Hawaii Bar Journal - January 2020

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BAR JOURNAL A N O FFICIAL P UBLICATION

Interview with

P. Gregory Frey 2020 HSBA President

OF THE

H AWAII S TATE BAR A SSOCIATION JANUARY, 2020 $5.00

TABLE O F C ON TE NTS VO LUM E 24 , N U M B E R 1

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

ARTICLES 44

Interview of P. Gregory Frey: 2020 HSBA President

by Ed Kemper

15 19

Important Changes to the Civil Local Rules for the United States District Court for the District of Hawaii

by Wayne Wagner

24

OF NOTE

HSBA OFFICERS

19

HSBA Happenings

20

Court Briefs

21

Notice of Discipline Case Notes

Treasurer Paul Naso

24 20 30 22 31

YLD OFFICERS

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President P. Gregory Frey President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni

President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

Off the Record 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: Photo by Brett Pruitt / Grass Shack Productions.

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. ŠHawaii State Bar Association 2020

Frey I N T E R V I E W

O F

P. Gregory

2020 HSBA President

by Edward Kemper

Please give us you and your family’s background, and your educational history.

I was born in the small beach community of Balboa, California to teenage parents (a bit of a rarity in the ‘60s), and along with my twin brother, Grant, was raised by our paternal grandmother (after our birth mother vanished) until our father graduated from college and then Stanford Law. I entered Hawaii public school in the second grade, until 1975 when I was accepted to Saint Louis High School (“SLHS”). SLHS changed my life in so many ways and continues to do so to this day some 40 years later. I immersed myself in everything “red & blue.” I was a multisport letterman, on the Student Council and Editorial Editor of The Collegian. I was also a member of the National Honor Society. I graduated with honors in 1979 (top 10 in my class of more than 250). Then, it was off to the mainland for college, to Santa Clara, California (well before anyone heard of the Silicon Valley. It didn’t exist back then).

In 1983, I graduated from Santa Clara University (“SCU”) (B.A., History), and along the way, truly took full advantage of a mainland college experience. My family has quite a history at SCU, and that’s probably why I chose it over USC (Fun fact: when I entered SCU, it was then formally known as The University of Santa Clara, and billed itself in California as “the first USC,” having been a

Above left: As loyal U.H. football season ticket holders for decades, Greg and Mia often travel to support the team.

Above right: Greg planned a surprise renewal of wedding vows, Las Vegas style, May 2014.

Bottom right: In 2018, Greg and his 1983 teammates were inducted into the Santa Clara University Rugby Hall of Fame.

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Jesuit school long before Gatorade in hand. the Trojans came to Those were the days.

Southern California.)

After graduation, I Later, after my wife and headed to the pacific I graduated, the school northwest to the rather formally changed its tiny town of Salem, name to Santa Clara Oregon (whose claim to University, having to esfame at the time was sentially concede to the that’s where the Oscarglobal branding success winning film, One Flew and fame of USC. Over the Cuckoo’s Nest, was I pledged Sigma filmed) to attend law Phi Epsilon fraternity as school, so thankful and a freshman and travgrateful that Mia folelled the “world” as a lowed me there a year Greg (right) and brother Grant with their grandmother, circa 1972 (11 years old). four-year team memlater, and helped support ber/starter on SCU’s me through school, both rugby team (“SCUTS”), financially and emotionally. finishing the ‘83 season with a #3 national ranking at 21In 1986, following graduation from Willamette Uni2 (still a school record after 37 years). (Fun fact: In 2018, versity College of Law, Mia and I got married in a tiny my 1983 SCUTS teammates and I were inducted into the little catholic church in her (then) tiny little rural, farming SCU rugby hall of fame). community hometown of Los Banos, California. In fact, Best of all, I met and fell in love with my college sweetwe married six days after I graduated from law school, on heart, Maria “Mia” Fialho (SCU ‘84). We were quite inher birthday. What a grand celebration it was — a full separable for most of our college years, and how lucky I catholic mass, and practically the entire town in attenwas to have her by my side then and now and for almost 40 dance. We have two adult daughters, Samantha (SCU years. Having been a high school cheerleader, she natu‘10) and Allie (U.H. Hilo ‘12), both of whom are 13-year rally loved to attend every one of my rugby games, often graduates and alumnae of Sacred Hearts Academy. Our traveling with the team. “Rugger huggers” like Mia were a daughters are the best thing I have ever been a part of, vital part of our team’s success on the national stage. Mia hands down. was always there at the final whistle with bottles of Above and beyond my work as an attorney who practices exclusively in family court (formerly the managing attorney at Coates & Frey, established in 1996, and now the senior attorney at Coates Frey Tanimoto & Gibson, Hawaii’s largest family law firm, established in 2019), my personal passions are varied and eclectic. I co-own Pacific Ink & Art Expo (aka Hawaii Tattoo Expo), one of the most popular tattoo expos of its kind in the U.S., if not the world, now going into its ninth year (www.hawaiitattooexpo.com). There’s nothing more invigorating than hanging out with visionary tattoo artists, many of whom star in their own reality television show. Believe it or not, these folks are just as famous as rock stars and movie actors.

It’s been a unique experience. Avid motorcycle and classic car devotees, Mia and I and my brother rode Sturgis 2013 (appearing on The Travel Channel’s Sturgis Raw, episode two Chrome & Glory [which still Greg (right) and (twin) brother Grant with their father, Philip (JD776), circa 1965 (5 years old).

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plays in “re-runs” to this day]), and we regularly attend BarrettJackson and Mecum car and motorcycle auctions on the mainland. Admittedly, I do own three classic/vintage cars as well as several motorcycles. I also collect “anything and everything” Gilligan’s Island, believe it or not, and even appeared in a newspaper article about my unique “obsession” in the Honolulu Star-Advertiser. Anyone who has been to my office knows that I collect a lot of rather eclectic stuff.

My decades-long philanthropic pursuits include: Abracadabra 2000 board (Hawaii’s bid for America’s Cup); Waikiki Yacht Club (“WYC”) board (commodore and member of the Greg’s favorite photo of year, 1997); Sacred Hearts Academy board; Saint Louis Alumni Association (“SLAA”) board (president, 2009-2019); Saint Louis School (“SLS”) trustee (vice-chair, 2009-2018), and Hawaii State Bar Association board (vice-president, 2018 and president-elect, 2019). I also hold an M.A. (psychology) which has helped me assist Hawaii’s folks in need of family law and divorce services.

I am particularly proud of my time on the WYC Board. My late father was WYC commodore in 1988, and I was the first son of a former commodore to be elected commodore in the club’s over 75-year history. It has been my work with SLAA and SLS, however, that has really driven me for decades. There are so many legendary business and community leaders in Hawaii (and beyond our island state’s shores) who are alumni of Saint Louis and a part of crusader nation. Over the years, I have been fortunate to work closely with many of them, including Walter S. Kirimitsu (former SLS president) and James S. Burns (former SLAA president). In my role as SLAA president, I’ve traveled all over in support of our school and its alumni, to include New York City (with the SLS president and trustees chair) for the Heisman trophy presentations, both in 2014 for Marcus Mariota and again in 2018 for Tua Tagovailoa. Along the way, I was inducted to SLS’ Gallery of Distinguished Achievers. Although I am still on

the SLAA board (an elected position I have held for 18 years), I stepped down as SLAA president and from the SLS trustees board in 2019 after more than 10 years in each position in order to devote enough time, energy, and effort to the HSBA. It was perhaps one of the most difficult decisions I have ever been forced to make, and it was (and still is) very tough on me. Yet again, our HSBA does mean that much to me, and I really want to do a good job as your HSBA president.

Could you please describe your legal career for our readers and, if you have specific area of practice?

My father, Philip S. Frey (JD776), often took my brother his daughters at SHA. and me to his office, Padgett, Greeley, Marumoto & Akinaka, telling us to “be quiet and behave.” What we heard, of course, was “play and make noise.” Although I didn’t know it at the time as a mischievous keiki, I learned plenty back then as I watched my father and many other legendary Hawaii lawyers from under my father’s desk (a vintage desk I now proudly sit behind every day more than 45 years later).

“Work hard and give back.” My “old school” father drilled this ethic into me. Since those impressionable early “small kid days,” I have tried very hard to be true to his lesson. I guess I was destined to “grow-up” to become an attorney, as were my father and his father. I am very proud to be a third-generation attorney, and even prouder to be a Hawaii attorney who has devoted practically my entire career to family law, domestic relations, and divorce. In fact, if memory serves, I’m one of the first attorneys who practices exclusively in the family law arena to be elected HSBA president. I’m humbled. I’m proud. It means a lot to me.

