DISCIPLINARY RULES

2.1. Jurisdiction. Any attorney admitted, specially admitted, or granted limited admission, under any provision of Rule 1.1, et seq. of these Rules, to practice law in this state, and any attorney licensed to practice law by the highest court of a state or territory of the United States or the District of Columbia, but not admitted in this state, who practices law or renders or offers to render any legal services in this state is subject to the 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 bar association from censuring a member or suspending or expelling a member from membership in the association. Further, nothing herein contained shall be construed to deny to any arbitrator or arbitration panel such powers as the arbitrator or arbitration panel may have that are necessary to maintain control over a particular arbitration proceeding. (Renumbered September 1984; amended October 27, 1989, effective November 1, 1989, subject to transitional orders; further amended August 29, 2018, effective January 1, 2019; further amended June 14, 2022, effective July 1, 2022.) 2.2. Grounds for discipline. (a) The Hawaiʻi 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 Hawaiʻi 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. A public or private reprimand, or a private informal admonition, may also be imposed directly by the supreme court in any disciplinary matter submitted to the court by the Disciplinary Board, without requiring consent of the parties. (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 Hawaiʻi 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; further amended July 9, 2019, effective January 1, 2020.) 2.4. Disciplinary board. (a) The supreme court shall appoint a board to be known as the "Disciplinary Board of the Hawaiʻi Supreme Court" (hereinafter referred to as the "Board") that shall consist of eighteen members, each of whom shall be nominated and appointed separately. At least one-third of the members shall not be lawyers. To the extent possible, membership shall include at least one person from each of the four counties. All appointments shall be made from a list of nominees submitted by the Nominating Committee of the Hawaiʻi Supreme Court. The Disciplinary Board shall elect from among its members, a Chairperson, a Vice-Chairperson, a secretary, and a treasurer. (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 employ, supervise, and terminate a Chief Disciplinary Counsel, hereinafter Chief Counsel, a Deputy Chief Disciplinary Counsel, Assistant Disciplinary Counsel, and staff employees, and to appoint volunteers to assist the Board in the exercise of its duties. The Board may delegate to Chief Counsel the authority to employ and supervise the Deputy Chief Counsel and Assistant Counsel, to employ, supervise and terminate staff, and to appoint volunteers. (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 Hawaiʻi 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 Hawaiʻi State Bar to allow an opportunity for meaningful review, analysis, input, and comment by the Hawaiʻi State Bar prior to submission to the supreme court; (iii) to receive written comments, if any, from the Hawaiʻi 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 Hawaiʻi 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 Hawaiʻi 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. (10) To retain, as needed, private counsel to assist the Board in the performance of its duties. (11) To establish committees to assist the Board in the performance of its duties. (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; further amended June 25, 2013, effective July 1, 2013.) 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. (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; further amended June 25, 2013, effective July 1, 2013.) 2.6. Disciplinary counsel. (a) Private practice not permitted. Chief Disciplinary Counsel, Deputy Chief Disciplinary Counsel, and salaried Deputy Disciplinary Counsel shall not engage in private practice, except that: (1) The Board may agree to a reasonable period of transition after appointment; and (2) Chief Disciplinary Counsel, Deputy Chief Disciplinary Counsel, and salaried Deputy Disciplinary Counsel may provide pro bono services consistent with Rule 6.1 of the Hawaiʻi Rules of Professional Conduct, subject to restrictions imposed by the Board. (b) Powers and duties of Chief Counsel. Chief Counsel shall have the power and duty: (1) To investigate all matters involving alleged misconduct called to the Chief Counsel’s attention whether by complaint or otherwise. (2) 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, referral to a minor misconduct or assistance program, 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 a position with respect to the allegations. (3) To file with the supreme court certificates of conviction of attorneys for crimes. (4) To prosecute all disciplinary proceedings and proceedings to determine incapacity of attorneys before hearing committees or officer, the Board and the supreme court. (5) 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. (6) To inform complainants and attorneys complained against of the status and disposition of their respective complaint matters. (7) To maintain permanent records of all matters processed and the disposition thereof. (8) To assist members of the public in preparation of requests for investigation. (9) To perform such other duties and provide such reports as the Board shall direct. (c) Delegation. Chief Counsel may delegate performance of the duties set out in sections (b)(1) through (b)(9) to Deputy Chief Counsel, Assistant Disciplinary Counsel, and staff. (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 June 25, 2013, effective July 1, 2013; further amended November 14, 2013, effective November 14, 2013; further amended June 5, 2020, effective July 1, 2020; further amended August 18, 2021, effective January 1, 2022.) 