Hawai’i Bar Journal - December 2021

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BAR JOURNAL A N O FFICIAL P UBLICATION

OF THE

H AWAII S TATE BAR A SSOCIATION D ECEMBER 2021 $5.00

TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 12

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

ARTICLES 44

Community Mediation on Oahu: During the Pandemic and Beyond

by Tracey S. Wiltgen

12 19

by Office of Disciplinary Counsel

Guidelines for Closing a Law Practice

16 24

by Carol K. Muranaka

Access to Justice and the Time of COVID

OF NOTE

HSBA OFFICERS President Levi Hookano President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

23

HSBA Happenings

26

Case Notes

27

Disciplinary Notices

20 28

Court Briefs

30 22

Off the Record

31 28

Classifieds

30 31

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

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50.

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

On the Cover:.Great Frond by David Friedman. The spirit of color, the color of spirit. Friedman’s art is a graphic meditation. Luminous canvases reveal the brilliance, mystery and vitality of Nature's extraordinary beauty. His creative evolution is fueled by the intersection of fine and graphic arts.To see more of his work visit Cedar Street Galleries, at 817 Cedar Street in Honolulu, or visit www.cedarstreetgalleries.com

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

In February 2021, the Accelerated Divorce Mediation

Over the past 20 years, mediatraining was adapted to Zoom. tion has been embraced as a key dispute-resolution process for resolving bigger role in addressing ongoing, as disputes large and small. From small well as new issues created by the panclaims matters, divorcing couples, demic. MCP had just moved into a complex construction disputes, emnew building it had recently purchased ployment complaints, and more, when Governor Ige ordered Hawaii mediation is often the first approach, residents to stay at home and work and generally the final step, in working from home on March 23, 2020. out a settlement.

Because of MCP’s solid foundation With this proven track record of and history, and the ongoing help of success, it is not surprising that when its supporters, MCP was able to turn the Coronavirus pandemic (pandemic) what could have been a potentially devhit Hawaii in early 2020, closing busiasting situation into a unique opportunesses, and shattering personal lives, nity to better serve the community and individuals, businesses, the courts, and take community mediation on Oahu to government turned to mediation even a new level. more. While private mediators were In Jim Collins’s bestseller book, Good available to assist individuals with the to Great, Collins emphasized that one of financial means to pay for the services,

by Tracey S. Wiltgen the key strategies that enable great comthe Mediation Center of the Pacific panies to achieve breakthrough results, is (MCP), a nonprofit 501(c) corporation, was the sole resource on to make steady, consistent progress, rather than reactive deciOahu for providing accessible mediation services for all. As a sion-making and following short-term trends.3 He compared result, MCP’s caseload grew exponentially over the past two this concept to pushing a large, heavy flywheel. It takes a lot of years, from serving approximately 7,000 people in 2019 prior effort to get started and build energy, but with persistent pushto COVID, to serving more than 10,000 people in the recently ing in a consistent direction over a long period, the flywheel ended fiscal year, 2020-2021. builds momentum and eventually can’t be stopped. Making Nonprofit organizations play a vital role in building healthy steady, consistent progress since its formation, is the approach communities by providing critical services that contribute to that guided MCP to where it is today, and ultimately enabled it economic stability and mobility.1 When a crisis occurs, the to step to a higher level to address pressing community needs services of nonprofits are typically needed even more. To truly during the pandemic. succeed, in good times and more so in challenging times, a nonAt the time it was established in 1979, MCP’s leaders profit must be financially stable, with a passionate volunteer struggled with what was initially viewed as competing purposes. base, and committed and strong leadership – among other On one hand, it was believed that the focus of the organization things.2 Not surprisingly, it was due to MCP’s generous funders, should be on addressing cases directly from the community. Aldedicated board leaders and directors, mediators, and staff who ternately, others believed the primary purpose should be to help believed in its mission and work over the past 43 years, that the overburdened courts.4 Over the years, it was recognized the MCP was strategically positioned to quickly assume an even two paths were not mutually exclusive. In fact, as the courts

Community Mediation on Oahu:

During the Pandemic and Beyond

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HAWAII BAR JOURNAL

embraced mediation and ordered more cases to MCP, it became clear that strengthening outreach and direct services to the community would not only encourage the early access of mediation, thereby increasing the likelihood of settlement, it would also help to keep people out of the courts altogether. MCP therefore, methodically developed strategies to address community needs and issues at an early stage, while simultaneously strengthening programs that served the courts. This fact would prove to be important when MCP was asked to create a pre-filing eviction mediation program on Oahu when the moratorium on evictions ended.

As MCP grew from its grassroots beginning, in early 1993, the seed of an idea was planted for MCP to own a permanent home as a key step to becoming an integral part of Oahu’s communities.

While the idea was appealing, and generous donor Earl M. Chapman created a building fund, the board and staff in its wisdom, recognized the organization was too young to take on such an ambitious project. Instead, they chose to remain focused on program development, strengthening operations, and expanding fundraising efforts. As a result of consistently adhering to these strategic principles and steps, MCP successfully expanded its services in key areas where increased access to justice was needed, such as domestic and landlord-tenant matters, as well as created new programs to meet pressing community needs such as the civil rights, special education, and Kupuna Pono Programs.5 Valuable partnerships and collaborations were established with other organizations such as Legal Aid Society of Hawaii, the Access to Justice Commission, Catholic Charities, government agencies including the Hawaii Real Estate Commission and the Hawaii Department of Education, and healthcare providers such as Kaiser Permanente and St. Francis, and many others. Many of these partnerships ultimately played a key role in taking mediation to a new level during the pandemic.

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5

Above left: Regular trainings and workshops help the mediators to hone their skills. Above right: The MCP team engaged in a strategic planning session to strengthen operations.

MCP also developed an outstanding training program that was embraced by the Pacific region of the U.S. Navy, businesses, and individuals throughout the State and beyond. Through the training program, thousands of individuals learn mediation skills each year, which they incorporate into their personal and professional lives. Over the past twenty-five years, MCP conducted mediation trainings in Guam, Japan, Korea, and American Samoa, in addition to the many mediation trainings conducted for local businesses and organizations from the Honolulu Police Department, the Department of Education, the Department of Labor, U.S. veterans, Catholic Charities, and many others. The training program now serves as an important revenue-generating source for MCP, as well as a strategy to increase the use of mediation in Hawaii and beyond.

To further expand and diversify its financial resources, an annual signature fundraiser was created. The event grew from a modest gathering under the stars in the courtyard of La Pietra, to a large gala at the Hawaii Convention Center. And finally, to manage the growing programs, new staff positions were created, HR and accounting services were outsourced, and technology was incorporated to enable daily operations to run as smoothly, efficiently, and cost-effectively as possible. In keeping with the core concepts of Collins’s book Good to Great, MCP applied technologies that accelerated its strength, including moving operations to a cloud-based platform and creating an online chat-based mediation program for small business disputes.

Together, the robust programs, partnerships, solid operations, and increased fundraising strategies, provided a strong foundation for the organization and a proven track record of success. As a result, in 2018, the MCP board and staff were ready to make the dream of having a permanent home a reality. A feasibility study was conducted, and based on the positive outcomes, a capital campaign was commenced and zealously

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championed by then Board President, Sidney “Sid” Ayabe.

Thanks to Sid and the many generous donors who believed in the vision and the work of MCP, by February 2020, the funds were raised, the perfect building identified, and the purchase completed.6 To use the analogy from Good to Great, MCP’s flywheel was in motion and was moving full steam ahead.

While outwardly it appeared to be the worst time to take on more new challenges, the strong foundation built from years of consistent, methodical growth, provided MCP with the strength and resilience to quickly adapt in March 2020 when the Governor’s order sent everyone home. With a cloud-based system already in place, the staff immediately transitioned to managing the client calls and scheduling of mediations from home, while meeting daily via the Teams platform to remain connected and stay on top of any issues. The goodwill created

by MCP over the years inspired a core group of dedicated mediators to roll up their sleeves and quickly learn to mediate via Zoom.7 And while the remote platform for mediating enabled MCP to maintain services, it clearly wasn’t the most accessible format for everyone.

Nonprofit consultant Peter Brinckerhoff states “the first rule of not-for-profits is mission, mission, and more mission.”8 And while an organization’s mission should guide its work and programs, in a study of 12 high-impact nonprofits, researchers from the Center for Social Innovation at Stanford University’s Graduate School of Business concluded that successful nonprofits “look to compelling missions, visions, and shared values.