My first few years as a hardworking associate attorney were at Cowan & Frey, from 1987-1990, working for Stuart M. Cowan (as I had done as a summer [non-licensed] associate throughout my law school years). In those days, I did whatever “the boss” wanted, often a “small kine” case for a friend of this famed lawyer (whom my brother and I affectionately called “uncle Stu” from “small kid days”). Those

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early days as a young attorney were quite tough and unpredictable. Mr. Cowan assigned me cases “on the fly,” and often at the very last minute. His style quite literally forced me to “learn the law” exceptionally fast, think very quickly on my feet and be ready for any and every type of case at any time. “Trial by fire,” if you will. Those were the days when many of us “entry level” associate attorneys at many downtown Honolulu law firms carried an “entry/access card” to the Supreme Court law library, often headed there after a full day of work, went into the building as the sun was setting to do legal research for an upcoming trial or work on an appellate brief soon to be filed, only to come out the next day as the sun was rising. The work was difficult.

The hours were horrendous. But the learning we received from so many of Hawaii’s great lawyers before us (even if it was trial by fire) was truly amazing. I’ll never forget it, that’s for sure. I owe so much to “uncle Stu,” and to the many other attorneys who worked for him, including Robert E. Rau and Steven T. Barta.

My father died entirely unexpectedly and under extremely tragic circumstances very early in my career, some 30 years ago. Then, “all hell broke loose.” For over a decade, his estate was tied up in extreme and complicated litigation; lawyers suing lawyers and family suing family. It was a dark and rather tragic time. Worst of all, it literally forced me “kicking and screaming,” against my better judgment if not against my will to leave Mr. Cowan’s employ, and that was also very tough and emotional on me. As an absolute loyalist (then and now), I truly never thought I’d move on, at least not until the famed lawyer decided to retire. Suddenly, I needed a job, and fast. I needed to support my family, then with a 2-year old and a newborn. I spent a bit of time at Smith Himmelmann, but truth be told, the work

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regularly handled by Elbridge All too often, we attorneys Smith at the time was so compliopine if not truly believe that we cated and complex that I just are far too busy “being a lawyer” couldn’t keep up and wasn’t proto ever consider volunteering ductive enough for the firm. It time to HSBA, or to any other was time to move on, albeit I was philanthropic pursuit. In many very grateful for the opportunity. respects, it’s quite true. Lawyers Mr. Smith and John D. Himmelwork ungodly hours, to include mann really taught me a lot. late nights and weekends. More They both are great attorneys. time seems to be spent at our law Thankfully, Bradley A. offices with our partners, associCoates took a chance on me in ates, staff and office colleagues 1990, and I joined his rather than with anyone else in our small boutique family-law firm, lives, to include our spouses, sigLaw Offices of Bradley A. nificant others, friends and yes, Coates, then with about four or even our own keiki and kupuna. five lawyers. I worked hard for Yet, despite such challenges and him for several years as one of pronounced time constraints, I several high producing attorneys firmly and strongly believe that (alongside some very good each HSBA member really lawyers, including Lyle P. Creadneeds to “give back” to your ick and Raymond E. Engle), state bar. Each of us must “do Attending SuperBowl 50 at Levi’s Stadium, February 2016. and I learned everything I what it takes” to get involved and needed to know to continue my stay involved. Personally, I have career exclusively in the divorce, domestic relations, and always tried to do what I say and put into action what I befamily law arena. I owe a lot to Brad, as I often say to him lieve. In other words, I really try to “practice what I even after more than 30 years on the job together. In 1996, preach.”

I was offered the opportunity to formally partner with I have been actively involved with HSBA for decades.

Brad. Coates & Frey was born and continued as one of Looking back, and truth be told, I wouldn’t trade the expeHawaii’s largest family law firms for 22 years, until 2018 (I rience(s) I’ve had for anything in the world, no matter how was fortunate enough to be managing attorney for many of many times my volunteerism may have taken me away those years). In 2019, two dedicated and hardworking asfrom other responsibilities and activities. It truly has been sociates of our firm, Tom S. Tanimoto and Noah H. Gibthat meaningful and that impactful, and I’m proud of the son, signed-on as partners. Coates Frey Tanimoto & work I have done, to include a “laundry list” of HSBA Gibson was born. Thankfully, these principled and dedi“stuffs.” Please allow me to share a few of my many roles, cated young lawyers, as well as our entire office of 10 as follows: several years as a family law section (“FLS”) oflawyers and about 13 support staff, are “minding the store” ficer, culminating as chair in 2002; 17 years (and counting) while I dedicate myself to this challenging role as your on the family law section board of directors; elected to HSBA president in 2020. I am indebted to our lawyer three terms on the HSBA board of directors (2004-2009), ‘ohana, including associates Shannon Kim Hackett, John having proudly served HSBA past presidents Dale W. Lee, D. Hughes, Ann S. Isobe, Paul W. Soenksen, Robert S.N. Richard Turbin, Wayne D. Parsons, Jeffrey S. Portnoy, JefYoung, and Micky Yamatani. They each mean the world frey H.K. Sia and Rai Saint Chu; several years later, in to me.

2018, our HSBA membership humbled me by electing me the HSBA vice-president (serving HSBA president Howard Since you have been involved with the Hawaii K.K. Luke), then on to president-elect last year (in support State Bar Association for number of years, what of president Derek R. Kobayashi, aka “Mr. pro bono”). I has been your various roles and experiences with have proudly worked for eight presidents, many of whom the HSBA? asked me to serve with pride and dignity on countless

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HSBA committees, whether a standing or ad hoc committee, and who put me to work on many other projects alongside other dedicated HSBA board and committee members.

Now, here I am, talking to our membership through the famed and informative Hawaii Bar Journal, about to begin my term as your HSBA 2020 president. As I reflect on these many years volunteering my time for HSBA, working alongside so many exceptional members of our HSBA equally devoted to giving of their time, talents, and expertise on the many HSBA boards I have served, I can honestly and truthfully say to each and every Hawaii lawyer, “just do it.” Sure, volunteer work at HSBA level isn’t at all easy, but the gratification and sense of “giving back” is limitless and timeless (or, as is said in the famed Visa commercials —Priceless). There is

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nothing quite like it. Get involved. Stay involved.

What do you consider to be the major issues facing the Bar Association this coming year, and what plans do you have regarding those issues?

Our HSBA is truly a machine. A finely tuned and smooth-running machine. It’s “big business” to do what has to be done to effectively and efficiently manage a mandatory integrated bar association membership as enormous as is our HSBA, with approximately 4,000 active members, about 5,500 total attorneys in Hawaii (including government lawyers and judges) and a total overall membership count of about 8,000 (including inactive members), not to mention overseeing and working with 21 voting members of the board (five officers, 15

directors and the YLD president), some 15 standing committees, various ad hoc committees from time-to-time and more than 20 HSBA sections, to include neighbor island bar associations, specialty bar associations and the YLD board. It’s an enormously daunting responsibility.

Sure, the HSBA staff (led by executive director, Patricia A. Mau-Shimizu, and assistant executive director Iris Ito) go above and beyond the call of duty each and every day to handle the “heavy lifting” needed to properly administer and manage the numerous tasks, assignments, duties, responsibilities, programs and committees necessary and required by our gigantic HSBA membership. But, more than anything else, what the entire dedicated HSBA staff really needs is the cooperation, understanding, support, and involvement of all HSBA members.

Each year, the HSBA staff and the board

does everything they collectively can to energize the bar members.

We often discuss ways to highlight to our members the genuine benefits of helping. It’s a major issue, and one we all take seriously. We need involvement.

We need volunteers. We need committee members and chairs. We need section members and chairs. It simply isn’t enough to believe that “the same folks” will continue to do the work and volunteer the time again and again as they have year-after-year. Rather than leave the work to “the usual suspects,” I humbly ask our membership to join in and to get actively involved in anything and everything HSBA. We welcome your philanthropic and volunteer spirit, energy and effort. In fact, we genuinely depend upon it. It’s a big thing to us, and we want it to be a “big thing” to you, our HSBA members.

Are there any special programs or features of the HSBA that you want to modify or work on or highlight?

The cooperative and collaborative relationship between Chief Justice Mark E. Recktenwald, the Supreme Court of Hawaii and our HSBA staff really needs to be more fully featured if not openly celebrated as often as we can do so. Our Chief Justice openly and repeatedly opines and discusses just how important our HSBA staff (to include our board and committees and sections) is to the work and responsibilities of our Supreme Court. It’s almost symbiotic in many ways. The supportive role of our HSBA staff is pronounced and constant, but perhaps a bit of a secret to most HSBA members. It’s my hope, wish, and intent that our membership becomes much more familiar, if not extremely appreciative, of just how much work our HSBA

staff does day in and day out, not only for our members but for and with and in support of our Supreme Court (as it administers to and manages and monitors Hawaii’s lawyers).