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 Hawaiʻi 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 of these Rules, any act or omission by an attorney which, although violative of the Hawaiʻi 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 3 years. (iv) The misconduct involved is of the same nature as misconduct for which the respondent was disciplined within the past 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) of this Rule, 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, mentoring, 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 the respondent enters into an agreement for referral to a minor misconduct program established by the Hawaiʻi State Bar and enters into a mentoring relationship, all records and information maintained by the mentor relating to the minor misconduct of the respondent shall be deemed confidential and shall not be disclosed to the Counsel, the Board, the supreme court or any other person and shall not be subject to discovery or subpoena unless such confidentiality is waived in writing by the respondent; provided, however, that the mentor may compile and disclose to Counsel a final report summarizing the mentoring program and the completion thereof to the satisfaction of the mentor. The mentor and the respondent have a privilege to refuse to disclose information shared or provided between the mentor and the respondent. The limitations on disclosure set forth in this section will not apply to information relating to the respondent’s failure to cooperate with the mentoring program, or with a respondent’s unsuccessful completion of a mentoring program. (5) 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. (6) If the respondent shall fail to comply with the terms of the agreement, Counsel may undertake or resume disciplinary proceedings. (7) 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) of these Rules. Notwithstanding Rule 2.22 of these Rules, 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 the respondent’s 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 the respondent’s own behalf. Absent good cause warranting the use of a court reporter, Counsel shall electronically record disciplinary hearings for transcription at a later time, if appropriate. The hearing committee or officer shall, in every case, submit a report containing findings and recommendations, together with a record of the proceedings, including a transcription of the audio recording of the hearing, 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) of these Rules. 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 the respondent’s 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 (d) 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 (c) 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; further amended April 5, 2010, effective July 1, 2010; further amended March 4, 2013, effective March 4, 2013; further amended December 19, 2018, effective January 1, 2019.) 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, counsel to the Board, staff, volunteers, experts appointed pursuant to Rule 2.19, trustees and assistants appointed pursuant to Rules 2.20 and 2.5, and mentors appointed pursuant to Rule 2.7(b)(4) shall be immune from suit and liability for any conduct in the course of their official duties. COMMENT: The purpose of extending immunity to mentors appointed pursuant to Rule 2.7(b)(3) is to enhance the ability to attract participants to participate as mentors in minor misconduct programs and to provide to these mentors protections provided to those serving in other capacities under the auspices of the Disciplinary Board. (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; further amended April 5, 2010, effective July 1, 2010; further amended February 20, 2013, effective July 1, 2013.) 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) Grounds for suspension. 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) Petition; order to appear; findings. 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 further order of the supreme court. (c) Application to defend. 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. (d) Reinstatement. An attorney suspended under this Rule 2.12A may move for reinstatement. The motion shall be supported by proof respondent cured the failures to cooperate alleged in the petition. If conventionally filed, a copy of the motion for reinstatement shall be served upon Counsel at or before the time of filing. Counsel shall file a response to the motion within 20 days after the motion for reinstatement was filed. Counsel’s response shall verify whether respondent has cured the allegations of non-cooperation. (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; further amended June 25, 2013, effective July 1, 2013.) 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 Hawaiʻi, 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 court may issue an order providing the attorney the opportunity to respond within 20 days of the service of the order upon the attorney, informing the supreme court as to why the attorney should not be immediately suspended. Manner of service shall be at the discretion of the supreme court. However, the supreme court may 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 of these Rules 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 an attorney suspended solely under the provisions of paragraph (b) above 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 attorney may be placed on active status. Vacation of the interim suspension will not automatically prohibit or terminate any formal proceeding against the attorney and disposition of any formal proceeding against the attorney 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; further amended March 11, 2020, effective July 1, 2020.) 