EXHIBIT A-1
GUIDELINES OF
PROFESSIONAL COURTESY AND CIVILITY FOR HAWAIʻI LAWYERS
(SCRU-17-0000651)
Appended by Order of August 27, 2004
With Amendments as Noted
The Judiciary
State of Hawaiʻi
EXHIBIT A-1
GUIDELINES OF PROFESSIONAL
COURTESY
AND
CIVILITY FOR HAWAIʻI LAWYERS
Table of Contents
Section 1. SCHEDULING
Section 2. CONTINUANCES AND EXTENSIONS OF TIME
Section 3. SERVICE OF PAPERS
Section 4. PUNCTUALITY
Section 5. WRITINGS SUBMITTED TO THE COURT
Section 6. COMMUNICATIONS WITH CLIENTS AND
ADVERSARIES
Section 7. DISCOVERY
Section 8. MOTION PRACTICE
Section 9. DEALING WITH NONPARTY WITNESSES
Section 10. EX PARTE COMMUNICATIONS WITH THE COURT
Section 11. SETTLEMENT AND ALTERNATIVE DISPUTE
RESOLUTION
Section 12. TRIALS AND HEARINGS
Section 13. PRIVACY
Section 14. DOCUMENT MODIFICATION
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GUIDELINES OF PROFESSIONAL COURTESY AND CIVILITY
FOR HAWAIʻI LAWYERS
The following Guidelines of Professional
Courtesy and Civility for Hawaiʻi Lawyers, adopted by the Hawaiʻi State Bar
Association as representing accepted norms of professional behavior upon which
the successful functioning of the judicial system depends, are adopted by the
Supreme Court of the State of Hawaiʻi.
The Guidelines are not mandatory rules
of professional conduct, nor standards of care, and are not to be used as an
independent basis for either disciplinary charges by the Office of Disciplinary
Counsel or claims of professional negligence.
They are offered for the guidance of lawyers and for the information of
their clients, as well as for reference by the courts.
The practice of law is an honorable and
dignified profession. It is filled with clients in need, busy schedules, and
crowded dockets. These guidelines are aspirational and will hopefully assist
all in the legal profession and the justice system in conducting themselves in
a manner that is fair, efficient, and humane.
(Amended effective October 4, 2004;
further amended December 1, 2017, effective
January 1, 2018.)
Section 1. SCHEDULING.
A lawyer should understand and advise a
client that civility and courtesy in scheduling meetings, hearings, and
discovery are expected, are not to be equated with weakness, and are not
inconsistent with zealous representation of the client.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Makes reasonable efforts to schedule meetings, hearings, and
discovery by agreement whenever possible and considers the scheduling interests
of opposing counsel, the parties, witnesses, and the court. Misunderstandings
are avoided by sending formal notices.
(b) Does not arbitrarily or unreasonably withhold consent to a
request for scheduling accommodations.
(c) Does not engage in delay tactics in scheduling meetings,
hearings and discovery.
(d) Tries to verify the availability of key participants and
witnesses either before a meeting, hearing or trial date is set or if that is
not feasible, immediately after so that the lawyer can promptly notify the
court, or other tribunal, and opposing counsel of any likely problems.
(e) Notifies opposing counsel and, if appropriate, the court or
other tribunal as early as possible when scheduled meetings, hearings or
depositions must be canceled or rescheduled, including due to a pending
settlement, mediation, or other significant change in the status of the matter.
(Amended December 1, 2017, effective
January 1, 2018; further amended August 22, 2023, effective January 1, 2024.)
Section 2. CONTINUANCES AND
EXTENSIONS OF TIME.
Consistent with existing law and court
orders, a lawyer should agree to reasonable requests for extensions of time
when the legitimate interests of the lawyer’s client will not be adversely
affected.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Agrees to reasonable requests for extensions of time or
continuances without requiring motions or other formalities.
