Rules of the Supreme Court of the State of Hawai`i

RULES OF THE

SUPREME COURT

OF THE

STATE OF HAWAI‘I

Adopted and Promulgated by

the Supreme Court

of the State of Hawai‘i

As amended April 16, 1984

Effective June 1, 1984

With Amendments as Noted

The Judiciary

State of Hawai‘i

RULES OF THE SUPREME COURT

OF THE STATE OF HAWAI‘I

Table of Contents

Rule 1. ADMISSION TO THE BAR

1.1. Authority of Hawai‘i Supreme Court

1.2. Board of Examiners

(a) Composition and Reimbursement

(b) Officers of the Board

(d) Governance

1.3. Requirements for admission

(a) Applications

(b) Legal Education or Experience Requirements

(d) Investigation of Applications

(e) Review of Adverse Recommendations as to Good Character and Fitness

(f) Non-Standard Testing Accommodations

(g) Examinations

(h) Child Support Enforcement

(i) Student Loan Enforcement

1.4. Fees

1.5. Oath and admission

(a) Deadline for Admissions

1.6. Attorney's license, form of

1.7. Limited admission of military attorneys

(a) Full-time active duty officers

(b) Term limitation; extensions

(d) Discipline; dues

1.8. Law school faculty members; Pro tem membership

1.9. Pro hac vice appearance of counsel

1.10. Resignation from the bar while in good standing

1.11. Readmission after resignation

1.12. Immunity

1.13. Specialization

(a) Petition for Certificate of Specialization

(b) Contents of Petition

(d) Form of Certificate

(e) Limitations

(f) Revocation of Certification

(g) Renewal

1.14. Mandatory professionalism course

(a) Professionalism Course

(b) Proof of Compliance

(d) Reinstatement

(e) Fees

Rule 2. DISCIPLINARY RULES

2.1. Jurisdiction

2.2 Grounds for discipline

2.3. Types of discipline

2.4. Disciplinary board

2.5. Hearing committees

2.6. Disciplinary counsel

2.7. Procedure

(a) Investigation

(b) Minor misconduct

(d) Review by Board and Supreme Court

(e) Elimination or suspension of hearing proceedings

2.8. Immunity

2.9. Refusal of complainant to proceed, compromise, etc.

2.10. Matters involving related pending civil or criminal litigation

2.11. Service

2.12. Power to subpoena respondents and witnesses; pretrial proceedings

2.12A. Failure to cooperate

2.13. Attorneys convicted of crimes

2.14. Resignation in lieu of discipline or disbarment by consent of attorneys under disciplinary investigation or prosecution

2.15. Reciprocal Action

2.16. Disbarred or suspended attorneys

2.17. Reinstatement

2.18. Deleted

2.19. Proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated

2.20. Trustee proceedings

(a) Grounds for appointment of trustee

(b) Confidentiality

(d) Disposition of unclaimed files

2.21. Deleted

2.22. Confidentiality

2.23. Interim suspension

2.24. Audit of trust accounts

(a) When audit may be ordered

(b) Random audits

(d) Cost of audit

2.25. Deleted

2.26. Effective date

Rule 3. ATTORNEY AND CLIENT FIDUCIARIES

Rule 4. JUDICIAL COUNCIL

(a) Appointment

(b) Functions

(d) Quorum

Rule 5. HAWAI‘I REVISED CODE OF JUDICIAL CONDUCT

Rule 5.1. ELECTRONIC AND PHOTOGRAPHIC COVERAGE OF COURT PROCEEDINGS

(a) Reserved

(b) Reserved

(d) General provisions and exclusions

(e) Request for extended coverage

(f) Standard for consent to extended coverage

(g) Restrictions on extended coverage

(h) Procedure for extended coverage

Rule 5.2. TECHNICAL GUIDELINES TO BE FOLLOWED WHEN EXTENDED COVERAGE IS PERMITTED UNDER RULE 5.1

(a) Equipment and personnel

(b) Sound and light criteria

Rule 6. LAWYER'S PROFESSIONAL BUSINESS ORGANIZATIONS

(a) Compliance with this rule and applicable statutes

(b) Name

(d) Shares; ownership and transfer

(e) Directors

(f) Officers

(g) Financial responsibility

(1) Liability notice

(2) General rule on liability

(3) Unacceptable errors and omissions coverage

(h) Compliance with law and rules of court

(i) Attorney-client relationship unchanged

(j) Discipline and enforcement

Rule 7. SUPERVISED STUDENT-PRACTICE OF LAW

7.1. Definitions

7.2. Activities of law student interns

7.3. Qualification procedures for law student interns

7.4. Duration of law student intern authorization and compensation limitations

7.5. Other law student intern activities

7.6. Supervision of law student practice

7.7. Miscellaneous

Rule 8. JUDICIAL DISCIPLINE

8.1. Organization of commission

(a) Membership; chairperson

(b) Terms

(d) Quorum; number of votes for action

(e) Meetings

(f) Annual report

(g) Non-participation by members

8.2. Jurisdiction and powers of commission

(a) Powers in general

(b) Persons subject to discipline

(d) Subpoena and discovery

(e) Rules of procedure and forms

8.3. Immunity

8.4. Confidentiality

(a) In general

(b) Disclosure

8.5. Grounds for discipline

(a) In general

(b) Proceedings not substitute for appeal

8.6. Complaint procedure

(a) Initiation of procedure

(b) Privilege

(d) Screening of complaints

(e) Mandatory notice

(f) Preliminary investigation and evaluation

(g) Determination

(h) Insufficient cause to proceed

8.7. Appointment of special counsel

8.8. Determination on report of special counsel

8.9. Formal hearing

(a) Complaint or statement

(b) Answer

(d) Notice of hearing

(e) Presentation; cross-examination; evidence

(f) Findings and recommendations

8.10. Review by Supreme Court

8.11. Charge against supreme court justice

8.12. Interim sanctions

(a) Suspension for felony

(b) Suspension for misdemeanor

(d) Other interim suspension

(e) Disability suspension

8.13. Special provisions for cases involving mental or physical disability

(a) Procedure

(b) Representation by counsel

8.14. Involuntary retirement

(a) Procedure

(b) Effect of involuntary retirement

8.15. Advisory Opinions

(a) Rendering Opinions

(b) Who May Request; Types of Opinions

(i) Informal Written Opinions

(ii) Formal Written Opinions

(iii) Discussions

(d) Modification

Rule 9. TIME LIMITS FOR DISPOSITION

Rule 10. LAWYERS' FUND FOR CLIENT PROTECTION

10.1. Purpose; trustees; administration

(a) Purpose; definition of "dishonest conduct"

(b) Appointment of trustees

(d) Rules

(e) Reimbursement

10.2. Deleted

10.3. Payment of claims

(a) Eligible claims

(b) Nonreimbursable losses

(d) Consideration of trustees

(e) Limitation on payments

(f) Rights to fund

(g) Conditions of payment

(h) Attorney's fee

(i) Investments

10.4. Powers and duties of the trustees

10.5. Claims for reimbursement

(a) Application

(b) Investigation

(d) Action by trustees upon report

(e) Notice of determination

10.6. Subpoenas; noncompliance

10.7. Subrogation for reimbursement made

(a) Subrogation; legal action by Fund

(b) Direct action by claimant

(d) Written agreement by claimant prior to receipt of payments

10.8. Confidentiality

(a) General rules of confidentiality

(b) Exchange of information and sharing of investigative and administrative resources with Disciplinary Board

(d) Public statements by trustees

10.9. Immunity

10.10. Automatic suspension

Rule 11. INTEREST-BEARING TRUST ACCOUNTS PROGRAM

(a) Purpose

(b) Required participation

(1) Deposits of clients' funds

(2) IOLTA trust accounts

(3) Non-IOLTA client trust accounts

(d) Use of funds derived from IOLTA trust accounts

(e) Exemptions

(f) Attorney filings and records

(1) Attorney filings

(2) Records

(g) Implementation

Rule 12. SUPREME COURT LAW LIBRARY

(a) Availability

(b) Regulations

(d) Penalties

Rule 13. REPEALED

Rule 14. LICENSING OF FOREIGN LAW CONSULTANTS

14.1. Eligibility

14.2. Applications

14.3. Hardship waiver

14.4. Scope of practice

14.5. Jurisdiction and Requirements

Rule 15. JUDICIAL FINANCIAL DISCLOSURE

(a) Filing of annual financial disclosure statement

(b) Time for filing

(1) Extensions of Time

(2) Monitoring by Chief Clerk

(d) Matters to be disclosed

(e) Disclosure of amounts by range; number of stock shares

(f) Short form statement

(g) Statements open to public inspection

(h) Filing of statement not to limit ethical responsibilities of a judge

Rule 16. ATTORNEYS AND JUDGES ASSISTANCE PROGRAM

16.1. Purpose; scope

16.2. Attorneys and Judges Assistance Program Board

16.3. The director

16.4. Voluntary program

16.5. Intervention program

16.6. Confidentiality; privilege not to disclose

16.7. Immunity

16.8. Deleted

Rule 17. THE HAWAI‘I STATE BAR

(a) Creation, name and status

(b) Purposes and powers

(d) Member registration, information, assessment, suspension and status

(1) Member registration

(2) Information to Disciplinary Counsel

(3) Dues, fees and charges

(i) Hawai‘i State Bar dues

(ii) Disciplinary Board fee

(iii) Lawyers' Fund for Client Protection fee

(iv) Attorneys and Judges Assistance Program fee

(4) Administrative suspension

(5) Reinstatement

(6) Exemptions

(i) Judges' exemption

(ii) Government attorneys' exemption

(iii) "Inactive" members' exemption

(7) Proof of payment

(8) Inactive status

(9) Return from voluntary inactive status

(e) Composition, powers and responsibilities of governing body

(f) Powers and responsibilities of governing body

(g) Adoption and amendment of rules regarding Bar

17.1. Child support enforcement

(a) Suspension of license to practice law

(b) Reinstatement to practice

Rule 18. CALENDAR CONFLICTS BETWEEN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I AND HAWAI‘I STATE COURTS

(a) Counsel's duty to notify the courts

(b) Resolution of scheduling conflicts

Rule 19. JUDICIAL PERFORMANCE PROGRAM

19.1. Purposes of Judicial Performance Program

19.2. Jurisdiction

19.3. Special committee to implement and administer the program

19.4. Judicial performance evaluation criteria

19.5. Confidentiality

(a) Respondent confidentiality

(b) Confidentiality of information and data

(d) Furnishing of summary to the evaluated judge

19.6. Immunity

19.7. Effective date

Rule 20. PRO BONO PUBLICUS ATTORNEY

(a) Purpose

(b) Waiver of active fees, dues and charges

(d) Limitations

(e) Duties of qualified legal services provider

Rule 21. ACCESS TO JUSTICE COMMISSION

(a) Creation

(b) Purpose

(1) Number of Members and Terms of Office

(2) Vacancies

(3) Appointment of Members

(4) Community Wide Representation

(d) Officers

(e) Bylaws, Rules and Procedures

(f) Committees and Task Forces

(g) Meetings, Quorum, and Voting

(h) Staff and Funding Support

(i) Recommendations

(j) Reports and Review

(1) Annual Reports

(2) Three-year Review

Appendix A. Rules & Regulations Concerning the Lawyers' Fund for Client Protection of the Supreme Court of Hawai‘i

Exhibit A. Hawai‘i Rules of Professional Conduct

Exhibit B. Hawai‘i Revised Code of Judicial Conduct

Rule 1. ADMISSION TO THE BAR.

1.1. Authority of Hawai‘i Supreme Court.

The Hawai‘i Supreme Court (Supreme Court) shall appoint a Board of Examiners (Board) to administer the process of admission to the bar of the state. Nothing in this rule, however, shall be construed to alter or limit the ultimate authority of the Supreme Court to oversee and control the privilege of the practice of law in this state.

1.2. Board of Examiners.

(a) Composition and Reimbursement. Members of the Board shall be appointed for staggered three-year terms by the Supreme Court from nominations submitted by the Nominating Committee of the Hawai’i Supreme Court. Members of the Board shall not receive compensation for their services but may be reimbursed for travel and other expenses incidental to the performance of their duties.

(b) Officers of the Board. The Supreme Court shall appoint a chairperson and vice-chairperson of the Board from its members. The Clerk of the Supreme Court (Clerk) shall be the secretary to the Board and the Clerk's office shall furnish administrative and clerical assistance to the Board.

(c) Duties. The Board shall examine the qualifications of each applicant, his or her knowledge of legal ethics, and his or her moral character, and shall administer a written examination. The record of the examination shall be filed with the Clerk and the Board shall report its recommendations to the Supreme Court which shall make the final decision for all admissions to the bar.

(d) Governance. The Board shall promulgate procedural rules within the scope of its powers and authority, subject to the approval of the Supreme Court. All decisions of the Board shall be made in accordance with the procedural rules promulgated by the Board. The chairperson of the Board may appoint committees and subcommittees to assist the Board in fulfilling its responsibilities under this rule. The Board may delegate its authority to act to the chairperson, or to its committees or subcommittees, provided that a majority of the members of the Board concurs with the delegation of authority.

(Amended April 8, 2002, effective July 1, 2002.)

1.3. Requirements for admission.

(a) Applications.

(1) Each applicant for admission to the bar shall file a verified, typewritten or machine printed application with the Clerk on the forms furnished by the Board in accordance with Board's Rules of Procedure.

(2) At a minimum, the forms shall require the applicant to submit:

(i) his or her name and date of birth,

(ii) his or her last place of residence,

(iii) the character and term of his or her study,

(iv) the institution of law from which he or she graduated and with what degree,

(v) the names of all courts to which he or she has made applications to practice,

(vi) the dates of applications to practice,

(vii) the dates of examinations and the dates of admission to practice,

(viii) whether he or she has been the subject of any investigation or proceeding for professional misconduct,

(ix) whether he or she has ever been rejected upon an application to practice before any court, and

(x) information required by the Board that relates to the applicant's character and fitness to practice law.

(b) Legal Education or Experience Requirements.

(1) Unless otherwise provided by this rule, to be eligible for examination and admission to the bar, each applicant shall have graduated from a law school accredited by the Council of the American Bar Association on Legal Education and Admission to the Bar (accredited law school) with a J.D. or L.L.B. degree. The applicant shall have his or her first professional legal degree (J.D. or L.L.B.) from an accredited law school to satisfy the legal education requirement. A graduate degree in law (L.L.M., M.C.L., S.J.D.) is not a satisfactory substitute for the J.D. or L.L.B. degree.

(2) An attorney who is not a graduate of an accredited law school but who is admitted to practice before the highest court of another state, a territory, or the District of Columbia, shall be eligible for examination and admission, provided that he or she has actively practiced law in such state, territory or the District of Columbia for five of the six years immediately preceding his or her application.

(3) An attorney admitted to practice and is in good standing before the highest court of a foreign country, where the English common law substantially forms the basis of that country's jurisprudence, and where English is the language of instruction and practice in the courts of that jurisdiction, shall be eligible for examination and admission provided he or she presents satisfactory proof that he or she has actively practiced law in such jurisdiction for five of the six years immediately preceding his or her application.

(4) Service as a judge of a court of record shall be considered equivalent to the active practice of law within the meaning of this rule.

(5) Good Standing in Foreign Jurisdiction. An applicant shall not be allowed to sit for the examination or be admitted to the Hawai‘i bar during any period in which the applicant is suspended or disbarred or allowed to practice only with supervision in any other jurisdiction. For purposes of these rules a resignation in lieu of discipline is a disbarment.

(1) Standard of Character and Fitness. A lawyer should be one whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them. A record manifesting a deficiency in:

(i) honesty,

(ii) trustworthiness,

(iii) diligence,

(iv) reliability,

(v) financial responsibility,

(vi) professional responsibility, or

(vii) respect for the law

shall be grounds for denying an application.

(2) Burden of Proving Character. The burden of proving good character and fitness is on the applicant.

(3) Resolution of Character and Fitness Issues. The supreme court may refuse to allow an applicant to sit for an examination pending resolution of character or fitness issues and may refuse to release or consider examination results until character and fitness issues are resolved.

