amendments to the Hawaii Rules of Professional Conduct

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should not in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a). [5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation, or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. [6] Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding. [7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When - 99
prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others. Rule 3.7. LAWYER AS WITNESS. (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9 of these Rules. COMMENTS: [1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client. Advocate-Witness Rule [2] The tribunal may object when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party may object where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof. [3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as advocate and necessary witness except in those circumstances specified in paragraphs (a)(1) through (a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has first hand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony. - 100
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Electronically Filed Supreme Court
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constitutional democracy depend on
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elationship shall be established. S
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information that the isolated lawye
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[5] Similar questions can also aris
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association with another lawyer wou
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[4] In a case in which the client a
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Rule 1.3. DILIGENCE. A lawyer shall
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prior consultation. In such cases t
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(c) Contingency Fees; Requirements.
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assistance in the midst of a procee
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COMMENTS: [1] This Rule governs the
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een a substantial element in enabli
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jurisdiction requiring the lawyer t
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(3) the representation does not inv
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clients whose interests are only ec
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efore accepting the representation,
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Consent Confirmed in Writing [20] P
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of this Rule. Thus, the lawyer does
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epresentation should be fully expla
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(h) A lawyer shall not: (1) make an
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lawyer learns that a client intends
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[12] Sometimes it will be sufficien
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through the lawyer’s efforts in t
Page 49 and 50: multiple clients in a matter repres
Page 51 and 52: firm's clients. In contrast, anothe
Page 53 and 54: lawyer will not materially limit th
Page 55 and 56: from the provisions of Rule 1.11, i
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Page 59 and 60: Rule 1.12. FORMER JUDGE, ARBITRATOR
Page 61 and 62: (2) the lawyer reasonably believes
Page 63 and 64: matters, which the lawyer should en
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Page 67 and 68: Taking Protective Action [5] If a l
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Page 73 and 74: Lawyers should be mindful of their
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Page 77 and 78: Other Applicable Ethical Standards
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Page 81 and 82: to inform the client of forms of di
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Page 91 and 92: [10] The other resolution of the di
Page 93 and 94: (d) advise or cause a person to sec
Page 95 and 96: [2] The advocate's function is to p
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Page 99: (iii) the fact, time and place of a
Page 103 and 104: Determining whether or not such a c
Page 105 and 106: equirements of this Rule therefore
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Page 109 and 110: (3) either reach agreement with the
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Page 117 and 118: means. The variety of these activit
Page 119 and 120: (b) representing the client is like
Page 121 and 122: Rule 6.5. NONPROFIT AND COURT-ANNEX
Page 123 and 124: [3] An advertisement that truthfull
Page 125 and 126: public-relations personnel, busines
Page 127 and 128: already feel overwhelmed by the cir
Page 129 and 130: services. Lawyers who participate i
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Page 133 and 134: (2) offer, agree to, attempt, negot
Page 135 and 136: [3] A lawyer may refuse to comply w
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amendments to the Hawaii Rules of Professional Conduct

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