amendments to the Hawaii Rules of Professional Conduct

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clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and the firm complies with any condition required by law, such as provisions requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 of these Rules that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability. [15] Agreements settling a claim or a potential claim for malpractice are not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel. Acquiring Proprietary Interest in Litigation [16] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. The rule is subject to specific exceptions developed in decisional law and continued in these Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer’s fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction determines which liens are authorized by law. These may include liens granted by statute, liens originating in common law, and liens acquired by contract with the client. A lawyer may not retain possession of client files and records in order to secure payment. When a lawyer acquires by contract a security interest in property other than that recovered - 45
through the lawyer’s efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by Rule 1.5 of these Rules. Client-lawyer Sexual Relationships [17] The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the client-lawyer evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client. [18] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer's ability to represent the client will be materially limited by the relationship. See Rule 1.7(a)(2) of these Rules. [19] When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs, or regularly consults with that lawyer concerning the organization's legal matters. Familial Conflicts of Interest [20] Rule 1.8(k) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed - 46
Page 1 and 2: Electronically Filed Supreme Court
Page 3 and 4: constitutional democracy depend on
Page 5 and 6: elationship shall be established. S
Page 7 and 8: information that the isolated lawye
Page 9 and 10: [5] Similar questions can also aris
Page 11 and 12: association with another lawyer wou
Page 13 and 14: [4] In a case in which the client a
Page 15 and 16: Rule 1.3. DILIGENCE. A lawyer shall
Page 17 and 18: prior consultation. In such cases t
Page 19 and 20: (c) Contingency Fees; Requirements.
Page 21 and 22: assistance in the midst of a procee
Page 23 and 24: COMMENTS: [1] This Rule governs the
Page 25 and 26: een a substantial element in enabli
Page 27 and 28: jurisdiction requiring the lawyer t
Page 29 and 30: (3) the representation does not inv
Page 31 and 32: clients whose interests are only ec
Page 33 and 34: efore accepting the representation,
Page 35 and 36: Consent Confirmed in Writing [20] P
Page 37 and 38: of this Rule. Thus, the lawyer does
Page 39 and 40: epresentation should be fully expla
Page 41 and 42: (h) A lawyer shall not: (1) make an
Page 43 and 44: lawyer learns that a client intends
Page 45: [12] Sometimes it will be sufficien
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
Page 57 and 58: currently serving as an officer or
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
Page 65 and 66: lawyer for the organization cannot
Page 67 and 68: Taking Protective Action [5] If a l
Page 69 and 70: solutions as soon as possible. Norm
Page 71 and 72: (6) Copies of records showing all p
Page 73 and 74: Lawyers should be mindful of their
Page 75 and 76: faith makes the entire practice, or
Page 77 and 78: Other Applicable Ethical Standards
Page 79 and 80: whether or not to undertake a new m
Page 81 and 82: to inform the client of forms of di
Page 83 and 84: is that as between commonly represe
Page 85 and 86: of the evaluation, particularly the
Page 87 and 88: lawyer's role as third-party neutra
Page 89 and 90: does not vouch for the evidence sub
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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circumstances where counsel suspect
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(iii) the fact, time and place of a
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prejudicial statements have been pu
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Determining whether or not such a c
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equirements of this Rule therefore
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civil enforcement proceedings, wher
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(3) either reach agreement with the
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circumstances is a question of fact
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the ethical aspects of their employ
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from employing the services of para
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means. The variety of these activit
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(b) representing the client is like
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Rule 6.5. NONPROFIT AND COURT-ANNEX
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[3] An advertisement that truthfull
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public-relations personnel, busines
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already feel overwhelmed by the cir
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services. Lawyers who participate i
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in law practice is acceptable so lo
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(2) offer, agree to, attempt, negot
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[3] A lawyer may refuse to comply w
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