(d) Investigation of Applications. The Board, any delegated committee, or designee shall investigate the applications, and may inquire into the information included in, and relevant to, each application. The Board may conduct proceedings necessary for a full and fair review of each application in accordance with its Rules of Procedure. The Clerk may issue subpoenas to compel the attendance of witnesses or the production of documents or other information in connection with such proceedings. An application may be held in abeyance by the Board pending the receipt of additional information to complete the investigation. If an applicant refuses or is unable to provide additional requested information, the recommendation to the Supreme Court shall be made on the basis of the existing information. The Board, any delegated committee, or designee shall report the results of the investigation and recommendations to the Supreme Court.

(e) Review of Adverse Recommendations as to Good Character and Fitness. An applicant may petition the Supreme Court for review of an adverse recommendation that is based upon the applicant's failure to establish good character and fitness by filing with the Clerk a petition for review within twenty (20) days after receiving the adverse recommendation relating to character and fitness.

(f) Non-Standard Testing Accommodations. An applicant may file a request for non-standard testing accommodations with the Board in accordance with the Board's Rules of Procedure.

(g) Examinations.

(1) Unless otherwise provided by this rule, an applicant shall be admitted to practice only after he or she has passed examinations that satisfy the supreme court that the applicant has the necessary legal and educational qualifications to practice law in this jurisdiction.

(2) Hawai‘i Bar Examinations will be held in the City and County of Honolulu, Hawai‘i.

(3) Unless otherwise directed by the supreme court, the Hawai‘i Bar Examinations will be held during the week of the last Wednesday of February and July.

(4) Within thirty (30) days after the results of the Hawai‘i Bar Examination are filed by the Supreme Court, the Clerk may transmit a copy of examination scores to any unsuccessful applicant. However, there shall be no right of appeal as to the examination or its results.

(5) Unless otherwise ordered by the supreme court, the files, records and proceedings of the Board are confidential and may not be disclosed except in furtherance of the Board's duties under this rule; provided that the Board may, without a court order, release files and records at the request of an attorney admission, or disciplinary authority or judicial selection authority of any jurisdiction in which the applicant is admitted to practice or seeks to practice and provided further that the names of applicants shall not be confidential. The Board or the court may post the names of all applicants, including former names and aliases, and seek comment about the applicants.

(6) In addition to the Hawai‘i Bar Examination administered by the Board, each applicant for examination and admission must also take and pass the Multistate Professional Responsibility Examination (MPRE). The MPRE must be taken and passed not earlier than two years before the Hawai‘i Bar Examination and the MPRE score must be officially reported to the Board not later than one year after date of notification of passing the Hawai‘i Bar Examination.

(h) Child Support Enforcement. An applicant shall not be allowed to sit for a Hawai’i Bar Examination or be admitted to the Hawai’i Bar during any period in which the applicant has not complied with a court order for child support or in which Hawaii's Child Support Enforcement Agency or like body in another jurisdiction has certified the applicant is not in compliance with an order of child support or is not in compliance with a subpoena or warrant relating to a paternity or child support proceeding.

(i) Student Loan Enforcement. An applicant shall not be allowed to sit for a Hawai‘i Bar Examination or be admitted to the Hawai‘i Bar during any period in which the applicant is not in compliance with an obligation under a student loan, student loan repayment contract, scholarship contract, or repayment plan.

(Amended effective September 27, 1996; further amended January 5, 1998, effective January 1, 1998; further amended August 14, 2003, and corrected September 29, 2003, effective January 1, 2004; further amended December 7, 2005, effective January 1, 2006.)

1.4. Fees

(a) Each applicant shall pay to the Clerk a filing fee with his or her application in such amount as may be determined by the Supreme Court.

(b) A successful applicant shall pay any additional fee as may be determined by the Supreme Court for the applicant's certificate of admission to the bar.

(c) Upon request the Clerk of the Court may issue a replacement certificate of admission to the bar. The fee for the replacement certificate shall be in such amount as may be determined by the Supreme Court.

(d) The cost of a character report from the National Conference of Bar Examiners, if required, shall be borne by the applicant.

(e) The board shall prepare an annual budget for the expenditure of those funds; shall develop appropriate financial policies for the management of such funds; shall have exclusive control and responsibility over all financial transactions involving such funds; and shall develop and maintain accounting records showing receipt and disposition of such funds, which records shall be subject to audit.

(Amended November 17, 1995, effective March 18, 1996; further amended effective February 27, 1997.)

1.5. Oath and admission.

(a) Deadline for Admissions.

(1) Any applicant who has not been admitted to the bar within one (1) year after the order granting issuance of licenses has been filed in the Supreme Court will be subject to the entire admissions process, including the passing of the bar exam, before the applicant will be considered again for admission to the bar. As to any applicant who became eligible for admission prior to 1995, such applicant shall have one (1) year from the date of the letter of notification, described below, from the Clerk of the Supreme Court in which to become admitted to the bar.

(2) As soon as practicable following the effective date of this rule, the Clerk of the Supreme Court shall transmit to each applicant who became eligible for admission prior to 1995 a written notice informing such applicant of the one-year deadline for admission. The notice shall be mailed via certified mail to the most current address shown in the applicant's bar application file. The applicant shall have one (1) year from the date indicated on the return receipt, showing either the date of receipt or the date of return of the letter unclaimed, in which to comply with all requirements for admission to the bar.

(3) The application is of a continuing nature and must be correct as of the date of admission to the bar.

(b) Upon compliance with the requirements of this rule and upon taking the prescribed oath of office, the applicant shall be admitted to the bar.

Supreme Court of Hawai‘i

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of Hawai‘i, and that I will at all times conduct myself in accordance with the Hawai‘i Rules of Professional Conduct.

As an officer of the courts to which I am admitted to practice, I will conduct myself with dignity and civility towards judicial officers, court staff, and my fellow professionals.

I will faithfully discharge my duties as attorney, counselor, and solicitor in the courts of the state to the best of my ability, giving due consideration to the legal needs of those without access to justice.

1.6. Attorney's license, form of.

(a) The license to be given to an attorney shall be in the following form:

Supreme Court of Hawai‘i

_________ , having been examined and found to be of good moral character and to possess the necessary legal and educational qualifications, is hereby licensed to practice in all the courts of the State of Hawai‘i as an attorney, counselor and solicitor during good behavior.

Given under the seal of the Supreme Court, this _________ day of ______________, 20___ .

FOR THE COURT:

Chief Justice

(b) A replacement license shall be in the following form:

Supreme Court of Hawai‘i

____________ , was examined and found to be of good moral character and to possess the necessary legal and educational qualifications and licensed to practice in all the courts of the State of Hawai‘i as an attorney, counselor and solicitor on ______________.

This replacement certificate is given under the seal of the Supreme Court, this ____ day of _______________, 20___.

FOR THE COURT:

Chief Justice

(Amended effective February 27, 1997.)

1.7. Limited admission of military attorneys.

(a) Full-time active duty officers. A full-time active duty military officer serving in the office of the Staff Judge Advocate of the United States Army, Air Force, Navy, Marines, or Coast Guard or in the Naval Legal Service Office (hereafter "uniformed service judge advocate"), who has been admitted to practice by the highest court of another state, the District of Columbia, or a territory of the United States, whose license to practice in that jurisdiction is active, and who is a graduate of a law school approved by the American Bar Association Council on Legal Education and Admissions to the Bar may apply for limited admission and be accorded limited admission without examination. In all other respects the application shall be made adjudged, and conditioned as provided by Rules 1.3(a), (b), (c), (d), (e), 1.4 and 1.5 of this Rule 1.

(b) Term limitation; extensions. The term of admission under this rule shall be limited to a period of four (4) years. The term may be extended one time at the request of the Staff Judge Advocate or the Commanding Officer, Naval Legal Service Office, provided the uniformed service judge advocate has not been disciplined under Rule 2 of these rules. The license shall expire at the end of the four (4) year term or any extension thereof or when the uniformed service judge advocate admitted under this Rule 1.7 ends active duty service in Hawai‘i. The license admitting such uniform service judge advocate shall be in the form provided by Rule 1.6 herein, except that the words "engage in limited military" shall be inserted between the words "to" and "practice" in the phrase ". . . hereby licensed to practice in all the courts of the State . . ." so that the phrase reads ". . . hereby licensed to engage in limited military practice in all the courts of the State. . . ."

(c) Client and compensation limitation. Uniform service judge advocates admitted pursuant to this Rule 1.7 may represent only active duty military personnel in enlisted grades E-1 through E-4 and their dependents to the extent such representation is permitted by the Staff Judge Advocate or the Commanding Officer, Naval Legal Service Office. Uniformed service judge advocates admitted pursuant to this Rule 1.7 may not demand or receive any compensation from clients in addition to usual military pay already received.

(d) Discipline; dues. Uniform service judge advocates admitted pursuant to this Rule 1.7 shall be subject to discipline under Rule 2, RSCH, may claim to be employed full-time by the United States Government for purposes of assessment of dues and fees, and shall in all other respects be required to pay dues and fees lawfully imposed on attorneys licensed to practice law in the State of Hawai‘i.

1.8. Law school faculty members; Pro tem membership.

(a) A full-time member of the University of Hawai‘i Law School (Law School) faculty who has graduated from an accredited law school and who has been admitted to practice in the highest court of another state or territory of the United States or the District of Columbia may apply for admission and be admitted to the bar without examination. In all other respects his or her application shall be made, adjudged and conditioned pursuant to Rules 1.3(a), (c), (d), (e), 1.4, 1.5 and 1.9, RSCH, provided that if admission is granted without examination, the term of admission shall be limited to a period of three (3) years during which the individual shall have all rights and obligations of a full member of the bar and shall be a pro tem member.

(b) At the end of such pro tem membership, the Dean of the Law School may, upon motion and affidavit, certify that the individual has continued as a full-time member of the Law School faculty during the period of pro tem membership and has complied with all other applicable rules governing the practice of law. The Board may grant such individual admission to the bar without limitation of time unless found to have become disqualified pursuant to Rule 2, RSCH.

(c) The fees for application and certificate of admission shall be assessed and paid on application to pro tem membership.

(d) The fees determined under Rule 17(d) (3), RSCH, shall be assessed and paid from and after admission to the bar without limitation of time.

(Amended October 16, 2007, effective December 1, 2007.)

1.9. Pro hac vice appearance of counsel.

Any attorney actively licensed to practice law by the highest court of a state or territory of the United States or the District of Columbia who is not a resident of Hawai‘i may be permitted to associate himself or herself with a member or members of the Hawai‘i bar in the presentation of a specific case at the discretion of the presiding judge or judges.

An attorney allowed to appear pro hac vice shall, for each year the order is effective, pay to the Hawai‘i State Bar an annual Disciplinary Board fee authorized by the supreme court, provided that if the attorney is allowed to appear in more than one case, only one fee shall be paid. The Hawai‘i State Bar may assess a reasonable fee to register and collect this fee on an annual basis.

Failure to file proof of such payment in the record, within 10 days after entry of the order and in January of each subsequent year in which the case is pending, voids the order allowing the appearance pro hac vice.

(Amended September 5, 1996, effective October 1, 1996; further amended October 21, 1996, effective October 1, 1996; further amended and effective October 27, 1997; further amended July 25, 2007, effective January 1, 2008.)

1.10. Resignation from the bar while in good standing.

(a) An attorney who is not the subject of a disciplinary investigation, proceeding, or order in any jurisdiction; who is not the subject of a disciplinary order issued by Disciplinary Counsel, the Disciplinary Board, or the Supreme Court; who is not the subject of a pending investigation or right of subrogation on a claim filed with the Lawyers' Fund for Client Protection; and who is otherwise in good standing may petition to resign and surrender his or her license to practice law.

(b) The Petition to Resign and Surrender License (Petition) shall be filed with the Clerk, upon the payment of the filing fee for an original action.

(c) The Petition shall be supported by (i) the petitioner's affidavit attesting to the fact the petitioner is not the subject of a disciplinary investigation, proceeding, or order in any jurisdiction; (ii) an affidavit of the Executive Director of the Hawai‘i State Bar attesting to the petitioner's current status; (iii) Disciplinary Counsel's affidavit attesting to the fact the petitioner is not the subject of a pending disciplinary investigation, proceeding, or order in Hawai‘i; and (iv) an affidavit of the Executive Director of the Lawyers' Fund for Client Protection attesting that no claims against the petitioner have been made or are pending with the Lawyers' Fund for Client Protection.

(d) The Petition shall be served in person or by certified mail upon Disciplinary Counsel, the Hawai‘i State Bar Association, and the Lawyers' Fund for Client Protection at or before the time it is filed with the Clerk.

(e) Within ten (10) days after the Petition is filed, Disciplinary Counsel may file objections thereto.

(f) The Supreme Court shall consider the Petition and any objections thereto and shall issue an appropriate order.

(g) Attorneys who have been allowed to resign shall comply with the notice, affidavit, and record requirements of Rule 2.16(a), (b), (d), and (g), RSCH.

(Amended effective August 1, 1998.)

1.11. Readmission after resignation.

An attorney who has resigned in good standing may be readmitted to the bar upon satisfying the same requirements as an initial applicant as provided in this Rule 1.

1.12. Immunity.

(a) The Board, its members, employees, and agents are immune from all civil liability for conduct and communications occurring in the performance of their official duties, and civil suits predicated thereon may not be instituted.

(b) Records, statements of opinion, and other information regarding an applicant for admission to the bar, communicated by any entity, including a person, firm, or institution, without malice, to the Board or to its members, employees, or agents are privileged, and civil suits predicated thereon may not be instituted.

COMMENT:

This immunity rule is patterned from a model immunity rule adopted by the House of Delegates of the American Bar Association. Part (a) of the rule provides absolute immunity from civil liability to members of the Board of Law Examiners, employees of the Board, and agents of the Board in the performance of their official duties. Part (b) of the rule grants immunity to those who provide information about an applicant as long as the information is provided "without malice." The purpose of part (b) is to encourage and protect the reporting of truthful information and candid evaluation. Intentional reporting of false information, without just cause, excuse, or justification, is not protected.

(Amended January 8, 1981, effective January 8, 1981; further amended January 23, 1981, and February 3, 1981, effective January 23, 1981; renumbered September 1984; further amended February 27, 1985, effective February 27, 1985; further amended October 23, 1985, effective October 23, 1985; further amended February 13, 1987, effective February 13, 1987; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended August 1, 1990, effective August 1, 1990; further amended September 28, 1990, effective September 28, 1990; further amended February 7, 1992, effective February 7, 1992; further amended May 14, 1993, effective May 14, 1993; further amended August 1, 1994, effective August 1, 1994; further amended February 6, 1995, effective February 6, 1995; further amended July 1, 1999.)

1.13. Specialization.

(a) Petition for Certificate of Specialization. Upon successful completion of a program of study accredited by the American Bar Association (ABA) for certification as a specialist in a subject of the law, an active Hawai‘i lawyer in good standing may petition the court for a Hawai‘i Certificate of Specialization in that subject of the law.

(b) Contents of Petition. The Petition shall be verified and shall state (i) the date the Petitioner was admitted to practice in Hawai‘i, (ii) Petitioner's Hawai‘i attorney identification number, (iii) Petitioner's current office address and telephone number, (iv) the nature of the ABA accredited program of study (including the requirements thereof), and (v) the date the Petitioner was certified by the ABA accredited program. Petitioner shall attach to the Petition (1) a copy of Petitioner's Hawai‘i license to practice law, (2) and affidavit or declaration from the Executive Director of the Hawai‘i State Bar Association stating the Petitioner is in good standing with the Hawai‘i Bar, (3) an affidavit or declaration from Disciplinary Counsel stating that Petitioner is not currently suspended or disbarred and that no disciplinary matters against Petitioner are pending, (4) an affidavit or declaration from the administrator of the Lawyers' Fund for Client Protection stating there are no pending claims against the Petitioner and the Petitioner owes no reimbursement to the Lawyers' Fund for Client Protection, and (5) a copy of the specialist certificate issued by the ABA accredited specialization program. Petitioner is responsible for preparing all affidavits or declarations for signature.

