THE APPELLATE RECORD April 2013

2013 HSBA Appellate Section Board: Chair: Ms. Rebecca A. Copeland Vice Chair: Mr. Mark J. Bennett Secretary: Ms. Bethany C.K. Ace Treasurer: Mr. Robert Nakatsuji HSBA CLE Liaison: Ms. Mitsuko T. Louie HAWSCT Liaison: Mr. Matthew Chapman ICA Liaison: Mr. Daniel J. Kunkel

FEATURED ARTICLE: Socializing with a Purpose: Ethical Tips and Other Considerations for Networking, Rainmaking, and the Use of Social Media
By: Christopher T. Goodin and Mitsuko T. Louie (Litigation Department, Cades Schutte LLP)

At the March 25, 2013 meeting of the HSBA Appellate and Litigation Sections, Elijah Yip1 and Even R. Shirley2 gave a presentation on Socializing with a Purpose: Ethical Tips and Other Considerations for Networking, Rainmaking, and the Use of Social Media. The following is a summary of the presentation.
Mr. Yip is the former HSBA Litigation Section Chair and a partner at Cades Schutte LLP practicing in the areas of commercial litigation, appeals, and technology law.
1

Mr. Shirley is the author of the recent Hawaii Bar Journal article Lawyers, Social Networking, and How to Avoid Falling into Ethical Traps. Eighty to ninety percent of his practice focuses on attorney disciplinary matters.
2

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1. Marketing. The first half of the presentation was given by Mr. Yip. He explained that marketing and networking are good opportunities to help people by explaining the services you can offer. Social media is a great way of getting your name out there, developing recognition as a specialist in a particular area, expanding your network, and gathering data. 2. The Social Media Spectrum. Social media includes websites, blogs, Facebook, Twitter, LinkedIn, and online directories. Some of these tools can be used passively while others require a substantial amount of effort. a. Online Directories. On the passive side of the spectrum are online directories, such as Martindale Hubbell and JD Supra Law News. These sites allow users to provide their profile online. Those online profiles may potentially receive hits through Googles search engine. b. LinkedIn. LinkedIn is also on the passive side of the spectrum. LinkedIn is essentially Facebook for professionals. Previously it was a way of posting your resume online. But in the last two years, it has become more interactive, prompting users to fill in additional information beyond just a resume and allowing users to post updates and like comments. LinkedIn users can join groups that focus on industry type and expertise. c. Facebook. On the more active side of the spectrum is Facebook. Although the site allows users to be lurkers who never post, it is
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better to be active when using Facebook by sharing links and establishing your business brand. In using Facebook, one issue to consider is whether you want to mix personal and business matters. Friended clients on Facebook may not necessarily want to know that you just visited Matsumoto Shave Ice. But maybe they do. The point is that, if you are going to mix business with pleasure on Facebook, be sure that you are doing so consciously. If you want to avoid the situation, one solution is to create two separate Facebook accounts, one for personal use and the other for business. Another issue to consider when using Facebook, as well as when posting matters on the Internet in general, is that once you share information, it is difficult to claw it back completely. Even posts that have been deleted may be recoverable. d. Twitter. Twitter is a form of social media that is even more active than Facebook. The objective in using Twitter is to continuously push content to other users through tweets. Twitter users should consider sharing and commenting on articles. e. Blogs. The most active form of social media is a blog. Blogs continuously need fresh content. The more content uploaded, the more likely a search engine will pick up the blog. New content should be added at least once a week. 3. Ethical Implications. In the second half of the presentation, Mr. Shirley discussed the ethical implications of using social media. Information uploaded in social media can spread like wildfire. And it is enduring. For example, the Library of Congress records every tweet made on Twitter. a. Maintaining Client Confidences. Social media encourages users to adopt a screen personality. For this reason, in using social media, a lawyer should be careful not to divulge confidential client matters. See Hawaii Rules of Professional Conduct (HRPC) Rule 1.6(a). b. Advertising. Does the use of social media constitute advertising under the ethical rules? Many judicial decisions have held that using social media can qualify as advertising. Attorneys using social media for their practice should review HRCP Rules 7.1 and 7.2. c. Solicitation. Posting hire me information on Twitter may qualify as an impermissible solicitation to a prospective client, particularly under the proposed new version of HRPC Rule 7.3.
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d. Disclaimers. Law firm websites should include disclaimers stating who owns the website, that no legal advice is provided in the website, and that no attorney-client relationship is established with individuals viewing the website. Large law firms websites generally provide good sample language for such disclaimers. e. Data Mining. Another use for social media is as an investigative tool. Data mining is popular in jury selection, with background checks being performed in real time during voir dire. Social media can also be used to conduct research more generally. However, in doing this, a lawyer should never use the account of a social network member to actively communicate with others without that member being present during the communication. Nor should a lawyer create a fictitious account to conduct research. f. Social Media Policy. Law firms should consider creating social media policies. This helps avoid the situation where employees make representations through social media that can be attributed to the law firm. g. Monitoring Employee Activity. Employers should be careful before monitoring their employees Internet activities, as there may be potential issues under the federal Wiretap Act and Stored Communications Act. See Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002).

