.)

 


Rule 5.1.       ELECTRONIC AND

                     PHOTOGRAPHIC COVERAGE

                     OF COURT PROCEEDINGS.

        (a)   Reserved.

        (b)   Reserved.

        (c)   Definitions.  As used in these Rules 5.1, 5.2, and 5.3, unless the context otherwise requires:

        (1)   “Administrative judge” means any judge selected to perform administrative duties in a circuit or district court with more than 1 judicial officer.

        (2)   “Attorney” means the attorney of record appearing for a party. A party may have only 1 attorney of record authorized to act on behalf of that party in the proceeding at any one time but may designate a different attorney or change attorneys at any time as permitted by law.

        (3)   “audiovisual equipment” means any device with photographic, video, and/or audio recording capabilities.

        (4)   “Bar” means a member of the Hawaiʻi State Bar Association who is licensed and in good standing.

        (5)   “Coordinator” means the person designated by each administrative judge to receive requests for extended coverage of proceedings within their respective circuit or district.

        (6)   “Educational institution” means any public or private school of lower or higher education, the Hawaiʻi Institute for Continuing Legal Education, the Hawaiʻi State Bar Association Committee for Legal Education for Youth, any division of the Hawaiʻi State Judiciary, or any nonprofit organization or corporation whose proposal for extended coverage is approved by the presiding judge.

        (7)   “Extended coverage” means any recording, broadcasting, or publishing of images of a proceeding or words spoken during a proceeding through the use of television, radio, photographic, or recording equipment, including a mobile device, by the media or on behalf of educational institutions.

        (8)   “Good cause” means that, under the circumstances of the particular proceeding, or any portion thereof, extended coverage would materially interfere with the rights to a fair trial.


        (9)   “Judge” means the justice, judge, or judicial officer presiding over the proceedings in which extended coverage is or is requested to be taking place. In courts with more than 1 “judge” presiding over the proceedings, any decision required to be made by the “judge” shall be made by a majority of the judges.

        (10) “Juror” means any person who is a member of any jury, including a grand jury, impaneled by any court of this State or by any public servant authorized by law to impanel a jury, and also includes any person who has been drawn or summoned to attend as a prospective juror.

        (11) “Media” means any news gathering or reporting agencies and the individual persons involved, including newspapers, radio, television stations or networks, internet-based organizations, news services, magazines, trade papers, in-house publications, professional journals, or other news reporting or news gathering agencies whose function it is to inform the public or some segment thereof.

        (12) “Mobile device” means any handheld electronic, wireless, portable, personal computer. May include tablets, smartphones, personal digital assistants (PDAs), e-readers, and portable music players, smartwatches, or other similarly functioning devices with “smart capabilities” such as an operating system, the ability to run software applications, and ability to connect to the internet, phone, text, instant messaging, and/or e-mail capabilities, photo, video, and/or audio recording capabilities.

        (13) “Party” means a named litigant of record who has appeared in the case.

        (14) “Pooling arrangements” means for media to coordinate the sharing of audio, video, and/or photographic assets amongst themselves after extended coverage has been granted by the court for a specific case.

        (15) “Presumption” means a rebuttable assumption of fact made from another fact or group of facts found or otherwise established in an evidentiary proceeding.

        (16) “Proceeding” or “Proceedings” means any trial, hearing, motion, hearing on an order to show cause or petition, appellate argument, return of indictments from grand juries, or any other matter held in open court which the public is entitled to attend.

        (17) Professional-grade audiovisual equipment” means any device with photographic, video, and/or audio recording capabilities used in the production of professional-quality media products.

        (18) “Trial participants” means parties, attorneys, witnesses, court personnel, and the judge or judges present during the conduct of proceedings.

        (d)   General provisions and exclusions.

        (1)   Nothing in this Rule is intended to limit or restrict the power of the judge to control the conduct of the proceedings.