Stated more directly, our dedicated HSBA staff quite frankly acts in many ways as the “administrative arm” of our Hawaii Supreme Court, doing the tasks and handling the many responsibilities the high court needs to have done in order to properly administer to and properly monitor the thousands of lawyers in Hawaii, but which realistically can’t possibly be handled alone by a court which is so busy with its own incredibly important work as the highest court in our island state. Our HSBA staff does so much important work which touches and affects not only all Hawaii lawyers, but also helps our Supreme Court as needed and as requested. Pat Mau-Shimizu has begun

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work to properly and accurately document everything our HSBA staff does for us as a mandatory integrated bar, working alongside the Supreme Court/judiciary to properly administer our profession. This detailed work will hopefully be lauded, celebrated, disseminated, discussed, and appreciated by all of us for years to come.

As it should be, in my humble opinion.

and effort, we genuinely depend on it.

Let me say yet again, “just do it.”

Is HSBA making suggestions or have any plans to have the bar members perform more or additional pro bono services?

The Hawaii Justice Foundation, the access to justice campaigns and programs, and the numerous service providers (to include Are there any the Mediation Center long-term projof the Pacific and Greg and Mia regularly campaign their classic cars at shows. ects or programs Volunteer Legal Servthe Bar Associaices Hawaii) all no tion is working on that might be implemented doubt depend upon our HSBA membership to do more during your administration? If so, can you and more pro bono work, and hopefully as HSBA memplease discuss? bers decide to get more and more proactively involved at If my vision, hope, wish, and desire that more and and in all levels of our HSBA, each of us will in fact do more HSBA members step up to get proactively involved more pro bono work (no matter how busy we believe ourwith the numerous aspects and facets of our HSBA beselves to be handling “for pay” legal work). In my mind, comes a reality, then long-term, the HSBA committees and however, I’d be personally thrilled, if not outright oversections and specialty bars and even the HSBA itself will be joyed, if each active HSBA member did far more than just populated with far greater numbers. In my “mind’s eye aspire to do 50 hours of pro bono work each year, as is alview” of a perfect HSBA world, existing committee chairs ready required. Just think about how the folks in our 808and board members will have protégés in waiting in order island state not otherwise able to afford/have access to legal to train and guide and counsel to someday assume leaderservices would positively benefit if every HSBA member ship duties over time, and the stable of lawyers willing to performed those 50 hours each year? Those 50 hours pervolunteer time to the here-to -stay access to justice camformed might over time increase to 60 or 70 or more hours paigns and programs will greatly increase. It surely and each year for every HSBA member. Who knows? Perhaps without a doubt takes time to develop the energy and pasthe possibilities are limitless. No, your HSBA doesn’t have sion needed and necessary to persuade and convince any present plans to force our membership to provide more lawyers who are already (at least in their own minds and pro bono services or hours than already required by aspiraopinions) “too busy” to step outside their individual comtion, but perhaps if everyone gets more proactively infort zones to boldly step forward into the world of philanvolved, those hours will dramatically increase on a thropy and volunteerism. But, that’s exactly what your voluntarily basis.

HSBA staff and leadership continues to try to do, day in and day out. As I have said before, HSBA not only welIs the HSBA planning to provide more programs comes your philanthropic and volunteer spirit, energy or services to the neighbor island attorneys

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including providing live CLE programs on the neighbor islands?

“That was then, this is now.” When I initially served on the HSBA board way back when, the work done to unite and more fully involve dedicated neighbor island attorneys was nowhere near as pronounced or as cutting edge as it is today.

Currently, our HSBA staff and board and 15 committees and 20 Sections do everything they can to help our neighbor island members to have every opportunity the lawyers who practice on Oahu now enjoy. The HSBA board travels to neighbor islands for board meetings, often combined with live CLE programs. Pronounced discounts and other benefits are offered to neighbor island practitioners to provide incentives for their participation and involvement at HSBA programs, CLE programs, fundraisers, and other HSBA sponsored and/or endorsed events on Oahu. Our HSBA board mandates members be from our neighbor island bars. Surely, more can be done. Any ideas or suggestions, especially from our neighbor island members? Just let us know. Your HSBA staff, board, committees, sections and leadership are here to listen, to learn and to help.

What has been your inspiration throughout the years to find the time to do what you have done and will continue to do?

I can hear the words and wisdom of my paternal grandmother in my mind’s eye as if spoken only moments ago.

“Greg, always remember this. If you want to get something done, ask a busy person.” Almost never a day went by without my twin brother and me being mentored, counseled, and guided by this great woman. Our grandmother inherited the role of mother not by choice, but by circumstance. Although not a pretty story, our birth mom literally dropped us off at our grandmother’s

home on a Friday, said she’d be back on Monday, but never returned. With no one else available to care for two extremely mischievous boys of about five years old (because our Dad was off at college at the time), there was only our grandmother. Our stability. Our rock.

Our reason for living. This is where it all started; where my keen and absolute and unwavering respect, dependence upon and partnership with strong-willed, smart and efficient women was born. Here was a remarkable lady who graduated in three years from UCLA when women were never expected, if not frowned upon, to attend let alone graduate from college. I knew then, even as a rather confused keiki, that women are exceptional leaders and are damn good at it. I’ve been lucky enough to surround myself both professionally and personally with exceptionally talented, skilled, devoted, loyal, brilliant, and amazing women (as well as gifted men, for that matter). I have depended upon and clearly benefited from years of fantastic associations and linkages with amazing people, thankfully both in my professional and my personal life. Each has guided me to where I am today.

As almost everyone who knows me well can attest and verify, without my right (and left) hand, (CFTG paralegal) Miki Tsushima, I simply couldn’t do what I need to do daily. Along the way, lawyers at our firm (to include our predecessor firm, C&F) such as Andrea J. Armitage, Richard E. Dunn, Jr., Thomas D. Farrell, Jessi L.K. Hall, David M. Hayakawa, Na`u A. Kamali`i, Scott M. LaFountaine, R. Barrie Michelsen, Traci Rei G. Morita, Sheila Sue Noguchi, Karl E. Phillips, Ellen Politano, James R. Rouse, D. Bradley Russell, Evans M. Smith, Dean A. Soma, Jo-Ann K. Takara, Christopher D. Thomas, Paul A. Tomar, Mark A. Worsham, Darren L. Wu, Kimberly Van Horn, and many others have guided and helped both me and the suc-

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cess and stabilthis from me ity of our longthroughout established 2020, in my family law typical “cheerfirm. Each of leader” and these fine folks “rah-rah” fashhas helped ion. I’m not make it possible certain my style for me to do equates to what I have “words of wisdone and what dom.” But I I will do. My can honestly tell wife, lovely inour entire dependent HSBA memdaughters, bership that it brother and has always other members worked well for of my `ohana me. Together, Greg proudly walks his eldest daughter, Samantha, to the chapel on her wedding day, 2019. support my enlet’s give it a try. deavors without The Slopes question and without reservation. of Kalaepohaku are all about legacy, pride and tradition.

The alumni of Saint Louis (High) School are Crusaders Are there any other words of wisdom that you for life. It’s a mantra we live by. I see and truly believe would like to share with bar members? that our calling as attorneys and as members of the HSBA “Back in the day,” the tradition as implemented and is no less important. It is a lifetime calling which each of followed by the FLS board of directors was to gift the outus simply must embrace forever, for life. It too is a going FLS chair with “words of wisdom” in the form of a mantra. As a third-generation attorney, I guess I do get plaque or certificate of sorts, oft-times with an inspirational emotional when I wonder if and hope that both my late phrase or two. Famed FLS leader, back then and through father and grandfather are proud of my efforts and the pothe decades, William “Bill” C. Darrah, told me as I ended sition I now hold thanks to the faith and support of our my 2002-2003 term as FLS chair that these words very acHSBA members. I can hear them both, “Boy, you did it... curately described my leadership style: now, do it right.” I promise our HSBA to do just that. In True leaders are not those who strive to be first but fact, let’s all do it together. those who are first to strive and who give their all for the success of the team. True leaders are first to see the need, envision the plan, and empower the team for action. By the strength of the leader’s commitment, the power of the team is unleashed.

Looking back and, truth be told, looking ahead to my term as your HSBA president, I’m convinced Bill was correct. I regularly surround myself with dedicated folks all of whom are far brighter than I, and then repeatedly “cheerlead,” feature and vault their work and their philanthropic efforts. It’s rarely ever “about me,” but always about all those talented and dedicated folks around me. It is the HSBA staff, board, committee members, committee chairs, section members, section chairs and in fact the entire HSBA membership who are the true heroes. You’ll hear Greg & Mia’s Wedding Day, May 17, 1986.

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Important Changes to the Civil Local Rules for the cussion, which feaRecently, the tured U.S. District United States District United States District Court Judge Derrick K. Court for the District for the District of Hawaii Watson, Chief U.S. of Hawaii (“USDC Hawaii”) instituted the first wholesale revision of its Civil Local Rules of Practice (“Civil Local Rules”) in roughly a decade. Pursuant to the Order Amending the Local Rules of Practice for the United States District Court for the District of Hawaii, dated August 26, 2019, the amended rules took effect on September 1, 2019.

