Everything on Hawaii Ethics

Question 1

Hawaii Rules of Professional Conduct

Answer 1

Adopted by the Supreme Court of the State of Hawaii to regulate legal practice in the state. Govern lawyers’ daily practice.

Question 2

ABA Model Rules of Professional Responsibility

Answer 2

Only model standards that have no force or effect in any jdx; they guide and aid drafting of texts like the HRPC that states adopt for actual enforcement.

Question 3

HRPC Rule 1.3 Requirements for Admission

Answer 3

Requires good character and fitness, including honesty, diligence, financial responsibility, and respect for the law.

Question 4

Duty of loyalty

Answer 4

A lawyer has a duty of loyalty to his/her client

Question 5

Concurrent conflict of interest

Answer 5

Occurs if representation of another client, or lawyer’s own personal interest, or lawyer’s responsibilities to a third party are directly adverse to a client, or significantly risk materially limiting lawyer’s representation of a client.

Question 6

Ignorance of conflict

Answer 6

No excuse unless it arises from short-term legal services under a court, agency, or non-profit program.

Question 7

Imputed Disqualification

Answer 7

Any group of lawyers that share responsibilities or present themselves to the public as a firm will share each others’ conflicts.
Exceptions:
when conflicts arise from previous gov’t service or work at a previous firm that represented adverse parties, representation by colleagues may be allowed if screened behind an “ethical wall”

Question 8

Remedies for conflict

Answer 8

Depend on the posture of the case. Lawyer might need to:

1) Reject the representation
2) Advise multiple clients to get separate counsel,
3) Withdraw

Question 9

Some conflicts may be tolerated if a case by case factual analysis establishes three elements:

Answer 9

1) Lawyer reasonably believes he can represent everyone effectively despite the concurrent conflict;
2) Lawyer consults with each affected client, flagging advantages and risks involved;
3) Client consent, confirmed in writing by the client, or by the lawyer’s recorded transmission to the client following her oral consent.

Question 10

If a lawyer’s clients are on opposite sides in the same proceeding before a tribunal . . .

Answer 10

it is ALWAYS unreasonable to represent both. This CANNOT be cured with consent.

Question 11

Opposing a current client in another matter (where the client is represented by different counsel) . . .

Answer 11

is a concurrent conflict, but MAY be ok with consent from all clients.

Question 12

Representing two clients with inconsistent legal positions, or with competing economic interest, in unrelated matters, is . . .

Answer 12

generally not a conflict and thus does not require consent.

Question 13

Representing multiple clients in the same matter where their interests are aligned - or lawyer is acting as an intermediary - . . .

Answer 13

raises significant risks that lawyer’s service may become materially limited as a result of the other’s interest.
Examples:
1) Representing a corporation and any of its directors, officers, shareholders, or employees
2) Representing both spouses in drafting wills.

Question 14

Representation of co-defendants in a criminal case is . . .

Answer 14

ordinarily not allowed without court inquiry and approval

Question 15

Multiple representation requires

Answer 15

1) proactive disclosure and consent
2) including a warning that attorney-client privileges will not protect client communications if future litigation arises between them.

Question 16

A lawyer cannot settle claims of multiple clients UNLESS:

Answer 16

1) lawyer fully discloses the claims and participation of each client, and
2) all consent in signed writings

Question 17

A lawyer cannot take on a new client with interests materially adverse to a former client without . . .

Answer 17

the former client’s consent in writing.

Without this, it would be a violation of lawyer’s duty of confidentiality and loyalty to former client

Question 18

Clients may consent in advance to future conflicts if . . .

Answer 18

1) they are well-informed, and
2) the type of conflict is familiar.
3) general and open-ended consents are likely to be ineffective

Question 19

What happens when a lawyer leaves a firm that represented a client adverse to a client at lawyer’s new firm?