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 the attorney’s discipline may resign in lieu of discipline or consent to disbarment, but only by delivering to the Board Chairperson an affidavit stating that the attorney desires to resign in lieu of discipline or consent to disbarment and that: (1) the attorney’s resignation in lieu of discipline or consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting the attorney’s resignation or consent; (2) the attorney is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for the attorney’s discipline, the nature of which the attorney shall specifically set forth; (3) the attorney acknowledges that the material facts so alleged are true; and (4) the attorney resigns or submits the attorney’s consent because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend themselves. (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. The affidavit required under the provisions of (a) above shall be a matter of public record but shall not be used 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; further amended June 25, 2013, effective July 1, 2013; further amended November 10, 2020, effective January 1, 2021.) 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 the attorney’s disbarment or suspension and consequent inability to act as an attorney after the effective date of the 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 the attorney’s clients who is involved in pending litigation or administrative proceedings, and the attorney or attorneys for each party and each self-represented party in the pending litigation or administrative proceeding of the attorney’s disbarment or suspension and consequent inability to act as an attorney after the effective date of the 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 place of the withdrawing attorney. 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 any other party and to any other self-represented party shall state the place of residence or other address at which the client of the disbarred or suspended attorney can be contacted. (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 the attorney 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 10 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 the attorney 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 the attorney is admitted to practice; and (3) that the attorney 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 the attorney. (e) The Board shall cause a notice of the suspension or disbarment to be published on the Board’s or the Judiciary’s public website or in a newspaper of general circulation in the judicial circuit in which the disciplined attorney practiced and shall further cause a notice of reinstatement under Rule 2.17 of these Rules to be similarly published. (f) The Board or the court shall promptly transmit by electronic means a copy of the certified order of suspension or disbarment to all judges of the State of Hawaiʻi, and the administrative judge of each judicial circuit shall make such further order as the administrative judge 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 the attorney under these Rules so that, upon any subsequent proceeding instituted by or against the attorney, 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; further amended August 30, 2010, effective September 27, 2010; further amended October 26, 2012, effective January 1, 2013; further amended May 23, 2017, effective July 1, 2017; further amended June 6, 2019, effective July 1, 2019; further amended November 21, 2019, effective January 1, 2020; further amended June 5, 2020, effective July 1, 2020; further amended June 16, 2021, effective July 1, 2021.) 2.17. Reinstatement. (a) Resumption of Practice. No suspended or disbarred attorney may resume practice until reinstated by order of the supreme court except as provided in Rule 17(d). (b) Time to Apply. (1) Disbarred attorney . 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. (2) Attorney suspended 1 year or less . 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. (3) Attorney suspended more than 1 year. 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. (4) Burden of proof; eligibility . A disbarred attorney or 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. (5) Evidence costs, lawyers’ fund paid . 