But only a few of these groups spend time fine-tuning their mission statement on paper; most of them are too busy living it.”9 As a nonprofit that has always lived by its mission of providing high-quality mediation and dispute-resolution services that are affordable and accessible for everyone, it became clear that MCP needed to do more to ensure services were truly accessible for all during the pandemic. The spacious new

Solutions Start Here building enabled the MCP staff to quickly return to work and offer limited in-person mediation sessions, while still social distancing and remaining safe.

However, the efforts didn’t stop there.

Recognizing that not everyone was comfortable with in-person mediations (including mediators as well as clients), with the help of private foundations, MCP purchased and outfitted every mediation room with videoconference equipment. With the equipment in place, MCP became accessible for those without equipment or technological know-how. They could easily and safely participate in a videoconference mediation from a private mediation room at MCP, with support from the staff.

The adaptations to make services accessible were implemented at an opportune time. The number of court referrals were steadily increasing in the traditional areas of domestic, consumermerchant, and small claims, while self-referrals to address new issues created by the pandemic in the areas of family, workplace, and landlord-tenant, were also growing. Because the annual fundraiser and in-person trainings could not be held to generate revenue, MCP was fortunate to receive a PPP loan to maintain current staffing, as well as generous grant awards from private foundations and individual donors who were flexible with the use of their gifts and grants, enabling MCP to expand the staff and operations as the caseload grew.10 Equally important, during this time, MCP was invited to participate in two important collaborative efforts comprised of a broad cross-section of stakeholders, some of whom were current partners.

The work of these two groups became the catalyst that moved community mediation into the forefront to assume an even bigger role with assisting landlords and tenants impacted by the pandemic.

The first collaborative group, the Housing Sub-Committee on COVID-19 and housing, convened by House Speaker Scott Saiki and initially chaired by community organizer and social

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entrepreneur, James response to this recomKoshiba,11 was tasked mendation, the rental with gathering commuassistance programs nity input and developing incorporated the question recommendations on how into the application Coronavirus relief funds process of whether tenants could be used to address wanted to participate in housing needs. The commediation. And while mittee was comprised of several hundred tenants government, private founexpressed interest in medation, nonprofit, diation, when contacted academic, and private

by MCP, most deterindustry from throughout mined mediation wasn’t the state, as well as indinecessary once they A large percentage of MCP’s mediations result in agreements and 95% of the participants report they viduals who had experireceived rental assistance. would use mediation again. enced housing insecurity.

Despite the low response Through weekly meetings, to using mediation, the from other stakeholders and created a they bonded, engaged in difficult converprocess brought the possibility of early lessons-learned white paper with many sations, and brainstormed the best mediation to a new level and laid the valuable recommendations of what to approaches for quickly disbursing the foundation for the eviction mediation consider for future relief and emergency rental assistance funds and supporting program that was developed in the response efforts. One of those recomHawaii’s tenants at risk of losing their following months. mendations included investing in mediahousing. Through their work, the comThe second collaborative group was tion for people facing eviction once the mittee, led by Koshiba, gathered input convened

by Representative Nadine eviction moratorium was lifted. In

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Nakamura and Representative Troy Hashimoto to develop a plan that would prevent a flood of evictions in the courts when the moratorium on evictions was ended. Like the Housing Sub-Committee, to ensure all voices were heard, this second group was also comprised of various stakeholders including representatives for landlords, tenants, property managers, mediation, nonprofits, rental assistance programs, the judiciary, other government agencies, and more. After having the moratorium in place for more than a year, the welfare of landlords, as well as the need to keep tenants housed were grave, emotionally charged concerns.

At the time, Professor Phil Garboden of University of Hawaii Economic Research Organization projected that approximately 10,000 tenants were behind on their rent, with over 6,000 of them living on Oahu.12 The potential for thousands of evictions and increased homelessness was daunting. Conversations to support the needs of landlords and tenants, as well as keeping them out of court when the moratorium ended, were challenging.

To the credit of all, and the focused leadership of representatives Nakamura and Hashimoto who kept the conversations going, a plan was agreed upon to present to the legislature. That plan was incorporated into HB 1376.

A Chinese Proverb states “when the winds of change blow, some people build walls and others build windmills.” Representatives Nakamura and Hashimoto and the members of the eviction prevention group, as well as the Housing Sub-Committee led by James Koshiba, truly built windmills. Their combined positive energy and willingness to collaborate during the most challenging of times, ultimately resulted in a creative strategy that positively impacted Hawaii’s communities and took community mediation to an entirely new level.

Following approval by the legislature, HB 1376 was signed into law as Act 57

by Governor Ige on June 16, 2021. The law became effective when the state eviction moratorium ended on August 6, 2021.

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Act 57 has three key parts. First, it created a tiered system of filing for evictions starting with tenants who were four months or more behind on their rent, moving 30 days later to allow for the eviction of tenants who were three months behind, then an additional 60 days later to tenants two months behind, and finally, following an additional 60 days, to tenants one month behind.

Second, the Act increased the notice requirement of eviction to tenants to fifteen days. And lastly, the Act required landlords to participate in mediation if the tenant agreed to mediate within the fifteen-day notice period before the landlord could file for eviction. Encouraging landlords and tenants to engage in productive conversations through mediation provided them with the opportunity to reach mutually beneficial agreements such as working together to access rental assistance to repay the landlord for outstanding rent, as well as other payment

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www.dprhawaii.com 10 December 2021

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plans and agreements that allow the tenant to remain in the residence and avoid the eviction process altogether.

With the approval of HB 1376 and the creation of Act 57, community mediation centers throughout the State needed to be prepared for an onslaught of cases, over and above the cases they were currently managing. For MCP, who was already experiencing a large increase in requests for mediation with fewer mediators to assign to those requests, new approaches needed to be implemented quickly. With the possibility of receiving over 6,000 mediation requests as indicated by Dr. Garboden’s analysis of tenants behind on their rent, the MCP staff worked diligently to come up with an innovative plan for the Act 57 Statewide Eviction Mediation Program (SEMP) on Oahu. Building on lessons learned from a rich history of adhering to core values and incorporating technology methodically into operations, an innovative plan

of action was created and implemented.

MCP interviewed and recruited a team of experienced, independent contractor mediators who would be readily available to mediate four to five cases a day, five to six days a week via Zoom. A team of mediators willing and available to mediate in-person as needed, was also coordinated. The staff researched and purchased an electronic scheduling program that allowed for the quick assignment of mediators and scheduling of cases for each mediation. And finally, a dedicated staff of temporary employees were recruited and quickly trained to oversee the intake and management of the cases. By August 7th, when the moratorium had ended and SEMP commenced, MCP was ready.

Thanks to MCP’s solid foundation, quick preparation, and adherence to its mission, in a little over two months from the start of Act 57, over 674 cases were opened, and more than 252 mediations

conducted with 90% of them and longer-term impact of resulting in agreement. This MCP’s services in Fiscal 2022, work is in addition to the will far exceed the $10,780,000 more than 500 cases opened financial impact that MCP and managed by MCP during made on Oahu’s communities the first three months of fiscal in Fiscal Year 2016. year 2021-2022 through the Equally important as regular mediation programs. the positive social and financial And while MCP was pleased impacts MCP’s work has made with the outcomes of the to Oahu’s communities over SEMP cases mediated and the the past months, are the many positive feedback from the parlessons and new strategies that ticipants, a large percentage of have been learned and will be the tenants who received 15incorporated into the future day notices from their landwork and initiatives of MCP. The board members responsible for implementing the strategic plan and leading a successful lords, never responded to the For example, offering the campaign that resulted in the purchase of the building. opportunity to mediate. To options of remote, as well as address this concern, MCP in-person mediating, will be surveys completed by the mediation parreached out to various partners including continued, even after social distancing is ticipants. The positive impact is also the members of the Housing Sub-Comno longer required. MCP is also explorreflected by the large number of cases mittee on COVID-19, the Eviction Preing new ways to offer on-site mediation that are kept out of the court system vention group, and the Koolau Housing at the courts via Zoom. The valuable when parties settle (which is especially Hui formed by the Harold K. Castle partnerships that have grown and flourimportant in the eviction mediations that Foundation to support Windward Oahu ished over the past year, will be mainresult in agreements), as well as with the communities. Together, effective outtained and nurtured, as they have truly many couples and family members who reach strategies were formulated and taken community mediation and MCP, stop fighting when they reach a resolution implemented. In addition to participatto a whole new level. And hopefully in mediation. ing in multiple panel presentations with soon, some of those meetings can safely In a study conducted by MCP in the various partners, MCP translated take place in MCP’s building, rather than 2016 to show the value of its services and via Zoom. And finally, the structure creflyers created by the Hawaii Community the critical impact that every dollar Foundation’s public relations professionated for the eviction mediation program makes, MCP commissioned Community als into multiple languages. With the will be used as a model for building fuServices Analysis LLC to conduct a “Sosupport of Hawaii Appleseed Center for ture programs that are time-sensitive, cial Return on Investment” analysis for a Law and Economic Justice and the four with a high case volume. year-long period ending on June 30, other community mediation centers The past year and a half have truly 2016. The results of that survey showed throughout the state, radio and television been one of exceptional growth, change, that the total immediate direct and PSAs were created and will soon be and adapting for MCP. The organizalonger-term consequential outcome value tion was able to rise to the occasion to aired. While outreach efforts continue to of the services delivered by MCP during evolve, MCP anticipates assisting many meet these challenges because of its solid Fiscal Year 2016 was $10,780,000.14 more landlords and tenants over the next history of support from the community During that twelve-month period, MCP six months. who believe in its work. The volunteer managed 1,743 cases and conducted According to the National Council mediators who continued mediating de1,173 mediations.