As with any extensive rule change, in the few months since the amended rules took effect, practitioners have sometimes struggled with familiarizing themselves with the amended rules. To help with this transition, some judges have instituted a temporary grace period, in which they have permitted parties to comply with the old rules while oftentimes issuing an instruction about the new rules.

See Local Rule (“LR”) 1.2 (providing judges with the discretion to apply the old rules or practices “when justice requires”). However, as more time passes from the effective date of the amended rules, practitioners should not expect

by Wayne Wagner

that judges will give them a pass when it comes to complying with the rule changes.

Still, even for those attorneys who have diligently read the amended rules, numerous questions have arisen as to how they should be interpreted. To answer some of these questions, the Federal Bar Association, Hawaii Chapter recently hosted a brown bag lunch dis-

Magistrate Judge Kenneth J. Mansfield, Andrew J. Lautenbach, and Traci Rei Morita. Below is a summary of a few key rule changes as well as select commentary by the brown bag panelists.

The changes to the Civil Local Rules are too numerous to cover in this article, so please consult the amended Civil Local Rules themselves, which are available on the USDC Hawaii’s website.

Also keep in mind that, although Judge Watson’s and Magistrate Judge Mansfield’s views are helpful to understanding the amended rules, they are not necessarily indicative of how other judges will interpret and apply the amended rules, as both judges were careful to note during the brown bag.

LR 7.4. Motions, Petitions, and Appeals: Length of Briefs and Memoranda. Briefing has been considerably shortened under the new rules.

A memorandum in support of or in op-

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position to a motion, petition, or appeal is now limited to 25 pages, or 6,250 words, unless the court orders otherwise, which is down from 30 pages or 9,000 words, respectively. As a percentage, the reduction in the word count is more substantial than the reduction in the page limit.

A reply brief or memorandum is still limited to 15 pages, but the word count has been reduced from 4,500 to 3,750 words.

A table of contents and a table of authorities are now required for briefs and memoranda exceeding 10 pages, whereas the previous rule required this when briefs or memoranda exceeded 15 pages.

LR 7.8. Pre-Filing Conference.

For most motions, the party intending to file the motion now must first engage in a “conference of counsel” with the other side, at least 7 days prior to filing the motion. During this meet and confer, the parties must discuss “the substance of the contemplated motion and any potential partial or complete resolution.” This requirement does not apply to “discovery motions (which are governed by LR37.1), applications for temporary restraining orders or preliminary injunctions, matters in which at least one party is pro se, and motions made during trial.” LR 7.8. The purpose, according to Judge Watson, was to reduce unnecessary motions practice, particularly where the other side would have agreed to the relief requested had they known of the basis for the motion. As an example, Judge Watson pointed to motions to dismiss under Federal Rules of Civil Procedure ("FRCP") Rule 12(b), confirming that this rule applies to dispositive motions.

If the parties cannot reach a resolution that eliminates the necessity for the

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motion, LR 7.8 requires a certificate of compliance. When asked whether motions would be struck if the parties met and conferred within 7 days of the motion’s filing, for example when a motions deadline does not permit the motion to be filed any later, Judge Watson acknowledged that extenuating circumstances sometimes may not allow parties to satisfy the rule’s 7-day deadline. In those situations, the certificate of compliance may be a good opportunity to explain those circumstances to the Court. He also added that LR 7.8 intentionally does not address enforcement, so that each judge has the discretion to handle violations on a case-by-case basis, for example, by at times issuing a cautionary instruction or striking the underlying motion, or at other times taking no action because the movant’s failure to strictly comply was excusable. Parties should not try to meet and confer after the filing of the motion, of course, because this undermines the very purpose of the rule requiring a pre-filing conference.

To ensure compliance with this rule, remember to integrate it into your calendaring for relevant motions’ deadlines.

LR 10.3 Mandatory Chambers Copies. Two hard copies must be sent to chambers at the time the original document is electronically filed for most types of pleadings. A list of documents requiring mandatory chambers copies is provided in LR 10.3(a). Do not use metal prongs or fasteners to hold the chambers copies together.

LR 16.5. Settlement Conferences. One important change to LR 16.5 concerns the use of discussions with the settlement judge outside of the settlement conference. As part of the settlement conference, it is not uncommon

for settlement judges to communicate with parties before and after the conference through phone, email, or other means. In the past, parties have sometimes tried to use these discussions with the settlement judge to enforce or challenge terms of a settlement agreement.

In response, subsection (c) provides in relevant part that “[a]ll such settlement communications shall be absolutely protected from disclosure for use in trial or for any other purpose, including a motion to enforce settlement.”

This rule makes clear that judges will not serve as witnesses to terms in the settlement that were discussed with them but not put on the record. It is important that settling parties be thoughtful about what settlement terms need to go on the record, and perhaps prepare a term sheet to minimize any future issues.

LR 26.2. Written Responses to Discovery Requests. LR 26.2 now addresses the assertion of privilege in much more detail. In addition to restating that “No generalized claim of privilege shall be allowed,” LR 26.2 now addresses privilege logs, and identifies the following categories of information that “should” be included on a privilege log: (1) Date of the creation of the document; (2) Author; (3) Primary addressee(s) and the relationship of that person(s) to the client and/or author of the document; (4) Secondary addressee(s) and the relationship of that person(s) to the client and/or author of the document; (5) Type of document; (6) Client (party asserting the privilege); (7) Subject matter of the document or privileged communication; (8) Basis for the legal claim of privilege, work product, or other objection to production; and (9) Document identifier (e.g., Bates number). LR 26.2(d).

Although LR 26.2(d)’s use of “should” means that these categories of information are not strictly required, their inclusion will increase the likelihood that a party claiming privilege will be able to satisfy FRCP Rule 26(b)(5)’s requirement that the assertion of privilege be accompanied by enough information for other parties to properly assess the claim of privilege. Magistrate Judge Mansfield explained that the new LR 26.2 is based on the Ninth Circuit’s Opinion in Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005), which may provide further guidance regarding the requirements of this rule.

LR 47.1. Research on Jurors or Prospective Jurors. New LR 47.1 addresses the increasingly common practice of conducting juror research through the Internet. The rule permits such research under certain conditions, including that the attorney maintain anonymity, avoid direct communication, and avoid using deception to gain access to any website or information. Yet another condition—that attorneys also can only access websites or information “available and accessible to the public and not the result of an attorney’s own social media account[.]”—requires a little more unpacking. Based on the comments by Magistrate Judge Mansfield and Andy Lautenback at the brown bag panel, this language means that attorneys may access juror information on websites that do not require the creation of an account, for example, like Facebook, which currently allows access to Facebook accounts even when you do not have one. However, other websites like LinkedIn do require the creation of a profile in order to view other members’ information, so researching jurors

through those websites appears to violate LR 47.1.

Attorneys cannot circumvent these requirements by having their assistant, firm, spouse, acquaintance, or anyone conduct their research in a way that does not comply with this rule. LR 47.1(c).

This also extends to jury consultants, so if you use one, be sure to inform them about this rule and its requirements.

LR 52.1. Findings of Fact and Conclusions of Law. LR 52.1 now states that, for any action tried without a jury, within 28 days of the action’s conclusion, the parties shall simultaneously file separate draft findings of fact and conclusions of law (“FOFs/COLs”).

The prior version of this rule required the prevailing party to file proposed FOFs/COLs 7 days after announcement of the decision, with the other party/ies having 7 days from then to file their objections and a substitute proposed FOFs/COLs. LR 54.2. Motions for Attorney’s Fees and Related Nontaxable Expenses. Magistrate Judge Mansfield explained that this was a wholesale revision of the rule based on the District of Illinois’s rule. One change is that parties now have 49 days after entry of judgment to file a motion for attorney’s fees—which is up from 14 days—but this is likely due to more detailed pre-filing requirements.

In particular, amended LR 54.2 requires a pre-motion meet and confer, in which the movant shall provide the respondent with information set forth in subsection (d), including hours, rates, time spent, and work records, within 14 days after entry of judgment. LR 54.2(d). If no agreement is reached, the respondent shall disclose evidence to oppose the motion within 14 days, and

then 7 days afterwards the parties shall identify the hours, rates, and other related nontaxable expenses that will and will not be objected to, and the basis for any objections. If any matters still remain in dispute, the parties then will prepare a joint statement regarding these issues within 42 days after the entry of judgment or settlement agreement. The prior rule required the consultation after the motion was filed.

A few other points to note, first, under subsection (i), the parties can consent to having the motion referred to the Magistrate Judge. If the parties are locked into the dispute, there is a benefit to this as the rule allows the parties to skip the de novo appeal to the district court and go straight to the Ninth Circuit, if a dispute persists. LR 54.2(i). Second, there is a safety valve in subsection (j), which says that, “At any time, the court may require, or the parties may request, a settlement conference to attempt to resolve the fees dispute by agreement. The parties may obtain relief from the time schedule set forth in this rule with the approval of the court.” LR 54.2(j).