(c) Nature of Proceeding; Filing Fee. The Petition for Certificate of Specialization shall be docketed as an original proceeding and the Clerk shall assess and collect the filing fee for an original proceeding.

(d) Form of Certificate. Upon approval by the court and Petitioner's payment of a $25.00 certification fee, the Clerk shall issue a five-year specialization certificate in the following form:

No. ________

Supreme Court of Hawai‘i

CERTIFICATE OF SPECIALIZATION

[Petitioner's Name] having Petitioned for Specialty Certification in [law subject], having successfully completed the American Bar Association accredited program prescribed for such specialization, having been found to be a lawyer in good standing in the State of Hawai‘i, and having met the requirements for such certification, is hereby Certified as a Specialist in [law subject] in the State of Hawai‘i.

This Certificate expires on ______________.

Given under the seal of the Supreme Court, this _____ day of __________, 20 ____.

FOR THE COURT:

Chief Justice

(e) Limitations. No lawyer admitted to practice law in this jurisdiction shall be required to be certified as a specialist to practice in any field of law. Specialty certification neither increases nor decreases a lawyer's duties to the lawyer's clients, the courts, and the profession.

(f) Revocation of Certification. A Certificate of Specialization is automatically revoked upon the suspension or disbarment of the lawyer so certified.

(g) Renewal. The Certificate of Specialization may be renewed, without limitation, for periods of five (5) years upon the filing of a Petition for Renewal of Specialty Certification. A Petition for Renewal must be supported by proof Petitioner has completed at least six (6) hours of ABA accredited Continuing Legal Education courses in the subject area for each of the five years preceding the application for renewal, has maintained certification by the ABA accredited program by which certification was initially granted, remains an active member in good standing of the Hawai‘i Bar, and has not been disciplined by this court or the Disciplinary Board during the previous five (5) year period. A Petition for Renewal shall be filed as an original petition and the Clerk shall assess and collect the fee for such filing. Upon entry of an order granting the Petition for Renewal, the Clerk shall issue a certificate as provided by subsection (d) of this Rule 1.13.

(Added effective July 1, 1999.)

1.14. Mandatory professionalism course.

(a) Professionalism Course. Each person licensed to practice law after July 1, 2001, shall, no later than December 31 of the year following the year of election of active status, complete a Hawai‘i Professionalism course conducted under the joint sponsorship of the Hawai‘i State Bar and the Supreme Court of Hawai‘i. This rule applies to every license issued after July 1, 2001, pursuant to any part of Rule 1 of the Rules of the Supreme Court of the State of Hawai‘i, except Rules 1.9 and 1.13

(b) Proof of Compliance. Proof of compliance shall be in accordance with procedures established by the Hawai‘i State Bar.

(c) Administrative Suspension. Failure to complete the professionalism course within the time period specified above in (a) shall result in automatic suspension of the license to practice law. The Hawai‘i State Bar shall give written notice of the suspension, but failure to give notice will not justify or excuse practicing while suspended.

(d) Reinstatement. An attorney suspended under paragraph (c) shall be reinstated upon proof of completion of the course.

(e) Fees. The Hawai‘i State Bar may assess and collect reasonable fees for attending the course, for providing notice of suspension, and for processing reinstatement requests.

(Added July 17, 2001, effective nunc pro tunc July 1, 2001; amended September 19, 2008, effective nunc pro tunc January 1, 2008.)

Rule 2. DISCIPLINARY RULES.

2.1. Jurisdiction.

Any attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the exclusive disciplinary jurisdiction of the supreme court and the Board hereinafter established.

Nothing herein contained shall be construed to deny to any court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt, nor to prohibit any voluntary bar association from censuring a member or suspending or expelling a member from membership in the association.

(Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders.)

2.2. Grounds for discipline.

(a) The Hawai‘i Rules of Professional Conduct, attached hereto as Exhibit A, shall govern the conduct of all attorneys subject to discipline under this rule.

(b) Acts or omissions by an attorney which violate the Hawai‘i Rules of Professional Conduct shall constitute misconduct and shall be ground for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship. Conviction of a crime shall similarly be ground for discipline as set forth in Rule 2.13.

(Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended November 23, 2007, effective January 1, 2008.)

2.3. Types of discipline.

(a) Discipline may consist of:

(1) Disbarment by the supreme court; or

(2) Suspension by the supreme court for a period not exceeding five years; or

(3) Public censure by the supreme court; or

(4) Public reprimand by the Disciplinary Board with the consent of the respondent and Counsel; or

(5) Private reprimand by the Disciplinary Board with the consent of the respondent and Counsel; or

(6) Private informal admonition by Disciplinary Counsel or Disciplinary Board.

(b) Where a respondent has, with the written concurrence of the Director of the Attorneys and Judges Assistance Program, proposed a program of monitoring of the respondent's efforts toward rehabilitation from "substance abuse" (as that term is defined in Rule 16.1(a) of these rules), the supreme court or the Board may impose such a monitoring program. The monitoring program, which shall in all cases be supervised by the Director of the Attorneys and Judges Assistance Program, may be in lieu of or in addition to a disciplinary sanction. The duration and conditions of monitoring shall be stated in the final order issued by the supreme court or the Board. Violation of any conditions shall result in the imposition of disciplinary sanctions, but only to the extent set forth in the order establishing the monitoring program.

(c) Restitution and/or payment of costs (exclusive of attorney's fees) may also be ordered by the supreme court or by the Board. Counsel shall file its verified bill of costs within 60 days after imposition of discipline.

(d) As a condition of reinstatement following suspension or disbarment or as a condition in connection with the imposition of any lesser discipline, the Disciplinary Board or the supreme court may require a respondent, at the respondent's expense, to successfully complete (i) the bar examination or some portion of it, (ii) seminars or classes in particular subjects of the law, (iii) a program specifically designated by the Board or the supreme court to meet some deficiency in the attorney's understanding of the law or the practice of it, (iv) a practice management audit, and/or (v) a trust account audit. In addition, the Disciplinary Board or the supreme court may order the return to the client of all unearned fees or funds and unused deposits against future costs. The Board may consult with the Hawai‘i State Bar or others to find or develop such seminars, classes, and programs.

(Amended July 19, 1981, effective July 29, 1981, renumbered September 1984; amended November 8, 1991, effective November 8, 1991; amended March 8, 1995, effective March 23, 1995; further amended September 5, 1996, effective October 1, 1996; further amended effective March 10, 1998; further amended April 10, 2002, effective July 1, 2002; further amended November 23, 2007, effective January 1, 2008.)

2.4. Disciplinary board.

(a) The supreme court shall appoint a board to be known as the "Disciplinary Board of the Hawai‘i Supreme Court" (hereinafter referred to as the "Board") whom shall consist of eighteen members, each of whom shall be nominated and appointed separately. All appointments shall be made from a list of nominees submitted by the Nominating Committee of the Hawai‘i Supreme Court. The Disciplinary Board shall appoint a Chairperson and Vice-Chairperson from amongst its members.

(b) All members shall be appointed to staggered three-year terms; however, to maintain a Board with staggered terms, initial appointments may be for less than three years. The Board shall act only with the concurrence of seven or more members. Members shall receive no compensation for their services but may be reimbursed for their traveling and other expenses incidental to the performance of their duties.

(c) Board members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. If, in any given case, it shall become necessary for the continuation of a case, or the orderly operation of the Board, the supreme court may appoint, for that case only, one or more ad hoc members as it deems necessary. Each ad hoc member shall fulfill all the responsibilities of a Board member.

(d) Periodically, the Chairperson shall designate at least two Board members to review the proposed decisions of the Disciplinary Counsel, as mentioned in subsection 2.7 hereof.

(e) The Board shall exercise the powers and perform the duties conferred and imposed upon it by these Disciplinary Rules, including the power and duty:

(1) To consider and investigate any alleged ground for discipline or alleged incapacity of any attorney called to its attention, or upon its own motion, and to take such action with respect thereto as shall be appropriate to effectuate the purposes of these Disciplinary Rules.

(2) To appoint a Chief Disciplinary Counsel, and such Assistant Disciplinary Counsel and staff of employees and/or volunteers as may from time to time be required to properly perform the functions hereinafter prescribed. The Chief Disciplinary Counsel and Assistants are hereinafter referred to as "Counsel."

(3) To appoint Special Assistant Disciplinary Counsel when Chief Disciplinary Counsel and all full time Assistant Disciplinary Counsel are disqualified.

(4) To appoint from time to time, and establish the terms of office of, an appropriate number of persons to serve as hearing committee members and officers.

(5) To approve assignments made annually by the Chairperson for rotation of members of the Board to review for stated periods all recommended dispositions by Counsel and to authorize changes in such assignments from time to time necessitated by unforeseen circumstances.

(6) To adopt rules of procedure governing the Board and hearing committees and officers which are not inconsistent with these rules.

(7) To adopt and publish advisory opinions interpreting the Hawai‘i Rules of Professional Conduct.

(8)(i) To develop an annual budget for operating the Office of Disciplinary Counsel and performing the functions of the Board, to develop appropriate financial policies for managing of all funds received by the Board, and to propose an annual fee;

(ii) to submit, no later than September 15 each year, the developed budget, financial policies, and fee structure to the Hawai‘i State Bar to allow an opportunity for meaningful review, analysis, input, and comment by the Hawai‘i State Bar prior to submission to the supreme court;

(iii) to receive written comments, if any, from the Hawai‘i State Bar regarding the budget, financial policies, and fee structure;

(iv) to reply in a timely fashion in writing to any written comments from the Hawai‘i State Bar regarding section (iii), provided the comments were received no later than October 15; and

(v) to submit, no later than November 1 each year, the budget, financial policies, and annual fee along with any and all written comments received from the Hawai‘i State Bar, and any replies thereto, to the supreme court for its review and approval.

(9) To receive from the Bar all funds collected by the Bar for the Board, and to have exclusive control and responsibility over all financial transactions; and to develop and maintain appropriate accounting records showing the receipt and disposition of those funds, which records shall be subject to audit as directed by the supreme court.

(Amended November 20, 1979, effective November 20, 1979; renumbered September 1984; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended May 11, 1995, effective May 11, 1995; further amended and effective January 9, 1996; amended January 13, 1998, effective February 13, 1998; amended April 8, 2002, effective July 1, 2002; amended May 12, 2003, effective July 1, 2003; further amended November 23, 2007, effective January 1, 2008.)

2.5. Hearing committees.

(a) Each hearing committee shall consist of three members, at least two of whom shall be members of the bar of this state. A hearing officer shall be a member of the bar of this state. Each hearing committee shall act only with the concurrence of a majority of its members. Hearing committee members and officers shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. Hearing committee members and officers shall receive no compensation for services but may be reimbursed for their traveling and other expenses incidental to the performance of their duties.

(b) Hearing committees and officers shall have the power to conduct hearings in formal disciplinary proceedings and on petitions for reinstatement of disbarred or suspended attorneys, upon assignment by the Chairperson of the Board, and to submit their findings and recommendations, together with the record of the proceeding, to the Board. Hearing committee members and officers may also serve as trustees under Rule 2.20 or may, upon appointment by the Chairperson of the Board, assist said trustees in carrying out their duties.

(c) In addition to the hearing committee members or hearing officers appointed pursuant to these rules, the Board may appoint an attorney or attorneys knowledgeable about a particular area of practice to assist a hearing committee and the Board in the analysis of evidence and to advise the committee and the Board about a respondent's competence or the reasonableness of a respondent's fee, where such matters are at issue. Attorneys appointed under this subsection (c) are volunteers for purposes of Rule 2.8 and shall serve without fee, but may be reimbursed for travel and other expenses incidental to the performance of their duties. Such attorneys shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain.

(Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended September 5, 1996, effective October 1, 1996.)

2.6. Disciplinary counsel.

(a) Counsel shall not engage in private practice, except that the Board may agree to a reasonable period of transition after appointment.

(b) Counsel shall have the power and duty:

(1) With the approval of the Board, to employ and supervise staff and volunteers needed for the performance of his or her duties.

(2) To investigate all matters involving alleged misconduct called to his or her attention whether by complaint or otherwise.

(3) To dispose, subject to review by members of the Board assigned by the Chairperson, of all matters involving alleged misconduct by dismissal, private informal admonition or the institution of formal disciplinary proceedings before a hearing committee or officer. Except in matters requiring dismissal because the complaint is frivolous on its face or falls outside the Board's jurisdiction, no disposition shall be recommended or undertaken by Counsel until the accused attorney shall have been afforded the opportunity to state his or her position with respect to the allegations against him or her.

(4) To file with the supreme court certificates of conviction of attorneys for crimes.

(5) To prosecute all disciplinary proceedings and proceedings to determine incapacity of attorneys before hearing committees or officer, the Board and the supreme court.

(6) To appear at hearings conducted with respect to petitions for reinstatement of suspended or disbarred attorneys or attorneys transferred to inactive status because of disability, to examine witnesses and to submit evidence, if any, relevant thereto.

(7) To inform complainants and attorneys complained against of the status and disposition of their respective complaint matters.

(8) To maintain permanent records of all matters processed and the disposition thereof.

(9) To assist members of the public in preparation of requests for investigation.

(10) To perform such other duties and provide such reports as the Board shall direct.

(Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996.)

2.7. Procedure.

(a) Investigation. All investigations, whether upon complaint or otherwise, shall be conducted under the supervision of Counsel. Each investigation shall be confined to the facts of the grievance and matters reasonably related thereto that could be violations of the Hawai‘i Rules of Professional Conduct or other Rules of the Supreme Court that regulate the practice of law. Upon motion, an attorney subject to an investigation may seek protective orders in the first instance from the Board and, if denied, then, within 10 days thereafter from the supreme court. Upon the conclusion of an investigation, Counsel shall recommend dismissal, informal admonition of the attorney concerned, the institution of non-disciplinary proceedings for minor misconduct, or the institution of formal disciplinary proceedings before a hearing committee or officer. Counsel's recommendation shall be reviewed by one of the two members of the Board assigned for that purpose. If the initial reviewing member of the Board approves Counsel's recommendation, it shall be implemented. If the reviewing member of the Board disapproves Counsel's recommendation, Counsel may request further review by the other reviewing member of the Board. In the event of such second review of Counsel's recommendation, the decision by the second reviewing member of the Board shall be final. The member or members of the Board who review Counsel's recommendation shall be disqualified in any formal disciplinary proceedings in relation to the same alleged misconduct.

(b) Minor misconduct.

(1) Notwithstanding the provisions of Rules 2.2 and 2.3, any act or omission by an attorney which, although violative of the Hawai‘i Rules of Professional Conduct, is of a minor nature may be resolved by way of non-disciplinary proceedings or dismissal.

(2) In the absence of unusual circumstances, misconduct shall not be regarded as minor if any of the following conditions exists:

(i) The misconduct involved misappropriation of a client's funds or property.

(ii) The misconduct resulted in or is likely to result in actual prejudice (loss of money, legal rights, or valuable property rights) to a client or other person.

(iii) The respondent was publicly disciplined within the past three (3) years.

(iv) The misconduct involved is of the same nature as misconduct for which the respondent was disciplined within the past five (5) years.

(v) The misconduct included dishonesty, misrepresentation, deceit, or fraud on the part of the respondent.

(vi) The misconduct constituted the commission of a felony under applicable law.

(3) Subject to the provisions of Rule 2.7(a), Counsel shall, in Counsel's sole discretion, exclusively determine whether a matter constitutes minor misconduct. In that event, Counsel may reach agreement with the respondent to submit the matter to non-disciplinary proceedings. Such proceedings may consist of fee arbitration, arbitration, mediation, lawyer practice assistance, substance abuse recovery programs, psychological counseling, or any other non-disciplinary proceedings authorized by the supreme court. Counsel shall then refer the matter to the agency or agencies authorized by the supreme court to conduct the proceedings.

(4) If Counsel shall fail to reach agreement with the respondent to submit the matter of non-disciplinary proceedings, Counsel may undertake or resume disciplinary proceedings.

