Report of the 2019 Bench-bar Conference

• Citation: Vol. 24 No. 08
• Publication year: 2020

REPORT OF THE 2019 Bench-Bar Conference

1. INTRODUCTION

The Hawaii State Bar Association's ("HSBA') Committee on Judicial Administration¹ ("Committee") is composed of Hawaii state judges and practicing attorneys in the fields of civil, criminal, and family practice. The Committee, among other duties and functions, has held Bench-Bar Conferences at the Hawai'i State Bar Conventions for a number of years.

The last Bench-Bar Conference took place on October 11, 2019. The meeting of judges and lawyers was separated into the following sub-groups: Civil Circuit Court, Criminal Circuit Court, Civil District Court, Criminal District Court, and Family Court. Each group was given common topics to discuss that could impact the judicial system. The 2019 common topics were as follows:

1. Privacy. The focal point on this topic was the use or misuse of social media to investigate the private lives of any party or individual for the purpose of gaining an advantage in cases.

2. Scheduling, Continuances, and Extensions of Time. The discussion on this topic centered on requests for extensions and its impact on the court, attorneys, and the parties, and whether there were abuses of such requests.

3. Settlement and Plea Agreements. The focus on this issue was the concept of raising and exploring settlement (or plea agreements in the criminal area) as soon as possible.

4. Succession Planning. The Office of Disciplinary Counsel has had a surge of cases in which solo practitioners did not designate another attorney to wrap up their cases in the event of death or inability to practice law. The question is whether designation of a successor should be required.

Prior to the Conference, each subgroup suggested specific topics relevant to practice. For example, in the criminal law arena, there were discussions about fast-tracking mental health cases. In the Civil Circuit Court and Civil District Court subgroups, various concerns with the recent implementation of the electronic filing system were discussed.

[Page 4]

For the first time, Family Court judges and lawyers participated in a Family Law group at the 2019 Bench-Bar Conference. One of their topics centered on recent Hawaii Supreme Court cases that impacted settlement offers.

The subgroups attempted to arrive at a consensus on the various topics. A number of times, no agreement could be reached.

A. WELCOME

Justice Simeon R. Acoba, Jr. (ret.) and Steven J. T. Chow, co-chairs of the Committee, welcomed the participants to the Conference on Friday, October 11, 2019, and thanked Chief Justice Mark E. Recktenwald for his support and commitment in attending the conferences and forums every year. Participants were encouraged to provide comments and candid feedback so that the Judiciary might consider their suggestions and ensure that the judicial system works well for all involved.

B. OPENING REMARKS

Chief Justice Recktenwald thanked the Committee, HSBA, Task Force on Civil Justice Improvements ("Task Force"), Chief Judge Craig H. Nakamura (ret.), Judge Gary W B. Chang, and the Judiciary for their hard work and support of the Conference, which is the Judiciary's best source of input and feedback. Chief Justice Recktenwald was also proud to announce that the opening of the Kona courthouse, Keahuolu, was on time and on budget. Keahuolu features a new Access to Justice Room, in honor of Judge Ronald Ibarra (ret.).

II. REPORT OF THE CIRCUIT COURT-CRIMINAL LAW GROUPS

A. COMMON TOPICS

1. Privacy

The Guidelines of Professional Courtesy and Civility for Hawai'i Lawyers ("Guidelines") provide that an attorney who manifests professional courtesy and civility: (a) Does not inquire into, nor attempt to use, nor threaten to use, facts about the private lives of any party or other individual for purpose of gaining an advantage in a case, and where sensitive matters are relevant to an issue, will pursue such inquiry as narrowly as reasonably possible.

[Page 5]

The questions posed for the group were:

• Is anything found on the Internet fair game?

• Should lawyers communicate with clients using social media?

• Does a lawyer's duty of competence under Hawaii Rules of Professional Conduct ("HRPC") Rule 1.1² include knowledge of social media and how the technology may be used to influence a case?

