amendments to the Hawaii Rules of Professional Conduct

of sufficient evidence, and that special precautions are taken to
prevent and to rectify the convictions of innocent persons. The
extent of mandated remedial action is a matter of debate. See,
e.g., ABA Standards of Criminal Justice Relating to Prosecution
Function. Competent representation may require a prosecutor
to undertake some procedural and remedial measures as a
matter of obligation. See also Rule 3.3(d) of these Rules,
governing ex parte proceedings. Applicable law may require
other measures by the prosecutor. Knowing disregard of those
obligations or a systematic abuse of prosecutorial discretion
could constitute a violation of Rule 8.4 of these Rules.
[2] The exception in paragraph (b) recognizes that a
prosecutor may seek an appropriate protective order from the
tribunal if disclosure of information to the defense could result
in substantial harm to an individual or to the public interest.
[3] “Defense” as used in paragraph (b) refers to
defense lawyer or defendant if unrepresented.
[4] See Rule 3.6(d) of these Rules for restrictions on
extrajudicial statements by investigators and other persons
employed by lawyers in criminal cases.
[5] With respect to paragraph (c), consistent with the
objectives of Rules 4.2 and 4.3 of these Rules, disclosure to a
represented defendant must be made through the defendant’s
counsel, and, in the case of an unrepresented defendant, would
ordinarily be accompanied by a request to a court for the
appointment of counsel to assist the defendant in taking such
legal measures as may be appropriate.
Rule 3.9. ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS.
A lawyer representing a client before a legislative or administrative body
in a nonadjudicative proceeding shall disclose that the appearance is in a
representative capacity and shall conform to the provisions of Rules 3.3(a)
through (c), 3.4(a) through (e), and 3.5 of these Rules.
COMMENTS:
[1] In representation before bodies such as legislatures,
municipal councils, and executive and administrative agencies
acting in a rule-making or policy-making capacity, lawyers
present facts, formulate issues and advance argument in the
matters under consideration. The decision-making body, like a
court, should be able to rely on the integrity of the submissions
made to it. A lawyer appearing before such a body should deal
with the tribunal honestly and in conformity with applicable
rules of procedure. See Rules 3.3(a) through (c), 3.4(a) through
(e), and 3.5 of these Rules.
[2] Lawyers have no exclusive right to appear before
non-adjudicative bodies, as they do before a court. The
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