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 Hawaiʻi statutory judgment rate. (6) Required evidence . A petitioner under parts (b)(1) and (b)(3) of this Rule 2.17 shall support the petition with the following information, submitted under seal: (A) the petitioner’s current residence address and telephone number; (B) the address of each of petitioner’s places of residence during the period of discipline, along with the dates the petitioner resided at each address; (C) the name, address and, telephone number of each of petitioner’s employers, associates, or partners during the period of discipline, including the dates of each employment and position held, (D) the names of all supervisors and reasons for leaving the employment, association, or partnership; (E) the case caption, general nature and disposition of every civil and criminal action initiated, pending, or resolved during the period of discipline to which the petitioner was party or claimed an interest; (F) a statement of monthly earnings and other income during the period of discipline, including the source of the earnings/income; (G) a statement of assets and financial obligations during the period of discipline, including the dates acquired or incurred and the names and addresses of all creditors; (H) a state verifying that restitution, or reimbursement of costs, including to the client protection fund, if appropriate, has been made and in what amount(s); (I) a statement as to whether during the period of discipline the petitioner applied for reinstatement in any other jurisdiction and the results of any such proceedings; (J) a statement identifying any other licenses or certificates for business or occupation applied for during the period of discipline; (K) the names and addresses of all financial institutions at which petitioner had, or was a signatory to, accounts, safety deposit boxes, deposits or loans during the period of discipline; (L) written authorization for the ODC to secure any financial records relating to those accounts, safety deposit boxes, deposits or loans; and (M) copies of petitioner’s state and federal income tax returns for the three years preceding the period of discipline and during the period of discipline along with written authorization for the ODC to obtain certified copies of the originals. (7) Subsequent petitions . If a petition for reinstatement is denied, the petitioner may reapply for reinstatement no earlier than 1 year after entry of the supreme court’s order denying reinstatement. (c) Petition the board; serve counsel; investigation; hearing; reports. Petitions for reinstatement by a disbarred attorney or an attorney suspended for more than one year 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 investigation shall be completed within 180 days unless the Board Chairperson, upon a showing of good cause, extends the time to complete the investigation. The hearing committee or officer shall promptly schedule a hearing, unless the petitioner requests the matter be heard upon the pleadings and exhibits and Chief Disciplinary Counsel agrees. Petitioner and Chief Disciplinary Counsel may stipulate to facts. 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 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) remand the matter for further proceedings before the hearing committee or officer or (2) submit a report containing its findings and recommendations, together with the record, to the supreme court. The supreme court may grant briefing and oral argument at its discretion, either sua sponte or in response to a motion timely filed by either party within 10 days after the filing of the report with the court. (d) Expenses. The supreme court shall, absent good cause to the contrary, direct that the necessary expenses incurred in the investigation and processing of a petition for reinstatement be paid by the attorney seeking reinstatement, upon the filing by Counsel of a verified bill of costs within 60 days after final disposition of the petition. (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; further amended June 25, 2013, effective July 1, 2013; further amended December 3, 2013, effective January 1, 2014.) 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 further order of the supreme court. A copy of such order shall be served upon such attorney, the attorney’s guardian, and/or the director of the institution to which the attorney 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 the attorney 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 the attorney is without adequate representation. (c) If, during the course of a disciplinary proceeding, the respondent contends that the respondent 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 present an adequate defense, the supreme court thereupon shall enter an interim 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 interim or final transfer to inactive status to be published on the Board’s or the Judiciary’s public website or in a newspaper of general circulation in the judicial circuit in which the disabled attorney practiced and shall further cause a notice of a return to active status to be similarly published. (e) The Board or the court shall promptly transmit a certified copy of the interim or final order of transfer to inactive status to all judges of the State of Hawaiʻi and shall request such action under the provisions of Rule 2.20 of these Rules as may be indicated in order to protect the interests of the disabled attorney and the attorney’s 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 the attorney 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, the attorney has been judicially declared to be competent, the supreme court may dispense with further evidence that the attorney’s disability has been removed and may direct the attorney’s 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 the attorney’s 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 the attorney’s transfer to inactive status and the attorney 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. (i) Pursuant to Rule 2.22(f) of these Rules, the record of proceedings undertaken pursuant to this Rule shall be confidential, except for interim and final orders transferring an attorney to inactive status, and any subsequent order returning the attorney to active status. (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; further amended March 7, 2016, effective July 1, 2016; further amended May 23, 2017, effective July 1, 2017; further amended June 16, 2021, effective July 1, 2021.) 