(5) If the respondent shall fail to comply with the terms of the agreement, Counsel may undertake or resume disciplinary proceedings.

(6) If the respondent shall fulfill the terms of the agreement, Counsel shall dismiss the disciplinary proceedings.

(c) Formal hearing. Formal disciplinary proceedings shall be instituted by Counsel by filing with the Board a petition which shall be sufficiently clear and specific to inform the respondent of the alleged misconduct. A copy of the petition shall be served upon the respondent in accordance with Rule 2.11(a). Notwithstanding Rule 2.22, if at the time the petition is served, the respondent is engaged in the act of the practice of law as a part of a firm, partnership, corporation or governmental entity or other group, Counsel shall provide a notice to the respondent's employer of the fact that formal disciplinary proceedings have been filed with the Board. The respondent shall serve his or her answer upon Counsel and file the original with the Board within 20 days after the service of the petition, unless such time is extended by the Board Chairperson. In the event the respondent fails to answer, the charges shall be deemed admitted; provided, however, that a respondent who fails to answer within the time provided may obtain permission of the Chairperson to file an answer if such failure to file an answer was attributable to mistake, inadvertence, surprise or excusable neglect. Following the service of the answer or upon failure to answer, the matter shall, unless the provisions of (e) below apply, be assigned by the Chairperson to a hearing committee or officer. The hearing committee or officer receiving the assignment shall serve a notice of hearing upon Counsel and the respondent, or the respondent's counsel, stating the date, time, and place of the hearing. At every hearing wherein factual issues are to be resolved, the respondent shall have a full opportunity to confront and cross-examine such witnesses presented by Counsel and to present evidence on his or her own behalf. The hearing committee or officer shall, in every case, submit a report containing findings and recommendations, together with a record of the proceedings, to the Board within 30 days after the conclusion of the hearing unless such time is extended by the Board Chairperson for no more than 30 days for good cause shown. The findings of the hearing committee or officer shall be supported by clear and convincing evidence. The hearing committee or officer shall not be bound by the formal rules of evidence, but shall admit only trustworthy evidence. The hearing committee or officer shall not rely upon any evidence outside the formal record in reaching a decision.

(d) Review by Board and Supreme Court. Upon receipt of a report from a hearing committee or officer, the Board will not entertain briefs or oral argument except: (1) within the Board Chairperson’s discretion upon application of Counsel or the respondent (submitted within 10 days after service of the report of the hearing committee or officer); or (2) upon a vote of a majority of the Board. If such application is granted or vote occurs, the Board Chairperson shall set the dates for submission of briefs and for any oral argument before the Board. After reviewing the report of the hearing committee or officer, the Board shall promptly either affirm or modify the report of the hearing committee or officer, remand the matter for further proceedings before the hearing committee or officer, or dismiss the petition with the consent of Counsel, provided that no such consent shall be required where the hearing committee or officer recommended dismissal of the petition. In the event the Board determines that the proceeding shall be concluded by informal admonition or private or public reprimand, such admonition or reprimand shall be imposed in accordance with procedures established by the Board.

Unless the Board dismisses the petition with any required consent of Counsel, remands the petition, or concludes the matter by informal admonition or private or public reprimand, the Board shall promptly submit a report containing its findings and recommendations, together with the entire record, to the supreme court. After the filing of such report, a copy thereof shall be served on the parties in accordance with Rule 2.11(b). The supreme court will not entertain briefs or oral argument except: (1) within its discretion upon application of the respondent or Counsel (submitted within 10 days after service of the Board's report); or (2) upon request of the supreme court. If such application is granted or request is made, the supreme court shall set the dates for submission of briefs and for any oral argument before the supreme court. In its discretion, the supreme court may in all disciplinary cases issue and publish written opinions or by per curiam order adopt and publish the findings and conclusions contained in the written report of the Board.

(e) Elimination or suspension of hearing proceedings. All proceedings before the hearing committee or officer shall be eliminated or suspended (1) where the respondent has filed no answer (and the charges have thus been deemed admitted) because, after due and diligent effort by Counsel, the respondent cannot be located for personal service and does not receive registered or certified mail at any of his or her addresses last known to Counsel; or (2) where Counsel and the respondent at any time subsequent to the filing of a petition file with the Board a stipulation setting forth an admission by the respondent of the facts deemed relevant to a determination of the matter, the disciplinary violations which serve as grounds for discipline, and an agreement as to the recommended form of discipline which should be imposed upon the respondent based upon the admitted violations. The entire record in the case shall thereupon be transmitted directly to the Board for review in accordance with (c) above. The parties may request that the record be supplemented by documentary exhibits. In any event, the Board may accept a request by the parties that the submission of briefs and/or oral argument before the Board be waived. In the case of a stipulation filed by the parties, neither the Board nor the supreme court shall be bound to accept the parties' stipulated factual and legal agreements or recommended disposition, and the Board or the supreme court may either decide the matter based upon the factual admissions set forth in the parties' stipulation or may remand the matter for further proceedings before a hearing committee as outlined in (b) above.

(Amended July 29, 1981, effective July 29, 1981; renumbered September 1984; further amended, March 7, 1986, effective March 7, 1986; further amended September 22, 1988, effective September 22, 1988; further amended July 3, 1989, effective July 3, 1989; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended January 11, 1991, effective January 11, 1991; further amended November 8, 1991, effective November 8, 1991; further amended February 7, 1992, effective February 7, 1992; further amended March 18, 1993, effective March 18, 1993; further amended December 6, 1993, effective January 1, 1994; further amended March 8, 1995, effective March 23, 1995; further amended and effective January 9, 1996; amended effective March 10, 1998; further amended December 10, 2003, effective January 1, 2004; further amended November 23, 2007, effective January 1, 2008.)

2.8. Immunity.

Complaints submitted to the Board or Counsel or testimony given with respect thereto or trustee proceedings conducted pursuant to Rule 2.20 shall be absolutely privileged and no lawsuit predicated thereon may be instituted. Members of the Board, members of the hearing committees, hearing officers, Counsel, staff, volunteers, experts appointed pursuant to Rule 2.19, and trustees and assistants appointed pursuant to Rules 2.20 and 2.5 shall be immune from suit and liability for any conduct in the course of their official duties.

(Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended May 7, 1990, effective May 7, 1990; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended effective August 1, 1998.)

2.9. Refusal of complainant to proceed, compromise, etc.

Neither unwillingness nor neglect of the complainant to sign a complaint or to prosecute a charge, nor settlement, compromise between the complainant and the attorney or restitution by the attorney, shall, in itself, justify abatement of the processing of any complaint.

(Renumbered September 1984.)

2.10. Matters involving related pending civil or criminal litigation.

Processing of complaints shall not be deferred or abated because of substantial similarity to the material allegations of pending criminal or civil litigation, unless authorized by the Board in its discretion, for good cause shown.

(Renumbered September 1984.)

2.11. Service.

(a) Service upon the respondent of the petition or order to show cause in any disciplinary, disability, or trustee proceeding shall be made by personal service by any person authorized by the Board Chairperson, except that in the event the respondent cannot be found within the state or has departed therefrom, service shall be made by registered or certified mail at the respondent's address shown in his or her registration statement filed pursuant to Rule 17(d) or other last known address. Service by mail is complete on mailing.

(b) Service of any other papers or notices required by these rules may be personal or by mail. Personal service includes delivery of the copy to an attorney or a responsible person at the attorney’s office. Service by mail at the respondent’s address shown in his or her registration statement filed pursuant to Rule 17(d) or other last known address is complete on mailing, if mailed by postage prepaid First Class mail or other class of mail that is at least as expeditious.

(Amended July 29, 1981, effective July 29, 1981; renumbered September 1984; further amended July 3, 1989, effective July 3, 1989; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended effective May 7, 1990; further amended February 7, 1992, effective February 7, 1992; further amended November 23, 2007, effective January 1, 2008; further amended February 12, 2008, effective July 1, 2008.)

2.12. Power to subpoena respondents and witnesses; pretrial proceedings.

Any member of a hearing committee or any hearing officer, in matters before it or them, and Counsel, in matters under investigation by him or her, may administer oaths and affirmations, and compel by subpoena the attendance of the respondent and witnesses and the production of pertinent books, papers and documents. A respondent may compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents before a hearing committee or officer after formal disciplinary proceedings are instituted. Writs of subpoena shall be issued in blank by the clerk of the supreme court upon application by any member of a hearing committee or any hearing officer, Counsel or the respondent. The supreme court may, upon proper application pursuant to HRAP Rule 27, enforce the attendance and testimony of the respondent and may, as set forth in Rule 2.12A, immediately suspend the respondent from the practice of law for the failure to comply with any lawful demand of the supreme court, a hearing committee or officer, or Counsel made in connection with any investigation, hearing, or disciplinary proceeding. Upon application pursuant to HRAP Rule 27, the supreme court may also enforce the attendance and testimony of any witness and the production of any documents so subpoenaed. Subpoena and witness fees and mileage shall be the same as in criminal cases in the circuit courts.

There shall be no discovery proceedings except upon the order of the Board Chairperson for good cause shown.

At the discretion of the hearing committee or officer, a conference may be ordered for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings. Said conference may be held before the officer or the chairperson of the committee or any member of the committee designated by its chairperson.

(Renumbered September 1984; amended April 4, 1988, effective April 4, 1988; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended November 23, 2007, effective January 1, 2008.)

2.12A. Failure to cooperate.

(a) An attorney who is the subject of an investigation by Counsel, or who is the subject of a disciplinary proceeding pending before a hearing committee or officer, the Disciplinary Board, or the supreme court, may be suspended from the practice of law, pending consideration of the charges against the attorney, upon a finding that the attorney is guilty of a failure to cooperate with the investigation or disciplinary proceeding. Such a finding shall be based upon the attorney's default in responding to the petition or notice filed by Counsel, or the attorney's failure to submit a written response to pending allegations of professional misconduct, or to comply with any lawful demand of the supreme court, the hearing committees, hearing officers, or Counsel made in connection with any investigation, hearing, or disciplinary proceeding, including failure to comply with a subpoena issued under Rule 2.12.

(b) Upon the filing with the supreme court of a petition approved by the Board Chairperson or his or her designee on the Board, an order shall be issued directing the attorney to appear within ten days of the service of the order, and inform the supreme court as to why the attorney should not be immediately suspended. Service upon the attorney shall be made pursuant to Rule 2.11(a). The suspension shall be made upon the supreme court's finding that the attorney has failed to cooperate, as outlined in (a) above. The supreme court shall briefly state its reasons for its order of suspension, which shall be effective immediately and until such time as the disciplinary proceedings before the Disciplinary Board have been concluded, and until further order of the supreme court.

(c) In all cases where the petition described in (b) above is served in any manner other than personally, and the attorney so served does not appear, an application may be made by such attorney to the chief justice at any time within one year after the rendition of the final order of suspension, and upon good cause shown and upon such terms as may be deemed just by the chief justice, such attorney shall be allowed to defend himself against such charges.

(Added April 4, 1988, effective April 4, 1988; amended February 7, 1992, effective February 7, 1992; further amended and effective January 9, 1996; further amended November 23, 2007, effective January 1, 2008.)

2.13. Attorneys convicted of crimes.

(a) Upon learning an attorney has been found guilty of a crime that:

(1) is a felony;

(2) would have been a felony if committed in Hawai‘i, or

(3) involves dishonesty or false statement,

Counsel shall obtain proof of the finding of guilt and file it with the Board and with the clerk of the supreme court. For purposes of this rule, a finding of guilt is a verdict or judgment of guilty, a guilty plea, or a no contest plea. Deferred acceptance of a plea, a sentence suspension, or a conditional discharge does not change the definition of guilt for purposes of this rule.

(b) When proof of a finding of guilt is filed with the supreme court, the supreme court shall, unless the interests of justice indicate otherwise, enter an order immediately restraining the attorney from the practice of law, pending final disposition of a disciplinary proceeding based on the finding of guilt.

(c) The supreme court may set aside such order restraining the attorney from the practice of law in the interest of justice and for good cause shown. An order restraining an attorney from the practice of law shall not constitute a suspension of the attorney for the purposes of Rule 2.16 unless the supreme court so orders.

(d) When proof of a finding of guilt is filed with the supreme court, the supreme court shall refer the matter to the Board for institution of a formal proceeding in which the sole issue to be determined shall be the discipline to be imposed. Such a disciplinary proceeding shall not be brought to hearing until the conviction is final, unless the respondent requests that the proceeding continue. For purposes of this rule, a conviction is deemed final when:

(1) the availability of appeal has been exhausted and the time for filing a petition for certiorari in the United States Supreme Court on direct review of the judgment of conviction has elapsed and no petition has been filed or the petition has been denied; or

(2) the judgment of conviction has been affirmed.

(e) The final conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.

(f) If a lawyer suspended solely under the provisions of paragraph (b) demonstrates to the supreme court that the underlying finding of guilt has been reversed or vacated, the order for interim suspension shall be vacated and, upon payment of all required registration fees, the lawyer may be placed on active status. Vacation of the interim suspension will not automatically prohibit or terminate any formal proceeding against the lawyer and disposition of any formal proceeding against the lawyer must be on the basis of the available evidence other than the finding of guilt.

(Renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended January 13, 1998, effective February 13, 1998; further amended August 14, 2000, effective January 1, 2000; further amended November 29, 2005, effective January 1, 2006; further amended November 23, 2007, effective January 1, 2008.)

2.14. Resignation in lieu of discipline or disbarment by consent of attorneys under disciplinary investigation or prosecution.

(a) An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of grounds for his or her discipline may resign in lieu of discipline or consent to disbarment, but only by delivering to the Board Chairperson an affidavit stating that he or she desires to resign in lieu of discipline or consent to disbarment and that:

(1) his or her resignation in lieu of discipline or consent is freely and voluntarily rendered; he or she is not being subjected to coercion or duress; he or she is fully aware of the implications of submitting his or her resignation or consent;

(2) he or she is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for his or her discipline, the nature of which he or she shall specifically set forth;

(3) he or she acknowledges that the material facts so alleged are true; and

(4) he or she resigns or submits his or her consent because he or she knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, he or she could not successfully defend himself or herself.

(b) Upon receipt of the required affidavit, the Board shall file with the supreme court and the supreme court shall enter an order granting the request to resign in lieu of discipline or disbarring the attorney on consent.

(c) The order granting the request to resign in lieu of discipline or disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of (a) above shall not be publicly disclosed or made available for use in any other proceeding except upon order of the supreme court or as otherwise allowed by these rules.

(d) Resignation in lieu of discipline is a disbarment for all purposes under these rules, including reinstatement.

(Renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended May 14, 1993, effective May 14, 1993; further amended November 23, 2007, effective January 1, 2008.)

2.15. Reciprocal Action.

(a) An attorney who has, in any other jurisdiction:

(1) resigned in lieu of discipline;

(2) been disciplined;

(3) been transferred to inactive status; or

(4) been placed on interim suspension due to misconduct, incapacity, incompetence, or disability;

shall notify Counsel promptly of the foreign action. Upon notification of the foreign action, Counsel shall obtain a certified copy of the order and file it with the supreme court.

(b) Upon receipt of a certified copy of an order demonstrating that an attorney admitted to practice in this state has been the subject of a foreign action as set out in (a), the supreme court shall forthwith issue a notice directed to the attorney containing: (1) a copy of the order from the other jurisdiction; and (2) an order directing that the attorney inform the supreme court, within 30 days from service of the notice, of any claim by the attorney that an equivalent or substantially equivalent order in this state would be unwarranted and the reasons therefor.

(c) Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of (b) above, the supreme court shall enter an order imposing the same or substantially equivalent discipline, or restrictions or conditions upon the attorney’s license to practice law in this jurisdiction, unless Counsel or the attorney demonstrates, or it clearly appears upon the face of the other jurisdiction’s record, that:

(1) the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) there was such an infirmity of proof establishing the factual basis for the discipline, or restrictions or conditions as to give rise to the clear conviction that the supreme court could not, consistent with its duty, accept as final the other jurisdiction’s conclusion on that subject; or

(3) the reason for the other jurisdiction’s discipline, or restrictions or conditions no longer exist; or

(4) the conduct established warrants substantially different discipline, or restrictions or conditions in this state. Where the supreme court determines that any of said elements exist, the supreme court shall enter such other order as it deems appropriate.