        (2)   Nothing in this Rule is intended to restrict in any way the right of the media to report on proceedings.

        (3)   Nothing in this Rule affects the authority to permit extended coverage of investitive, ceremonial, or naturalization proceedings.

        (4)   Nothing in this Rule is intended to alter any rules of professional or judicial conduct or canons of ethics of attorneys or judges.

        (5)   If extended coverage is permitted under this Rule, such shall be impartially given to all media representatives.

        (e)   Request for extended coverage.

        (1)   All requests for extended coverage shall be made by the media or educational institution to the coordinator with reasonable advance notice of the commencement of the extended coverage. “Reasonable notice” as used herein shall mean the period of time required for all parties to be notified in advance, shall consider the realities of court scheduling, and shall be the minimum time required to accomplish such notification.

        (2)   Requests for extended coverage shall be made in writing on a form provided by the Judiciary and shall refer to the individual case with sufficient identification to assist the coordinator in providing the required notice.  In proceedings for the return of indictments from grand juries, no case number shall be required.  Such requests may be filed with the coordinator in person, by mail, electronic mail, or by facsimile transmission. Requests for extended coverage shall relate to an entire case. Once a request is approved for extended coverage for any case, that approval shall apply through the final judgment and any post-judgment motions and appeals.


        (3)   Upon receipt of the written request, the coordinator shall expeditiously notify, in person, by telephone, or through the Judiciary Information Management System, counsel for all parties or the parties themselves if self-represented and the presiding judge (or if the presiding judge has not yet been determined, the appropriate administrative judge).

        (4)   Only 1 written request shall be necessary for any given case. Once application is made, all media are considered to have applied, i.e., if a television station makes an application, newspaper coverage is included and vice versa.

        (5)   When more than 1 media representative requests extended coverage, the media collectively shall designate 1 representative to work with the coordinator.

        (f)    Process for deciding extended coverage.

        (1)   Prior consent of a judge shall not be required for extended coverage of any appellate proceeding, but prior notice of extended coverage shall be provided to the appellate court. Extended coverage of all other proceedings shall not be permitted without the prior determination of the judge.

        (2)   The judge shall promptly dispose, orally and on the record, of each request for extended coverage or by written order if requested by any party and, if coverage is denied, shall make written findings of fact and conclusions of law.

        (3)   A judge shall grant requests for extended coverage of a proceeding unless, by a preponderance of the evidence, good cause is found to prohibit such coverage. In situations where the judge has found good cause to prohibit extended coverage, the judge may permit extended coverage of only a portion or portions of the proceeding.

        (4)   A party may object to extended coverage at the beginning of any new stage of the case. If a party objects or if the court orders on its own motion, there shall be a hearing to determine whether extended coverage shall be allowed for that stage of the case. If no party objects, no hearing shall be necessary. At such hearing representatives from media organizations or educational institutions shall have standing to be heard and may present evidence. Any objection by a party (or a self-represented party) to extended coverage must be made before extended coverage begins for that stage of the case.

        (5)   A presumption of good cause shall exist in the following circumstances:

        (i)    the proceeding is for the purpose of determining the admissibility of evidence; or

        (ii)   testimony regarding trade secrets is being received; or

        (iii)  testimony of child witnesses is being received; or

        (iv)  testimony of a complaining witness in a prosecution for any sexual offense under Part V of the Hawaiʻi Penal Code is being received; or

        (v)   a witness would be put in substantial jeopardy of serious bodily injury; or

        (vi)  testimony of undercover law enforcement agents who are involved in other ongoing undercover investigations is being received.

        (6)   At any time during the proceedings for which extended coverage has been granted, a judge acting on the judge’s own initiative or on the objection of a witness may, upon establishing that good cause exists following a hearing, terminate or limit extended coverage.

        (7)   All objections to extended coverage shall be noted on the record of the proceedings and in the minutes of the court.