2.20. Trustee proceedings. (a) Definitions. As used in this Rule and for other purposes: (1) “Designated Practice Administrator” means a Hawaiʻi licensed attorney designated in the subject attorney’s member registration with the Hawaiʻi State Bar to oversee the responsible closure of the subject attorney’s practice, including by serving as trustee in the event that grounds exist to appoint a trustee for the subject attorney. (2) “Legally operative original documents” means an original document that impacts legal rights, but is not a matter of public record (e.g., original will, unrecorded deed). (3) “Property” means property of clients or third persons that a subject attorney holds as a fiduciary in connection with a representation within the scope of Rule 1.15 of the Hawaiʻi Rules of Professional Conduct. (4) “Subject attorney” means an attorney who is the subject or potential subject of trustee proceedings under this Rule. (5) “Unavailable” means an attorney who has disappeared, died, been suspended or disbarred without complying with Rule 2.16 of these Rules, or been transferred to inactive status because of incapacity or disability. (b) Grounds for appointment of trustee. Grounds for appointment of a trustee exist whenever: (1) a subject attorney does not have a partner as defined by Rule 1.0(g) of the Hawaiʻi Rules of Professional Conduct; and (2) the subject attorney is unavailable or there is other good cause to protect the interests of the subject attorney’s clients. (c) Procedure. (1) Motion for appointment . When appointment of a trustee is warranted, Disciplinary Counsel shall file with the supreme court a motion for appointment of an attorney to serve as trustee with proper proof that grounds exist for the appointment. The Motion shall include a declaration from the putative trustee, disclosing any conflicts or business relations with the subject attorney or the subject attorney’s clients. (2) Service of motion . Disciplinary Counsel shall serve the motion on the subject attorney pursuant to section 2.11(a) of these Rules, and serve by regular mail any representative, or reasonably anticipated representative, of the subject attorney’s estate, to their last known address. (3) Response to motion . The subject attorney or any interested person may file a response to the motion within 14 days after service of the motion, though this period may be shortened at the court’s discretion, for good cause. (4) Appointment . When grounds exist for appointment of a trustee, the supreme court may appoint a Hawaiʻi licensed attorney as trustee to inventory and administer property in the possession of the subject attorney and to take such action as seems indicated to protect the interests of the subject attorney’s clients as well as third parties for whom the subject attorney was holding property as a fiduciary. If the subject attorney has a Designated Practice Administrator or if another responsible party who is a licensed Hawaiʻi attorney is known to exist who is willing to conduct the subject attorney’s affairs, the supreme court may appoint that person. (5) Limited appointment . When the appointment of a trustee is warranted, upon showing of good cause to protect the interests of the subject attorney’s clients, but the subject attorney is not yet unavailable, the supreme court in appointing a trustee may modify the trustee’s duties consistent with the circumstances. A limited appointment shall specify whether, and from whom, the trustee is entitled to reimbursement and compensation under this Rule and whether the trustee must provide notice of the appointment to the subject attorney’s clients and third parties for whom the subject attorney holds property. (6) Partner access to client trust account . Where property is held in a trust account under the exclusive control of the subject attorney, a subject attorney’s partner, or other associated attorney, who is not a signatory to the trust account may apply to the supreme court, with notice to Disciplinary Counsel, for an order allowing access to such trust account. (d) Duties of trustees. (1) A trustee appointed under this Rule shall: (A) promptly take custody of, and inventory, all client files and records of the subject attorney, identifying all legally operative original documents or other items of value. (B) promptly determine if the subject attorney has any active matters or cases and, as trustee, notify all parties and any relevant tribunals of the trusteeship. (C) promptly take legal possession, including possession by substitution of the trustee as signatory and custodian, of any trust and other bank accounts found or known to exist into which property has been deposited, and shall determine amounts therein and amounts due the clients or third persons for whom the accounts are held. The trustee shall not make any disbursements or transfers from any account without the permission of the supreme court; (D) publish 1 advertisement in a newspaper of general circulation announcing that the trustee has been appointed to inventory the subject attorney’s client files, that the subject attorney’s clients may contact the trustee to retrieve their files within 90 days of the publication date of the notice and that unclaimed items will be destroyed thereafter; (E) send form notices by regular mail to the last known mailing address, or in the manner designated in the subject attorney’s client files, to all of the subject attorney’s clients, informing them of the subject attorney’s status, that those clients may obtain their files by