(d) In all other respects, a final action in another jurisdiction, as set out in section (a), shall establish conclusively the factual basis for the same or substantially equivalent discipline, or restrictions or conditions on the attorney’s license to practice law in this state.

(Amended July 29, 1981, effective July 29, 1981; renumbered September 1984; amended August 17, 1993, effective August 17, 1993; further amended November 29, 2005, effective January 1, 2006; further amended November 23, 2007, effective January 1, 2008.)

2.16. Disbarred or suspended attorneys.

(a) A disbarred or suspended attorney shall promptly notify by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of his or her disbarment or suspension and his or her consequent inability to act as an attorney after the effective date of his or her disbarment or suspension and shall advise said clients to seek legal advice elsewhere.

(b) A disbarred or suspended attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, each of his or her clients who is involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of his or her disbarment or suspension and consequent inability to act as an attorney after the effective date of his or her disbarment or suspension. The notice to be given to the client shall advise the client of the desirability of the prompt substitution of another attorney or attorneys in his or her place.

In the event the client does not obtain substitute counsel before the effective date of the disbarment or suspension, it shall be the responsibility of the disbarred or suspended attorney to move in the court or agency in which the proceeding is pending for leave to withdraw.

The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the disbarred or suspended attorney.

(c) Orders imposing suspension or disbarment shall be effective 30 days after entry. The disbarred or suspended attorney, after entry of the disbarment or suspension order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, during the period from the entry date of the order and its effective date he or she may wind up and complete, on behalf of any client, all matters that were pending on the entry date. By the effective date of the disbarment or suspension order, the disbarred or suspended attorney shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned.

(d) Within ten days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney shall file with the supreme court an affidavit showing: (1) that he or she has fully complied with these rules and with the portions of the order requiring completion before the effective date of the order; (2) all other state, federal and administrative jurisdictions to which he or she is admitted to practice; and (3) that he or she has served a copy of such affidavit upon Counsel. Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications may thereafter be directed to him or her.

(e) The Board shall cause a notice of the suspension or disbarment to be published in a newspaper of general circulation in the judicial circuit in which the disciplined attorney maintained his or her practice.

(f) The Board shall promptly transmit a certified copy of the order of suspension or disbarment to all judges of the State of Hawai‘i, and the administrative judge of each judicial circuit shall make such further order as he or she deems necessary to fully protect the rights of the clients of the suspended or disbarred attorney.

(g) A disbarred or suspended attorney shall keep and maintain records of the various steps taken by him or her under these rules so that, upon any subsequent proceeding instituted by or against him or her, proof of compliance with these rules and with the disbarment or suspension order will be available. Proof of compliance with these rules shall be a condition precedent to any petition for reinstatement.

(h) In the event the disbarred or suspended attorney should maintain a presence in an office where the practice of law is conducted, the disbarred or suspended attorney shall not have any contact with the clients of the office either in person, by telephone, or in writing, or have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.

(Renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended June 8, 2001, effective July 1, 2001; further amended October 24, 2005, effective January 1, 2006; further amended November 23, 2007, effective January 1, 2008; further amended March 5, 2008, effective March 5, 2008.)

2.17. Reinstatement.

(a) No suspended or disbarred attorney may resume practice until reinstated by order of the supreme court except as provided in Rule 17(d).

(b) An attorney who has been disbarred may not apply for reinstatement until the expiration of at least five years after the effective date of the disbarment and shall not be reinstated unless he or she can show proof of the following by clear and convincing evidence: rehabilitation, fitness to practice law, competence and compliance with all applicable disciplinary or disability orders and rules, and compliance with any other requirements imposed by the supreme court, which may include successful completion of requirements for passing the bar examination.

An attorney suspended from practice for one year or less who has complied with the suspension order and has paid all required fees shall be reinstated by order of the supreme court at the end of the period of suspension by filing with the supreme court and serving upon Counsel an affidavit to that effect. An attorney suspended from practice for more than one year may not apply for reinstatement until the expiration of at least one-half of the period of suspension. An attorney suspended from practice for more than one year shall not be reinstated unless he or she can show proof of the following by clear and convincing evidence: rehabilitation, fitness to practice law, competence and compliance with all applicable disciplinary or disability orders and rules, and compliance with any other requirements imposed by the supreme court, which may include the successful completion of requirements for passing the bar examination.

No suspended or disbarred attorney shall be eligible for reinstatement except upon a showing that he or she has reimbursed both the Board for all costs ordered including those incurred under RSCH 2.20, if any, and the Lawyers' Fund for Client Protection for monies paid out on account of the attorney's conduct, together with interest at the Hawai‘i statutory judgment rate.

(c) Petitions for reinstatement by a disbarred or suspended attorney shall be filed with the Board and served upon Counsel. Upon receipt of the petition, the Board shall, following a reasonable investigation by counsel of the attorney's fitness for reinstatement, refer the petition to a hearing committee or officer. The hearing committee or officer shall promptly schedule a hearing. Within 30 days after the conclusion of the hearing, the hearing committee or officer shall submit to the Board a report containing its findings and recommendations, together with the record of the proceedings before it unless such time is extended by the Board Chairperson for no more than 30 days for good cause shown. The Board shall review the report of the hearing committee or officer and the record and shall either: (1) submit a report containing its findings and recommendations, together with the record, to the supreme court, which shall promptly enter an appropriate order, or (2) remand the matter for further proceedings before the hearing committee or officer.

(d) The supreme court shall direct that the necessary expenses incurred in the investigation and processing of a petition for reinstatement be paid by the attorney seeking reinstatement.

(Amended July 29, 1981, effective July 29, 1981, renumbered September 1984, further amended September 22, 1988, effective September 22, 1988; further amended February 7, 1992, effective February 7, 1992; further amended August 17, 1993, effective August 17, 1993; further amended and effective January 9, 1996; further amended and effective December 3, 1997; amended January 13, 1998, effective February 13, 1998; further amended June 8, 2001, effective July 1, 2001; further amended November 23, 2007, effective January 1, 2008.)

2.18. Deleted.

2.19. Proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated.

(a) Where an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability, the supreme court, upon proper proof of the fact, shall enter an order transferring such attorney to inactive status effective immediately and for an indefinite period until the further order of the supreme court. A copy of such order shall be served upon such attorney, his or her guardian, and/or the director of the institution to which he or she has been committed in such manner as the supreme court may direct.

(b) Whenever the Board shall petition the supreme court to determine whether an attorney is incapacitated from continuing the practice of law by reason of physical or mental infirmity or illness or because of the use of drugs or intoxicants, the supreme court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the supreme court shall designate. If, upon due consideration of the matter, the supreme court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order transferring him or her to inactive status on the ground of such disability for an indefinite period and until the further order of the supreme court.

The supreme court shall provide for such notice to the respondent attorney of proceedings in the manner as it deems proper and advisable and shall appoint an attorney to represent the respondent if he or she is without adequate representation.

(c) If, during the course of a disciplinary proceeding, the respondent contends that he or she is suffering from a disability by reason of mental or physical infirmity or illness, or because of the use of drugs or intoxicants, which makes it impossible for the respondent to defend himself or herself adequately, the supreme court thereupon shall enter an order immediately transferring the respondent to inactive status until a determination is made of the respondent's capacity to continue to practice law in a proceeding instituted in accordance with the provisions of (b) above.

If the supreme court shall determine that the respondent is not incapacitated from practicing law, it shall take such action as it deems proper and advisable including a direction for the resumption of the disciplinary proceeding against the respondent.

(d) The Board shall cause a notice of transfer to inactive status to be published in a newspaper of general circulation in the judicial circuit in which the disabled attorney maintained his or her practice.

(e) The Board shall promptly transmit a certified copy of the order of transfer to inactive status to all judges of the State of Hawai‘i and shall request such action under the provisions of Rule 2.20 as may be indicated in order to protect the interests of the disabled attorney and his or her client.

(f) No attorney transferred to inactive status under the provisions of this rule may resume active status until reinstated by order of the supreme court. Any attorney transferred to inactive status under the provisions of this rule shall be entitled to apply for reinstatement to active status once a year or at such shorter intervals as the supreme court may direct in the order transferring the respondent to inactive status or any modification thereof. Such application shall be granted by the supreme court upon a showing that the attorney's disability has been removed and he or she is fit to resume the practice of law. Upon such application, the supreme court may take or direct such action as it deems necessary or proper to a determination of whether the attorney's disability has been removed including a direction for an examination of the attorney by such qualified medical experts as the supreme court shall designate. In its discretion, the supreme court may direct that the expense of such an examination shall be paid by the attorney.

Where an attorney has been transferred to inactive status by an order in accordance with the provisions of (a) above, and, thereafter, in proceedings duly taken, he or she has been judicially declared to be competent, the supreme court may dispense with further evidence that his or her disability has been removed and may direct his or her reinstatement to active status upon such terms as are deemed proper and advisable.

(g) The filing of an application for reinstatement to active status by an attorney transferred to inactive status because of disability shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the attorney during the period of his or her disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution by whom or in which the attorney has been examined or treated since his or her transfer to inactive status and he or she shall furnish to the supreme court written consent to each to divulge such information and records as requested by court-appointed medical experts.

(h) Transfer of an attorney to inactive status pursuant to this rule shall not preclude Counsel's investigation of the attorney's conduct, including but not limited to, the gathering and preserving of evidence, provided that no disciplinary proceeding shall be commenced and any pending disciplinary proceeding against the attorney shall be held in abeyance while the attorney remains on inactive status pursuant to this rule.

(Amended July 29, 1981, effective July 29, 1981, renumbered September 1984; amended February 7, 1992, effective February 7, 1992; amended effective July 1, 1999; further amended November 23, 2007, effective January 1, 2008.)

2.20. Trustee proceedings.

(a) Grounds for appointment of trustee. Whenever an attorney has been transferred to inactive status because of incapacity or disability, or disappears or dies, or has been suspended or disbarred and has not compiled with Rule 2.16, or there is other good cause exhibiting an attorney's inability to protect the interests of the attorney's clients, and no partner, executor or other responsible party capable of conducting the attorney's affairs is known to exist, the supreme court, upon proper proof of the fact, shall appoint an attorney as trustee to inventory the files of the inactive, disappeared, deceased, suspended, or disbarred attorney and to take such action as seems indicated to protect the interests of that attorney's clients.

When appointment of a trustee is warranted, Counsel shall file with the supreme court a motion for appointment of an attorney to serve as trustee. Trustees may receive compensation for their services, and may be reimbursed for traveling and other expenses incidental to the performance of their duties.

(b) Confidentiality. A trustee shall not be permitted to disclose any information contained in any files so inventoried without the consent of the client to whom such file relates, except as necessary to carry out the supreme court’s order appointing the attorney to make such inventory and cooperate in investigations by Counsel or the Lawyers' Fund for Client Protection (Fund).

(1) A trustee appointed under this rule shall:

(i) take custody of all client files and records of the attorney;

(ii) publish one (1) advertisement in a newspaper of general circulation announcing that the trustee has been appointed to inventory the attorney's client files, that the attorney's clients may contact the trustee to retrieve their files within the time specified in the advertisement, and that unclaimed items will be destroyed;

(iii) send form notices by regular mail to all of the attorney's clients, informing them of the attorney's status and that those clients may obtain their files by contacting the trustee at an address and telephone number specified in the notices; and

(iv) obtain and maintain written records and verification of all files released to the attorney's clients.

(2) A trustee appointed under this rule may:

(i) employ locksmiths to open the attorney's present and former law offices, as well as open any safes, cabinets, closets, or other secured areas located within the attorney's present and former law offices and any other areas under the attorney's control (if necessary in the discretion of the trustee);

(ii) take possession of any trust and other bank accounts found or known to exist, determine amounts therein and amounts due the clients for whom the accounts are held, and seek orders from the supreme court for disbursement of amounts due to the clients;

(iii) if the trustee is designated by the trustees of the Fund to act on behalf of the trustees for the Fund, cause subpoenas to be issued pursuant to Rule 10.6 and authorize his or her staff to have access to the attorney's business and banking records to consult with and advise the Fund Trustees concerning the validity and propriety of claims brought by the attorney's clients against the Fund;

(iv) employ accountants and bookkeepers as necessary to determine the source and ownership of funds recovered by the trustee;

(v) upon approval by the Disciplinary Board, place any unclaimed files in storage (in the custody of the Disciplinary Board); or

(vi) take such further action as the supreme court directs.

(d) Disposition of unclaimed files. Following discharge of the trustee, the attorney's client files shall be stored by Counsel for a period of one (1) year. At any time thereafter, Counsel may publish a legal notice in a newspaper of general circulation announcing that the attorney's client files will be destroyed in thirty (30) days if unclaimed.

Upon expiration of the thirty (30) day period, Counsel may destroy any unclaimed files which, in the exercise of discretion, Counsel concludes do not contain original documents of value to the attorney's clients.

(e) Upon appointment of a trustee, the attorney whose files are the subject of the trusteeship may, by order of the supreme court, be suspended from the practice of law in this state until the trusteeship is completed and may be required to pay to the Board all costs ordered and incurred, together with interest at the Hawai‘i statutory judgment rate.

(Renumbered September 1984; amended effective May 7, 1990; amended effective August 1, 1998; further amended June 8, 2001, effective July 1, 2001; further amended November 23, 2007, effective January 1, 2008.)

2.21. Deleted.

2.22. Confidentiality.

(a) General rule. The files, records and proceedings of the Board, the hearing committees or officers, and Counsel, as they may relate to or arise out of any complaint or charge of unprofessional conduct against or investigation of an attorney, shall be deemed confidential and shall not be disclosed except under the following circumstances:

(1) As between Counsel, the committees or officers, the Board and the supreme court in the furtherance of their duties;

(2) As between the Board, Counsel and an attorney admission or disciplinary authority, or judicial selection or disciplinary authority, of any jurisdiction in which the attorney affected is admitted to practice or seeks to practice;

(3) Upon the request of the attorney affected;

(4) Where permitted by the supreme court;

(5) Where required or permitted by these rules;

(6) Where the investigation is predicated upon a conviction of the respondent for a crime;

(7) Where 90 days have passed since the service on a respondent of a Petition for discipline, unless such time is extended by the Board Chairperson for no more than 45 days for good cause shown.

(8) Where reinstatement proceedings are initiated pursuant to RSCH 2.17(c).

(b) Upon receipt of trustworthy evidence that an attorney has committed a crime and to protect the interests of the public, the administration of justice, or the legal profession, the Chairperson of the Board may authorize Counsel to disclose the evidence to appropriate law enforcement or prosecuting authorities. Counsel may not disclose that an attorney voluntarily sought, received, or accepted treatment from the Attorneys and Judges Assistance Program or the record of such treatment.

(c) The Chairperson of the Board, upon the receipt of trustworthy evidence, may authorize Counsel to disclose an attorney's possible substance abuse, physical or mental illness, or other infirmity to the Director of the Attorneys and Judges Assistance Program.

(d) An affidavit resigning in lieu of discipline or consenting to disbarment submitted pursuant to Rule 2.14 shall be submitted to the hearing committee or officer, to the Board, and to the supreme court at any time that the attorney applies for reinstatement. Such affidavit shall also be supplied to an attorney admission or disciplinary authority or judicial selection authority of any jurisdiction in which the attorney affected is admitted to practice or seeks to practice.

(e) In any case in which the subject matter becomes public through independent sources or through a waiver of confidentiality by the respondent, the Board may issue statements as it deems appropriate in order to confirm the pendency of the investigation, to clarify the procedural aspects of the disciplinary proceedings, to explain the right of the respondent to a fair hearing without prejudgment, and to state that the respondent denies the allegations. The statement shall be first submitted to the respondent involved for his or her comments and criticisms prior to its release, but the Board in its discretion may release the statement as originally prepared.