        (8)   The media or educational institution or any party may obtain review of an order regarding extended coverage by filing a motion for review addressed to the appropriate administrative judge, who shall have full power to vacate and modify the order. A motion for review shall be filed no later than 5 days after the filing of the order regarding coverage. In disposing of the motion for review the administrative judge shall comply with subdivision (f)(2) of this Rule. The record of the proceeding before the administrative judge shall be made part of the record of the underlying proceeding for which coverage is sought. Where a request for extended coverage is initially referred to an administrative judge and ruled upon, there shall be no further review.

        (9)   A party may seek appellate review of an order regarding extended coverage, including any such order issued by the administrative judge, pursuant to the procedures available for review of other interlocutory orders, but immediate appellate review of such an order shall not be available as a matter of right.


        (g)   Restrictions on extended coverage.

        (1)   There shall be no extended coverage of any proceedings which are by law closed to the public, or which may be closed to the public and have been closed by the judge. Examples of proceedings closed to the public include, but are not limited to, grand jury proceedings, juvenile cases, child abuse and neglect cases, paternity cases, and adoption cases.

        (2)   There shall be no extended coverage of a juror or a prospective juror.

        (3)   There shall be no extended coverage of conferences between attorneys and clients, or between co-counsel and clients or parties, or between counsel and the judge held at the bench.

        (4)   There shall be no extended coverage of any conference or proceedings held in the chambers of a judge or any in camera proceeding.

        (h)   Procedure for extended coverage.

        (1)   Extended coverage shall be conducted in compliance with the guidelines in Rule 5.2 of these Rules so as not to be distracting and not to interfere with the solemnity, decorum, and dignity which must attend the making of decisions that affect the life, liberty, or property of citizens.

        (2)   If a judge finds that the provisions of this Rule or the guidelines in Rule 5.2 of these Rules have been violated by those seeking extended coverage or the continuation thereof, a judge may exercise discretion to limit or terminate extended coverage as to the offending extended coverage personnel or equipment.

        (3)   If pooling arrangements are necessary for compliance with this Rule or with guidelines for extended coverage contained in Rule 5.2 of these Rules, pooling arrangements shall be instituted and shall be the sole responsibility of the media and shall not require the judge, coordinator, or other court personnel to mediate disputes.

        (Added August 29, 1983, effective January 1, 1984; renumbered September 1984; amended effective December 9, 1985; amended effective January 2, 1987; amended effective December 7, 1987; amended effective May 10, 1988; amended effective September 28, 1990; further amended April 26, 1994, effective April 26, 1994; further amended effective June 10, 1997; further amended November 25, 2008, effective January 1, 2009; further amended July 29, 2013, effective January 1, 2014; effective date of July 29, 2013 order stayed until July 1, 2014 by order entered December10, 2013; effective date of December 10, 2013 order stayed continued to December 31, 2014 by order entered June 17, 2014; further amended December 22, 2014, effective January 1, 2015 to December 31, 2015; adopted permanently and further amended November 25, 2015, effective January 1, 2016; further amended April 9, 2018, effective July 1, 2018; further amended October 2, 2018, effective January 1, 2019; further amended May 15, 2020, effective July 1, 2020; further amended June 28, 2021, effective July 1, 2021.)

 

Rule 5.2.       USE OF ELECTRONIC DEVICES

                     IN COURT.

        (a)   Use of professional-grade audiovisual equipment.

        (1)   Camera, sound, and lighting equipment.  One television camera or approved mobile device, operated by 1 camera person designated as the pool station or network, shall be permitted to record a courtroom proceeding at one time. A second camera may be admitted for live coverage at the discretion of the judge.

        (A)  Television or video camera equipment criteria.  The pool station or network shall use only a portable electronic camera or an approved mobile device which, together with any related equipment to be located in the courtroom, must be unobtrusive in both size and appearance, without distracting sound or light.