A majority of the attorneys in the groups have searched social media posts on witnesses, adversaries, and jurors. Most attorneys feel that search of a public account does not present an issue. The use of social media levels the playing field, expecially in the Office of the Public Defender, State of Hawai'i, because there are limited funds to hire investigators. Before the advent of social media, public defenders would hire investigators. An attorney's job is to find information; thus, it is fair to obtain social media profile information if such information is exposed to the public. If such a search complies with fairness and the rules of evidence, then the information is fair game.

The American Bar Association ("ABA") has already addressed the issue of juror research. The ABA has approved such searches if it is only to collect information on the juror. It is not proper to contact a juror through social media, but "Googling" a juror is not classified as any type of misconduct.

However, the attorneys foresee a problem if an attorney: (1) creates a fictitious account or (2) approaches a friend of an individual to obtain access to the social media account of that individual. The question then arose of what the attorney's responsibilities are when a person has a lawyer or if the person is a juvenile. What is ethical in the context of a search? Sometimes it is not necessarily the content that is useful, but subtleties of the persona and personality that can be helpful in preparation for cross examination. Questioning can be just as detrimental as the content of the social media account. The consensus of the groups was that any public information discovered by an attorney on the internet can be used in a case without any reservations.

The next question was whether an attorney should communicate with a client through social media. There was a consensus that using social media for non-privileged, public information is acceptable, especially if there is no other reasonable alternative available — for example, in the case where a client's cellphone is turned off and the attorney desires that the client return the attorney's call. It was also the consensus of the groups that confidential communications should not be sent using social media, as they may raise disciplinary issues concerning confidentiality.

The final question was whether it would be considered malpractice for an attorney to lack proficiency in the knowledge and use of social media in the representation of a client. In other words, does the lack of knowledge and use of technology jeopardize an attorney's duty of competence under HRPC Rule 1.1?

The participants believe an attorney must be aware of what social media has to offer, be proficient enough to use the sites productively and avoid violating disciplinary rules. However, this means that the attorney should be conscious of the drawbacks of using social media as an investigative tool. For example, there are some sites, such as LinkedIn that tracks contacts. Therefore, use of such sites like LinkedIn, will create a record of contact with the site. On certain occasions, the question may then arise as to whether an unauthorized contact with a represented party has been made.

After discussion, the consensus of the groups was that an attorney should not be required by court rule to become a social media expert and that effective representation does not require the attorney to have a high level of competence and knowledge of social media.

In Circuit Court-Criminal Group 2, the discussion turned to monitored prison phones, computer messages, and conversations. The primary purpose of law enforcement is to prevent prison misconduct, but questions arise such as whether defense counsel should have notice of the monitoring taking place and have access to such information; whether such information is discoverable; and whether there should be rules governing the recovery storage, use, and discovery of ' such information. If the prosecutors have access to these materials, they I can use it in preparation for trial, i.e., it may reveal how an inmate feels about a witness, whether he/she is "on edge," or reveal a factor that can assist the prosecutor in fine tuning or preparing for cross-examination. From the prosecutors' perspective, these materials are not in their custody and control and often are never reviewed by a prosecutor. Moreover, if the materials do not contain relevant evidence, they are not turned over to the defense. The group decided that this was a discovery issue, and the attorneys were straying from the issue of privacy Therefore, this "discovery issue" might be a topic for future discussion.

[Page 6]

2. Scheduling, Continuances, and Extensions of Time

The Guidelines state that a lawyer should understand and advise a client that civility and courtesy in scheduling meetings, hearings, and discovery are expected and, when the legitimate interests of the client will not be adversely affected, reasonable requests for extensions of time should be agreed to. The questions for discussion were:

• Are reasonable efforts made to schedule meetings, hearings, and discovery by agreement whenever possible, considering the scheduling interests of opposing counsel, parties, witnesses, and the court?

• Are delay tactics being used in scheduling meetings, hearings, and discovery?

• Is harassment, delay, or the appearance of being tough the purpose of seeking continuances or extensions of time?

• If new counsel is substituted for prior counsel, are requests for extensions of time reasonably given?

The discussion started with a description of how scheduling is conducted in the First Circuit and the issues surrounding...