Five years later, in the of Nonprofits, “every person in the spite learning a new approach via Zoom, first three months of Fiscal Year 2022, United States benefits from the work of the funders who continued giving and ofMCP opened 1,145 cases and conducted nonprofits in one way or another, fered flexibility with the funds they 13 527 mediations. With no sign of slowing whether they realize it or not.” The awarded, the unique collaborative groups down, the number of cases managed and MCP had the privilege to work with over work of MCP clearly positively impacted thousands of people over the past year, as mediated by MCP in the current fiscal the past year, and the dedicated Board of year, will be nearly double the amount well as in the prior years. The positive Directors led by strong leadership who that the Social Return on Investment impact is reflected in the agreements trusted the staff and tirelessly raised analysis was based on in Fiscal Year reached by the parties in mediation, as needed funds to keep the organization 2016. Thus, the total immediate direct well as the positive responses in the exit (Continued on page 30)

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(Ed. Note: The following questions and responses can be found at the Disciplinary Board’s website under the “Resources” tab, “Practice Pointers” — https://dbhawaii.org/practicepointers/.)

5. RSCH 2.20 Trusteeship Contact the Office of Disciplinary Counsel to inform them of the death or disability of the attorney to assist you in petitioning the Hawai’i Supreme Court to be appointed a trustee for the handling of return of client files and funds. RSCH provides that trustees and assistants appointed pursuant to RSCH 2.20 shall be immune from suit and liability for any conduct in the course of their official duties.

Guidelines for

CLOSING

Why is closing down a law practice any different from closing down any other business?

The major difference is the ethical considerations superimposed on the task. Most of the ethical conditions are designed to either protect the confidentiality of client information (HRPC 1.6) and/or to prevent other lawyers from offering to help the clients because of solicitation concerns (HRPC 7.3). In addition, counsel should be on the lookout for potential conflicts of interest (HRPC 1.7 and HRPC 1.9), and client trust accounting (HRPC 1.15) and Rule 4 of the Rules Governing Trust Accounting (“RGTA”) issues.

These are general guidelines for attorneys, who may have volunteered to close another attorney’s office or have been designated successor counsel, as well as non- lawyers who are assisting in the closing of a law practice.

This information should not be construed as legal advice.

If you need legal advice, you should consult with an attorney.

A Law Practice

Where to begin?

1. Personal Representative, or Other Designee Check with the attorney’s spouse, or the appropriate designee, such as a personal representative of the estate, to obtain their consent to handle the closure of the law office.

2. Getting Assistance Contact the current or most recent staff to arrange for their employment, (if available) on a full, part-time, or temporary basis, to help in the closing-down process.

3. Bar Association Notifications Make appropriate notifications to the Hawai’i State Bar Association, and any other bar associations, professional associations, and other organizations to which the attorney belonged.

In addition to ending dues billing, the organization may wish to notify others of the death of the member.

4. Successor Counsel Determine if attorney had an arrangement with another attorney (sometimes called a successor counsel) who previously agreed to assume practice of a deceased or disabled attorney.

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How to handle closing of the law practice.

1. Locating and Securing All Physical Premises Get a set of keys to the premises and to interior locked file cabinets and offices. If there is a safe, try to locate the combination. Make sure to check for “satellite” offices. Ask the landlord for help. Ask the most recent employee for help. Change the locks and combinations to protect the office files and assets.

2, Mail Open all mail as it arrives to look for information on pending client matters, bills that have to be paid, tax returns that have to be filed, income that may come in, etc. a. For closed offices, notify post office, building management and some nearby offices. Post office forwarding will prevent mail from being delivered and left at an empty office. Request building management and a nearby office to collect mail, express deliveries, and anything else that might be important. b. Examine incoming mail to determine what subscriptions must be canceled. Newsletters, magazines, lawyer listings, legal supplements, yellow pages, web and Internet services, etc. must be canceled.

3. Lease Arrange with the landlord or other entity for both a cancellation of the old lease or tenancy arrangement and the creation of a new arrangement.

4. Insurance If there is a known CPA or bookkeeper or file system, try to locate all existing insurance policies, including malpractice, workers’ compensation, medical, life, general liability, etc. a. Arrange with the insurance agents or companies involved

for a termination of the policies or the issuance of new policies to protect the person(s) or entities closing down the practice. b. Determine if a “tail” malpractice policy can be obtained to protect the lawyer’s estate. c. Contact the E & O carrier to determine who the deceased or disabled attorney had named as Successor Counsel.

5. Bank Accounts Look for checkbooks, canceled checks, bank statements and incoming mail for information on the existence of checking accounts, savings accounts, and safe deposit boxes. Notify banks.

Determine whether old accounts must be closed and new accounts opened.

6. Credit Card and Check Authorizations and Periodic Charges Many publications and memberships continue unless canceled. Monthly or other periodic charges might automatically be made to a credit card or by charges to a bank account. These must be canceled.

7. Tax Returns Determine which “final” and new tax returns must be filed.

Consider federal, state, and local payroll, occupancy and sales taxes. Identify federal and state employer identification numbers.

8. Website You might consider placing appropriate notifications on the attorney’s website.

9. Voicemail If you can obtain passwords, clear all voicemails that may contain client or other important communications. If passwords are not available disconnect all voicemails for which there is no password and consider using a simple answering machine instead. If the equipment permits, have voicemail forwarded to your phone.

10. E-Mails Arrange for automatic forwarding of all e-mails to a mailbox of the responsible person. It is also possible to reject or answer all e-mails with a notice instructing the sender whom to contact.

11. Computers Take possession and protect all computers. Get technical assistance if necessary to make a back-up disk or tape in the event something happens to the computer(s). Check to see if there are back-up tapes or discs and where they would be located. Take possession of them.

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12. Other Office Equipment With rare exceptions, used law office equipment has relatively little value. You might consider offering the equipment, except computers, to the staff and give the balance to a charity that will haul it away.

13. Business Bank Account Inform the bank that the account should be frozen until it can be determined who can sign checks or otherwise handle the business’s remaining financial affairs, such as a personal representative, spouse, etc.

14. Non-client records Books of account, bank statements, paid bills, etc., can usually be destroyed after the necessary time for income tax or malpractice or other laws.

What about client matters?

1. Open Matters a. If possible, run a computer search to determine if the attorney is attorney of record on any open matters. b. If you are an attorney in ongoing matters, be on the lookout for potential conflicts of interest(s) that you may encounter in reviewing a list of open cases. c. Examine all incoming mail to determine open client matters.

2. Successor Attorney a. Be especially alert for documents indicating the possible existence of a successor counsel. b. Check with a surviving spouse or office staff to determine if the attorney had a close friend who may agree to become a successor counsel or RSCH 2.20 Trustee.

3. Public Notice Ask local bar association(s) to send e-mail alerts to members and place a public notice in bar publications announcing death or disability of attorney to clients. The notices should ask information as to any successor counsel or attorneys with client matters with the deceased or disabled attorney.

4. Calendars Look for desk calendars, computer calendars and secretarial calendars to seek information on cases in process and due dates.

5. Client Lists Check the computer and administrative files for lists of clients. Determine if the lists are divided into active files and closed files.

