amendments to the Hawaii Rules of Professional Conduct

parte contact with jurors and prospective jurors, and limiting
contact with discharged jurors.
Enforcement of original HRPC 3.5(b) was enjoined by the
United States District Court for the District of Hawai‘i in Rapp
v. Disciplinary Board, United States District Court Civ. No.
95-00779 DAE. While the Rapp case was pending in federal
court the supreme court proposed, the Hawai‘i State Bar
Association approved, and, on May 8, 1996, the supreme court
adopted amendments so that HRPC 3.5 provided:
Rule 3.5 IMPARTIALITY AND DECORUM OF THE
TRIBUNAL
(a) A lawyer shall not:
(1) seek to influence a judge, juror, prospective juror,
or other official by means prohibited by law;
(2) communicate ex parte with such a person except as
provided in subsection (b) of this Rule; or
(3) engage in conduct intended to disrupt a tribunal.
(b) After the jury is discharged, a lawyer may ask
questions of, or respond to questions from, jurors provided the
lawyer does so in a manner that neither harasses nor
embarrasses the juror and does not seek to influence the juror's
actions in future jury service. Likewise, after final disposition of
a matter a lawyer may ask questions of a judge or other official
regarding the matter and may respond to questions from the
judge or other official, provided the lawyer does so in a manner
that neither harasses nor embarrasses the judge or official and
does not seek to influence the judge's or official's actions in
future judicial or official service. A juror or judge is free to
refuse to comment or respond.
COMMENTS:
In anticipation of further amendment after a decision in
Rapp v. Disciplinary Board, subsection (b) was intended to be
an interim rule.
In Rapp, the United States District Court for the District
of Hawai‘i concluded:
. . . that [original HRPC] 3.5(b) as interpreted and
applied suffer[ed] from two chief infirmities. First, the language
of the rule prohibiting ex parte communication with jurors
"except as permitted by law," is unconstitutionally vague and
overbroad. . . . The plain language of [original] Rule 3.5(b)
[did] not specifically indicate whether a judge ha[d] the
authority to grant leave, or whether "good cause" or "exigent
circumstances" for seeing the interviews must be shown.
Moreover, this court has not found any Hawai‘i case law which
either sets forth an exception to [original] Rule 3.5(b) in
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