amendments to the Hawaii Rules of Professional Conduct

circumstances where counsel suspect that jury misconduct has
occurred or a procedure that an attorney needs to follow if that
attorney does have suspicions. Additionally, no Hawai‘i case
has discussed what might amount to good cause warranting jury
interviews, if good cause is the applicable standard. . . . [I]t is
unclear how the rule would be applied in circumstances which
may warrant the grant of post verdict interviews by a trial court.
That is, a description of the mechanism for review by a trial
judge is conspicuously absent from the rule. Moreover, the
standard "as permitted by law" provides little guidance to
lawyers as to when jurors can appropriately be contacted. . . .
Second, the probable efficacy of [original] Rule 3.5, as it
has been interpreted by the Hawai‘i Supreme Court, in
protecting jury members and their verdicts is minimal at best. . .
. If the aim of Rule 3.5 is to protect the sanctity of jury verdicts
and prevent jury harassment, it misses the mark. Instead, as
interpreted, the rule would theoretically allow two unscrupulous
lawyers who agree to interview jurors together, to engage in a
jury harassment "free for all" with no court supervision.
Clearly, the limitations [original] Rule 3.5 places on ex parte
jury communications is not well-tailored to achieve the State's
compelling interests.
The United States District Court concluded:
. . . the State Defendants have demonstrated a compelling
interest in preserving the integrity of the trial process by
protecting jurors from post trial harassment and unnecessary
intrusion by lawyers. There is no question that a properly
tailored rule . . . can pass constitutional muster.
The United States District recognized two compelling
state interests that could justify a rule restricting attorney
contact with jurors: "[1] the public policy holding jury
deliberations and verdicts inviolable and [2] the aim of
protecting the privacy of jurors." However, the United States
District Court concluded original HRPC 3.5(b) was not
sufficiently tailored to meet the State's compelling interests and
enjoined its enforcement.
Upon review of the United States District Court's order,
the Supreme Court of Hawai‘i proposed additional amendments
to Rule 3.5. After discussions with the Hawai‘i State Bar
Association and the Disciplinary Board and consideration of the
concerns expressed by those entities, the supreme court adopted
the current Rule. The current Rule eliminates the phrase "as
permitted by law." In furtherance of the valid public policy
interests in keeping jury deliberations inviolable and protecting
the privacy of jurors, subdivision (e) retains the trial judge as
the gatekeeper between the attorneys and the jury.
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