6. Location of Client Files Closed files may be kept in more than one location. Closed files may be stored in public warehouses, the attorney’s garage or basement, or in the attorney’s home or even with a client. All staff and family members should be quizzed to determine if they know of out-of-office locations. Many lawyers simply dump the files into boxes with the file names on the outside of the box.

The boxes containing the files are then stored in a garage or basement with the hope that the files will never be requested.

This system seems to work although it would still seem necessary to remove original client documents from files before doing so.

7. Notification to Clients Clients need to be notified by letter or public notice, such as an advertisement in a newspaper of general circulation, to retrieve their files.

8. Review of Files Closed files must be examined before destruction or returned to clients. a. Anything in the closed file that is the property of the client should be returned to the client. Any original document should be removed from the file for return to the client. Typical items found in files include wills, stock certificates, original signed contracts, promissory notes, deeds, mortgages, and other items returned to the attorney’s office from a county recorder or governmental filing office.

make arrangements for successor lawyer or firm, notify all courts, agencies, opposing counsel, etc., of the change in representation by appropriate substitution or other communications. a. Have the client and/or successor counsel provide to you, in writing, the request to provide the file to new counsel. b. If arrangements for a successor lawyer or firm have not been made, it may be necessary to retain counsel to file an appropriate document or letter to the court to prevent a default proceeding or to otherwise protect the client. c. Keep a list of disbursements of client files, including the name of the file (and any numbered volumes of files), box number of stored files, and any other property accompanying the files. d. Require picture identification of the client and a written receipt from the client collecting the file. e. Delivering an active file to a client or attorney may be necessary to protect the client’s interests. Some consideration must be given to photocopying what is given for malpractice protection. f. Any misfiled papers relative to other clients must be identified and removed before returning the file to the requesting client. A receipt for the file must be obtained.

b. Determine if there is a provision concerning destruction of files in the fee agreement or on closing the file at any time noted in the file. Determine if the attorney had a file-retention/destruction policy that had been communicated to the clients. There may be special rules for the files of minors.

11, Client E-mails If a database of client e-mails is available, consider notifying clients and others by e-mail notifications. Bad e-mail addresses can be quickly spotted. It may be possible to program e-mails to be notified when the e-mail has been read.

9. Client Trust Account Inform the bank that the client trust account should also be frozen until it can be determined who can sign checks or otherwise handle the business’s remaining financial affairs, such as a trustee, personal representative, spouse, etc. a. Determine if a non-lawyer can audit the account under an attorney’s guidance and direction. b. Give a sense of urgency to determining which clients are entitled to the money and make distribution to the clients as rapidly as possible. c. If you have been appointed as the RSCH 2.20 trustee, get the Supreme Court’s approval for disbursements.

12. Eventual Destruction of Client Files The safest way to destroy closed files is simply to shred them or get them shredded. Unfortunately, this can be an expensive process. Often lawyers just dump closed files into the trash. This is a risky procedure as many people handle the trash before it is destroyed, and the file contents may be of interest to one or more of these people. Take precautions to make sure no client confidences would be violated.

10. Successor Counsel for Clients If the client has selected successor counsel, immediately

13. Unlocated Clients Files of unlocated clients pose a special problem. If the applicable statutes of limitations have run and no one has responded to notices, the files probably can be destroyed. Contact the Office of Disciplinary Counsel regarding possible storage of uncollected files.

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15

and the time of

COVID

by Carol K.Muranaka The shutdown of the entire state in March 2020 because of the raging COVID-19 pandemic made the normal not likely for a period. Everyone planning a conference at the time remained hopeful, nonetheless.

But the pandemic created too much uncertainty for the Hawai‘i Access to Justice Commission (Commission) to continue with plans for an in-person Access to Justice Conference in 2020.

In 2021, however, the Hawai‘i Access to Justice Conference attracted 270 attendees to its first Zoom conference with the theme, “Access to Justice and the Time of COVID.”1 Hawai‘i Supreme Court Chief Justice Mark Recktenwald engaged the virtual audience with an update on the judiciary’s access to justice activities. Second Circuit Court Judge Joseph Cardoza (Ret.), Commission Chair, described the endeavors of the Commission.

Keynote speaker, former United States District Judge Nancy Gertner, who is on the faculty at Harvard Law School, gave her “Lessons from a Pandemic.” One lesson, she said, is the need for technological responses to the extraordinary divisions during the pandemic, and the other is the limits of technology solutions.

She noted that pre-pandemic the “contours of the problem were economic inequality, cultural heterogeneity, and physical disability and differences.”

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Judge Gertner observed that there may be subcategories of cases where technology enhances justice: informational settings versus deliberative settings.

Judge Gertner opined that the tyranny of numbers applies overwhelmingly to the cases of poor people. She quoted from the former Dean of Yale Law School, Harold Koh, in his keynote address, “The Just, Speedy, and Inexpensive Determination of Every Action”: When you cannot measure what is important, you tend to make important what you can measure. And so like anyone else in the workplace, judges tend to do what is measured, and what is measured and valued in today’s courthouses is how many cases are closed, not how justly they are decided.

Judge Gertner described a case about learning through screens and its limitations. In United States v. Nippon Paper Industries, 17 F. Supp. 2d 38 (D. Mass. 1998), a criminal antitrust case, the government wanted to take the testimony of a critical witness in Japan through either a videotaped deposition or through simultaneous video teleconferencing. The witness refused to come to the United States. The defendant objected to the videotaped deposition approach but agreed to video teleconferencing.

Judge Gertner allowed the video teleconferencing, but not the simultaneous transmission to the jury. She ordered that the witness’ testimony be taken in the evening between 6:30 and 9:30 p.m., that counsel be present to cross-examine, that the court rule on all objections as if the testimony were being conducted before the jury, and the conference be taped and edited for later transmission to the jury.

As noted by Judge Gertner in the case: While some argue that videotaping is just like the real thing, “just like” is not, in most situations, good enough...

I, though an avid supporter of the “Courtroom of the Future,” with a courtroom equipped with every manner and means of high tech accoutrements, believe that we should be cautious about the technology lest we begin to practice “virtual justice.”

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Judge Gertner raised a question, “Will we wind up with a two-tiered system? Those who are working through screens, and those who are in person? Will that then exacerbate the substantive access to justice issues?

There is a difference between watching someone at a sentencing in a courtroom and watching that someone on a screen, she said. She mentioned this quote about empathy: Empathy is erased or sharply curtailed by technology because the other person is not present in an embodied way as an individual, nor can their emotions be experienced.2 Another cautionary tale alluded to by Judge Gertner was information from the Brennan Center in September 2020 as follows: •One study of bail hearings found that the defendants whose hearings were conducted over video had higher bond amounts than their in-person counterparts.

•A study of immigration courts found that detained individuals were likely to be deported when their hearings occurred over video conference rather than in-person.

•Studies of remote witness testimony by children found that the children were perceived to be less believable, accurate, confident when appearing over video.

•In three out of six surveyed immigration courts, judges identified instances where they had changed credibility assessments made during a video hearing after holding an in-person hearing.

Judge Gertner stated that she did not know what is next, but that this conference and these discussions are the critical places to start.

In the morning workshop, “Impact of the Coronavirus Pandemic on Access to Justice,” former Dean Avi Soifer

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facilitated the discussion with fellow panelists: Chief Justice Recktenwald; Judge Cardoza (ret.); Heather Lusk, executive director of the Hawai‘i Health and Harm Reduction Center; and Nalani Fujimori Kaina, executive director of the Legal Aid Society of Hawai‘i. The presenters examined the effects of the pandemic and contemplated future perspectives. Better access may be provided by online services, and it is likely that access to the legislative process via Zoom may continue, coupled with in-person participation. Funding for legal service providers needs to be a priority since staying at the same level of funding means that over time they are falling behind.

The live-streaming of oral arguments at the Hawai‘i Supreme Court will continue.

There were three concurrent workshops for the first afternoon session and four in the later afternoon.

“Lifting Stoppers, Lifting Barriers” The Re-Entry and Community Service (RACS) Program at the Honolulu District Court was explained by Angela Kuo Min, executive director of Volunteer Legal Services Hawai‘i, facilitator; First Circuit District Court Judge Melanie Mito May; and Clarissa Malinao, volunteer attorney. Outstanding traffic tickets often cause “stoppers,” meaning that the individual with many outstanding tickets will not be able to renew one’s driver’s license or vehicle registration and this, in turn, may cause difficulty when the individual needs to drive to work or to find employment.