Answer 19

Lawyer continues to have a conflict. This conflict is imputed to new colleagues. But, new colleagues may proceed without conflict if:

1) lawyer did not participate in the representation at the old firm and have no material information
2) lawyer is timely and effectively screened off
3) lawyer receives no direct part of the fee, and
4) the former client receives written notice (no consent is needed)

Question 20

If you worked “personally and substantially” on a “matter”as a government lawyer, you . . .

Answer 20

may not work on that same matter in later private practice without the government’s consent (same is true for “third party neutrals”). Other members of the new firm may work on the matter but only if three conditions are met:

1) you are timely screened, and
2) you do not share any part of the fee in the matter, and
3) your former gov’t employer is informed so it can monitor compliance.

Question 21

If you are working for the government, you . . .

Answer 21

cannot participate in “matters” in which you personally and substantially participated when in past private practice, unless no one else may act in your stead.

Question 22

Gifts to lawyer

Answer 22

A lawyer must not solicit a substantial gift from, or draft a legal instrument for, a client who is not your close relative, if it provides a substantial gift to your or your relative

Question 23

Limiting Liability

Answer 23

A lawyer cannot limit client’s right to report lawyer for ethical violations or to cooperate in disciplinary proceedings. Lawyer cannot limit malpractice liability when he enters into a relationship with client.

Question 24

Publication of Rights Contracts

Answer 24

Lawyer cannot obtain literary or media rights to accounts related to the representation of client BEFORE the end of proceedings.

Question 25

Lawyer cannot acquire a proprietary interest in a client's cause of action EXCEPT for:

Answer 25

a contingent fee arrangement or a lawful lien to secure fees and expenses.

Question 26

Loans to client are . . .

Answer 26

forbidden, EXCEPT for litigation expenses for an indigent client (pro bono), and the advance of litigation expenses in contingent fee cases.

Question 27

A lawyer may enter into business with a client or obtain an interest adverse to hers only if:

Answer 27

1) the terms are fair to the client, 2) they are disclosed in understandable writing, 3) lawyer advises the client in writing to consult an outside lawyer before proceeding, and 4) client signs a written consent to the essential terms

Question 28

A lawyer cannot appear as counsel and witness in the same trial UNLESS:

Answer 28

1) lawyer's testimony is uncontested, or 2) about lawyer's legal services rendered, or 3) lawyer's distinctive value to the case means withdrawal would impose substantial hardship on the client.

Question 29

Unless a lawyer already has a preexisting sexual relationship,

Answer 29

he cannot have sex with a client.

Question 30

Close relationships with adversary's lawyer:

Answer 30

A lawyer cannot directly oppose a party represented by a relative without client consent. Close relations include: immediate family (parent, child, sibling, spouse, or domestic partner)

Question 31

Organizational Clients

Answer 31

A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.

Question 32

If a lawyer knows of a violation of law or legal obligation that is likely to result in substantial injury to the organization, the lawyer must:

Answer 32

"Report up" through the highest authority in the company.

Question 33

If the company authorities do not respond, and lawyer reasonably believes it necessary to prevent substantial injury to the organization, the lawyer may:

Answer 33

"Report out" confidential information without client consent.

Question 34

Payment for lawyer's services is:

Answer 34

permitted, but only with informed client consent. And, a lawyer must protect client's confidences.

Question 35

Duty of confidentiality to client

Answer 35

General rule: don't reveal anything related to the representation of a client or use that information against her without her consent.

Question 36

A person who conveys information to a lawyer unilaterally, without expectation that the lawyer will represent him,

Answer 36

is not a prospective client.

Question 37

Prospective client and confidenitality

Answer 37

The duty of confidentiality can attach when a prospective client gives a lawyer information BEFORE a lawyer-client relationship is formed, and even if none is ever formed. To avoid conflicting out everyone in firm, when meeting a prospective client, limit the initial interview to only information necessary to decide whether to take the case, promptly screen yourself from your colleagues, and notify the prospective client of decision.