(f) Except as ordered by the supreme court, or as otherwise provided by these rules, the files, records and proceedings filed with the supreme court by the Board, by Counsel or by a respondent, as well as any oral argument held before the supreme court in connection with any disciplinary proceedings, are not confidential, except that in RSCH 2.19 proceedings, a final order transferring an attorney to inactive status shall be a matter of public record, but otherwise, the record of the proceedings shall not be publicly disclosed.

(g) In addition, the Board shall transmit notice of all public discipline imposed by the supreme court, or transfer to inactive status due to disability, to the National Discipline Data Bank maintained by the American Bar Association.

(Amended effective July 29, 1981; renumbered September 1984; amended effective November 23, 1987; further amended November 8, 1991, effective November 8, 1991; further amended February 7, 1992, effective February 7, 1992; further amended March 18, 1993, effective March 18, 1993; further amended March 8, 1995, effective March 23, 1995; further amended and effective January 9, 1996; further amended October 21, 1999, effective January 1, 2000; further amended September 16, 2002, effective January 1, 2003; further amended October 6, 2003, effective January 1, 2004; further amended November 23, 2007, effective January 1, 2008.)

2.23. Interim suspension.

(a) Upon receipt of sufficient evidence demonstrating that an attorney has committed a violation of the Hawai‘i Rules of Professional Conduct and poses a substantial threat of serious harm to the public, Counsel may:

(i) transmit the evidence to the supreme court; and

(ii) contemporaneously make a reasonable attempt to provide the attorney with notice, which may include notice by telephone, that a request for immediate interim suspension has been transmitted to the supreme court.

(b) Upon examination of the evidence transmitted to the supreme court by Counsel and of rebuttal evidence, if any, that the attorney has transmitted to the supreme court prior to the supreme court’s ruling, the supreme court may enter an order immediately suspending the attorney, pending final disposition of the disciplinary proceedings predicated upon the conduct of causing the harm, or may order such other action as it deems appropriate.

(c) On notice to Counsel, an attorney suspended pursuant to (b) may move for dissolution or modification of the order of suspension, and in that event, the motion shall be heard and determined as expeditiously as justice requires.

(d) An order imposing an interim suspension on an attorney under this rule shall not constitute a suspension of the attorney for the purposes of Rule 2.16 unless the supreme court shall otherwise order.

(Added July 29, 1981, effective July 29, 1981; renumbered September 1984; amended February 7, 1992, effective February 7, 1992; further amended November 23, 2007, effective January 1, 2008.)

2.24. Audit of trust accounts.

(a) When audit may be ordered.

(1) The Chairperson may order an audit of any trust accounts maintained by an attorney upon:

(i) An attorney’s failure to file the trust account verification required by Rule 1.15 of the Hawai’i Rules of Professional Conduct;

(ii) The filing of a petition for creditor relief on behalf of an attorney;

(iii) The filing of felony charges against an attorney;

(iv) An allegation an attorney is incapacitated under Rule 2.19 of these rules, or a judicial determination the attorney is incompetent or upon involuntary commitment on grounds of incompetency or disability;

(v) The filing of a claim against the attorney with the Lawyers' Fund for Client Protection;

(vi) Court order; or

(vii) Counsel’s request for other good and sufficient reasons.

(2) Counsel may order and supervise an audit when an attorney’s trust account (i) check is paid against insufficient funds or dishonored or (ii) balance falls below zero.

(b) Random audits. The Board may randomly order audits of trust accounts.

(c) Cost of audit. Audits conducted in any of the circumstances enumerated in paragraph (a)(1) or (b) above shall be at the cost of the attorney audited only when the audit reveals that the attorney was not in substantial compliance with the trust accounting requirements. Audits conducted in either of the circumstances enumerated in paragraph (a)(2) shall be at the cost of the attorney unless the Chairperson determines upon trustworthy evidence, the financial institution erred. It shall be the obligation of any attorney who is being audited to produce all records and papers concerning property and funds held in trust and to provide such explanations as may be required for the audit.

(d) Examination of other financial accounts. Nothing in this rule shall preclude the examination of the other financial accounts of an attorney if the examination of the attorney’s trust accounts reveals to the satisfaction of the Chairperson or Counsel that the attorney is not in substantial compliance with trust accounting requirements.

(e) Review. Counsel’s decision to order an audit may be appealed to the Chairperson. The appeal must be filed in writing with the Chairperson within fifteen (15) days after Counsel notifies the attorney an audit has been ordered. The decision of the Chairperson or the Chairperson’s designee is not further appealable.

(Added September 22, 1988, effective September 22, 1988; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended and effective January 9, 1996; further amended October 2 & 4, 2007, effective January 1, 2008.)

2.25. Deleted.

2.26. Effective date.

These rules shall become effective on July 1, 1974, and any disciplinary investigation pending on that date shall be transferred to the Board, provided that any case then pending with respect to which a formal hearing has been commenced shall be concluded under the procedure existing prior to the effective date of these rules.

(Renumbered July 29, 1981, further renumbered September 1984 further renumbered September 22, 1988.)

Rule 3. ATTORNEY AND CLIENT. FIDUCIARIES.

(1) An attorney who is under a general retainer from, or who is regularly employed by, or who is a director of a trust institution shall disclose the fact to any person who requests him to draft a will or trust instrument naming such trust institution as a fiduciary. If after this disclosure the person desires the attorney to advise him and draft the will or trust instrument the attorney may comply with his request.

(2) An attorney preparing a will or trust instrument for a testator or trustor shall not accept compensation from the fiduciary for drawing the document or for advice relative thereto.

(3) An attorney drawing a will or trust instrument shall establish the professional relationship of an attorney and client with the testator or trustor and shall receive his instructions from and give his advice to his client, preferably in personal interviews, or if that is impracticable, in such other manner as the attorney considers will satisfy his professional duty to his client and will enable him to represent and protect the interests of his client.

(4) An attorney shall reserve the right to advise his client with respect to the choice of a fiduciary.

(5) An attorney should not seek to displace the fiduciary of the client's choice by inducing the appointment of another, unless the attorney believes the client's affairs demand such substitution, or where the attorney believes that the interests of the client will suffer if such substitution is not made.

(6) An attorney under general retainer from, or regularly employed by, or who is a director of a trust institution shall, before recommending to a prospective testator or trustor that such trust institution be named as fiduciary, make a full disclosure of such relationship.

(7) No attorney who is actively carrying on executive or administrative activities of a trust institution shall act as attorney in the preparation of a will or trust instrument in which such institution is named as a fiduciary.

(8) As used herein the term "trust institution" shall mean any individual, partnership, or corporate fiduciary, including any bank having a trust department.

(Renumbered September 1984.)

Rule 4. JUDICIAL COUNCIL.

(a) Appointment. There shall be a judicial council consisting of the chief justice and not more than 15 other members appointed by this court. Except as provided by subsection (c) below, each member shall serve for a term of 3 years. Any vacancy shall be filled by the court for the unexpired term. The membership shall be fairly representative, including laymen as well as judges and lawyers.

(b) Functions. The council shall serve in an advisory capacity only, shall give continuing consideration to the administration of justice in the courts of the state, and shall make reports and recommendations biennially to this court and also whenever deemed advisable by this court.

(c) Continuing functions. The chief justice may, in his discretion, allow any member whose term has expired to continue to work with the council to complete a project or matter with which the member has been involved. The former member may vote upon the project or matter only if the council is composed of fewer than 15 members.

(d) Quorum. A majority of the total membership shall constitute a quorum. No action shall be taken unless a quorum is present. A majority vote of the members present shall be necessary to make any action of the Council valid. The Chief Justice shall abstain from voting on any measure, except in the event of a tie. The Chief Justice's attendance shall be counted to determine a quorum.

(Renumbered September 1984; amended effective October 23, 1996; amended effective October 13, 1998.)

Rule 5. HAWAI‘I REVISED CODE OF JUDICIAL CONDUCT

The Hawai‘i Revised Code of Judicial Conduct attached hereto as Exhibit B is adopted as the standard of conduct for members of the Hawai‘i Judiciary.

(Amended August 29, 1983, effective January 1, 1984; renumbered September 1984; amended effective May 10, 1988; further amended December 10, 2008, effective January 1, 2009.)

Rule 5.1. ELECTRONIC AND PHOTOGRAPHIC COVERAGE OF COURT PROCEEDINGS.

(a) Reserved.

(b) Reserved.

(1) "Proceeding" means any trial, hearing, motion, hearing on an order to show cause or petition, appellate argument, or any other matter held in open court which the public is entitled to attend.

(2) "Extended coverage" means any recording or broadcasting of proceedings through the use of television, radio, photographic, or recording equipment by the media or on behalf of educational institutions.

(3) "Extended audio coverage" means any recording or broadcasting of words spoken during a proceeding through the use of television, radio, or recording equipment by the media or on behalf of educational institutions.

(4) "Judge" means the justice, judge, or judicial officer presiding over the proceedings in which extended coverage is or is requested to be taking place. In courts with more than one "judge" presiding over the proceedings, any decision required to be made by the "judge" shall be made by a majority of the judges.

(5) "Administrative judge" means any judge selected to perform administrative duties in a circuit or district court with more than one judicial officer.

(6) "Coordinator" means the person designated by each administrative judge to receive requests for extended coverage of proceedings within their respective circuit or district.

(7) "Party" means a named litigant of record who has appeared in the case.

(8) "Attorney" means the attorney of record appearing for a party. A party may have only one attorney of record authorized to act on behalf of that party in the proceeding at any one time but may designate a different attorney or change attorneys at any time as permitted by law.

(9) "Trial participants" means parties, attorneys, witnesses, court personnel, and the judge or judges present during the conduct of proceedings.

(10) "Media" means any news gathering or reporting agencies and the individual persons involved, and includes newspapers, radio, television, radio and television networks, news services, magazines, trade papers, in-house publications, professional journals, or other news reporting or news gathering agencies whose function it is to inform the public or some segment thereof.

(11) "Educational institution" means any public or private school of lower or higher education, the Hawai‘i Institute for Continuing Legal Education, the Hawai‘i State Bar Association Committee for Legal Education for Youth, any division of the Hawai‘i State Judiciary, or any nonprofit organization or corporation whose proposal for extended coverage is approved by the Administrative Director of the Courts.

(12) "Presumption" means a rebuttable assumption of fact made from another fact or group of facts found or otherwise established in an evidentiary proceeding.

(13) "Good cause" means that, under the circumstances of the particular proceeding, or any portion thereof, extended coverage or extended audio coverage would materially interfere with the rights to a fair trial.

(14) "Pooling arrangements" means any system for media accreditation, and internal media cooperation resulting in requests for extended coverage or compliance with guidelines established for extended coverage, or any method of distributing extended coverage to all media sources seeking the type of coverage obtained.

(15) "Juror" means any person who is a member of any jury, including a grand jury, impaneled by any court of this State or by any public servant authorized by law to impanel a jury, and also includes any person who has been drawn or summoned to attend as a prospective juror.

(d) General provisions and exclusions.

(1) Nothing in this rule is intended to restrict in any way the right of the media to report on proceedings.

(2) Nothing in this rule affects the authority to permit extended coverage of investitive, ceremonial, or naturalization proceedings.

(3) Nothing in this rule is intended to alter any rules of professional or judicial conduct or canons of ethics of attorneys or judges, except as specifically provided for in this rule.

(4) Nothing in this rule is intended to limit or restrict the power of the judge to control the conduct of the proceedings.

(5) If extended coverage or extended audio coverage is permitted under this rule, such shall be impartially given to all media representatives.

(e) Request for extended coverage.

(1) All requests for extended coverage shall be made by the media or educational institution to the coordinator a reasonable time in advance of the commencement of the extended coverage. "Reasonable time" as used herein shall mean the period of time required for all parties to be notified in advance, shall consider the realities of court scheduling, and shall be the minimum time required to accomplish such notification.

(2) Requests for extended coverage shall be made in writing on a form provided by the Judiciary and shall refer to the individual case with sufficient identification to assist the coordinator in providing the required notice. Such requests may be filed with the coordinator in person, by mail, or by facsimile transmission. Requests for extended coverage shall relate to an entire case. Once application is made for extended coverage for any case, that application shall apply through the final judgment and any post-judgment motions and appeals.

(3) Upon receipt of the written request, the coordinator shall in turn expeditiously notify, in person or by telephone, counsel for all parties or the parties themselves if represented pro se and the presiding judge (or if the presiding judge has not yet been determined, the appropriate administrative judge).

(4) Only one written request shall be necessary for any given case; once application is made, all media are considered to have applied, i.e., if a television station makes application, newspaper coverage is included and vice versa.

(5) When more than one media representative requests extended coverage or extended audio coverage, the media collectively shall designate one representative to work with the coordinator.

(f) Standard for consent to extended coverage.

(1) Prior consent of a judge shall not be required for extended coverage of any appellate proceeding. Extended coverage of all other proceedings shall not be permitted without the prior determination of the judge.

(2) The judge shall dispose, orally and on the record, of each request for extended coverage or extended audio coverage or by written order if requested by any party and, if coverage is denied, shall make written findings of fact and conclusions of law.

(3) A judge shall grant requests for extended coverage or extended audio coverage of a proceeding unless, by a preponderance of the evidence, good cause is found to prohibit such coverage. In situations where the judge has found good cause to prohibit extended coverage or extended audio coverage, the judge may permit extended coverage or extended audio coverage of only a portion or portions of the proceeding.

(4) A party may object to extended coverage at the beginning of any new stage of the case. If a party objects or if the court orders on its own motion, there shall be a hearing to determine whether extended coverage or extended audio coverage shall be allowed for that stage of the case. If no party objects, no hearing shall be necessary. At such hearing the media shall have standing to be heard and may present evidence. Any objection by a party (or a party acting pro se) to extended coverage or extended audio coverage must be made before extended coverage or extended audio coverage begins for that stage of the case.

(5) A presumption of good cause shall exist in the following circumstances:

(i) the proceeding is for the purpose of determining the admissibility of evidence; or

(ii) testimony regarding trade secrets is being received; or

(iii) testimony of child witnesses is being received; or

(iv) testimony of a complaining witness in a prosecution for any sexual offense under Part V of the Hawai‘i Penal Code is being received; or

(v) a witness would be put in substantial jeopardy of serious bodily injury; or

(vi) testimony of undercover law enforcement agents who are involved in other ongoing undercover investigations is being received.

(6) At any time during the proceedings for which extended coverage has been granted, a judge acting sua sponte or on the objection of a witness may, upon establishing that good cause exists following a hearing, terminate or limit extended coverage.

(7) All objections to extended coverage shall be noted on the record of the proceedings and in the minutes of the court.

(8) The media or educational institution or any party may obtain review of an order regarding extended coverage by filing a motion for review addressed to the appropriate administrative judge, who shall have full power to vacate and modify the order; provided that where a request for extended coverage is initially referred to an administrative judge and is ruled upon, a motion for review will not lie. A motion for review shall be filed no later than 5 days after the filing of the order regarding coverage. In disposing of the motion for review the administrative judge shall comply with subdivision (f)(2) of this rule. The record of the proceeding before the administrative judge shall be made part of the record of the underlying proceeding for which coverage is sought.

(9) A party may seek appellate review of an order regarding extended coverage, including any such order issued by the administrative judge, pursuant to the procedures available for review of other interlocutory orders, but immediate appellate review of such an order shall not be available as a matter of right.

(g) Restrictions on extended coverage.

(1) There shall be no extended coverage of any proceedings which are by law closed to the public, or which may be closed to the public and have been closed by the judge. Examples of proceedings closed to the public include, but are not limited to, grand jury proceedings, juvenile cases, child abuse and neglect cases, paternity cases and adoption cases.

(2) There shall be no extended coverage of a juror or a prospective juror.

(3) There shall be no extended audio coverage of conferences between attorneys and clients, or between co-counsel and clients or parties, or between counsel and the judge held at the bench.

(4) There shall be no extended coverage of any conference or proceedings held in the chambers of a judge or any in camera proceeding.

(h) Procedure for extended coverage.