In 2020, Volunteer Legal Services Hawai‘i helped 200 RACS clients. The program conducts a comprehensive search of all tickets under the person’s name(s) and vehicles used and consolidates the court locations so that the case can be handled in Honolulu. Once the fines have been identified and are eligible for the program, a volunteer attorney will file on behalf of the client a motion to convert the fines to community service. The volunteer attorney will attend the court hearing with the client and argue for community service in place of the fines. When the motion is granted, the person is referred to Adult Services Branch, which oversees community service throughout the state.

Although the program functions only in the First Circuit, there is a court form at the judiciary website of a motion to convert fines into community service that can be used generally.

Another program discussed by the panelists involves restricted licenses under Haw. Rev. Stat. § 286-109, where the district court judge may allow a restricted driver’s license where: (1) the individual must be gainfully employed in a position that requires driving and will be discharged if the individual is unable to drive; or (2) the individual has no access to alternative transportation and therefore must drive to work.

In addition, a district court judge sitting in the traffic division

has the power to dismiss a notice of traffic infraction, with or without prejudice, or to set aside a judgment for the state. Haw. Rev. Stat. § 291D-12(a)(3).

“Different Dispute Resolution Approaches: Modifying the Process for the Issues and the People” Tracey Wiltgen, facilitator, executive director of The Mediation Center of the Pacific; Michelle Acosta, Deputy Chief Court Administrator for the First Circuit; Katie Ranney, Special Programs Coordinator for The Mediation Center of the Pacific; Laurie Tochiki, executive director of EPIC ‘Ohana; and Katie Bennett, mediator of Family Mediation Hawai‘i discussed the perspectives of their respective dispute resolution organizations. Some of the guidelines discussed included: design a space that is safe and allows the clients to have a voice; focus on the level of engagement of the participants; give people time to think about what’s happening; understand that access to justice in the context of mediation, includes having access to childcare and interpreters.

“Working Together to Provide Immigration Legal Services to the Low-Income Clients” Corey Park, facilitator, board president of The Legal Clinic; Esther Yoo, staff attorney at The Legal Clinic, and Taylor Brack, Law Fellow at the Refugee and Immigration Law Clinic, informed the attendees that currently there are approximately 255,000 Hawai‘i residents who are immigrants.

This is higher than the national average by almost five percent. Over 110,000 of these immigrants have not been naturalized, and nearly 48,000 do not have legal status in the United States. The presenters discussed the issues facing these immigrants such as no right to counsel in immigration courts, complex

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asylum cases, and the lack of due process.

“The Civil and Legal Rights or People Experiencing Homelessness in the Times of COVID” Mateo Caballero, facilitator, principal attorney of Caballero Law LLLC, led the discussion with Wookie Kim, Legal Director at the ACLU of Hawai‘i; Deja Ostrowski, Staff Attorney with the Medical-Legal Partnership Hawai‘i; and Janet Kelly, Senior Attorney, Homeless Specialist at Legal Aid Society of Hawai‘i on the complex issue of homelessness. It was noted that only about 1.79 percent of Oahu’s homeless population can access available shelter beds. The presenters discussed the barriers that criminalization of homelessness has created. Suggestions on how to help included assistance obtaining vital documents; advocating decriminalization of homeless individuals; developing an understanding of the issue of the homeless individual; and working to connect these individuals with available community resources.

“Ac cess to Justic e and the Hawaiian Home Lands Trust” Summer Sylva, facilitator, executive director of the Native Hawaiian Legal Corporation (“NHLC”), and others at NHLC—David Kauila Kopper, Director of Litigation, Ashley Obrey, Legal Practice Administrator and staff attorney, and Henderson Huihui, Equal Justice Works fellow and staff attorney— explained that NHLC’s mission is to perpetuate, through legal and other advocacy, the rights, customs, and practices that strengthen Native Hawaiian identity and culture. The organization assists the Hawaiian Homes beneficiaries with issues including lost applications, evictions, construction defects, and successorship criteria. The Hawaiian Homes Commission Act was one hundred years old on July 9, 2021. It was noted that homestead is important

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to stability and the intent of the program was to have families on leases; instead, the waiting list grows, and Native Hawaiians are overrepresented in the homeless population.

“Family Law and Access to Justice” Gemma-Rose Poland Soon, facilitator, solo practitioner; First Circuit District Family Court Judge Rebecca A. Copeland; Tom Farrell, founder and managing attorney of Farrell & Perrault; and Angelina Mercado, executive director of the Hawai‘i State Coalition Against Domestic Violence, discussed coercive control, which is control of another person’s behavior by using force or threats or causing fear. The power and control can be exhibited by using intimidation, emotional abuse, isolation, blame, children or third party, privilege, or economic abuse.

“Access to Justice in Elder Law and Special Needs Planning” Scott Suzuki explained that one in two people over 85 years old has a neurocognitive condition, and there is an increasing need to help older individuals. He discussed barriers to access to justice—care, cost, lack of creativity in the legal system, and lack of compassion. He explained that care is complicated and often not pre-planned, but reactionary.

The second barrier of cost can be a strain on the caregiver and care recipient. A private room costs an average of $8,820 monthly nationwide. In-home care may average $4,000 monthly, but $3,895 is the highest Social Security benefit. Suzuki expressed that the traditional medical model of institutions and nursing homes is an old concept. He believes that circumstances have changed and so should policies. Many laws lack compassion for the elderly and special needs individuals such as the Medicare Secondary Payer Act, Social Security, ABLE (Achieving a Better Life Experience) Act, and Medicaid. He explained that prevention requires anticipation; that is, one should anticipate legal needs and health care needs.

Closing Session The plenary closing session with Professor Calvin G.C. Pang and Judge Gertner shared reflections of the day’s conference. Professor Pang said that the reliance of Zoom with its convenience and ease may continue, but it is important to remember the “vitality of human interaction” for the preservation of humanity. He referenced Judge Gertner’s address about “hard” and “easy” cases, and that standards, rules, and practices are followed in other arenas to dispose of cases and he encouraged observation of a deeper context of a person’s situation and to resist the tendency of the easy route. “If the totality of observations suggests that the hard route be taken,

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then maybe it should be taken.”

Judge Gertner observed that law may be an abstraction and that there is a need to stay rooted in the real world. She explained that judges deal in abstractions and rules. In the various workshops, she observed the panelists’ compassion and consideration about people in the community. The panelists spoke about the affected community and outreach, not abstractions. Judge Gertner stated that judges are distant from the people they serve, and it was her belief that judges should be more willing to meet people where they are. She saw a glimpse of it here at the conference and was encouraged to come back and “keep learning.” ________________ 1 This article is based upon summaries of the workshops and plenary sessions of the conference prepared by Jay Mason, Managing Attorney, Kauai Office; Makia Minerbi, Senior Staff Attorney, Windward Office; Laura Cushman, Staff Attorney, Kona office; Eliot Schulte, Paralegal; Maya Scimeca, Engagement Specialist; Katharine Munk, Paralegal; Nicholas Severson, Staff Attorney; Lona Hertz, Paralegal; Prya Oliveira, Test Coordinator, Fair Housing Enforcement Program; and Shaela Garces, Paralegal. Michelle Moorhead coordinated the summaries written by the staff within Legal Aid Society of Hawai‘i. These summaries may be found at the subpages of the Hawai‘i Access to Justice Commission at:

https://www.hawaiijustice.org/hajc/access-to-justicecommission/2021-hawaii-access-to-justice-conference.

2

Dennis P. Slattery, “Myth and Culture” (drawing on Sherry Turkle, “The Power of Talk in a Digital Age.”) (2016).

H SBA HAP PE NIN GS Board Actions The HSBA Board took the following actions at its meeting in September: • Approved the recommendation of the joint HSBA Executive-Finance Committee to send a letter to the Hawaii Supreme Court indicating the HSBA’s support of the proposed 2022 budgets of the Disciplinary Board, the Lawyers’ Fund for Client Protection, and the Attorneys and Judges Assistance Program, with no increases to entity fee assessments being requested for 2022.

• Approved the recommendation of the joint HSBA Executive-Finance Committee to approve the proposed 2022 budgets and dues amounts of the HSBA sections, as proposed by the respective sections.

• Ratified President Levi Hookano’s appointment of Summer Kaiawe as Chair of the newly established Well-Being Committee of the HSBA. • Approved the recommendation of the HSBA Nominating Committee to reappoint the following individuals to the Hawaii State Board of CLE (aka MCLE Board) to a 3-year term beginning October 2, 2021: David Farmer, Kanoelani Kane, and Diane Sherman.