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This Month in Appellate History

On April 3, 1866, United States Supreme Court issued its opinion in Ex parte Milligan, 71 U.S. 2 (1866), a post-Civil War case related to a plot to liberate Confederate soldiers from Union Civil War camps, holding that the application of military tribunals to citizens when civilian courts are still operating was unconstitutional. On April 25, 1938, the United States Supreme Court issued its opinion in Erie Railroad Co. v. Harry J. Tompkins, 304 U.S. 64, holding that federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction. The following United States Supreme Court Associate Justices took their oath of office in April: Justice Alfred Moore (April 21, 1800), Justice John Archibald Campbell (April 11, 1853), and Justice Byron Raymond White (April 19, 1962).

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March Published Appellate Opinions

In March, the Hawaii Supreme Court issued three published opinion and the Intermediate Court of Appeals issued two (although one was in consolidated cases and, therefore, disposed of two appeals). Below is a brief synopsis of each: In State v. Pacquing, SCWC-29703 (Mar. 22, 2013), the HAWSCT held that the circuit court abused its discretion in concluding that the defendant's conduct constituted a de minimus violation of the Unauthorized Possession of Confidential Personal Information statute (where the defendant impersonated a police officer in two traffic stops by using the name, date of birth, and address of an officer) because the conduct actually caused or threatened the harm sought to be prevented by the statute, and the defendant failed to meet his burden to demonstrate that the results of his conduct were trivial. In State v. Metcalfe, SCWC-30518 (Mar. 19, 2013), the HAWSCT upheld a manslaughter conviction holding that the circuit court did not abuse its discretion in denying the defendant's motion to dismiss the amended complaint, did not err in allowing certain testimony and in the manner in which the testimony was characterized in the jury instruction, did not err in instructing the jury on selfdefense and related instructions, and that the defendant failed to show that his trial counsel was ineffective. In Eastern Savings Bank, FSB v. Esteban, SCAP-30686 (Mar. 15, 2013), the HAWSCT held that Hawaii res judicata principles prohibit a debtor in a foreclosure action from asserting federal Truth in Lending Act rescission rights after a foreclosure judgment becomes final, even if the Act's three year time limit for rescission has not expired. In In the Interest of A.S., CAAP-11-0001065 (Mar. 28, 2013), that ICA held that the best interest of the child is the appropriate standard of review by the Family Court in reviewing a determination by DHS that a certain placement is in the best interest of the child, and that the Family Court's further application of whether the DHS decision was an abuse of discretion was harmless error. The court also held that Hawaii law does not provide for a preference for relative placement, and even if it did, such preference would not supersede the best interest consideration.

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In State v. Hearn, CAAP-11-0000644 (consolidated with State v. Ledbetter, CAAP-12-0000528) (Mar. 27, 2013), the ICA held that in determining whether to dismiss a case with or without prejudice for violation of the speedy trial time limits set forth in Hawaii Rules of Penal Procedure Rule 28, the trial court is required to consider, and clearly articulate the effect, of the three enumerated factors set out in the HAWSCT's decision in State v. Estencion, 63 Haw. 264 (1981) (the seriousness of the offense, the facts and circumstances which led to the dismissal, and the impact of a reprosecution on the administration of Rule 48 and the administration of justice). However, the ICA also held that the failure of the trial court to do so does not warrant automatic remand if the record is otherwise sufficient to determine whether the court abused its discretion.