(b) Considers any reasonable request for extensions of time in light
of the need for prompt resolution of matters, the consideration that should be
extended to an opponent’s professional and personal schedule, the opponent’s
willingness to grant reciprocal extensions, the time actually needed for the
task, and whether it is likely a court would grant the extension if asked to do
so.
(c) Does not engage in the strategy of not agreeing to reasonable
requests for time extensions simply to appear “tough.”
(d) Does not seek extensions or continuances for the purpose of
harassment or extending litigation.
(e) Does not condition agreement to an extension on terms that alter
the rights of the parties in the litigation, such as the right to move against
a complaint.
(f) Agrees to reasonable requests
for extensions of time when new counsel is substituted in for prior counsel.
(Amended
effective October 4, 2004; further amended December 1, 2017, effective January
1, 2018; further amended August 22, 2023, effective January 1, 2024.)
Section 3. SERVICE OF PAPERS.
The time and manner of service of papers
should not be calculated to disadvantage or embarrass the party receiving the
papers.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Does not serve papers simply to take advantage of an opponent’s
known absence from the office or at a time or in a manner designed to
inconvenience an adversary, such as late on Friday afternoon or the day
preceding a secular or religious holiday.
(b) Serves papers by personal delivery or by electronic means
(including email or facsimile transmission) when it is likely that service by
mail, even when allowed, will prejudice the opposing party.
(c) Serves papers on an individual attorney known to be responsible
for the matter at the attorney’s principal place of work.
(d) Refrains from using the mode, timing or place of serving papers
primarily to embarrass a party or witness.
(Amended December 1, 2017, effective
January 1, 2018; further amended August 22, 2023, effective January 1, 2024.)
Section 4. PUNCTUALITY.
A lawyer should be punctual in
communications with others and in honoring scheduled appearances.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Arrives sufficiently in advance of trials, hearings, meetings,
depositions, or other scheduled events so that preliminary matters can be
resolved.
(b) Timely notifies all other participants and the court when, for a
reason beyond the lawyer’s control, the lawyer will be unavoidably late.
(c) Timely notifies all other participants and the court when the
lawyer is aware that a participant will be late for a scheduled event.
(Amended August 22, 2023, effective
January 1, 2024.)
Section 5. WRITINGS SUBMITTED TO
THE COURT (including but not
exclusively limited to
briefs,
memoranda, affidavits,
and
declarations).
Written materials submitted to the court
should always be factual and concise and should accurately state the current
law and fairly represent the parties’ position without unfairly attacking the
opposing party or opposing counsel.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Does not use facts that are not properly introduced in the case
and part of the record in the case in written briefs or memoranda of points and
authorities.
(b) Does not degrade the intelligence, ethics, morals, integrity, or
personal behavior of the opposing party, counsel or witness unless such matters
are at issue in the proceeding.
(Amended effective October 4, 2004.)
Section 6. COMMUNICATIONS WITH
CLIENTS AND ADVERSARIES.
A lawyer should at all times be civil,
courteous, and accurate in communication with clients and adversaries, whether
in writing or orally.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Does not send a written communication assigning to an opposing
party a position that party has not taken or to create a “record” of events
that have not occurred.
(b) Makes sparing use of written communications intended only to
make a record and then only when the lawyer thinks it is necessary given all
the circumstances.
(c) Does not send a copy of a written communication addressed to
opposing counsel to the judge unless specifically allowed by the court.
(d) Does not fail or refuse, without justification, to respond to
the phone calls and written communications of the lawyer’s clients and/or
opposing counsel.
(Amended October 4, 2004; further
amended December 1, 2017, effective January 1, 2018; further amended August 22,
2023, effective January 1, 2024.)
Section 7. DISCOVERY.
A lawyer should exercise good faith and
fairness when conducting discovery and should not use any form of discovery,
the scheduling of discovery, or any other part of the discovery process as a
means of harassing opposing counsel or the opposing party or as a means of
delaying the timely, efficient and cost effective
resolution of a dispute.
