Duties Owed By Hawaii Lawyers

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A lawyer owes his client basic duties and obligations. Although there are literally volumes written on this subject, there are certain Hawaii rules which are most basic. These include the duties (i) to keep the client informed, and (ii) of loyalty.

More specifically, Rule 1.4 of the Hawaii Rules of Professional Conduct (“HRPC”) provides as follows:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer who receives a written offer of settlement in a civil controversy or a proffered plea bargain in a criminal case shall promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

HRPC Rule 1.4.

With regards to an attorney’s duty of loyalty, pursuant to the HRPC Rule 1.7(2)(b), lawyers may not represent multiple clients without full and adequate disclosure. More specifically, the Rule states as follows:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

HRPC Rule 1.7(2)(b)(emphasis added).

In addition, HRPC Rule 1.8(g) states,

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

HRPC Rule 1.8(g) (emphasis added).

Finally, HRPC Rule 1.13(e) provides as follows:

A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Rule 1.13(e)

A Note to HRPC Rule 1.7 establishes that if a conflict of interest arises, then the lawyer should withdraw. Further, the Note to HRPC Rule 1.13 provides that, if a lawyer represents an organization and any of its constituents, a conflict arises when,

…the organization’s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

HRPC Rule 1.13 Note [8].

It is clear from the rules that an attorney must disclose if there is a conflict of interest in his representation of a client. This includes an explanation of the risks and consequences related to dual or multiple representations of parties arising by either, (i) when the attorney represents two or more clients (ie. co-defendants) in the matter, or (ii) when the attorney represents an organization along with a constituent(s). In particular, if an attorney represents dual parties, the participation and consent of each party concerning settlement offers is essential.