HI Bar - Hawaii Bar Hawaii Rules of Conduct Questions and Answers — Questions and Answers
Question 1: An attorney in Honolulu represents the buyer and seller in a single real estate transaction. The parties' interests are not directly adverse, but there is a significant risk that the attorney's representation of one will be materially limited by her responsibilities to the other. Under the Hawaii Rules of Professional Conduct (HRPC), what is the MINIMUM requirement for the attorney to continue with this concurrent representation?
- The attorney reasonably believes she can provide competent and diligent representation to both clients.
- Both clients provide verbal consent after the attorney explains the potential conflict.
- The attorney reasonably believes she can provide competent representation, and both clients give informed consent, confirmed in writing. (Correct answer)
- The attorney obtains a waiver from the Hawaii State Bar Association's Office of Disciplinary Counsel.
Correct answer: The attorney reasonably believes she can provide competent representation, and both clients give informed consent, confirmed in writing.
HRPC 1.7(b) permits representation in a concurrent conflict of interest situation only if four conditions are met: (1) the lawyer reasonably believes they can provide competent and diligent representation to each client; (2) the representation is not prohibited by law; (3) the representation does not involve asserting a claim by one client against another in the same litigation; and (4) each affected client gives informed consent, confirmed in writing. Simply believing one can provide competent representation is insufficient, and verbal consent is not enough; the consent must be informed and confirmed in writing. [5, 9, 25, 26]
Question 2: A lawyer in Hilo receives a $5,000 retainer from a new client for a civil litigation matter. According to the HRPC, where must the lawyer initially deposit these funds?
- In the firm's general operating account, to be transferred to a trust account once the first bill is issued.
- In a separate, interest-bearing client trust account (IOLTA). (Correct answer)
- In a personal savings account, as long as detailed records are kept.
- The funds may be used immediately to cover initial case expenses and filing fees.
Correct answer: In a separate, interest-bearing client trust account (IOLTA).
HRPC 1.15(a) explicitly requires that a lawyer hold property of clients separate from the lawyer's own property. [8] Funds, such as a retainer, must be kept in a separate client trust account. [7, 10] In Hawaii, these are typically Interest on Lawyers' Trust Accounts (IOLTA). [10] Commingling client funds with the firm's operating or personal accounts is a serious violation. [22] Funds paid in advance are considered unearned and must remain in the trust account until they are earned by the lawyer. [3, 8, 10]
Question 3: During a bench trial in Maui Circuit Court, an attorney's client provides testimony that the attorney knows to be false. According to HRPC 3.3, Candor Toward the Tribunal, what is the attorney's primary duty?
- Immediately move to withdraw from the representation without providing a reason to the court.
- Disregard the false testimony to protect the client's confidentiality under HRPC 1.6.
- Take reasonable remedial measures, which may include disclosure to the court if necessary. (Correct answer)
- Anonymously report the client's perjury to the Office of Disciplinary Counsel after the trial concludes.
Correct answer: Take reasonable remedial measures, which may include disclosure to the court if necessary.
Under HRPC 3.3(a)(4), if a lawyer has offered material evidence and comes to know of its falsity, the lawyer must take reasonable remedial measures. [4, 27] These duties apply even if compliance requires disclosure of information otherwise protected by HRPC 1.6. [21] Reasonable measures typically start with remonstrating with the client, but if that fails, the duty of candor to the tribunal is paramount and may require disclosing the perjury to the court. [21, 29] Merely withdrawing may not be a sufficient remedial measure. [4]
Question 4: Which of the following forms of communication by a Hawaii attorney is most likely to be an improper solicitation under the HRPC?
- A television commercial advertising the attorney's services in personal injury cases.
- A website blog post discussing recent changes in Hawaii landlord-tenant law.
- Sending a direct, private message via social media to a specific person recently identified in a news article as having been injured in an accident, offering legal services. (Correct answer)
- Mailing a general informational brochure about the firm's practice areas to local businesses.
Correct answer: Sending a direct, private message via social media to a specific person recently identified in a news article as having been injured in an accident, offering legal services.
HRPC 7.3(a) generally prohibits a lawyer from soliciting professional employment by live person-to-person contact when a significant motive is the lawyer's pecuniary gain. This includes real-time electronic contact directed to a specific person who the lawyer knows needs legal services. [18, 19] General advertising through public media like TV or websites is permissible under HRPC 7.2. [14, 16] A targeted, real-time message to a known potential client is considered improper solicitation.
Question 5: An attorney represents a client in a business negotiation. During a confidential consultation, the client calmly and credibly states, 'If this deal falls through, I'm going to cause a serious accident for the other party.' The attorney reasonably believes the client has the intent and capability to cause substantial bodily harm. Under HRPC 1.6, what is the attorney permitted to do?
- The attorney must remain silent due to the absolute duty of confidentiality.
- The attorney must immediately report the threat to the police.
- The attorney may reveal the information to the extent the attorney reasonably believes necessary to prevent the harm. (Correct answer)
- The attorney may only reveal the information if the client consents after consultation.
Correct answer: The attorney may reveal the information to the extent the attorney reasonably believes necessary to prevent the harm.
HRPC 1.6(c)(1) provides a discretionary exception to the duty of confidentiality. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. [13, 15, 20] The rule does not make reporting mandatory, but it permits it to prevent such severe harm. The attorney does not need client consent for this specific exception.
Question 6: Which of the following is NOT a factor a Hawaii court would consider when determining if an attorney's fee is reasonable under HRPC 1.5?
- The experience, reputation, and ability of the lawyer performing the services.
- The fee customarily charged in the locality for similar legal services.
- The client's ability to pay the fee. (Correct answer)
- The time and labor required, and the novelty and difficulty of the questions involved.
Correct answer: The client's ability to pay the fee.
HRPC 1.5(a) lists eight factors for determining the reasonableness of a fee. These include the time and labor required, the novelty of the issue, the customary fee, the amount involved and results obtained, time limitations, the nature of the professional relationship, and the experience and ability of the lawyer. [2, 11] While a client's financial situation might influence a lawyer's decision to take a case or structure a payment plan, the client's subjective ability to pay is not one of the enumerated factors for determining the objective reasonableness of the fee itself.
HI Bar - Hawaii Bar Hawaii Rules of Conduct Questions and Answers
An attorney in Honolulu represents the buyer and seller in a single real estate transaction.
The parties' interests are not directly adverse, but there is a significant risk that the attorney's representation of one will be materially limited by her responsibilities to the other.
Under the Hawaii Rules of Professional Conduct (HRPC), what is the MINIMUM requirement for the attorney to continue with this concurrent representation?