It is also worth mentioning that at the brown bag certain of the judges in the audience and the panel took the opportunity to remind the audience that parties must do a sufficient job of proving the “prevailing market rate” for their fees. A recent Ninth Circuit case Roberts v. City of Honolulu, 938 F.3d 1020 (9th Cir. 2019), addressed this issue with respect to a Hawaii case and may be a helpful reference for establishing the prevailing hourly rate in the local legal community.

LR 56.1. Motions for Summary Judgment. Subsection (e) now expressly permits a party filing a reply to include a further concise statement that

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responds only to additional facts in the opposition’s concise statement.

LR 60.1. Motions for Reconsideration. LR 60.1 clarifies that motions for reconsideration are generally disfavored, and that a movant who uses the motion to repeat arguments already made will be subject to appropriate sanctions. Moreover, “[n]o opposition or reply shall be filed unless directed by the court.” LR 60.1. However, “[a] motion for reconsideration will not be granted, unless the non-moving party is given the opportunity to respond.” Id. LR 73.1. Magistrate Judges: Authority. LR 73.1(a) now specifies that, “After a case is initially assigned, the parties may subject to approval of a district judge, consent to a particular magistrate judge by designating the name of such magistrate judge in the

consent form.” (Emphasis added).

LR 88.1. Mediation. Consistent with the change to LR 16.5 discussed above, barring the use of statements by the settlement judge, LR 88.1(j) has been amended so that all communications made in connection with mediation under the rule are absolutely protected from disclosure, including for the purposes of a motion to enforce settlement.

LR 88.1(j). In contrast, the prior version of the rule offered much more limited confidentiality protections, by stating that “all communications made in connection with any mediation under this rule shall be subject to Fed. R. Evid.

408,” but that mediators and parties could communicate the substance of any position, offer, or other matter related to mediation if “required to enforce a settlement agreement.” LR 88.1(k)

(amended Aug. 26, 2019). This change further incentivizes parties and their counsel to take the appropriate steps when drafting the settlement agreement and putting the terms of settlement on the record to ensure that the settlement as they intended will be enforceable. ___________________ Wayne Wagner is an attorney at Goodsill Anderson Quinn & Stifel, whose practice includes representing clients in commercial litigation in federal court. He was a law clerk for the Honorable Richard R. Clifton of the United States Court of Appeals for the Ninth Circuit and the Honorable Susan Oki Mollway, then Chief Judge of the United States District Court for the District of Hawaii.

Congratulations to Ms. Christine Daleiden for being recognized by the Legal Aid Society of Hawaii for her commitment to the delivery of legal services at the Pro Bono Celebration held at the Hawaii Supreme Court.

Christine with Hawaii State Law Librarian Jenny Silbiger at this year's Pro Bono Celebration

please visit www.legalaidhawaii.org for more information.

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Christine chairs the Hawaii State Bar Association's Committee on the Delivery of Legal Services to the Public (DLSP), is a member of the Justice for All (JFA) committee, and volunteers at the Honolulu District Court Access to Justice Room (AJR). Under her leadership, the DLSP has expanded its initiatives to improve access to justice while continuing its strong support of court self-help centers statewide. Christine recruited volunteer attorneys from the banking sector to help staff the Honolulu AJR and provided additional computer equipment when needed. As a member of the JFA committee, Christine helped oversee the implementation of the state's Justice For All projects that included the Community Navigator statewide training program and the launch of Hawaii's Legal Inter-Agency Roundtable. Finally, Christine has been instrumental in assisting Legal Aid with content development for the Legal Navigator Portal Project, an innovative online legal services portal that will increase access to justice by directing people with legal needs to the most appropriate forms of assistance. The project is in collaboration with the Microsoft Corporation, the Legal Services Corporation, Pro Bono Net, the Hawaii State Judiciary, the National Center for State Courts, and the Pew Charitable Trusts and is being piloted by the Legal Aid Society of Hawaii and Alaska Court System.

Christine is the Senior Vice President, Director of Enterprise Fraud at American Savings Bank. She is also a Lecturer in Law at the University of Hawaii, William S. Richardson School of Law and serves on the Board of Editors for the Hawaii Bar Journal.

H SBA HAP PE NIN GS Board Action

Member Benefits Spotlight

The HSBA Board took the following actions at its meeting in October: • Voted to authorize HSBA Treasurer Paul Naso to accept the proposal from First Hawaiian Bank for refinancing of the Alakea Towers headquarters office and to work with FHB and staff on final documentation; • Approved the joint Executive-Finance Committee’s recommendation to accept the staff ’s selection of Bursting Silver as the company to redesign the HSBA website; and • Approved the joint Executive-Finance Committee’s recommendation on the proposed 2020 HSBA operating budget.

Heaven on Earth A tranquil oasis in the heart of downtown Honolulu, Heaven on Earth Salon and Day Spa is Hawaii’s best-kept secret among locals. Offering an array of blissful body wraps, rejuvenating massages, aromatherapy, calming and deep-cleansing facials, waxing, deluxe manicures, ultimate pedicures, natural or permanent make-up, and a full-service hair salon, Heaven on Earth caters to your every indulgence.

Show your HSBA member card to enjoy 10% off any single service and 15% off any spa package.

2020 Attorney License Renewal In case you missed the December deadline, it is not too late to renew and avoid being administratively suspended for nonpayment of dues and fees. The late fee for registration in January is $100.

The late fee for registration in February is $200. After February 29, you will need to pay a fee of $300 to reinstate your license to one in good standing. Go to the HSBA website at www.hsba.org to renew.

HSBA Board Welcomes Comment on Judicial Nominees The HSBA Board welcomes all members who wish to offer confidential comments on judicial nominees to email membercomments@hsba.org or write to the Board immediately after the name of nominees becomes public. Since the legislative process requires a swift turnaround time, it is incumbent upon HSBA members to submit their comments in a timely manner so that they may be considered in the Board’s deliberations.

The Island Club and Spa One-Month Guest Membership Please enjoy a one-month complimentary guest membership to Island Club and Spa, the signature health and rejuvenation destination in Honolulu. Conveniently located in the beautiful Ko’olani complex and in the center of Waikiki at the Alohilani Resort Waikiki Beach.

Included with a one-month guest membership: • Two complimentary one-hour personal training sessions to ensure you are on track to meet your health and fitness goals.

• Single guests may include a friend on their guest membership.

• Discounted corporate membership rate of $134 per month (regularly $185) and enrollment fee of $59 (regularly $500).

• Complimentary, towels, toiletries, free locker service, and valet parking provided.

• Over 60 group exercise classes provided at no cost such as yoga, cycle, pilates, Zumba, and more.

• Steam room, sauna, and whirlpool in ladies’ and men’s locker rooms.

To activate a complimentary membership, call or email Geri Lara Berger for an appointment at (808) 543-3900 or glaraberger@islandclubandspa.com,or email info@islandclubandspa.com.

Bar Method Honolulu The Bar Method is a pioneer of barre-based fitness workouts, developed under the guidance of physical therapists to reshape muscles, burn body fat and improve posture. It is a safe, fun, hour-long workout that uses isometric exercises to strengthen and tone all major muscle groups, followed by periods of stretching to elongate, lengthen and align the body. Students see immediate and noticeable results, regardless of fitness level or experience.

• Use promo code Bar10Class to receive 20% off 10 class packs.

• Use promo code BarNCS to receive 20% off our 30-Day New Client Special.

• Use promo code BarMember to receive 20% off monthly membership.

Lawyer Referral and Information Service The Lawyer Referral and Information Service (“LRIS”) has been a program of the HSBA for over 44 years.

The LRIS allows bar members to choose from over 14 major categories and 80 subcategories from which to receive referral notification by email. The LRIS screens over 12,000 requests annually. Approximately a third of those requests are for neighbor island attorneys and calls are received from the continental United States and other countries.

The LRIS provides bar members an opportunity to build their client base with those who are prepared to pay for legal services, as well as providing networking opportunities for repeat and new client contacts. The LRIS fiscal year is July 1 to June 30, and the cost to enroll is $325. With prorated fees, you may join now and pay $187.50. For more information or to join the LRIS, contact the HSBA at 808-792-7350, email LRIS@hsba.org, or visit the website at http://www.hawaiilawyerreferral. com.

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C O URT BR IEF S Hawaii Supreme Court at Waipahu High School

From left: Justice Richard Pollack, Justice Paula Nakayama, Chief Justice Mark Recktenwald, Justice Sabrina McKenna, and Justice Michael Wilson.

The Hawaii Supreme Court held oral argument on November 14, 2019, at Waipahu High School with nearly 500 students in attendance. Waipahu, Campbell, Kapolei, Pearl City, and Waianae High Schools participated in the Judiciary’s Courts in the Community program, designed to educate students about the Judiciary’s role in government and its function in resolving disputes in a democratic society.