        (B)   Sound and lighting equipment criteria.  Only television video and audio equipment, or mobile devices with audiovisual capabilities that do not produce distracting sound or light shall be employed to cover proceedings. No artificial lighting device of any kind shall be permitted.

        (2)   Audio systems.  Not more than 1 audio system shall be permitted in the courtroom for extended coverage of a proceeding. Audio pickup for extended coverage shall be accomplished from any existing audio system present in the courtroom, if such pickup would be technically suitable for broadcast. Any changes in existing audio systems shall be approved by the judge or the judge’s representative. No modifications of existing systems shall be made at public expense. Microphones, wiring, and recording equipment shall be unobtrusive and shall be of adequate technical quality to prevent interference with the proceeding.


        (3)   Minimizing disruption.  Where possible, electronic recording equipment and any operating personnel shall be located outside of the courtroom.

        (4)   Still camera equipment criteria.  One still photographer, using not more than 2 still cameras with not more than 2 lenses for each camera, or 1 still camera and 1 approved mobile device, shall be permitted in a proceeding subject to extended coverage. A second still photographer, using not more than 2 still cameras with not more than 2 lenses for each camera, or 1 still camera and 1 approved mobile device, may be admitted at the judge’s discretion. A still photographer also may use the permitted still camera or approved mobile device to video record proceedings.

        Only still camera equipment, or mobile devices that do not produce distracting sound or light shall be employed to cover proceedings.  No artificial lighting device of any kind shall be permitted.

        (b)   Recording and storage mediums.  Operators of audiovisual equipment should bring to court sufficient video and audio tape capacities or digital storage to obviate tape or digital storage changes except during court recess.

        (c)   Use of mobile devices and all other forms of non-professional audiovisual equipment.

        (1)   Mobile devices having wireless communication capacity may not be used in courtrooms and during proceedings in their wireless communication capacity, unless otherwise authorized by the court.

        (2)   Notwithstanding the provisions of this Rule, a judge may, in the judge’s sole discretion and whether or not extended coverage has been otherwise allowed, grant a timely request by a party, a member of the public, or an individual member of the media, to make an audio recording of the proceedings by means of small, hand-held recorder with a built-in microphone and operated from the seat of the person who made the request, or grant a timely request to use mobile devices having wireless communication capacity, subject to the conditions set forth in subsections (A) and (D) below.

        (A)  Use of electronic devices under this Rule is restricted to law- or court-related business purposes.

        (B)   Electronic devices may not be used to photograph or for audio or video recording, or for audio or video streaming, except as authorized by this Rule and Rule 5.1 of these Rules.

        (C)   Ring tones and other sounds produced by these devices shall be disabled or silenced. Electronic devices brought into the courtroom cannot be used to make or receive calls inside the courtroom, unless otherwise authorized by the court.

        (D)  Within the courtroom, keyboards must be silent. Texting, e-mailing, accessing the internet, and other forms of electronic communication are acceptable uses if conducted without being audibly or visually distracting to others.

        (3)   The presiding judge may designate a portion of the courtroom for the use of electronic devices.

        (4)   The presiding judge of a proceeding may prohibit or further restrict the use of any electronic devices prior to or during proceedings to protect the interest of security, safety, and privacy of parties, jurors, witnesses, attorneys, court personnel, or the public, or to ensure the integrity, decorum, or orderly conduct of proceedings. Failure to adhere to these requirements, prohibitions, or restrictions may result in removal of the person or device from the courtroom or courthouse or the imposition of other sanctions.

        (Added August 29, 1983, effective January 1, 1984, renumbered September 1984; amended effective May 10, 1988; amended effective July 15, 1998; further amended December 22, 2014, effective January 1, 2015 to December 31, 2015; adopted permanently and further amended November 25, 2015, effective January 1, 2016; further amended May 15, 2020, effective July 1, 2020.)

 


Rule 5.3.       USE OF ELECTRONIC DEVICES