(1) Extended coverage shall be conducted in compliance with the guidelines in Rule 5.2 so as not to be distracting and not to interfere with the solemnity, decorum, and dignity which must attend the making of decisions that affect the life, liberty, or property of citizens.

(2) If a judge finds that the provisions of this rule or the guidelines in Rule 5.2 have been violated by those seeking extended coverage or the continuation thereof, a judge may exercise discretion to limit or terminate extended coverage as to the offending extended coverage personnel or equipment.

(3) If pooling arrangements are necessary for compliance with this rule or with guidelines for extended coverage contained in Rule 5.2, pooling arrangements shall be instituted and shall be the sole responsibility of the media and shall not require the judge, coordinator, or other court personnel to mediate disputes.

(Added August 29, 1983, effective January 1, 1984; renumbered September 1984; amended effective December 9, 1985; amended effective January 2, 1987; amended effective December 7, 1987; amended effective May 10, 1988; amended effective September 28, 1990; further amended April 26, 1994, effective April 26, 1994; further amended effective June 10, 1997; further amended November 25, 2008, effective January 1, 2009.)

Rule 5.2. TECHNICAL GUIDELINES TO BE FOLLOWED WHEN EXTENDED COVERAGE IS PERMITTED UNDER RULE 5.1.

(a) Equipment and personnel.

(1) Equipment from one television station or network - designated as the pooling station or network - shall be permitted access to a courtroom proceeding at one time. The pooling station or network shall use only portable electronic cameras which, together with any related equipment to be located in the courtroom, must be unobtrusive in both size and appearance, without distracting sound or light. One television camera, operated by one camera person, shall be admitted to record a proceeding. A second camera may be admitted for live coverage in the discretion of the judge.

(2) Not more than one audio system shall be permitted in the courtroom for extended coverage of a proceeding. Audio pickup for extended coverage shall be accomplished from any existing audio system present in the courtroom, if such pickup would be technically suitable for broadcast. Any changes in existing audio systems shall be approved by the judge or his representative. No modifications of existing systems shall be made at public expense. Microphones, wiring, and recording equipment shall be unobtrusive and shall be of adequate technical quality to prevent interference with the proceeding. Where possible, electronic recording equipment and any operating personnel shall be located outside of the courtroom. Notwithstanding the provisions of this Rule 5.2(a)(2), a judge may, in the judge's sole discretion and whether or not extended coverage has been otherwise allowed, grant a timely request by a party, a member of the public, or an individual member of the media, to tape record proceedings by means of a small, hand-held recorder with a built-in microphone and operated from the seat of the person who made the request.

(3) One still photographer, using not more than two still cameras with not more than two lenses for each camera, shall be permitted in a proceeding subject to extended coverage. A second still photographer, using not more than two still cameras with not more than two lenses for each camera, may be admitted in the discretion of the judge.

(4) No equipment or clothing of any extended coverage personnel shall bear any insignia or identification of the individual media or network involved in extended coverage.

(5) Sufficient video and audio tape capacities should be provided to obviate tape changes except during court recess.

(b) Sound and light criteria. Only television video and audio equipment and still camera equipment that does not produce distracting sound or light shall be employed to cover proceedings. No artificial lighting device of any kind shall be employed in connection with the television camera or still camera.

(Added August 29, 1983, effective January 1, 1984, renumbered September 1984; amended effective May 10, 1988; amended effective July 15, 1998.)

Rule 6. LAWYER'S PROFESSIONAL BUSINESS ORGANIZATIONS.

(a) Compliance with this rule and applicable statutes. Any person or persons seeking to practice law as a corporation, a company, an association, in partnership, or in some other lawful organizational form (hereafter, lawyers' professional business organization) shall comply with the provisions of this rule and if applicable statutes.

(b) Name. Subject to any additional statutory restrictions or requirements, the name under which a lawyers' professional business organization practices law shall accord with the provisions of the Hawai‘i Rules of Professional Conduct governing law firm names and shall also include the words "A Law Corporation, "A Limited Liability Law Company," "A Limited Liability Law Partnership," or other appropriate designation, whenever applicable.

(c) Limitation to the practice of law. A lawyers' professional business organization shall be organized only for the purpose of rendering legal services and services ancillary thereto. A lawyers' professional business organization may invest its funds in real estate, mortgages, stocks, bonds, or any other type of investment, so long as such investment does not violate any provision of the Hawai‘i Rules of Professional Conduct and does not involve the lawyers' professional business organization in substantial business activity unrelated to the practice of law.

(d) Shares; ownership and transfer.

(1) Shares or interests in a lawyers' professional business organization may be owned only by a lawyers' professional business organization or by one or more persons licensed to practice law in this state by this court, provided that shares may be transferred by a shareholder to a revocable living or inter vivos trust subject to statutory conditions and subject to the additional condition that any such trust shall terminate if the shareholder is disqualified from the practice of law.

(2) The shares or interests of a lawyers' professional business organization owned by a person who dies or who becomes a disqualified person shall be acquired by the lawyers' professional business organization, or by its remaining shareholders or partners, or by one or more persons licensed to practice law in this state by this court, in accordance with statutory procedures.

(3) The requirements of subsections (d)(1) and (d)(2) of this rule shall be set forth in the lawyers' professional business organization's articles of incorporation, by-laws, partnership agreements, or other such organizational documents.

(4) The share certificates or other memorializations of ownership interests in a law corporation lawyers' professional business organization shall contain an appropriate legend setting forth the restrictions set forth in subsections (d)(1) and (d)(2) of this rule.

(5) The by-laws of a lawyers' professional business organization shall provide that the income of a lawyers' professional business organization that are attributable to its practice of law while a shareholder is a disqualified person shall not in any manner accrue to the benefit of such shareholder or his or her shares or interests in the lawyers' professional business organization.

(e) Directors. Notwithstanding any statutory provisions, each director of a lawyers' professional business organization shall be licensed to practice law in this state by this court. A lawyers' professional business organization that has only one shareholder need have only one director who shall be such shareholder.

(f) Officers. Notwithstanding statutory provisions, each officer of a lawyers' professional business organization shall be licensed to practice law in this state by this court, except as provided in this subsection (f). If a lawyers' professional business organization is incorporated with a single shareholder and single director after July 1, 1987, or if a lawyers' professional business organization converts to having a single shareholder and a single director after that date, the person or persons holding the offices of secretary and treasurer need not be licensed. If a lawyers' professional business organization had a single shareholder and single director prior to July 1, 1987, the person or persons holding the offices of vice-president and secretary need not be licensed, in which event the offices of president and treasurer shall be held by the sole shareholder as previously required by this rule. An unlicensed person, even if permitted to serve as an officer pursuant to this rule, shall in no event serve as a director or be a shareholder of a lawyers' professional business organization.

(g) Financial responsibility.

(1) Liability notice. Except as provided in subsection 2 of this section (g), the articles of incorporation or partnership agreement of a lawyers' professional business organization, its by-laws and all of its share certificates or other instruments of ownership shall clearly specify that, notwithstanding any other provision of law, the financial responsibility of persons licensed to practice law in this state is not limited by reason of being shareholders, officers, directors, or partners of the lawyers' professional business organization and that the liability of shareholders, officers, directors, or partners, for the acts, errors and omissions of the shareholders, officers, directors, partners, or other employees of the lawyers' professional business organization arising out of the performance of professional services by the lawyers' professional business organization while they are shareholders, officers, directors, or partners is joint and several to the same extent as if the shareholders, officers, directors, or partners were general partners engaged in the practice of law, provided, however, that this subsection (g) shall not apply to any unlicensed person who serves as an officer in accordance with subsection (f) of this rule.

(2) General rule on liability. If the lawyers' professional business organization maintains errors and omissions coverage in amounts not less than $100,000 for each attorney in the organization or not less than $5,000,000 for the lawyers' professional business organization and if permitted by statute, the professional liability of each shareholder or partner or attorney employed in a lawyer's professional business organization is limited to responsibility for the attorney's own performance of professional services.

(3) Unacceptable errors and omissions coverage. Errors and omissions coverage is insufficient to meet the requirements for limiting liability is the combined coverage of any insurance policy or surety bond is less than the full amount required by this rule or any higher statutory amount, or is subject to a deductible greater than ten per cent (10%) of the minimum amount of security necessary to meet the requirements of subsection (g)(2) of this rule, or is conditioned upon any contingency other than payment of the premium or fee or provides in any manner for less than the full amount of coverage required by this rule or any higher amount required by statute.

(h) Compliance with law and rules of court. The affairs of a lawyers' professional business organization shall be conducted in compliance with law and with the rules of this court. The organization shall be subject to the applicable rules and regulations adopted by, and all the disciplinary powers of, this court. Nothing in this rule shall affect or impair the disciplinary powers of this court over any lawyers' professional business organization or over any person licensed to practice in this state by this court.

(i) Attorney-client relationship unchanged. Nothing in this rule shall be construed to alter or affect the professional relationship between a person furnishing legal services and a person receiving such services, and all such professional relationships enjoyed under the laws of this state or the rules of this court, whether now in existence or hereafter enacted, shall remain inviolate.

(j) Discipline and enforcement. Any attorney who fails to comply in good faith with the provisions of this rule may be subject to investigation and discipline pursuant to the attorney discipline procedures set forth in Rule 2 of the rules of this court, provided that this shall not be construed as limiting the powers of the Bar, appropriate government agencies, interested parties and the courts of this state to enforce any statute and rules promulgated thereunder.

(Amended December 5, 1979, effective December 5, 1979; further amended April 16, 1984, effective May 1, 1984; renumbered September 1984; further amended September 2, 1987, effective September 2, 1987; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992; further amended December 6, 1993, effective January 1, 1994; further amended March 8, 1995, effective March 23, 1995; further amended June 17, 1999, effective July 1, 1999; further amended March 14, 2001, effective July 1, 2001.)

Rule 7. SUPERVISED STUDENT PRACTICE OF LAW.

7.1. Definitions.

(a) A "law student intern" is a person who is enrolled and in good standing as an undergraduate at the University of Hawai‘i School of Law, who has completed legal studies amounting to one-third (1/3) of the requirements for graduation from that law school, who is enrolled in a clinical program at that law school, and with respect to whom the order referred to in Rule 7.3(b) is in effect.

(b) A "clinical program" is a practice-oriented law activity administered under the direction of a faculty member of the University of Hawai‘i School of Law, participation in which activity entitles qualified law students to receive academic credit

(c) A "supervising lawyer" is a member of the bar of this court who has been approved as a supervisor of law student interns by the University of Hawai‘i School of Law.

(Renumbered September 1984.)

7.2. Activities of law student interns.

(a) In connection with a clinical program, a law student intern may appear in any court or before any legislative or administrative tribunal in this state on behalf of a client, provided:

(1) that the client has consented in writing to such appearance; and

(2) that a supervising lawyer has indicated in writing approval of such appearance.

In every such appearance the law student intern shall be accompanied by a supervising lawyer, unless the court or tribunal consents to the law student intern appearing without a supervising lawyer.

(b) Unless prohibited by statute or ordinance, a law student intern may also appear in any matter on behalf of the United States, the State of Hawai‘i, or any state political subdivision, subject to the requirements of subsection (a) of this section.

(c) In every such appearance by a law student intern, the written consents and approvals referred to in subsection (a) of this section shall be filed in the record of the court or tribunal and shall be brought to the attention of the judge or presiding officer.

(Renumbered September 1984.)

7.3. Qualification procedures for law student interns.

(a) To become a law student intern, each eligible person shall file with the clerk of this court a typewritten application setting forth, together with such other information as may be required by this court or the Bar, the applicant's name and age, that the applicant is enrolled and in good standing as an undergraduate at the University of Hawai‘i School of Law, that the applicant has completed one-third (1/3) of the requirements for graduation therefrom, that the applicant has read and is familiar with the Hawai‘i Rules of Professional Conduct attached to Rule 2, and that the applicant is enrolled in a clinical program at the University of Hawai‘i School of Law. A letter from the dean of the University of Hawai‘i School of Law certifying that the applicant is in good academic standing as stated in the application and appears to be competent to engage in the activities of law student interns as defined by this rule must accompany each application.

(b) The clerk of this court shall review applications and make recommendations to this court as to which applicants should be designated as qualified law student interns. This court shall issue an order designating each applicant which it finds to be qualified as a law student intern, subject to taking such oath of office as may be prescribed.

7.4. Duration of law student intern authorization and compensation limitations.

(a) Unless the order referred to in Rule 7.3(b) is revoked or modified, it shall remain in effect so long as the law student intern is enrolled as an undergraduate in a clinical program at the University of Hawai‘i School of Law, and shall cease to be in effect upon any termination of such enrollment. However, after the clinical semester ends, the law student intern may continue to represent a client in cases initiated before the semester ended if such representation is deemed appropriate by the supervising lawyer.

(1) The certification referred to in Rule 7.3(a) may be withdrawn by the dean by notice to that effect to the clerk of this court. It is not necessary that such notice state the cause for withdrawal. Upon receipt of such notice, the order referred to in Rule 7.3(b) shall be automatically revoked.

(2) The order referred to in Rule 7.3(b) with respect to any law student intern may be terminated by this court for cause consisting of violation of this rule or any act or omission which, on the part of an attorney, would constitute misconduct and ground for discipline under Rule 2. The effectiveness of such order may be suspended by this court during any proceedings to terminate such order.

(b) A law student intern shall neither ask for nor receive any compensation or remuneration of any kind for services rendered to a client, but this shall not prevent a lawyer, a law school or public agency from paying compensation to a law student intern or from making such charges for services as such lawyer, law school or public agency may otherwise properly require.

(Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992.)

7.5. Other law student intern activities.

(a) Any law student intern may, with the knowledge and approval of a supervising lawyer and the client, engage in the following activities:

(1) Counseling and advising clients, interviewing and investigating witnesses, negotiating the settlement of claims, and preparing and drafting legal instruments, pleadings, briefs, abstracts and other documents. Any document requiring signature of counsel, and any settlement or compromise of a claim, must be signed by a supervising lawyer.

(2) Rendering assistance to clients who are inmates of penal institutions or other clients who request such assistance in preparing applications for and supporting documents for post-conviction legal remedies.

(Renumbered September 1984.)

7.6. Supervision of law student practice.

The supervising lawyer shall counsel and assist the law student who practices law pursuant to this rule, and shall provide professional guidance in every phase of such practice with special attention to matters of professional responsibility and legal ethics.

(Renumbered September 1984.)

7.7. Miscellaneous.

(a) Law students practicing pursuant to this rule shall be governed by the rules of conduct applicable to lawyers generally, but the termination of practice referred to in Rule 7.4(a)(2) shall be the exclusive sanction for disciplinary infractions which occur during authorized practice; except that such disciplinary infractions may be considered by a court or agency authorized to entertain applications for admission to the practice of law.

(b) Nothing contained in this rule shall affect the right of any person to do anything that he or she might lawfully do were this rule not in existence.

(c) Immunity. Except for use by an attorney admission or disciplinary authority or judicial selection authority of any jurisdiction in which the applicant is admitted to practice or seeks to practice, applications and other information submitted to this court shall be absolutely privileged and no lawsuit predicated thereon may be instituted. Members of this court and the staff performing duties and functions under this rule shall be immune from suit and liability for any conduct in the course of their official duties.

(Amended December 29, 1980, effective January 1, 1981, renumbered September 1984; further amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended February 7, 1992, effective February 7, 1992.)

Rule 8. JUDICIAL DISCIPLINE.

8.1. Organization of commission.

(a) Membership; chairperson. The supreme court shall appoint a commission to be known as the Commission on Judicial Conduct which shall consist of seven members; three members shall be attorneys licensed to practice in the State of Hawai‘i, one of whom shall be designated by this court as chairperson, and four members shall be citizens who are not judges, retired judges or lawyers, one of whom shall be designated by this court as vice-chairperson.

(b) Terms. All members shall be appointed to staggered three-year terms; however, to maintain a commission with staggered terms, initial appointments may be for less than three years.

(c) Compensation. Members shall receive no compensation for their services but may be reimbursed for their traveling and other expenses incidental to the performance of their duties.