License Renewal Reminder for 2022 (December 1-31, 2021) •Contact Information: Sign in to www.hsba.org and log in to your “My Account”. Renewal announcements will be sent to your communications’ address on file (E-mail and U.S. Postal Service).

• CLE Requirements: Complete the annual Supreme Court CLE requirement before renewing your license to avoid a compliance audit.

Contact CLE at cle@hsba.org for seminar/webinar information.

• Change of Status: 2022 online registration forms should not be used for a change of status revision for licensing year 2021. Change of

status requests effective in 2021 and CLE requirements for 2021 must be completed prior to renewing your 2022 license. Contact ars@hsba.org for additional information.

• Contemplating a Career or Practice Change?

If you are contemplating retirement from the practice of law or changing your practice status, contact Attorney Renewal Services at ars@hsba.org for options, CLE requirements, recommendations, and instructions before the 2022 license registration period begins on December 1.

Member Benefits Spotlight ENTERTAINMENT Consolidated Theatres Stop by the HSBA office to purchase your Consolidated Theatres movie tickets today for $8.25 per ticket.

There is no limit to the number you can purchase. Consolidated Theatres is committed to meeting or exceeding all CDC, state, and local regulations as well as #CinemaSafe expert-backed suggestions. Please refer to https://www.consolidatedtheatres.com/ for more information.

Only check or cash will be accepted for payment. Please note that, as there are limitations to special screenings and premiering movies, be sure to read the terms and conditions behind the ticket.

Regal Movie Tickets Regal is committed to the safety of their patrons and employees and is taking steps to keep you cinema-safe. Visit the HSBA office to purchase tickets.

Have your JD no. ready for verification of HSBA membership. Only check or cash will be accepted for payment. For any questions, call the HSBA at (808) 537-1868 or visit their website at https://www.regmovies.com. Please note that, as there are limitations to special screenings and premiering movies, be sure to read the terms and conditions

behind the ticket.

Hawai’i Symphony Orchestra HSBA members receive 10% discount on single tickets. For Group Sales, please call (808) 380-7724. The Spring Season tickets are now available. Purchase your tickets online and enter promo code “BAR2018”. Additional fees are applied when you order online at https://www.ticketsonsale.com. Tickets purchased at the Blaisdell Box Office will be an additional $1 per ticket. You must show your HSBA Bar Card at the Blaisdell Box Office.

Kumu Kahua Theatre HSBA members receive a 25% discount on tickets. Select and purchase your tickets online at https://www.kumukahua.org, entering promo code “HSBA” when prompted. Additional fees are applied when you order online.

To purchase with no fee, please call (808) 536-4441, or visit our box office at 46 Merchant Street, Monday through Friday, between 11 a.m. and 3 p.m.

RECREATION Kapolei Inline Hockey Arenas (KIHA) The mission of KIHA is to provide players of all ages and skill levels both male and female a safe and fun environment to learn and play inline hockey.

Learn more at https://www.kihawaii.com/. HSBA members receive a discounted skating rate of $10 for a 2-hour open skating session, skates included, with the use of your HSBA Bar Card.

Maui Ocean Center HSBA members receive a 10% discount on kamaaina one-day journey pass tickets. Tickets must be purchased at Maui Ocean Center’s front gate.

Please present your HSBA Bar Card to take advantage of this offer.

Stoke Drift – Surf Lessons for Kids Stoke Drift is a surf school on Waikiki beach near the Waikiki Shore Hotel. They make surfing easy. You

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23

will learn with patient instructors, safe equipment, and gentle waves. Beginners are welcome—the only requirement is that participants must be able to swim.

Stoke Drift offers both private lessons (one person per instructor) and semi-private lessons (2-4 persons per instructor).

Please note that young children may be required to take private lessons. Lessons are available daily at 8 a.m., 10 a.m., 1 p.m. and 3 p.m. HSBA members, friends, and family get 20% off all lessons upon providing your HSBA Bar Card or HSBA license number when booking. Visit their website at https://stokedrift.com or call (808) 517-5010 to book a surf lesson.

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TEN TOMORROW TEN TOMORROW is a modern resort brand based in Honolulu, Hawaii.

They design clothing to translate from sandy beaches to city sidewalks. All clothing is 100% made in Hawaii. Located in the heart of Kaimuki on 11th Avenue with free customer parking out front. HSBA members will receive 10% off when you show your HSBA Bar Card (not combinable with any other sales and/or promotions). For more information, call (808) 591-6219 or visit https://www.tentomorrow.com/.

Visit https://hsba.org/memberbenefits for more information on the more than 70 member benefits available.

December 2021

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25

CAS E NOTES Supreme Court

Appeal Pointer

Criminal State v. Shaw, No. SCWC-180000599, October 1, 2021, (Wilson, J.).

This case arose from Petitioner/Defendant-Appellant Susan E. Shaw’s (“Shaw”) five-year prison sentence and conviction for Computer Fraud in the Third Degree (“Computer Fraud 3”) and Fraudulent Use of a Credit Card (“Credit Card Fraud”). Shaw appealed her Judgment of Conviction and Sentence to the ICA. The ICA vacated the circuit court Judgment of Conviction and Sentence and remanded the case to the circuit court for further proceedings.

Shaw raised four primary points of error and alleged that the ICA erred: (1) when it held that the State need not allege that Shaw acted pursuant to a scheme or course of conduct for Computer Fraud 3 in the indictment; (2) when it held that the circuit court (a) did not err in instructing the jury on the definition of “inference” and (b) did not err in instructing the jury on the elements of Computer Fraud 3; (3) when it held that the circuit court did not err in denying her Motion to Dismiss with Prejudice; and (4) when it failed to address the issues related to (a) the sufficiency of evidence, (b) the admission of unsworn hearsay evidence, and (c) the numerous prejudicial evidentiary errors. The Hawaii Supreme Court held that the ICA did not err when it held that aggregation of multiple transactions under Computer Fraud 3 is permissible. The Hawaii Supreme Court further held that the indictment was defective with respect to Count I, Computer Fraud 3, and that the denial of Shaw’s Motion to Dismiss the Indictment was error.

An appeal is in default if the record on appeal is not filed with the appellate clerk within 60 days after the notice of appeal is filed. Relief from default must be obtained from the appellate court. Failure to cure the default may result in dismissal of the appeal. HRAP 11(a).

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Intermediate Court of Appeals OIP In re Office of Info. Prac. Opinion Letter No. F19-04, No. CAAP-20-0000470, October 11, 2021, (Hiraoka, J.). The issue in this case was whether the “frustration of a legitimate government function” exception applied to Complainant-Appellant City and County of Honolulu’s obligation to disclose a particular public record under the Hawaii Uniform Information Practices Act (Modified), Haw. Rev. Stat.

Chapter 92F. The record at issue was an appraisal of the value of an easement the requestor desired to purchase from the City. After making “an individualized determination [whether] disclosure [of the easement appraisal report] would frustrate a legitimate government function,” Peer News LLC v.

City & Cnty. of Honolulu, 143 Hawaii 472, 475, 431 P.3d 1245, 1248 (2018), the ICA held that the State of Hawaii Office of Information Practices correctly determined that the report must be disclosed. The ICA did so, however, for reasons other than those stated by OIP. Property Jacobs v. Billy Casper Golf, LLC, No. CAAP-16-0000792, September 29, 2021, (Wadsworth, J.). Plaintiffs-Appellants Jessica L. Jacobs (“Jessica”) and

John N. Jacobs (“John”) (collectively, the “Jacobses”) appealed from the November 29, 2016 Final Judgment, entered by the circuit court, in favor of Defendants-Appellees Billy Casper Golf, LLC; Bank of Hawaii, as Trustee of the Kukuiolono Park Trust Estate; Kukuiolono Park and Golf Course; Kukuiolono Park Trust Estate; and Kukuiolono Management, LLC (collectively, the “KPGC Defendants”). The Jacobses also challenged the circuit court’s October 11, 2016 “Order Granting [the KPGC] Defendants’ Motion for Summary Judgment, Filed 07/20/16” (“Order Granting Summary Judgment”). On appeal, the Jacobses contended that the circuit court erred in granting summary judgment against them and in favor of the KPGC Defendants. The Jacobses argued there were genuine issues of material fact as to whether the Hawaii Recreational Use Statute, Haw. Rev. Stat. Chapter 520, immunized the KPGC Defendants from tort liability for the Jacobses’ personal injuries. The ICA held that the circuit court correctly concluded there was no genuine issue of material fact that: (1) the KPGC Defendants were “owners” of land as defined by the Haw. Recreational Use Stat. for purposes of applying the statute’s immunity provisions; and (2) on the day she was injured, Jessica was on the KPGC premises for a “recreational purpose,” within the meaning of the Haw. Recreational Use Stat. The ICA further held, however, that the circuit court erred in concluding there were no genuine issues of material fact as to whether the KPGC Defendants knowingly created or perpetuated, and wilfully or maliciously failed to guard or warn against, an alleged dangerous condition on the KPGC premises.

