Lawyer’s Professional Ethics in Hawaii
In Hawaii, the legal profession is governed by the Hawaii Rules of Professional Conduct (HRPC) which was adopted by the Hawaii Supreme Court to guide the ethical conduct of attorneys in the state. These Rules are indispensable to maintaining public confidence in the sixth largest profession in the nation. The HRPC as a whole and every rule contained within them serve to protect clients, prospective clients , the public and the legal profession from lawyers who fail to adhere to their ethical obligations.
The Attorneys Licensing Judiciary Committee was established (in conjunction with the Hawaii State Bar Association) to propose the first set of ethical rules to be adopted and incorporated as part of the Hawaii Supreme Court Rules. After reports were submitted by the Committee and the Court extended consideration of the matter for nearly a decade, the Hawaii Rules of Professional Conduct became effective January 1, 1987. Over the years, the Rules have been amended in 1991, 1994, 1997, 1998, 2000, 2007, 2012, 2013, and 2014.
Hawaii Rules Highlights
The Hawaii Rules of Professional Conduct for attorneys in Hawaii set the foundation for an attorney’s basic duties and responsibilities to their clients. The core principles behind the rules are competence, diligence, communication, confidentiality, supervision of non-lawyer assistants, avoiding false statements and a myriad of other ethical obligations.
The Rules may seem overwhelming at first glance, particularly given the number of numbers that precede each rule. Rather than follow the numerical thread of the rule number, it is important to consider each rule under three broad categories that have ongoing implications on the attorney-client relationship in Hawaii:
• Communicate clearly with the client: promptly respond to correspondence; provide status updates; and communicate the pros and cons of critical case decisions so that the client understands how the decision may impact their matters.
• Provide competent and diligent representation for clients: keep up to date with new legal developments; refer to competent co-counsel when not qualified to accept or work on a certain matter; avoid conflicts of interest between current and prospective clients; and work efficiently to adhere to deadlines while providing quality representation.
• Disclose all known relevant information to the client: until the attorney has all relevant information (gained from investigation, discovery, etc.), the attorney, as a fiduciary, cannot make critical decisions about key matters. For example, the existing lawsuit is too weak to continue; the case may settle for a low amount even thought the client is entitled to more; or the verdict is monetary damages only in a personal injury case and no emotional damages or medical expenses are awarded by the jury.
Confidentiality and Duty to the Client
Confidentiality and Client Relations
The Preamble to the Hawaii Rules of Professional Conduct for Lawyers, like the American Bar Association’s Model Rules, provides both context and substance to the Rules themselves. These rules assist in the recognition of "fundamental commitments lawyers and their clients should seek to fulfill in practicing law."
In the Preface, the Preamble states:
"The practice of law is not a business for profit or a game of personal amusement. Those who would be lawyers in any society, but especially in a democratic system of government based upon the rule of law, must possess and honor a professional responsibility to citizens, clients, and society at large. Those who seek the protection of the law and the justice that law seeks to protect may call upon their lawyer to advise them in their personal affairs, in their family matters, in their endeavor to preserve their rights and privileges, and in their commercial dealings. Their lawyer’s advice should be given with the object of promoting the public good, of protecting with zealous and honor professional effort the rights of all. A lawyer’s conduct should reflect standards of personal integrity and adhere to the highest standards of ethical behavior."
And Section (8) of the Preamble emphasizes the importance of client confidentiality:
"Lawyers are increasingly called upon to help prepare and enforce conventions, treaties, and statutes that have arisen in fields of international and intercontinental concern. In pursuit of that work, lawyers are expected to respect all of the laws that govern its processes. In addition, lawyers should seek to ensure that the relationship of lawyer and client, through which so much of this work is channeled, is not only a sound legal relationship, but one in which conventionally acceptable instruments of contractual and commercial value such as confidentiality and even the attorney client privilege may be appropriately employed to advance the international public and private interests that underpin the work of lawyers."
The Hawaii Supreme Court sets out eight matters to be considered in determining the standards of due care required in the performance of a lawyer’s responsibilities. "(1) the nature and extent of the lawyer’s communication with and information from the client; (2) the types of experience and skill normally possessed by lawyers engaged in the type of services to be rendered; (3) the requirements, if any, for specialization; (4) the opportunity for the client to review the lawyer’s proposed work product before it is delivered to other parties; (5) the client’s needs as to time and method of performance; (6) the fees and costs charged by the lawyer for the services to be rendered; (7) the degree of financial risk involved; and (8) the likelihood that the client may be misled unless the required work is performed or action is taken."
See, e.g., Lewis v. Levi Strauss & Co., 708 F. Supp. 1205, 1210 (N.D. Cal. 1988); Fox v. Supervisor of Elections, 153 So. 2d 97 (Fla. 1963); In re Schaefer, 291 N.W. 2d 716, 720-21 (Iowa 1980); State v. Tilley, 320 S.E. 2d 281, 284 (May 10, 1984); Goodman v. Wainwright, 498 So. 2d 888, 889 (Fla. 1986); People v. Harris, 6 Cal. App. 4th Supp. 1, 1-2 (1992); State v. Tilley, 320 S.E. 295, 297 (May 7, 1986); People v. Lawson, 170 Misc.2d 698, 699 (N.Y. Crim. 1996); cf. Fla. R. Prof. Conduct 4-4.3[a] and Fla. R. Prof. Conduct 5-1.7 [emphasis added].
In order to comply with ethical standards, attorneys dealing with creditors must do so with a clear understanding of their obligations to their clients to protect their interests and the counseling a lawyer must provide when undertaking a case. The success of the debtor/creditor relationship depends on mutual cooperation.