(d) Quorum; number of votes for action. A majority of the total membership of the Commission shall constitute a quorum for the transaction of business, and the concurrence of a majority of the total membership shall be necessary to validate any action.

(e) Meetings. Meetings of the Commission shall be held at the call of the chairperson or upon the written request of a majority of the members of the Commission.

(f) Annual report. At least once a year the Commission shall prepare a report summarizing its activities during the preceding year. One copy of this report shall be filed with the supreme court.

(g) Non-participation by members. Commission members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. If, in any given case, it shall become necessary for the continuation of a case or orderly operation of the Commission, the supreme court may appoint, for that case only, one or more ad hoc members as it deems necessary.

(Renumbered September 1984; amended April 26, 1993, effective April 26, 1993.)

8.2. Jurisdiction and powers of commission.

(a) Powers in general. The Commission shall have the power to:

(1) receive information, allegations, and complaints;

(2) make preliminary evaluations;

(3) screen complaints;

(4) conduct investigations;

(5) conduct hearings;

(6) recommend dispositions to the supreme court concerning allegations of judicial misconduct or physical or mental disability of judges; and

(7) issue advisory opinions.

(b) Persons Subject to Discipline. The conduct of any justice or judge, full-time or part-time, shall be subject to the jurisdiction of the Commission, regardless of the justice’s or judge’s status at the time the conduct is reported to the Commission, including, but not limited to, having resigned or retired from office and provided the conduct is reported to the Commission no later than ninety (90) days after the judge leaves office.

(1) Notwithstanding any provisions of Rule 2.1 of the Rules of the Supreme Court, only this Commission shall have the authority to exercise powers specified in Rule 8.2 with respect to conduct, whether or not related to mental or physical competence, of any sitting full-time or part-time justice or judge occurring during the time of, and prior to, his or her tenure on the bench except as otherwise provided in this subsection (c).

(2) Notwithstanding any provisions to the contrary contained herein regarding the jurisdiction of the Commission:

(i) The Disciplinary Board of the Hawai‘i Supreme Court may conclude any formal disciplinary proceedings as to said conduct which occurred prior to the judicial tenure of any full-time or part-time justice or judge, and any petition to the supreme court to determine whether any justice or judge is incapacitated from continuing the practice of law by reason of physical infirmity or illness or because of the use of drugs or intoxicants, if such formal disciplinary proceedings were instituted or such petition was filed prior to the judicial tenure of the justice or judge.

(ii) If a sitting part-time district judge is practicing law as an attorney, the Disciplinary Board of the Hawai‘i Supreme Court shall have jurisdiction of such judge with respect to said conduct as an attorney and to petition the supreme court to determine whether such judge is incapacitated from continuing the practice of law by reason of physical infirmity or illness or because of the use of drugs or intoxicants and shall exercise the authority and powers prescribed under Rule 2 of the Rules of the Supreme Court.

(iii) The Disciplinary Board shall transmit its findings of fact, conclusions of law, disciplinary action or recommendations, and the entire record, in formal disciplinary proceedings under (i) and (ii) above to the Commission and if it is satisfied, and if it wishes to take action, the Commission may apply the same findings to support its recommendation for disciplinary action against a justice or judge involved in the said proceedings subject, however, to subsection (4) of this subsection (c).

(3) The resignation or retirement of any full-time or part-time justice or judge before or after the Commission or the Disciplinary Board, or both, have commenced an investigation or a proceeding, and before final action by the supreme court upon any recommendation, shall not deprive the Commission, the Disciplinary Board or the supreme court of jurisdiction.

(4) The Commission shall treat the findings of the Disciplinary Board made as a result of proceedings within (2)(i) or (2)(ii) above, as a new complaint which shall be reviewed in accordance with Rule 8.6, subsections (b) through (i), and if the Commission determines that further proceedings should be had, the Commission shall proceed with the complaint in accordance with Rule 8.7, and with any other applicable provisions of Rule 8.

(d) Subpoena and discovery.

(1) In matters before the Commission the chairperson may administer oaths and affirmations, compel by subpoena the attendance and testimony of witnesses, including the judge as witness, and to provide for the inspection of documents, books, accounts, and other records.

(2) The power to enforce process may be delegated by the supreme court to any other court.

(e) Rules of procedure and forms. The Commission shall have the authority to submit rules of procedure for the approval of the supreme court, and to develop appropriate forms for its proceedings.

(Renumbered September 1984; amended April 26, 1993, effective April 26, 1993; further amended December 21, 2004, effective January 1, 2005.)

8.3. Immunity.

Members of the Commission and special counsel appointed by the supreme court shall be absolutely immune from suit for all conduct in the course of their official duties.

(Renumbered September 1984; amended April 26, 1993, effective April 26, 1993.)

8.4. Confidentiality.

(a) In general. All proceedings involving allegations of misconduct by or disability of a judge shall be kept confidential until and unless the supreme court enters an order for the imposition of public discipline or the judge requests that the matter be public. All participants in the proceeding shall conduct themselves so as to maintain the confidentiality of the proceedings.

(b) Disclosure. This provision shall not be construed to automatically deny access to relevant information to authorized agencies investigating the qualifications of judicial candidates, or to other jurisdictions investigating qualifications for admission to practice or to law enforcement agencies investigating qualifications for government employment; such information may be released upon concurrence of the Commission or by order of the supreme court.

(c) Public statements by commission. In any case in which the subject matter becomes public through independent sources or through a waiver of confidentiality by the judge, the Commission may issue statements as it deems appropriate in order to confirm the pendency of the investigation, to clarify the procedural aspects of the disciplinary proceedings, to explain the right of the judge to a fair hearing without pre-judgment, and to state that the judge denies the allegations. The statement shall be first submitted to the judge involved for his or her comments and criticisms prior to its release, but the Commission in its discretion may release the statement as originally prepared.

(Renumbered September 1984.)

8.5. Grounds for discipline.

(a) In general. Grounds for discipline shall include:

(1) Conviction of a felony;

(2) Willful misconduct in office;

(3) Willful misconduct which, although not related to judicial duties, brings the judicial office into disrepute;

(4) Conduct prejudicial to the administration of justice or conduct that brings the judicial office into disrepute;

(5) Any conduct that constitutes a violation of the Code of Judicial Conduct; or

(6) Any conduct before assuming full-time duties that constitutes a violation of the Hawai’i Rules of Professional Conduct.

(b) Proceedings not substitute for appeal. In the absence of fraud, corrupt motive, or bad faith, the Commission shall not take action against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he or she understands it. Claims of error shall be left to the appellate process.

(Renumbered September 1984; amended effective September 16, 1997.)

8.6. Complaint procedure.

(a) Initiation of procedure.

(1) An inquiry relating to conduct of a judge may be initiated upon any reasonable basis, including written complaints made by judges, lawyers, court personnel, or members of the general public.

(2) The Commission may on its own motion make inquiry with respect to whether a judge is guilty of misconduct in office or is physically or mentally disabled.

(3) Upon request of the chief justice of the supreme court, the Commission shall make an investigation under this rule of the conduct or physical or mental condition of a judge.

(b) Privilege. A qualified privilege shall attach to a complaint submitted to the Commission or testimony related to the complaint, and any civil action predicated on such complaint instituted against any complainant or witness, or their counsel, shall be subject to said qualified privilege.

(d) Screening of complaints. Upon receipt of a complaint, the Commission shall determine whether such complaint warrants investigation and evaluation. Complaints determined to be frivolous, unfounded or outside the jurisdiction of the Commission shall not be investigated.

(e) Mandatory notice. After the determination that a complaint warrants investigation and evaluation, notice that a complaint has been made shall be given to the judge.

(f) Preliminary investigation and evaluation. Upon receipt of a complaint, report, or other information as to conduct that might constitute grounds for discipline, the Commission shall conduct a prompt, discreet, and confidential investigation and evaluation. The Commission may delegate one of its members to conduct such investigation and evaluation.

(g) Determination. After conclusion of the investigation and evaluation, the Commission shall determine:

(1) That there is insufficient cause to proceed against the judge; or

(2) That there is sufficient information to make a disciplinary recommendation to the supreme court; or

(3) That further proceedings regarding the complaint are necessary.

(h) Insufficient cause to proceed.

(1) Upon determination that there is insufficient cause to proceed, the file shall be closed. If previously notified of a complaint, a judge shall be notified that the file has been closed.

(2) A closed file may be referred to by the Commission in subsequent proceedings.

(3) If the inquiry was initiated as a result of notoriety or because of conduct that is a matter of public record, information concerning the lack of cause to proceed may be released by the Commission.

(i) Dispositions in lieu of further proceedings. Even though the Commission does not find that further proceedings are necessary, it may recommend to the supreme court that the court:

(1) Issue a private reprimand; or

(2) Inform or admonish the judge that his or her conduct is or may be cause for discipline; or

(3) Direct professional counseling or assistance for the judge; or

(4) Impose conditions on the judge's conduct.

(Renumbered September 1984.)

8.7. Appointment of special counsel. Upon determining that further proceedings should be had, the Commission shall request the supreme court to appoint special counsel to further investigate the matter. Counsel, upon further investigation, shall either report to the Commission that a formal hearing is not necessary or institute formal disciplinary proceedings as provided in Rule 8.9. The Office of Disciplinary Counsel may be appointed as special counsel, subject to the approval of the Chairperson of the Disciplinary Board.

(Renumbered September 1984; amended effective September 16, 1997.)

8.8. Determination on report of special counsel. Upon receipt of special counsel's report that a formal hearing is not necessary, the Commission shall determine whether to close the file as provided by Rule 8.6(h) or make a recommendation to the supreme court as provided by Rule 8.6(i).

(Renumbered September 1984.)

8.9. Formal hearing.

(a) Complaint or statement. Formal disciplinary proceedings shall be instituted by special counsel by filing with the Commission a detailed sworn complaint signed by the complainant. If a sworn complaint is not obtained, a clear statement of the allegations against the judge and the alleged facts forming their basis shall be prepared by special counsel. Where more than one act of misconduct is alleged, each shall be clearly set forth. A copy of the complaint or statement of allegations shall be served upon the judge.

(b) Answer. The judge shall serve his or her answer upon special counsel and file the original with the Commission within 20 days after the service of the complaint or statement of allegations unless such time is extended by the chairperson. In the event the judge fails to answer, the charges shall be deemed admitted; provided, however, that a judge who fails to answer within the time provided may obtain permission of the chairperson to file an answer if such failure to file an answer was attributable to mistake, inadvertence, surprise or excusable neglect.

(c) Termination after answer. At any time after service of the answer, the Commission may terminate the proceeding and dismiss the complaint, and shall in that event give notice to each complainant and to the judge that it has found insufficient cause to proceed.

(d) Notice of hearing. Following service of the answer the matter may be set for hearing before the Commission. The Commission shall serve a notice of hearing upon special counsel and the judge, or his or her counsel, stating the date and place of the hearing.

(e) Presentation; cross-examination; evidence. At the hearing, the judge shall be entitled to counsel of his or her own choice, shall be entitled to compel by subpoena the attendance and testimony of witnesses and to provide for the inspection of documents, books, accounts, and other records, and shall have a full opportunity to confront and cross-examine the complainant and other witnesses presented by special counsel and to present evidence on his or her own behalf.

The Commission shall not be bound by the formal rules of evidence, but shall admit only trustworthy evidence. The Commission shall not rely upon any evidence outside the formal record in reaching its decision.

(f) Findings and recommendations. All findings of the Commission shall be supported by clear and convincing evidence. The Commission shall, in every case, submit a report containing its findings and recommendations, together with a record of its proceedings, to the supreme court within 60 days after the conclusion of its hearing. The Commission may recommend to the supreme court any of the following sanctions:

(1) Removal;

(2) Retirement;

(3) Imposition of limitations or conditions on the performance of judicial duties, including suspension with or without pay;

(4) Private reprimand;

(5) Public censure, suspension from the practice of law, or disbarment; or

(6) Any combination of the above sanctions.

(Renumbered September 1984; amended effective September 16, 1997.)

8.10. Review by Supreme Court. After the filing of the Commission's report a copy thereof shall be served on the judge. The judge may file exceptions to the report within 20 days from the date of service of a copy thereof or within an additional period not to exceed 20 days granted by the court for good cause shown. Within 60 days after the filing of the report and the filing of exceptions, if any, the judge shall file an opening brief pursuant to the rule governing civil appeals; and other briefs may be filed and oral argument may be had as therein provided. Upon conclusion of the proceedings, the court shall promptly enter an appropriate order.

(Renumbered September 1984.)

8.11. Charge against supreme court justice. Any charge filed against a member of the supreme court shall be heard and submitted to the court in the same manner as charges concerning other judges, except that the member being charged shall be automatically disqualified. A panel of at least three justices shall hear the matter. In the event that there are less than three justices remaining on the court, the chief justice or the most senior associate justice remaining on the court shall appoint a judge of the intermediate court of appeals, a circuit court judge, a retired justice of the supreme court, or any combination thereof to sit in the matter.

(Renumbered September 1984.)

8.12. Interim sanctions.

(a) Suspension for felony. A judge shall be suspended with or without pay immediately by the supreme court without necessity of Commission action, upon the filing of an indictment or complaint charging him or her with a felony under state or federal law. Such suspension shall not preclude action by the Commission with respect to the conduct which was the basis for the felony charge, before or after a conviction, acquittal, or other disposition of the felony charge.

(b) Suspension for misdemeanor. Conduct resulting in the filing of misdemeanor charges against a judge, if it adversely affects his or her ability to perform the duties of his or her office, may be grounds for immediate suspension with or without pay by the supreme court, without necessity of Commission action. A conviction, acquittal, or other disposition on a misdemeanor charge, shall not preclude action by the Commission with reference to the conduct upon which the charge was based.

(c) Misdemeanor suspension review. Any judge suspended under Rule 8.12(b) shall be given a prompt hearing and determination by the supreme court upon his or her application for review of the interim suspension order.

(d) Other interim suspension.

(1) Interim suspension, with or without pay, pending final decision as to ultimate discipline, may be ordered by the supreme court in any proceeding under these rules.

(2) Upon a determination by the Commission of a judge's incompetence, there shall be an immediate interim suspension, with or without pay, pending final disposition by the supreme court.

(e) Disability suspension. A judge who claims that a physical or mental disability prevents his or her assisting in the preparation of a defense in a proceeding under these rules shall be placed on interim suspension, with or without pay. Once an interim suspension has been imposed, there shall be a determination of whether in fact there is such a disability. If there is such a disability, the judge shall be retired. If there is a finding of no disability, the disciplinary proceeding shall continue.

(Renumbered September 1984; amended May 4, 1993, effective May 4, 1993.)

8.13. Special provisions for cases involving mental or physical disability.

(a) Procedure. In carrying out its responsibilities regarding physical or mental disabilities, the Commission shall follow the same procedures that it employs with respect to discipline for misconduct.

(b) Representation by counsel. If the judge in a matter relating to physical or mental disability is not represented by counsel, the supreme court shall appoint an attorney to represent him or her.

(1) If the complaint involves the physical or mental condition of the judge, a denial of the alleged condition shall constitute a waiver of medical privilege, and the judge shall be required to produce his or her medical records.

(2) If medical privilege is waived, the judge is deemed to have consented to a physical or mental examination by a qualified medical practitioner designated by the Commission. The report of the medical practitioner shall be furnished to the Commission and the judge.

(Renumbered September 1984.)

8.14. Involuntary retirement.

(a) Procedure. A judge who refuses to retire voluntarily may be involuntarily retired by the supreme court. If attempts to convince a judge to retire voluntarily fail, then special counsel shall be appointed to file a formal complaint, and the Commission shall hold a hearing and submit a report with recommendations to the supreme court.

(b) Effect of involuntary retirement. A judge who is involuntarily retired shall be ineligible to perform judicial duties pending further order of the court.

(Added June 1, 1979, effective June 1, 1979, amended December 5, 1979, effective December 5, 1979, renumbered September 1984; further amended March 7, 1985, effective March 7, 1985.)