The court heard arguments in the case of State vs. Celeste Baker. Students then engaged in two separate question-and-answer sessions; one with the attorneys and another with the five justices.

To prepare students for oral argument, attorneys from the Hawaii State Bar Association (“HSBA”) volunteered their time and facilitated a moot court activity in the participating classrooms.

“It has been a pleasure for us to work with the Judiciary to provide our youth with this opportunity,” said HSBA President Derek R. Kobayashi. “The volunteer attorneys were excited about going into the classroom and teaching the students about the case. I’m sure they even learned a great deal from the students.”

The HSBA and the Hawaii State Bar Foundation provided the students with lunches and transportation to and from Waipahu High School.

New Judges Sworn In Ronald G. Johnson, Trish K. Morikawa, Kevin A. Souza, and John M. Tonaki were sworn in as judges of

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the Circuit Court of the First Circuit on October 28, 2019. They will serve ten-year terms through October 2029.

Jeffrey A. Hawk was sworn in as judge of the District Court of the Third Circuit on November 4, 2019. Judge Hawk will serve a term of six years.

Clyde J. Wadsworth was formally sworn-in as Associate Judge of the State of Hawaii Intermediate Court of Appeals on November 12, 2019. He was officially swornin on October 21 when he began his 10-year term.

Mediators: Crafting Effective Opening Statements

Panel mediators, front, Judge Riki May Amano (ret.). Back left, Judge Joel August (ret.), Dick Mosher, Kale Feldman, Lisa Jacobs, Judge Allene Suemori (ret.), and Robin Campaniano.

Veteran mediator Dick Mosher led a lively panel discussion about the power of the first five minutes of mediation. “Opening Statements – Making Connections” was developed to provide mediators advanced training on building rapport, credibility, and trust during the first phase of mediation.

The Judiciary’s Center for Alternative Dispute Resolution partnered with the Association for Conflict Resolutions-Hawaii, HSBA-ADR Section, Kauai Bar Association, Kuikahi Mediation Center in Hilo, Maui County Bar Association, Maui Mediation Services, The Mediation Center of the Pacific, Inc, Spark M. Matsunaga Institute for Peace and Conflict Resolution, and West Hawaii Mediation Center to produce this legal education event. It was held on October 13, 2019 in the Supreme Court courtroom.

Olelo Community Television broadcast the session live to mediators and attorneys on Kauai and Maui. It will also be available on Olelo’s YouTube channel.

Notice of Discipline On November 21, 2019, the Hawai‘i Supreme Court imposed a Public Censure upon Clayton C. Ikei (“Ikei,” bar no. 1260) finding he improperly withheld the bulk of an award arising out of an EEOC claim from his former client for 74 days, when he knew he had no right to those funds.

He used his control of the funds to attempt to obtain agreement from the former client and the former client’s new attorney, to agree to pay the amount he had invoiced them for the assistance provided by him in preparing the petition for fees and costs. His conduct thus violated Hawai‘i Rules of Professional Conduct (“HRPC”) Rules 1.15(d) and 1.15(e).

The Court also found Ikei demonstrated a lack of candor by misleading the former client and his new attorney to believe Ikei would not disburse the invoiced amount to himself without their permission when, in fact, he had already done so. Ikei thus violated HRPC Rule 8.4(c). The Court noted that this violation was offset because the former client and his new attorney agreed to pay Ikei his fees and costs incurred in assisting them with the preparation of the petition and that Ikei had valid grounds for asserting a claim to the disputed funds. The Court concluded that the $6,695.47 in funds remained in dispute and, therefore, should have remained in the client trust account until such time as the parties took steps to resolve the dispute.

See Comment [3] to HRPC Rule 1.15.

In aggravation, that Ikei has two prior minor disciplinary violations;

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evinced a dishonest or selfish motive; committed multiple violations; refused to acknowledge the wrongful nature of his conduct; and had substantial experience in the practice of law. In mitigation, the Court found that Ikei made a full and free disclosure; evinced a cooperative attitude in the disciplinary proceedings; and has a good reputation of character in the legal community. The Court then concluded that the mitigating factors outweighed the aggravating factors and noted that this disciplinary matter arose from a single incident at the conclusion of Ikei’s legal career.

Noting that the record supports the conclusion that Ikei has now entered retirement from the practice of law, the Court ordered Ikei publicly censured, pursuant to RSCH Rule 2.3(a)(3). Ikei is also ordered to bear the costs of these disciplinary proceedings.

While the Public Censure does not prevent Ikei from continuing to practice law, it may result in more serious sanctions for future violations of the rules of professional conduct. Ikei, age 72, was admitted to the Hawai‘i bar in 1973, and is a graduate of the University of Southern California, James Gould School of Law. In this matter (ODC v. Clayton C. Ikei, SCAD-19-0000055), Ikei was represented by attorney James A. Kawachika.

DEPUTY CORPORATION COUNSEL The County of Hawai’i, Office of the Corporation Counsel, is seeking applications from experienced attorneys for a Deputy Corporation position in Hilo. Applicants must be licensed to practice law in the State of Hawai’i and be in good standing before the Hawai’i Supreme Court. Candidates must have effective communication skills, welldeveloped research and writing skills, and a desire to handle litigation cases in state and federal court including drafting of pleadings, motions, discovery, depositions and appearance in court, arbitration and mediation. Seeking applicants with at least 3 to 5 years of civil litigation and trial experience. Competitive salary commensurate with experience. Excellent benefit package and work environment. Please send letter of interest, resume, writing sample and references to: Joseph K. Kamelamela, Corporation Counsel 101 Aupuni Street, Suite 325, Hilo Lagoon Centre, Hilo, Hawaii 96720 E-mail: Cathy.Ferreira@hawaiicounty.gov or cc@hawaiicounty.gov The County of Hawaii is an Equal Opportunity Employer

Resolving your most challenging civil cases For over 35 years Chuck has assisted Hawaii’s attorneys and their clients to achieve fair outcomes in mediation and arbitration. Through constructive dialogue focused not only on the legal issues but also on the underlying human concerns, Chuck supports parties to craft innovative, practical, and sustainable resolutions, so they are free to move forward with their lives and businesses unencumbered by entrenched legal disputes. Free videoconference service for mediations, arbitrations and pre-hearing conferences.

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CAS E NOTES Supreme Court Collections Schmidt v. HSC, Inc., No. SCWC-160000858, November 8, 2019, (McKenna, J.). The current iteration of the case arose from a separate action, Civil No. 06-1-228, filed on April 7, 2006 in the circuit court by HSC. Following a bench trial on July 1 and 2, 2008, the circuit court concluded the Schmidts did not prove by clear and convincing evidence RFI actually intended to hinder, delay, or defraud any creditors of RFI, and therefore entered judgment in favor of HSC, Richard Henderson, Sr. (“Richard”), and Eleanor R.J. Henderson (“Eleanor”) (collectively, “Respondents”). Petitioners appealed unsuccessfully to the ICA. In deciding the Schmidts’ appeal, the ICA did not discuss the merits of the Schmidts’ challenge to the circuit court’s findings and conclusions, but rather concluded that the Schmidts’ HUFTA claim should have been dismissed as untimely.

After accepting certiorari, the Hawaii Supreme Court determined that the ICA’s decision on the statute of limitations provision in Hawaii Revised Statutes § 651C-9(1) was wrong as a matter of law because the ICA “incorrectly held that the statute of limitations was from the date of the transfer, rather than from the date that Petitioners discovered the fraudulent nature of the transfer.”