Conflict of Interest Principles
The Hawaii Rules of Professional Conduct for Lawyers (HRPC) require that all lawyers consistently avoid situations which could lead to even the appearance of impropriety. None more so than when the representation of clients involves possible conflicts of interest. The violations of professional responsibility rules resulting from conflicts of interest can be serious issues for attorneys and may result in disqualification of the lawyer, disciplinary action, or both. Thus, it is imperative that attorneys are familiar with the HRPC’s governing conflicts of interest.
Rule 1.7(a) defines a "conflict of interest" as "the representation of one client will be directly adverse to another client." But conflict of interest situations need not be so straightforward. Rule 1.9(a) as expanded by Rule 1.0(e) defines a conflict of interest as "a significant risk that the lawyer’s representation of the current client will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person …." This may occur even if the lawyer does not represent a party against the former or current client.
Rule 1.9 contains restrictions that apply to a former client. Thus, a lawyer cannot represent an opposing party in a subsequent matter that is related to the prior representation. Nor may a lawyer settle a claim or potential claim against an existing client, including those arising in the absence of litigation, unless the client consents after being given the opportunity to consult independent counsel.
Rule 1.10 states that while lawyers are generally free to make their own decisions, a firm with at least one lawyer disqualified under a rule regarding successive representations of a client cannot undertake the affected representation, notwithstanding the disqualifying lawyer’s possible consent, if representation of the affected party would adversely affect the interests of the former client or present client of the disqualified lawyer.
An attorney must act promptly to avoid situations "that are likely to compromise his or her professional integrity or the confidentiality of information that the lawyer is obliged to keep confidential." In short, attorneys who fail to "avoid a situation [that] will harm their professional integrity … [and] creates the perception that they have not maintained the required professional independence from their former clients," risk violating HRPC rules.
Professional Conduct and Enforcement
Professional misconduct is any act or omission that violates the Rules of Professional Conduct or the Hawai’i Rules of Evidence. Instances of professional misconduct are outlined in the Hawai’i Rules of Professional Conduct (HRPC), including:
If found guilty of professional misconduct, attorneys could face major sanctions, including disbarment, suspension, or censure. Certain conduct can also result in civil or even criminal penalties. Under HRPC Rule 8.5, attorneys are subject to the laws of the jurisdiction in which they are licensed and also to the laws of the jurisdiction where they are providing legal services — even if the conduct is considered authorized in one jurisdiction but not another .
Because each case is unique, the Office of Disciplinary Counsel carefully investigates every claim and presumes the accused attorney to be innocent until proven guilty. There are several stages throughout the disciplinary process, which includes pre-hearing conferences and the opportunity for settlement negotiation. The decision on the administrative charge is made by a hearing committee that includes an attorney and a non-attorney. If either side is unhappy with the committee’s decision, either party has the right to appeal. The investigation and hearings process is overseen by the Office of Disciplinary Counsel, which employs nine investigators.
Recent Changes in the Hawaii Rules
The Hawaii Rules of Professional Conduct are subject to periodic review and amendments to reflect changes in the law and the legal profession. Recent updates to the Rules have been issued by the Hawaii Supreme Court.
In April 2019, Hawaii Ethics Opinion 2019-01 was issued in response to a request from the Hawaii Attorney General for guidance on Hawaii’s Rules of Professional Conduct ("HRPC") in regard to the use of outside counsel to represent state agencies. Opinion 2019-01 finds that attorneys disqualified from representing a client because of a conflict of interest may continue representing the formerly affected client in non-conflicted matters if all parties and the court consent to the continued dual representation after being advised of the conflict and any potential consequences.
In June 2019, an amendment to HRPC Rule 1.15 was effective that expands the variety of depository institutions that may be used for client funds. Client funds must, however, be deposited in an account in Hawaii under the name of the attorney, firm or fiduciary and must be separate from the attorney’s other funds. HRPC Rule 5.5 (for "Unauthorized practice of law") was also amended in June 2019. The amendment clarifies that participation in non-judicial dispute resolution by out-of-state attorneys who do not wish to represent clients in Hawaii is permissible provided that participation is limited to one individual dispute represented, and provided that the out-of-state attorney does not otherwise engage in the practice of law in Hawaii.
Why Lawyers Must Follow the Hawaii Rules
Attorneys are obligated to comply with the Hawaii Rules of Professional Conduct. This is not merely a suggestion or best practices, but rather, they are required in order to be in compliance with Hawaii Supreme Court rules:
Rules 20-2(a) and 20-7 of the Hawaii Rules of the Supreme Court require that attorneys comply with the Hawaii Rules of Professional Conduct. The purpose and requirement of these rules are to, in effect, secure the counsel of attorneys for all parties to actions pending in the circuit courts and to protect the public health, morals, and natural resources of the State govern. Loose v. Hawaiian Trust Co., 40 Haw. 154, 158 (Haw. Terr. 1955) (emphasis added).
So clearly, there are consequences if a lawyer does not comply with the Hawaii Rules of Professional Conduct. Adverse action by the Hawaii Office of Disciplinary Counsel and Hawaii Supreme Court could result, for example . An attorney’s violation of any one of the Hawaii Rules of Professional Conduct could have serious ramifications for cited infractions. There are varying degrees of reprimands for an attorney’s infractions, ranging from a simple reprimand for minor violations of the Hawaii Rules of Professional Conduct to censure, suspension, or even disbarment. In fact, in the event of disbarment, a Hawaii-licensed attorney would no longer be able to represent clients in any legal circumstances in the State of Hawaii.
Additionally, a breach of the Hawaii Rules of Professional Conduct can give rise to litigation against the attorney who is negligent towards his or her duty to clients and could give rise to the tort of malpractice against the lawyer. Even innocent mistakes and/or discovered omissions may result in professional liability with significant monetary loss.