Specifically:
(a) As to Depositions, a lawyer
who manifests professional courtesy and civility:
(1) Takes
depositions only where needed to learn facts or information or to preserve
testimony. (2) Accommodates the schedules of opposing counsel and the
deponent in scheduling depositions, where it is possible to do so without
prejudicing the client’s rights.
(3) Ordinarily
shows deference to a deposition scheduled and noticed by another party of the
reasonable near future by not scheduling another deposition in the same case
for an earlier date without the agreement of opposing counsel.
(4) Does
not delay a deposition for bad faith purposes but only if necessary to meet
real scheduling problems.
(5) Does
not ask questions about a deponent’s personal affairs or question a deponent’s
integrity where such questions are irrelevant to the subject matter or the
deposition.
(6) Avoids
repetitive or argumentative questions or those asked solely for purposes of
harassment.
(7) Limits
objections to those that are well founded and necessary for the protection of
the client’s interest, and remembers that most objections are preserved and
need be made only when the form of a question is defective or privileged
information is sought.
(8) Does
not direct a deponent to refuse to answer a question unless the question seeks
privileged information or is calculated to harass.
(9) Refrains
from self-serving speeches during depositions, no matter which party the lawyer
represents.
(10) Does not engage in any conduct
during a deposition that is likely to offend others present and that would
violate prevalent standards of behavior in judicial proceedings.
(b) As to document requests, a lawyer who manifests professional
courtesy and civility:
(1) Limits
requests for production of documents to documents actually and reasonably
believed to be needed for the prosecution or defense of an action and does not
make demands to harass or embarrass a party or witness or to impose an
inordinate burden or expense in responding.
(2) Does
not draft requests for production of documents and things so broadly that they
encompass items clearly not relevant to the subject matter of the case or
clearly not reasonably calculated to lead to the discovery of admissible
evidence.
(3) Does
not interpret the request in an artificially restrictive manner in an attempt
to avoid disclosure.
(4) Withholds
documents and things on the grounds of privilege or confidentiality only where
appropriate.
(5) Does
not produce documents in a way calculated to hide or obscure the existence of
particular documents and, where not unreasonably burdensome to do so, produces
documents in a reasonably organized and intelligible fashion.
(6)
Timely and without unreasonable objections produces requested documents to
opposing counsel to allow sufficient time for inspection prior to depositions.
(c) As to interrogatories, a lawyer who manifests professional
courtesy and civility:
(1) Uses
interrogatories sparingly and never to harass or impose undue burden or expense
on the opposing party.
(2) Does
not read or respond to interrogatories in an artificial manner designed to
assure that answers are not truly responsive.
(3) Does
not object to interrogatories except when a good faith belief exists in the
merit of the objections, or make objections for the purpose of withholding
relevant information, and, if an interrogatory is objectionable only in part,
answers the unobjectionable portion.
(d) As to discovery conferences, a lawyer who manifests professional
courtesy and civility:
(1) Does
not request a discovery conference without first attempting to confer with
opposing counsel to narrow the issues of dispute.
(2) Makes
sparing use of discovery conferences in light of the burden of time and expense
upon the parties and the court.
(Amended effective October 4, 2004;
further amended December 1, 2017, effective January 1, 2018; further amended
August 22, 2023, effective January 1, 2024.)
Section 8. MOTION PRACTICE.
Motions should be filed sparingly, only
in good faith and when the issue cannot be otherwise resolved.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Engages in more than a mere pro forma effort to resolve the
issue before filing a motion and, where appropriate, will certify in the motion
the efforts to resolve the issue.
(b) Does not engage in conduct that forces opposing counsel to file
a motion and then not oppose the motion.
Section 9. DEALING WITH NONPARTY
WITNESSES.
Dealings with nonparty witnesses should
be courteous and designed to leave the witness with an appropriately good
impression of the legal system.