Schmidt II, 136 Hawaii at 510, 319 P.3d at 429. The Hawaii Supreme Court then vacated the ICA’s Judgment on Appeal and remanded the case to the ICA. Consequently, the ICA published an opinion that “address[ed] the merits of the Schmidts’ challenge to [the] [c]ircuit [c]ourt’s rejection of their fraudulent transfers claims, irrespective of whether their claims are or may be barred by the statute of limitations.” Schmidt v. HSC, Inc., 136 Hawaii 158, 164, 358 P.3d 727, 733 (App. 2015). In sum, the ICA concluded the circuit court erred in dismiss-

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Appeal Pointer 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). ing the Schmidts’ claims on the merits, as “the facts established by the record in this case . . . prove[d] by clear and convincing evidence that [RFI] actually intended to hinder, delay, or defraud any creditors of [RFI], as required by Haw. Rev. Stat. § 651C-4(a)(1).” 131 Hawaii at 179, 358 P.3d at 748. However, because the circuit court did not issue any findings or legal conclusions regarding when the Schmidts discovered, or could reasonably have discovered, the fraudulent nature of the transfers, the ICA remanded the case to the circuit court. After remand, on October 19, 2016, the circuit court issued its Findings of Fact and Conclusions of Law, which concluded the Schmidts’ claims were time-barred, as the Schmidts could reasonably have discovered the fraudulent nature of the transfers on or before February 21, 2005, but did not file a complaint until April 7, 2006, past the one-year statute of limitations period for HUFTA claims pursuant to Haw. Rev. Stat. § 651C-9(1). The circuit court entered Final Judgment on December 6, 2016. The Schmidts appealed, in sum asserting the circuit court clearly erred in determining when they could reasonably have discovered the fraudulent nature of the subject transfers. The ICA rejected the Schmidts’ challenge, concluding the circuit court did not err in making findings that “aided in its determination of how and when the fraudulent nature of the subject transfers could reasonably have been discovered by the Schmidts,

and we are not left with a definite and firm conviction that, based on all of the evidence, mistakes were made in these findings.” Schmidt v. HSC, Inc., No. CAAP-16-0000858, at 3 (App. Nov. 30, 2018) (SDO). Accordingly, the ICA entered a Judgment on Appeal on January 31, 2019 pursuant to its SDO affirming the circuit court’s December 6, 2016 Final Judgment and October 19, 2016 Findings of Fact and Conclusions of Law. The Schmidts timely filed an Application for Writ of Certiorari on February 19, 2019 (“Application”), presenting the same three issues they previously argued before the ICA, all related to the date the circuit court determined the Schmidts could reasonably have discovered the fraudulent nature of the subject transfers: (1) Whether the [ICA] gravely erred and the magnitude of such error or inconsistency dictates the need for further appeal where the ICA affirmed: (2) the circuit court’s conclusions of law (“COL”) nos.

6, 8, 9 and 10[; and] (3) the circuit court’s entry of final judgment denying [Petitioners’] complaint against the [Respondents]. In sum, the Schmidts asserted they could not reasonably have discovered the fraudulent nature of the transfers until the July 26, 2005 deposition of Michael Chagami, the chief financial officer of HSC, during which they learned RFI was insolvent, and that therefore their HUFTA claim was timely filed within the one-year statute of limitations period. The Hawaii Supreme Court accepted the Schmidts’ Application. The ICA erred in affirming the circuit court’s October 19, 2016 Findings of Fact and Conclusions of Law and December 6, 2016 Final Judgment, as the circuit court’s determination that the Schmidts “could have reasonably known of the Transfers and their fraudulent nature on or before February 21, 2005” contravened the Hawaii Supreme Court’s ruling in Schmidt II.

Constitutional Morita v. Gorak, No. SCAP-160000686, November 18, 2019, (Pollack, J., with Recktenwald, C.J., dissenting). In accordance with the structure of the political system, the appointment of many government officials is a shared responsibility of the executive and legislative branches. The governor is entitled to choose a nominee for such positions, but the nominee typically may not take office until the senate has voted to confirm the individual, thus ensuring the appointment is generally agreeable to both elected branches. Balanced against these political considerations are the practical realities of ensuring the day-to-day operations of public institutions. Governmental agencies may experience difficulties fulfilling their duties when offices that are necessary for their administrative functioning are left vacant. To protect against disruption, the Hawaii Constitution permits the governor to make interim appointments to offices that require senate confirmation when a vacancy arises and the senate is not in session. Additionally, the legislature has statutorily provided for certain office holders to continue their service as a “holdover” official following the expiration of their term, remaining in office until their successor is appointed. This case presented a question as to the interaction of these provisions: is the governor entitled to make an interim appointment when the term of an official who is statutorily permitted to holdover expires and the senate is not in session? Because there is no indication in the language or the legislative history of the holdover statutes to limit the governor’s authority to make interim appointments and the statutes would be constitutionally suspect if the legislature intended to achieve such an outcome, the Hawaii Supreme Court concluded that the governor is permitted to make an interim appointment under these circumstances.

Recktenwald, C.J. dissented.

Recktenwald, C. J. opined that the

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appointment of individuals to executive and administrative boards and commissions is largely governed by article V, section 6 of the Hawaii Constitution.

However, in drafting article V, section 6, the 1950 Constitutional Convention Committee of Executive Powers and Functions “subscribed, by and governor’s utilization of the interim appointment process was an unauthorized exercise of executive power, as the natural expiration of the term did not create a vacancy. By upholding the Governor’s actions, the Majority disregarded an intentional delegation of authority to the legislature and effected a rebalancing of power that the framers of the state constitution carefully contemplated and clearly proscribed.

Criminal Lewi v. State, No. SCWC-160000090, November 7, 2019, (McKenna, J.). The Hawaii Supreme Court held that Desmond J. Lewi’s (“Lewi”) Hawaii Rules of Penal Procedure Rule 40 petition stated a colorable claim that the Hawaii Paroling Authority (“HPA”) violated his due process rights by arbitrarily and capriciously determining that he was a “Level III” offender for purposes of calculating his minimum term of imprisonment on a manslaughter conviction.

The Hawaii Supreme Court remanded this case to the circuit court for a hearing as to whether the HPA arbitrarily and capriciously maintained Lewi’s Level of Punishment at Level III, Lewi may also amend his Rule 40 petition to include his claim on appeal that the circuit court did not adequately explain its decision to impose a consecutive sentence.

State v. Kauhane, No. SCWC-160000668, November 12, 2019, (Recktenwald, C.J.). In 2016, Keith Kauhane was convicted of Obstructing after participating in a demonstration against the construction of the Daniel K. Inouye Solar Telescope (DKIST) on the summit of Haleakala. The ICA vacated the conviction based on an error in the jury instructions, and remanded for a new trial.

Nevertheless, on certiorari, Kauhane asked the Hawaii Supreme Court to further determine: (1) whether the ICA erred in determining that the State’s complaint was sufficient, despite its failure to define the statutory term “obstructs”; and (2) whether the ICA erred in its analysis of a “golden rule” objection made by the State during Kauhane’s closing argument. The Hawaii Supreme Court held that the complaint was defective. By failing to include the statutory definition of “obstructs,” the complaint omitted an essential element of the offense of Obstructing and did not apprise Kauhane of what he was required to defend against. Even under the “liberal construction” standard applicable to charges challenged for the first time on appeal, the complaint cannot within reason be construed to charge a crime. Additionally, although the ICA correctly concluded that defense counsel did not make an improper “golden rule” argument, the Hawaii Supreme Court disagreed with the ICA’s conclusion that the argument was otherwise improper because it misstated the law.

State v. Lavoie, No. SCWC-150000643, November 22, 2019, (Pollack, J.). The circuit court in its pretrial order in this case excluded evidence of “other bad acts” committed by the defendant.

At trial, however, the court ruled that the defendant, by questioning a State’s witness about a single instance of separation between the defendant and the decedent, opened the door to the defendant’s prior acts of abuse. Over objection, the court admitted into evidence five instances of prior abuse that were not shown to be followed by a period of separation between the defendant and the decedent.

The prior misconduct in this case was admitted to rebut the affirmative defenses of lack of penal responsibility and extreme mental and emotional distress.

In an unsuccessful appeal to the ICA, the defendant argued that the circuit court erred in admitting the prior incidents of abuse, failed to properly limit

consideration of the prior misconduct evidence, and omitted a requisite jury instruction on merger. On certiorari, the Hawaii Supreme Court reviewed the “opening the door” doctrine and determined whether the circuit court correctly ruled that the door was opened in this case. The Hawaii Supreme Court also addressed, in the context of a limiting instruction, the crucial difference between a defendant’s state of mind to commit an offense and a defendant’s mental condition as it applies to the affirmative defenses of lack of penal responsibility and extreme mental and emotional distress.

Finally, the Hawaii Supreme Court considered whether the crimes of felon in possession and place to keep are continuous crimes, necessitating a merger instruction in this case. Based upon its review, the Hawaii Supreme Court concluded that the five prior acts of abuse were erroneously admitted. The Hawaii Supreme Court also held that the circuit court erred by not submitting a merger instruction to the jury because the crimes of felon in possession and place to keep are continuous crimes and the determination of merger must be made by the trier of fact.

cumstances of this case, although the sixmonth period did not expire because the commencement date of the time period under this rule is the effective date of the judgment on appeal. The Hawaii Supreme Court further held that the State’s failure to identify which charges would be dismissed prior to the defendant’s sentencing allocution violated the due process clause under article I, section 5, of the Constitution of the State of Hawaii. Lastly, the Hawaii Supreme Court reaffirmed that sound judicial administration instructs that the defendant be given the last word before sentence is imposed.