Question 38

Once attached, the duty of confidentiality continues . . .

Answer 38

even after formal representation ends.

Question 39

Distinguish attorney-client privilege from confidentiality

Answer 39

AC privilege is overlapping, but a narrower evidence rule. It may shield attorney's testimony in judicial proceedings about confidential communications from client for legal advice during relationship.

Question 40

Exceptions to Duty of Confidentiality

Answer 40

1) Consent 2) Defending yourself 3) If compelled by final court order, or other ethical duties. 4) To uphold the law, you MAY reveal confidences 5) If your services were used to further a client's crime or fraud that has substantially injured the financial interest or property of another, you MUST reveal information that clearly establishes the criminal or fraudulent act to the extent necessary to rectify its effects.

Question 41

Attorney Fees

Answer 41

In non-contingent fee cases, agreements must include the fee basis and what expenses the client is responsible for. A timely written agreement is preferable.

Question 42

In contingent fee cases, fee agreements:

Answer 42

Must 1) be in writing, signed by the client and contain 2) lawyer's percent; and 3) what expenses will be deducted from the recovery; and 4) whether lawyer's percent is taken before or after expenses; and 5) what expenses the client must pay if she loses

Question 43

Limits on Contingent Fees

Answer 43

Lawyer cannot agree to charge or collect fees contingent on the result of representation in CRIMINAL or DOMESTIC RELATIONS cases.

Question 44

Fees must be ___________

Answer 44

reasonable, taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience and abilities of the attorney, risks of the fee arrangement, etc. Client consent does not make a fee reasonable.

Question 45

Fee Splitting with Lawyers

Answer 45

1) generally ok to split fees with lawyers in your law firm 2) you MAY split fees with lawyers outside your firm only if the total fee is reasonable, the division is proportional to the work done by each attorney, and all attorneys assume joint responsibility for the representation with written agreement from the client.

Question 46

Fee Splitting with Non-Lawyers

Answer 46

generally NOT allowed. Exceptions: 1) death benefits paid to a deceased lawyer's firm or heirs for his work or purchase price of his law firm, 2) salaries paid to non-lawyer employees, and 3) sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer.

Question 47

Referral Fees

Answer 47

Generally unethical, but a lawyer may pay the usual charges of a qualified lawyer referral service, legal service, or non-profit plan. Also, a lawyer can agree with other professionals and lawyers to make reciprocal referrals if they are not exclusive and you explain the agreement to the client.

Question 48

Partnerships with non-lawyers in providing legal services is . . .

Answer 48

prohibited for any practicing lawyer. Non-lawyers cannot be partners, shareholders, officers, own an independent interest in, or control or direct your professional judgment.

Question 49

A lawyer has a duty to safeguard _________

Answer 49

client's property by labeling and storing it in a safe

Question 50

Put money held for the client into a ________

Answer 50

client trust account located in the state where lawyer's office is. Deposit all advances from the client for your unspent costs, expenses, and unearned fees, and all money received on your client's behalf.

Question 51

Do not _____ or _____ client funds with your personal money.

Answer 51

borrow; comingle

Question 52

If there is a fee dispute or if a third party has a lawful claim over the client's funds or property in lawyer's custody, lawyer must . . .

Answer 52

withhold the disputed portion in the client trust account until resolution of the claim.

Question 53

Duty to keep good records and notify client about changes in account

Answer 53

Lawyer has a duty to keep good records, render accountings, notify client of moneys received on his behalf, and pay promptly money due to him. Records must be kept for 6 years after representation ends.

Question 54

Duty of competence

Answer 54

A lawyer has a duty to render competent service to client. Competence means using the legal knowledge, skill, thoroughness in preparation reasonably necessary for the representation.

Question 55

If you don't know the relevant law, you

Answer 55

CAN'T take on a matter unless you can learn it without undue expense or delay, or you associate with a lawyer competent in the area.