DISCIPLINARY NOTICES Notice of Transfer to Interim Inactive Status

disputes

Resolving

equitably

On November 1, 2021, the Hawai‘i Supreme Court transferred Roy M. Kodani to interim inactive status, effective immediately, due to incapacity pursuant to the Rules of the Supreme Court of Hawai‘i, Rule 2.19(b) and (c). He is no longer able to act as an attorney for any of his clients, and those clients must seek legal advice elsewhere. Kodani, age 82, was admitted to the Hawai‘i bar in 1966, and is a graduate of George Washington University, School of Law, in the District of Columbia.

Experienced in mediating and deciding complex family law, wills, trusts and probate cases including family business disputes. Also experienced in commercial, corporate, personal injury, HR and business mediations and arbitrations.

Michael A. Town Circuit Court Judge (Retired) Trial judge from 1979 to 2010 in Family and Circuit Court. Graduate of Stanford University (A.B), Hastings Law (J.D.) and Yale School of Law (LL.M).

Notice of Public Reprimand On Thursday, October 28, 2021, the Disciplinary Board of the Hawai‘i Supreme Court imposed a Public Reprimand upon Hawai‘i-licensed attorney Emmanuel G. Guerrero for removing unearned client funds from his client trust account, commingling his funds with client funds in his client trust account, failing to deposit unearned retainer monies into his client trust account, failing to provide proper accounting and notice to his client, and failing to maintain proper client trust accounting records in violation of Rules 1.15(a), 1.15(c), 1.15(d), and 1.15(f) of the Hawai‘i Rules of Professional Conduct, as well as Rule 11(c)(1)(A) of the Hawai‘i Rules of the Supreme Court, and Rules 4(a) and 4(c) of the Hawai‘i Rules Governing Trust Accounting.

The Disciplinary Board considered various aggravating and mitigating factor in its decision to impose a Public Reprimand. In aggravation, the Board found that Guerrero has received one prior Public Censure, exhibited a pattern of misconduct involving multiple offenses, and had substantial experience in the practice of law at the time of the misconduct. In mitigation, the Disciplinary Board found that Guerrero lacked (Continued on page 28)

523-1234 • 285-2408 Dispute Prevention and Resolution “Let justice be done though heavens may fall”

1003 Bishop St., Suite 1155 • Honolulu, HI 96813

DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES

The Department of the Prosecuting Attorney, City and County of Honolulu, is looking to fill vacant deputy prosecuting attorney positions at all experience levels. Applicants must be licensed to practice law in the State of Hawaii and in good standing before the Hawaii Supreme Court at the time of hire. Those waiting for bar exam results are encouraged to apply. The ideal applicant should have strong analytical skills, be comfortable with both oral and written communications, exhibit high ethical standards, and show a commitment to public safety. Salaries start at $75,588. Great benefits package including pension, health coverage, and defined-contribution plans.

The Department is also recruiting law clerks who intend to take the bar exam in February 2022. Law clerks would be in excellent position to be hired as deputy prosecuting attorneys upon passage of the bar exam. Salary is $50,880.

Position comes with full benefits.

To apply, please visit our website at: https://www.honoluluprosecutor.org/employment-opportunities.

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C O URT BR IEF S Sonja McCullen Sworn-in as Associate Judge of the Intermediate Court of Appeals A mostly virtual crowd of family, friends, and colleagues tuned in to watch Sonja P. McCullen be sworn-in as Associate Judge of the Intermediate Court of Appeals on October 1.

Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube Channel.

Guest speakers were Hawaii State Bar Association President Levi K. Hookano, Hawaii State Trial Judges Association President Judge Matthew J. Viola, Judicial Selection Commission Chair Nadine Y. Ando, House Speaker Scott K. Saiki, and Governor David Y. Ige. McCullen will serve a 10-year term.

Per Diem Reappointments Jill M. Hasegawa was recently reappointed as per diem Judge of the District Court of the Third Circuit and designated to act as per diem Family Judge. Her term will be from Oct. 9, 2021 to Oct. 8, 2023.

Clarence A. Pacarro was reappointed as a per diem judge in the District Court of the First Circuit. His term will be from October 15, 2021 to January 6, 2025.

Chief Judge Robert D.S. Kim Drug Court is an intensive 18-month program that provides alternatives to incarceration. It assists individuals break from addiction and acquire new skills to improve their lives.

The BIDC Adult programs in Hilo and Kona have helped hundreds of women and men get a second chance at life since the programs were initiated in 2002.

For information about the Big Island Drug Court, contact the Drug Court Probation office in Hilo at 808-961-7566, or in Kona at 808-443-2200.

Seven Graduates in 58th Big Island Drug Court Class Disciplinary Notices (Continued from page 27)

Kona Drug Court Judge Wendy DeWeese (third from right).

The 58th graduating class of the Big Island Drug Court was honored on October 11 at the Keahuolu Courthouse in Kona. The seven proud graduates were praised by Third Circuit Chief Judge Robert D.S. Kim and Kona Drug Court Judge Wendy DeWeese for their hard-won accomplishments.

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a dishonest or selfish motive, fully cooperated in the disciplinary process, expressed remorse, and that there was an unattributable delay in the process created by the Covid-19 pandemic.

Guerrero, was admitted to the Hawai‘i bar on October 10, 1990, and is a graduate of the William S. Richardson School of Law. While the Public Reprimand will not affect Guerrero’s ability to practice law, it may result in more serious sanctions for future violations of the Hawai‘i Rules of Professional Conduct.

A full copy of the (October 28, 2021) Public Reprimand imposed by the Disciplinary Board (October 28, 2021) can be found on the Disciplinary Board’s web page of Disciplined Hawai‘i Attorneys (https://www.dbhawaii.org/disciplined-attorneys) or at this link: https://dbhawaii.org/wp-content/uploads/211028Order-of-Public-Reprimand-of-Emmanuel-G.-Guerrero21-9001.pdf. (ODC v. Guerrero, ODC #16-O-314, DB No. 21-9001.)

(Continued from page 11) going in the most strenuous of times, together made dramatic change and growth happen. While it was surmised at times that “the stars were aligned for MCP” when it successfully purchased a building and continued to expand and create new programs during the pandemic, the fact is that the many friends and supporters of MCP and its strategic work over the years, together built a solid foundation that enabled it to succeed. __________________ 1

Camper, Naomi, A Strong Nonprofit Sector is Key to Thriving Communities, JPMORGAN CHASE OFFICE OF NONPROFIT ENGAGEMENT (March 7, 2016).

2 Ibrisevic, Ilima, Seven Characteristics of Successful Nonprofit Organizations, DONORBOX, (February 10, 2020).

3 Collins, Jim, Good to Great, Haper Collins (October 16, 2021).

4 Kamins, Robert, M. and Potter, Robert E., The Mediation Center of the Pacific, A Brief History (2007) p. 16.

5 Kupuna Pono was created in response to Hawaii’s aging population and the fact that most family members become caregivers which can lead to conflict among family members.

Through the Kupuna Pono Program, elders and their family members are assisted in engaging in difficult conversations regarding the needs and desires of the elder family member, and how the rest of the family can work together to meet those needs.

6 MCP is grateful to the many generous donors who helped to make the vision of having a permanent home become a reality. Key donors include: The Earl and Margery Chapman Foundation; The Harry & Jeanette Weinberg Foundation; The Clarence T. C. Ching Foundation; Davis Levin Livingston Charitable Foundation; First Hawaiian Bank Foundation; David and Jeri Simons; Kosasa Family Fund; The Cades Foundation; Island Insurance Foundation; Dods Foundation; Sidney and Gloria Ayabe; Bruce McEwan; Howard and Jana Wolff; Honorable Justice Simeon Acoba and Carolyn Acoba; Robert and Cynthia Alm; David Chandler; Jerry and Vanny Clay; William Darrah;

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Dispute Prevention and Resolution; John and Kim Holzman; John Morris and Marjorie Au; Lawrence & Patricia Rodriguez; Lisa Ayabe & Matthew Lamon; Marie D. Ayabe; Sarah Ayabe; Lou Chang; Kevin S. W. Chee; Michael & Gwendellyn Cruise; Gene and Cecelia Doo; Ekimoto and Morris LLC, Lee and Bernadette Erwin; Kale and Kathy Feldman; GENSID Partners; Signe Godfrey; Jason Graves; Hawaiiana Management Company Ltd.; Steve and Joanne Holmberg; Honolulu Disposal Service Inc.; Susan Ichinose; Dr. and Mrs. Michael Kurosawa; Dorothy “Dee Dee” Letts; RRS Inc.; Tracey Wiltgen; and many others.