Specifically, a lawyer who manifests
professional courtesy and civility will have a copy of the notice of
deposition, or a substantial equivalent, served with the subpoena, and will
serve a copy of the subpoena upon all counsel.
Section 10. EX
PARTE
COMMUNICATIONS WITH
THE COURT.
Where applicable laws or rules permit an
ex parte application or communication to the
court, before making such an application or communication, a lawyer who
manifests professional courtesy and civility makes diligent efforts to notify
the opposing party or a lawyer known to represent or likely to represent the
opposing party and makes reasonable efforts to accommodate the schedule of such
lawyer to permit the opposing party to be represented.
Where rules permit an ex parte application or communication to the court in an
emergency situation, a lawyer who manifests professional courtesy and civility
makes such an application or communication (including an application to shorten
an otherwise applicable time period) only where there is a bona fide emergency
such that the lawyer’s client will be seriously prejudiced if the application
or communication were made with regular notice.
(Amended December 1, 2017, effective
January 1, 2018.)
Section 11. SETTLEMENT
AND
ALTERNATIVE DISPUTE
RESOLUTION.
A lawyer should raise and explore the
issue of settlement and alternative dispute resolution in every case as soon as
the case can be evaluated and, if feasible, mediation should be encouraged.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Advises the client at the outset of the availability of
alternative dispute resolution.
(b) Attempts to de-escalate any controversy and bring the parties
together.
(c) Does not falsely hold out the possibility of settlement as a
means for terminating discovery or delaying trial.
(d) Considers whether the client’s interest could be adequately
served and the controversy more expeditiously and economically disposed of by
arbitration, mediation or other form of alternative dispute resolution.
(e) Does not make a false statement of material fact or law and is
reasonable in settlement activities.
(Amended December 1, 2017, effective
January 1, 2018.)
Section 12. TRIALS
AND HEARINGS.
A lawyer should act in trial and
hearings in a manner that promotes a positive image of the profession, assists
the court in properly reviewing the case, and displays appropriate respect for
the justice system.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Is punctual and prepared for all court appearances, including
remote hearings where a lawyer shall appear with the video camera on and be
clearly visible, unless otherwise excused by the court.
(b) Dresses in appropriate courtroom attire, unless exceptional
circumstances dictate otherwise for all court appearances, including remote
hearings.
(c) Engages in appropriate conduct for all court appearances,
including remote hearings, and deals with parties, counsel, witnesses, jurors
or prospective jurors, court personnel and the judge with courtesy and respect.
(d) Makes objections during a trial or hearing for legitimate and
good faith reasons and does not make such objections only for the purpose of
harassment or delay.
(e) Honors requests made by opposing counsel during trial that do
not prejudice the rights of the lawyer’s client or sacrifice tactical
advantage.
(f) While appearing before the court, addresses all arguments,
objections and requests to the court, rather than directly to opposing counsel.
(Amended December 1, 2017, effective
January 1, 2018; further amended August 22, 2023, effective January 1, 2024.)
Section 13. PRIVACY.
All matters should be handled with due
respect for the rights or privacy of parties and non-parties.
Specifically,
a lawyer who manifests professional courtesy and civility:
(a) Does not inquire into, nor attempt to use, nor threaten to use,
facts about the private lives of any party or other individual for purpose of
gaining an advantage in a case; and where sensitive matters are relevant to an
issue, will pursue such inquiry as narrowly as reasonably possible.
(b) Cooperates, if it is necessary to inquire into such matters, in
arranging for protective measures designed to assure that the information
revealed is disclosed only to those persons who need it in order to present the
relevant evidence to the court.
(Amended effective October 4, 2004.)
Section 14. DOCUMENT
MODIFICATION.
A lawyer should clearly identify for
other counsel or parties all changes that a lawyer makes in documents, where
appropriate or necessary to ensure fairness and clarity.
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