Question 56

Discipline by the bar

Answer 56

An administrative action through the Office of Disciplinary Counsel to protect the public. Includes: disbarment, suspension, and public or private admonitions. Usually arises from incompetent service

Question 57

Malpractice

Answer 57

A civil case brought by a plaintiff for money damages in court. A malpractice plaintiff must prove a breach of a duty of due care.

Question 58

Duty of diligence

Answer 58

Lawyers have a duty to complete their cases diligently and promptly. Be on the look out for procrastination.

Question 59

Duty to communicate

Answer 59

Lawyers have a duty to answer client's reasonable requests for information, and keep client informed about the case so she can effectively participate.

Question 60

All plea and settlement offers MUST be . . .

Answer 60

conveyed to the client

Question 61

If a law practice is sold . . .

Answer 61

written notice must be provided to clients, and existing agreements honored unless the client consents to changes.

Question 62

Accepting representation

Answer 62

A lawyer is free to accept or to reject any case.

Question 63

Pro bono work

Answer 63

A lawyer should accept 50 hours of pro bono work a year and/or contribute to organizations that serve the needs. Lawyers should accept court appointments.

Question 64

When must a lawyer reject a case?

Answer 64

When taking it would violate a law or ethical rule. Typical problems are if lawyer is not in the physical or mental shape to take the case - violating the duty of competence to the client.

Question 65

The client makes decisions about her _________

Answer 65

substantive rights (whether to testify in a criminal case, accepting a plea bargain or settlement, waiving a jury trial)

Question 66

The lawyer makes decisions on __________

Answer 66

legal tactics (choice of motions). A lawyer may, in consultation with client, agree on reasonable limits to the scope of representation.

Question 67

Never advise a client in conduct you know is criminal or advise ________

Answer 67

how to act illegally and get away with it! However, a lawyer can discuss the legal consequences of a proposed course of conduct or in good faith test the scope of the law.

Question 68

You MUST withdraw from a pending case if . . .

Answer 68

fired, or if continuing would violate a law or ethical rule.

Question 69

If your services were used to commit a crime or fraud, you also may need to . . .

Answer 69

notice your withdrawal and disaffirm any documents.

Question 70

You MAY withdraw from a case if . . .

Answer 70

your withdrawal will not cause a material adverse effect on the client OR if you convince the court there is good cause. Examples: 1) client who persists in acting illegally 2) client insists on acts with which you disagree or find repugnant 3) client uses your services to commit a crime or fraud 4) client fails to substantially fulfill an obligation to you after being warned 5) your representation will result in an unreasonable financial burden on you

Question 71

Procedures for withdrawal

Answer 71

To quit, you MUST: 1) provide timely notice to the client, and 2) promptly return: any unspent fee and expense advances, and all property and material papers of the client.

Question 72

Advertising MUST NOT be:

Answer 72

false or misleading

Question 73

Claims of legal specialties

Answer 73

A lawyer cannot imply he is a specialist unless he has completed a certification program accredited by the ABA AND has petitioned the Supreme Court for a Hawaii Certificate of Specialization.

Question 74

Solicitation

Answer 74

Do not seek professional employment for pecuniary gain by initiating a live telephone or real-time electronic contact with a specific person with whom you have no prior professional, personal, or family relationship.

Question 75

Duty of candor the court

Answer 75

A lawyer cannot engage in conduct involving dishonesty, fraud, or misrepresentation. These duties can trump conflicting duties of confidentiality and loyalty to client.

Question 76

Duty to present facts and evidence truthfully

Answer 76

A lawyer must not make a false statement of material fact, or offer evidence that he knows is false, to a tribunal.

Question 77

Client perjury

Answer 77

A lawyer must not knowingly facilitate client perjury. In a civil case, a lawyer must refuse to call a witness if he knows the witness intends to perjure himself.

