Terminology

As amended through September 30, 2024

Terminology

(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.

(b) "Confirmed in writing," when used in reference to consent after consultation, denotes consent that is given in writing or a writing that a lawyer promptly transmits, confirming an oral consent obtained after consultation. See Rule 1.0(c) for the definition of "consultation." If it is not feasible to obtain or transmit the writing at the time consent is given, then the lawyer must obtain or transmit it within a reasonable time thereafter.

(c) "Consult" or "consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

(d) "Firm" or "law firm" denotes a lawyer or lawyers in a professional business organization, see Rule 6 of the Rules of the Supreme Court of the State of Hawai'i, or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Comment [1], Rule 1.10.

(e) "Fraud" or "fraudulent" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A client's, an attorney's, or a third-party's knowledge may be inferred from circumstances.

(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or person with an owner interest in a lawyer's professional business organization of any kind. See Rule 6 of the Rules of the Supreme Court of the State of Hawai'i.

(h) "Qualified legal assistance organization" means a legal aid, public defender, or military assistance office, or a bona fide organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, provided the office, service, or organization receives no profit from the rendition of legal services, is not designed to procure financial benefit or legal work for a lawyer as a private practitioner, does not infringe the individual member's freedom as a client to challenge the approved counsel or to select outside counsel at the client's expense, and is not in violation of any applicable law.

(i) "Reasonable"or "reasonably," when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.

(j) "Reasonable belief" or "reasonably believes," when used in reference to a lawyer, denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

(k) "Reasonably should know," when used in reference to a lawyer, denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

(l) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect the information that the isolated lawyer is obligated to protect under these Rules or other law.

(m) "Substantial," when used in reference to degree or extent, denotes a material matter of clear and weighty importance.

(n) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding order directly affecting a party's interests in a particular matter.

(o) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and e-mail. A "signed" writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

COMMENTS:

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives consent after consultation, the lawyer must obtain or transmit written consent within a reasonable time thereafter. If a lawyer has obtained the client's consent, the lawyer may act in reasonable reliance on that consent as long as the consent is confirmed in writing within a reasonable time thereafter.

Consent After Consultation

[2] Many of the Rules of Professional Conduct require the lawyer to engage in reasonable consultation and to obtain consent from a client or other person (including a former client or a prospective client) before accepting or continuing representation or pursuing a course of conduct. See Rules 1.2(c), 1.6(a), and 1.7(b) of these Rules. The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct, and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed as to all relevant factors and the consent may therefore be invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Usually, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given valid consent.

Firm

[3] Whether two or more lawyers constitute a firm within paragraph (d) depends, essentially, upon how the lawyers present themselves, from the point of view of the public. For example, practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant to determining whether they are a firm, as is the fact that they have mutual access to information concerning clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule so that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

[4] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, while at the same time existing as a part of the original corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

[5] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

Fraud

[6] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive law of the applicable jurisdiction and has a purpose to deceive. This does not include mere negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

[7] Obtaining valid consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a client's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a) of these Rules. For a definition of "writing" and "confirmed in writing," see Rule 1.0(o) and 1.0(b) of these Rules, respectively. Other Rules require that a client's consent be obtained in a writing signed by the client. See Rules 1.8(a) and (g) of these Rules. For a definition of "signed," see Rule 1.0(o) of these Rules.

Screened

[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11 or 1.12.

[9] The purpose of screening is to protect the confidences of the client and assure independent legal counsel acting in the interest of the client. The disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce, and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written pledge by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication related to the screened matter with the disqualified lawyer, denial of access by the screened lawyer to firm files or other materials relating to the matter, and periodic reminders of the screen to the screened lawyer and all other firm personnel. See Rules 1.6, 1.7, 1.9, 1.10, 1.11, and 1.12 of these Rules.

[10] To be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.