contacting the trustee at an address and telephone number specified in the notice, and that unclaimed items will be destroyed. The trustee, however, need not send notification to a subject attorney’s client where it appears after inspection of the file that the underlying legal matter has been inactive for 7 years or more and the file contains no legally operative original documents or other items of value to the client; (F) file with the supreme court periodic reports as to the status of the trustee’s administration, listing issues and tasks needed for resolution, and projecting a schedule of estimated completion. Such reports shall be filed as necessary, but not less than annually; and (G) comply with applicable rules of the Disciplinary Board concerning trustees appointed under this Rule. (2) A trustee appointed under this Rule may: (A) employ locksmiths to open the subject attorney’s present and former law offices, as well as open any safes, cabinets, closets, or other secured areas located within the subject attorney’s present and former law offices and any other areas under the subject attorney’s control; (B) where the trustee is designated by the trustees of the Lawyers’ Fund for Client Protection (“Fund”) to act on behalf of the trustees for the Fund, or where the trustee acts in coordination with Disciplinary Counsel, cause subpoenas to be issued pursuant to Rules 2.12 or 10.6 of these Rules for the subject attorney’s business and banking records to carry out the trustee’s duties under these Rules or consult with and advise the Fund trustees concerning the validity and propriety of claims brought by the subject attorney’s clients against the Fund; (C) after strict compliance with the rules of professional conduct relating to business transactions with a client, filing with the supreme court a notice disclosing the transfer of the client matter to the trustee, and disclaiming any trustee immunity under these Rules for the transferred matter, substitute in place of the subject attorney in any given client matter; (D) upon approval by the Disciplinary Board, employ assistants, accountants, or bookkeepers as necessary to determine the source and ownership of funds recovered by the trustee; (E) upon approval by the Disciplinary Board, place any unclaimed files in storage (in the custody of the Disciplinary Board); or (F) take such further action as the supreme court directs, including seeking an order of abandonment of property where a client or the client’s legal representative cannot be found and the property is either funds subject to escheat under Hawaiʻi Revised Statutes § 523A or non-monetary property of inconsequential value or otherwise burdensome to the estate. (e) Reimbursement and compensation of trustee. Trustees may be reimbursed for traveling and other expenses incidental to the performance of their duties. Trustees, if authorized by an order of the court, may also be compensated for their services, and shall apply to the supreme court for compensation not more frequently than quarterly, or less than annually. (f) Confidentiality. All client files in possession of a trustee are confidential in accordance with Rule 1.6 of the Hawaiʻi Rules of Professional Conduct. 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 trustee to make such inventory or to cooperate in investigations by Disciplinary Counsel or the Fund. (g) Role of Disciplinary Counsel in trustee proceedings. The Disciplinary Board shall appoint a specific Disciplinary Counsel to serve as Trustee Administrator. (1) The Trustee Administrator shall be a party to all trustee proceedings under this Rule 2.20, assist trustees in the performance of their duties, monitor the progress of proceedings, review trustee reports, scrutinize applications for compensation and expense reimbursement on behalf of the Disciplinary Board, file concurring or opposing statements where appropriate on behalf of the Disciplinary Board or the Fund, and do such other acts as may aid in the advancement of proceedings. The Trustee Administrator may also be appointed as interim or successor trustee where deemed appropriate by the supreme court. (2) The Trustee Administrator is also empowered, concurrent with the trustee appointed under this Rule 2.20, to interpose claims on behalf of the Disciplinary Board or the Fund with the subject attorney or any personal representative, trustee, probate, other trust, estate, or property of the subject attorney. (3) Notwithstanding the foregoing, Disciplinary Counsel, including the Trustee Administrator, shall not provide legal advice to trustees or any other person with regard to the trust estate. (h) Disposition of property. Prior to discharge of the trustee, the trustee shall dispose of property as follows: (1) For funds not held in a bank account, promptly deposit such funds in the subject attorney’s trust account and dispose of such funds as provided for in subsection (d)(1)(C) of this Rule; (2) For property released to the subject attorney’s clients, express designee, or client’s legal representative(s), the trustee shall obtain and maintain written records and verification of the release; (3) For property to be released to third persons other than the client’s designee or legal representative, the trustee shall obtain approval from the supreme court for release; (4) For property that a subject attorney’s client expressly declined in writing to retrieve, the trustee shall destroy the file in a secure manner. (5) For unclaimed legally operative original documents or other documents of value from any unclaimed client files, the trustee shall file copies of the documents under