7 MCP is grateful to the mediators who continued mediating via Zoom or in person throughout the challenges of the pandemic. Grateful thanks are extended to the volunteer mediators who went above and beyond these last two years including: Tom Mitrano; Denise George; George Clifford; Chuck Buckla; Clyde Namuo; Bruce McEwan; Mimi Beams; Bob Marks; Sandi Jordan; Poranee Natadecha-Sponsel; Sharon Shanley; Sam Kasnetz; Jackie Earle; George Apter; Denise Bekaert; Teena Urban; Constance Hassell; Ken Goldbatt; Lisa Jacobs; Sisi Takaki; Bill Darrah; Hope Bennett; Reed Dasenbrock; Jared Lee; Laurie Tochiki; Jo Ann Kocher; Ned Busch; Bev Cardinal; John Holzman; Tina Smith; Gary Shiraishi; Roy Hughes; Adam Tenouri; Debra Allen; Kendra Epstein; Sara Aouni; Signe Godfrey; Issac Row; Owen Tamamoto; Robert Hines; Tom Stirling; Laurine Ho; Kim Holzman; Carol Lockwood; Dion Dizon; John Stallman; Kyle Adkisson; Scott Arakaki; Seth Reiss; Charlie Reppun; John Nuha; Amy Hubbard; Erika Ireland; Kristin Bryant; Ariel Ashe-Ramirez; Jana Wolff; Jessica Summersgill; Giuseppe Leone; Lisa Lofland; Mike Town; Ricky Crum; Alan Ma; Gerry Clay; Jerome Berlinger; Ken Nakasone; Phil Nerney; Roberta Lee-Driscoll; Aleta Klein; Jeff Portnoy; John Morris; Kevin Fernandez; Korrine Oki; Peter Lewis; Richard Ekimoto; Sabra Della Lucia; Barry Marr; Carolyn Tanke; Carrie Williams; David Simons; Emily Marr; Iris Ito; Isaiah Cureton; Jack Almanza; Janis Bumgarner; Jeff Smoot; Karen Miller; Maureen Shannon; Michelle Moorhead; Peter Lenhart; and Yuki Takenaka.

8 Hollier, Dennis, 6 Great Small Nonprofits and What Makes Them Succeed, Hawaii Business Magazine

(November 5, 2011).

Grant, Heather McLeod & Crutchfield, Leslie R., Creating High Impact Nonprofits, Stanford Social Innovation Review (Fall 2007).

10 MCP is grateful for the generous support and flexibility of the Harold K. Castle Foundation, Hawaii Community Foundation, Hawaii Justice Foundation, Kosasa Family Foundation, McInerny Foundation, Pettus Foundation, and other private donors who quickly provided flexible support for MCP’s work this past year.

11 After March 2021, the committee was chaired

by Gavin Thornton, Executive Director of Hawaii Appleseed Center for Law and Economic Justice.

12 Garboden, Phil ME, November Rental Market: Troubling Signs as State Prepares for an Uncertain 2021, UHERO, The Economic Research Organization at the University of Hawaii (January 14, 2021).

9

13

Nonprofit Impact in Communities, National Council of Nonprofits (2019).

14

The SROI analysis conducted by Community Services Analysis LLC (CSACO) for MCP, was based on a review of the transaction records, internal reports, financial statements, reports submitted to various stakeholders, and the detailed analysis of the value of services delivered to the community by MCP. The analysis presents a conservative view of the Economic Impacts and Social Return on Funding Investment for MCP during FY 2016.

CSACO is a leading provider of Economic Impact and Social Return on Investment Analysis in the United States. CSACO has completed studies for local and state organizations and agencies around the country, including such clients as the State of Pennsylvania Department of Education, the State of California Department of Rehabilitation, the City of Philadelphia, United Way, United Cerebral Palsy, Habitat for Humanity, the State of Arizona Library and Public Archives, multiple Legal Aid organizations, and multiple community and family services organizations.

Tracey S. Wiltgen is the Executive Director of the Mediation Center of the Pacific and a Lecturer in Law at the William S. Richardson School of Law.

ATTORNEY WANTED ASSOCIATE ATTORNEY BFL Law, in Kona, Hawai‘i, seeks a Hawai‘i licensed associate attorney to join our dynamic team. The ideal candidate will have experience and/or interest in any combination of family law, criminal law, civil litigation, transactional and/or real estate law. We are looking for an attorney available to work with us full-time, collaboratively and independently, on state and federal court cases and Hawaii real estate and business transactions. Duties will include meeting with clients, appearing at hearings and evidentiary trials, organizing discovery, conducting legal research, and writing briefs and other legal documents. Email resume, writing sample and references to dawn@bfl.law CARLSMITH BALL seeks an associate with 3-5 years of experience to join our Maui office.

Primary focus will be on civil litigation and transactional matters, with emphasis on real estate, land use, and corporate law. Experience in motion practice, hearings, or trials in any area of law or government practice a plus.

Interested candidates should submit their cover letter, resume, transcript, and writing sample to recruiting@carlsmith.com.

DEPARTMENT OF THE CORPORATION COUNSEL is currently seeking applications from Hawai‘i licensed attorneys with an interest in civil rights litigation, tort litigation, transportation issues, employment law, or land use and city planning for its Litigation Division and Counseling and Drafting Division. The Department offers a unique and fulfilling career as a public sector attorney working for the good of our community. We encourage a balanced life and flexible work arrangements are possible.

Civil litigation and administrative law experience, experience with governmental entities, and familiarity with open government and open records laws are a plus. A strong work ethic, positive attitude, and a desire to serve are bigger pluses. Commitment to Honolulu is a must. If you would like more information about specific positions or if you are ready to submit a letter of interest, resume, and references, please email us at cor@honolulu.gov.

EXPERIENCED ATTORNEY BFL Law, in Kona, Hawai‘i, is looking for an experienced, Hawai‘i

licensed attorney to join our boutique (i.e., micro-sized) firm. The ideal candidate will possess excellent litigation and/or transactional law skills, perfectionistic traits combined with affability when confronting mistakes, a love of college football, dogs, or cat videos, or at the very least a sense of humor combined with great baking acumen. The position may be full-time or part-time, on Island or off, Of Counsel or another creative cooperative arrangement.

Email dawn@bfl.law FARRELL & PERRAULT LLLC has a full-time family law attorney position open for immediate hire.

Benefits include: 1) Monthly Bonus, 2) Health Insurance, 3) Life Insurance, and 4) 401(K).

Our practice includes divorce, paternity, restraining orders, child guardianships, child welfare, and family criminal matters. If you are the successful applicant, you will jump into a fastpaced litigation and trial-oriented practice. You will appear regularly in Family Court and be expected to present evidence, cross-examine witnesses, and make legal arguments. You will have the autonomy of managing your own cases with the support of a team of experienced trial lawyers and non-lawyer staff. We provide on-the-job training. Most of our cases are on Oahu, but a substantial number of our cases are on the Big Island, Kauai, and Maui.

Compensation is aggressive and based on productivity. Contact Attorney Tony Perrault at tony@farrell-hawaii .com or at (808) 535-8468.

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150.

COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts.

John H. Meserve, CRS. (808) 450-5555 jhmeserve@gmail.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure.

AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. https://expertwitness.now.site 808-422-2132

PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559 REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059.

REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

LEGAL CONSULTING LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case.

Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com

OFFICE SPACE AVAILABLE -Immediately. Located in Waterfront Plaza, Executive Suite. Two window offices (1 or both). 2 secretary carrels, storage closet available too. Includes use of conference room, kitchen, reception area.

Shared law/CPA office. Ample parking. Call Scott @ 295-9577.

AVAILABLE IMMEDIATELY – Office in suite leased by Michael Green with ocean view of HNL harbor with potential for criminal and civil case referrals. Includes shared use of conference room, kitchenette, reception area, fax machine & printer; front office answering service optional; parking available.

Call Pia 808-521-3336.

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