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Upcoming Events: April Appellate Section Meeting

Please join the HSBA Appellate Section for its regular monthly meeting on April 15, 2013, from noon to 1:00 p.m., at the HSBA Large Conference Room. Our presentation will be on "Federal Appellate Practice," and the topic will include final judgments, briefing in the Ninth Circuit, oral arguments, and Supreme Court review. Both civil and criminal law will be addressed. The presenters are Ninth Circuit Judge Richard Clifton, Clare Connors of Davis Levin, and Mark M. Murakami of Damon Key Leong Kupchak Hastert. The presentation has been approved for 1.0 hour VCLE so take a short break from tax day to enjoy time with friends, food, and an interesting topic! A light lunch will be provided. RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com.

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JEFS E-Filing Tip of the Month When initiating an appeal, and adding the authorizing statute, chose from
the drop down menu provided by the system. If the incorrect authorizing statute is added, click the "Remove" button to the right of the statute once it has been associated with the case.

Coming Soon:
FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is pleased to announce that it will publish another appellate manual in conjunction with the Hawaii State Bar Association. This years manual will be entitiled Federal Appellate Practice Manual. The manual will provide valuable information and insight into practicing appeals in the federal arena, with special emphasis on the United States Supreme Court and United States Court of Appeals for the Ninth Circuit. Our contributors and/or editors include: Rebecca A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Ninth Circuit Judge Richard Clifton, Christphoer Goodin, Mitsuko Louie, Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase, Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa Munger, Lisa Bail, Trent Kakuda, and Brett Rowan. 2013 HAWAII STATE BAR CONVENTION: The Appellate Sections time at this years Bar Convention is scheduled to include presentation of the Federal Appellate Practice Manual (with presentations by many of the contributors to the manual), Hawaii Appellate Motions Practice (with an insert for the Hawaii Appellate Practice Manual released last year), and an Appellate Panel. Our Appellate Panel will include distinguished Hawaii jurists including Hawaii Supreme Court Chief Justice Mark Recktenwald and Associate Justices Simeon Acoba, Sabrina McKenna, and Richard Pollack. Mark your calendars now for Friday, September 27, 2013.

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Useful Appellate Links:

The Hawaii Judiciary: www.courts.state.hi.us United District Court for the District of Hawaii: www.hid.uscourts.gov United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov United States Supreme Court: www.supremecourt.gov Hawaii State Bar Association: www.hsba.org

Blogs by our Members:

www.hawaiilitigation.com (by our Member Louise Ing) www.hawaiioceanlaw.com (by our Member Mark M. Murakami) www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal) www.insurancelawhawaii.com (by our Member Tred R. Eyerly) www.inversecondemnation.com (by our Member Robert H. Thomas) www.hawaiiappellatelaw.com (by our Member Charley Foster) www.recordonappeal.com (by our Chair Rebecca A. Copeland)

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Appellate Section Website:

The Appellate Sections website includes useful appellate resources, including handouts from prior monthly meetings, copies of this newsletter, and power point presentations from the Appellate Sections program at the 2012 HSBA Bar Covention. www.hawaiiappellatesection.org

Hawaii Appellate Practice Manual:

The Hawaii Appellate Practice Manual includes information you need to know for filing appeals in Hawaii, including how to e-file documents on the Judiciarys EFiling System, how to supercede a judgment, and how to brief and argue cases. The manual also includes useful appellate forms. The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available for purchase at the link below. http://www.hsba.org/resources/8/Manuals/Publications%20List%20Fillable%20(upd ated%209-1-2012).pdf

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The Appellate Record is presented as a courtesy to the Members of the Hawaii State Bar Associations Appellate Section by its Board. Mahalo and enjoy!

Stay tuned for the May 2013 edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the Sections Chair Rebecca A. Copeland at rebecca@copelandlawllc.com

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