Question 78

If a criminal defendants tells you that he intends to testify falsely, what should you do?

Answer 78

1) Counsel him to testify truthfully or not to take the stand. If that fails, 2) try to withdraw from the case. If that fails, 3) tell the judge. The right to counsel and the duty of confidentiality do not shield perjury.

Question 79

What if, after the proceeding ends, your client tells you that he lied?

Answer 79

Take reasonable remedial measures (counsel him to recant), but your duties end with the proceedings.

Question 80

You must not counsel or assist any witness to testify falsely or to become _________

Answer 80

unavailable

Question 81

Duty to produce evidence

Answer 81

A lawyer must no suppress any evidence that she or her client has a legal obligation to reveal or produce, regardless of her duty of loyalty. A lawyer MUST not obstruct access to or tamper with fruits or instrumentalities of a crime

Question 82

Special duties of prosecutors

Answer 82

Prosecutors have higher ethical obligations than lawyers because they have a duty to seek justice, not just to win cases. Prosecutors have an affirmative duty to timely disclose evidence favorable to the defense that might negate guilt or mitigate a sentence. Prosecutors must have probable cause.

Question 83

Duty to state the law truthfully

Answer 83

Be candid about the law and cite to adverse authority if controlling and on point. Knowingly making a false statement of law or presenting frivolous claims or defenses to the court is subject to discipline.

Question 84

If continued representation would require YOU to commit or assist in committing a crime, you _______ withdraw! If you client persists in criminal acts, but you are not assisting, you _______ withdraw.

Answer 84

1) Must | 2) May

Question 85

Duty of honesty

Answer 85

A lawyer has a duty to behave honestly in all dealings, both in and out of the legal practice.

Question 86

Documents sent inadvertenly

Answer 86

If you know a document was inadvertently sent to you, you must stop reading and notify opposing counsel. Pending resolution with the other lawyer or court, you must not copy, disseminate the document, or use it to your advantage.

Question 87

Communication with represented entities

Answer 87

Unless authorized by law or giving a second legal opinion, you must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his counsel For orgs, consent is required for communications with persons with managerial responsibility, or any current employee whose communications might be imputed to the org for criminal or civil liability or constitute an admission on its part.

Question 88

Dealing with the press

Answer 88

You have a duty not to interfere with a defendant's right to a fair trial. You and your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case. Exceptions: matters in the public record or routine booking information, warning the public, informing them of an investigation, and statements required to protect your client from substantial undue prejudice from recent publicity not self-initiated.

Question 89

Duty to preserve the decorum and impartiality of the tribunal

Answer 89

1) Before trial, you must not talk to any prospective juror about the case or try to influence them about it. 2) During trial, no lawyer can communicate with an empaneled juror about the case. If you are counsel in the trial, you must not communicate with any empaneled juror on ANY subject 3) After the jury is dismissed, you generally should not communicate with them. But you may interview them or answer their questions, as long as it does not harass them or seek to influence their future jury service

Question 90

Duty to expedite cases

Answer 90

1) You have an affirmative duty to expedite cases. 2) you have a duty to follow valid procedural rules or court orders, unless you are making a good faith challenge to their validity. Do not abuse or obstruct discovery.

Question 91

You cannot assist others in the . . .

Answer 91

unauthorized practice of law. You cannot allow a suspended or disbarred Hawaii attorney have contact with clients or people dealing with your law office

Question 92

Policing misconduct

Answer 92

The rules require lawyers to report to "the appropriate professional authority" any other lawyer's or judge's violation of the Rules in any legal or non-legal context if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer

Question 93

If you are under the control or supervision of another attorney who ratifies or orders you to take an action violating an ethical rule, is that ok?

Answer 93

1) No, you are subject to discipline 2) Your supervising partner is also in violation if he ratified the act or knew of it and failed to take reasonable remedial action Managing partners must also make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with the professional obligations of a lawyer, including non-lawyer assistants.