seal in the docket of the trustee proceeding and deliver the original documents to Disciplinary Counsel. Disciplinary Counsel shall maintain the original documents for 6 years, after which time Disciplinary Counsel may destroy any remaining unclaimed documents without returning to the supreme court for permission to do so. Original wills, in the alternative, may be deposited with the appropriate probate court, pursuant to Rule 74 of the Hawaiʻi Probate Rules. (6) Where the trustee determines, pursuant to subsection (d)(1)(E) of this Rule, that direct written notice to the subject attorney’s client is not required, the trustee shall, after removing documents of value, destroy the file of that client in a secure manner after the time specified in the published advertisement has expired. (7) For all remaining unclaimed property, the trustee, after culling them for legally operative original documents and other items of value, shall destroy the files in a secure manner after the time specified in the published advertisement and, if applicable, the direct written notice has expired. (i) Suspension during the trusteeship. Upon appointment of a trustee, the subject attorney may, by order of the supreme court, be suspended from the practice of law in this jurisdiction until the trusteeship is completed. The Disciplinary Board or the supreme court shall promptly transmit a copy of the order of suspension to all judges of the State of Hawaiʻi and request such action as may be indicated in order to protect the interests of the subject attorney’s clients. Any subject attorney so suspended shall be entitled to apply to the supreme court for reinstatement to active status upon a showing that the grounds for commencing the trustee proceeding have been resolved, any monetary sums awarded in the trustee proceeding have been satisfied or an arrangement for their payment has been approved by the court, and that the subject attorney is fit to resume the practice of law. If the subject attorney remains suspended pursuant to another provision of this Rule 2, the subject attorney shall not be reinstated until the reinstatement process set forth in that other Rule is fulfilled. (j) Responsibility for fees and costs incurred. The subject attorney or the subject attorney’s estate may be required to pay to or otherwise reimburse the Disciplinary Board and, where applicable, the Fund, all fees, costs and other amounts ordered and incurred, together with interest at the Hawaiʻi 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; further amended November 14, 2013, effective November 14, 2013, further amended May 15, 2017, effective July 1, 2017; further amended January 29, 2019, effective July 1, 2019; further amended November 14, 2019, effective January 1, 2020; further amended February 3, 2020, effective July 1, 2020; further amended December 14, 2020, effective January 1, 2021.) 2.21. Deleted. 2.22. Confidentiality. (a) General rule. The files, records and proceedings of the Board, the hearing committees or officers, and Counsel, and of mentors participating in minor misconduct programs pursuant to Rule 2.7(b) of these Rules, 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 (A) such time is extended by the Board Chairperson for no more than 45 days for good cause shown or (B) the Board or the supreme court imposes a private reprimand or a private informal admonition, pursuant to Rule 2.3(a) of these Rules. (8) Where reinstatement proceedings are initiated pursuant to Rule 2.17(c) of these Rules. (b) Disclosure of evidence of a crime. 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) Disclosure of evidence of infirmity. Disciplinary Counsel, in its discretion, may disclose an attorney’s possible substance abuse, physical or mental illness, or other infirmity to the Director of the Attorney and Judges Assistance Program. (d) Disclosure of resignation affidavit. An affidavit resigning in lieu of discipline or consenting to disbarment submitted pursuant to Rule 2.14 of these Rules 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) Authorized statements. 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) Supreme Court records are generally public. 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 proceedings under Rule 2.19 of these Rules, any order transferring an attorney to inactive status or subsequently to active status shall be a matter of public record, but otherwise, the record of the proceedings shall not be publicly disclosed. (g) ABA databank coordination. 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; further amended April 5, 2010, effective July 1, 2010; further amended June 25, 2013, effective July 1, 2013; further amended November 14, 2013, effective November 14, 2013; further amended August 22, 2014, effective January 1, 2015; further amended March 7, 2016, effective July 1, 2016; further amended February 4, 2021, effective February 4, 2021; further amended August 24, 2021, effective January 1, 2022.) 2.23. Interim suspension. (a) Upon receipt of sufficient evidence demonstrating that an attorney has committed a violation of the Hawaiʻi 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 Hawaiʻi 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. Effect of Hawaiʻi Electronic Filing and Service Rules. Documents filed and notices given in accordance with the Hawaiʻi Electronic Filing and Service Rules shall be deemed to comply with the filing, mailing, certified mailing, notice, and service requirements of any part of this Rule 2. (Added August 30, 2010, effective September 27, 2010.) 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.)