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
(This
page intentionally left blank.)
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.
(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.)
(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.)
(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.)
(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.)
2.19. 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.)
(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.)
2.22. 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.)
(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.)
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.)