Property Hancock v. Kulana Partners, LLC, No. SCCQ-17-0000474, November 13, 2019, (McKenna, J.). In a federal court lawsuit, a grantor asserted that an escrow company’s alleged deletion of an easement from the property description attached to a deed he executed rendered

the deed a “forged deed” that was void ab initio. The escrow company and the grantee, on the other hand, asserted that the grantor’s claim sounded in fraud and was subject to, and barred by, a statute of limitations. They asserted that the statute of limitations had run because the grantor was deemed to have had constructive notice of the allegedly modified deed upon its recordation. The United States District Court for the District of Hawaii (“district court”) certified the following questions to the Hawaii Supreme Court: (1) Whether a claim relating to a forged deed is subject to the statute of limitations for fraud? (2) Whether the recording of a deed provides constructive notice in an action for fraud? As it was unclear whether, under Hawaii law, the underlying case involved a claim relating to a deed that was void ab initio or a claim that was subject to a statute of limitations, the Hawaii Supreme Court reframed the questions as follows: (1) Under Hawaii law, when is a deed

State v. Carlton, No. SCWC-170000419, November 25, 2019, (Pollack, J.). This case raised the issue of whether Haw. R. Penal P. Rule 48(b)(3) (2000) applied when the State on remand is given the option of either (a) retrying the defendant on the charges underlying three convictions vacated by the appellate court or (b) dismissing two of those charges and having the circuit court reinstate the conviction on the remaining charge and resentence the defendant.

The Hawaii Supreme Court also considered whether the State’s failure to disclose which two of the three charges would be dismissed before the defendant exercised the right of allocution at sentencing rendered the allocution constitutionally inadequate. The Hawaii Supreme Court held that Haw. R. Penal P. Rule 48(b)(3) is applicable to the cir-

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void ab initio for fraud, such that a claim challenging the validity of the deed is not subject to a statute of limitations?

(2) Under Hawaii law, what statute of limitations applies to a claim that a deed was procured by fraud of the type that does not render it void ab initio?

(3) Under Hawaii law, when does the statute of limitations begin to run on a grantor’s claim that a deed was procured by fraud of the type that does not render it void ab initio: upon recordation of the deed or at some other point in time? To answer the first modified certified question, the Hawaii Supreme Court held that, under Hawaii law, a deed is void ab initio for fraud, such that a claim challenging the validity of the deed is not subject to a statute of limitations, when (1) a deed is forged, meaning it has been falsely made, completed, endorsed, or altered with intent to defraud; or (2) a deed has been procured by “fraud in the factum,” such as when a person is fraudulently deceived about the nature of a document that has been signed, as when a document is surreptitiously substituted for signature. To answer the second modified certified question, the Hawaii Supreme Court held that, under Hawaii law, the six-year “catch-all” statute of limitations under Haw. Rev. Stat. § 6571(4) (2016) applied to a claim that a deed was procured by fraud of the type that did not render it void ab initio, e.g., fraud in the inducement and constructive fraud. To answer the third modified certified question, the Hawaii Supreme Court held that the statute of limitations begins to run on a grantor’s claim that a deed was procured by fraud of the type that does not render it void ab initio when the grantor discovers, or reasonably should have discovered, the existence of the claim or the identity of the person who is liable for the claim.

Tort Kuahiwinui v. Zelo’s Inc., No. SCWC13-0001803, November 21, 2019, (Wilson, J.). Under Hawaii’s liquor control statute, Haw. Rev. Stat. § 281-78, liquor

licensees have a duty to refrain from serving alcohol to patrons that they know, or have reason to know, are under the influence of intoxicating liquor. Ono v. Applegate, 62 Haw. 131, 138, 612 P.2d 533, 539 (1980). A negligent violation of this duty constitutes a cause of action known as a “dram shop” action. Id. at 134 n.2, 612 P.2d at 537 n.2. Respondents/PlaintiffsAppellants Bernadine Kuahiwinui and Kenneth Kaupu (“Kristerpher’s Estate”) asserted a dram shop claim on behalf of their son, Kristerpher Kuahiwinui (“Kristerpher”),1 who died while riding as a passenger in a vehicle driven by Kristerpher’s intoxicated cousin Solomon Kuahiwinui (“Solomon”). The liquor licensee that served Solomon and Kristerpher alcohol, Petitioner/Defendant-Appellee Zelo’s Inc. (“Zelo’s”), moved for summary judgment on the dram shop claim, alleging that Kristerpher’s Estate lacked standing to bring its claim of negligence against Zelo’s. The circuit court granted summary judgment to Zelo’s because Kristerpher was also intoxicated at the time of the accident, and therefore not an “innocent third party” with standing to bring a dram shop claim. The ICA reversed the circuit court’s judgment, holding that there were genuine issues of material fact regarding the complicity defense, i.e. “whether Kristerpher actively contributed to or procured the intoxication of Solomon and thus, whether Kristerpher fell within the protected class of innocent third parties entitled to bring a dram shop cause of action.” Kuahiwinui v. Zelo’s Inc., 141 Hawai‘i 368, 379, 409 P.3d 772, 783 (App. 2017). Because the complicity defense is inconsistent with application of the defense of contributory negligence, the judgment of the ICA was affirmed, but on the grounds that there were genuine issues of material fact as to whether Kristerpher’s contributory negligence exceeded the negligence of Zelo’s.

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O FF THE R EC ORD Casey T. Miyashiro joined Damon Key Leong Kupchak Hastert as an associate. He received his law degree from the William S. Richardson School of Law, where he graduated cum laude and served as Managing Editor of the University of Hawaii Law Review.

Gemma-Rose Poland Soon has started her own law practice GemmaRose Poland Soon, Esq., LLLC. Her practice focuses exclusively on family law, including agency and family court appeals.

Roy Takemoto was named as Managing Director of the Hawaii County. He previously served as Executive Assistant to Mayor Harry Kim since 2016 and as former Deputy Planning Director and Executive Assistant to the Mayor from 2000 to 2008.

Donna Davis Green joined Mitsuyama & Rebman, and Susan M. Ireland Hohmann joined the firm as of counsel.

Tracey Wiltgen, executive director of The Mediation Center of the Pacific, will assume a half-time position at the William S. Richardson School of Law as a Visiting Associate Faculty Specialist beginning in January 2020.

Tyler Iokepa Gomes was appointed as deputy to the chairman of the Department of Hawaiian Home Lands. He recently served as the partnership manager at Elemental Excelerator, where he oversaw the Elemental Hui – a partnership network of local businesses, non-profit, educational, and philanthropic institutions.

Linda Krieger was selected as the William S. Richardson School of Law’s teacher of the year and as a finalist for a University of Hawaii Board of Regents Teaching Excellence Award for Manoa faculty.

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Dean Aviam Soifer was selected by the American Association of Law Schools Section on Pro Bono and Public Service Opportunities to receive the 2020 Deborah L. Rhode Award. The award recognizes Soifer’s dedication to boosting the culture of pro bono in Hawaii and his exceptional leadership in the access to justice movement.

Sherry P. Broder was chosen as the Ved Nanda Center for International and Comparative Law Litigator-in- Residence at the University of Denver Sturm School of Law and was recognized for her outstanding accomplishments as a Human Rights and Social Justice Champion. She was recognized by the Hawaii Women’s Legal Foundation at its 2019 fundraiser for her contributions to the legal community.

Robert Thomas has been elected to the American Law Institute (“ALI”), the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. He is among 50 new American and international members who will bring their expertise to the organization, and the only new member from Hawaii.

Thomas is a land use, property, and appellate attorney, who focuses on regulatory takings, eminent domain, water rights, and voting rights cases.

Thomas will be participating in the work of the upcoming Fourth Restatement of the Law of Property.

Mike Sherwood received a lifetime achievement award for environmental law by the Environmental Law Section of the California Lawyers Association. The award was established “to recognize environmental lawyers who have contributed to the field of environmental law over a sustained period, achieved excellence in the practice of

environmental law, and provided legal services with high ethics and collegiality.” Sherwood is the sixth recipient of this award at the annual Environmental Law Conference in Tenaya Lodge at Yosemite National Park in October 2019. He was a staff attorney with the environmental law firm Earthjustice in San Francisco and Oakland for 39 years after leaving Hawaii.

The Historic Hawai‘i Foundation honored Beadie Kanahele Dawson as its 2019 Kamaaina of the Year in a celebration at the Royal Hawaiian’s Monarch Room. Dawson served for decades as chairperson of the Friends of the Law School. The Foundation also recognized Dawson “for her significant contributions as a community leader in native Hawaiian rights, social equity, and heritage preservation.”

Sergio Alcubilla was recently selected for the Filipino Young Leaders Program, a joint initiative of the Philippine Embassy under the leadership of Philippine Ambassador to the United States Jose Manuel Romualdez, Consulates General in the United States, and the Ayala Foundation. He is among 15 leaders in the nation chosen for their inspiring work in their communities and for helping to advance Philippine interests and advocacies in the United States.

Ron Heller will be directing The Mountaintop at TAG (The Actors’ Group), opening February 14 and running until March 8. Written by Katori Hall and winner of the 2012 Olivier Award for best new play, the show is a fictional version of the last night in the life of Dr. Martin Luther King, Jr. Tickets and information are available at taghawaii.net.

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