	Lex Mundi Global Attorney-Client Privilege Guide
	USA, Hawaii
	(United States) Firm Case Lombardi, A Law Corporation Contributors Michael Lam Updated 02 Sep 2021
Is the ACP recognized in your jurisdiction?	Yes. See Hawaii Rules of Evidence ("HRE") Rule 503 and Hawaii Rules of Professional Conduct ("HRPC") Rule 1.6.
If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...	Not applicable.
Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?	No. Pursuant to HRE Rule 1101 (b),"[t]hese rules apply generally to civil and criminal proceedings. "Pursuant to HRE Rule 1101(c), "[t]he rule with respect to privileges applies at all stages of all actions, cases, and proceedings." May government authorities require disclosure of attorney-client communications and legal work product? "A communication is protected by the attorney-client privilege—and we hold today is protected from government intrusion under the [s]ixth [a]mendment—if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential." State v. Soto,84 Hawai`i 229, 239, 933 P.2d 66, 76 (1997)
In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)	HRE Rule 503(a)(1) defines "client" to include a corporation or other organization or entity who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services. HRE Rule 503 (a)(2) defines "representative of the client" as "one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client." Pursuant to HRE Rule 504(b), "a client" has a privilege to refuse to disclose communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the lawyer or the lawyer's representative, or (4) between representatives of the client or between the client and a representative of the client. Pursuant to HRE Rule 503(c), "[t]he privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence." Thus, the privilege may be claimed by a successor, trustee, or similar representative of a corporation pertaining to communications made by a "representative of the client," defined as having authority to obtain professional legal services, or to act on advice rendered pursuant thereto on behalf of the corporation.
Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?	No, in-house counsel is not expected to meet a higher burden than outside counsel in order to establish the application of privilege to in-house counsel's communications.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Not applicable.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Not applicable.
Is the common interest doctrine recognized in your jurisdiction?	Yes. See HRE Rule 503(b)(3).
How is the doctrine articulated in your jurisdiction?	"A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . (3) by the client or the client's representative or the lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest" HRE Rule 503(b)(3). "We do not hold that disclosures between and among several defendants and their counsel in ... group defense contexts would lack confidentiality, and therefore lack [s]ixth [a]mendment protection. On the contrary, ... the attorney-client privilege applies to confidential communications among attorneys and their clients for purposes of a common defense." State v. Soto, 84 Hawai`i 229, 239, 933 P.2d 66, 76 (1997).
Must a common interest agreement be in writing?	Nothing in HRE Rule 503 requires a common interest agreement to be in writing.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	The Hawaii Rules of Civil Procedure ("*HRPC*") does not touch on this topic.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	No, this has not been addressed by the courts in Hawaii.
Is the crime-fraud exception recognized in your jurisdiction?	Yes. See HRE Rule 503(d).
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	HRE Rule 503(d) provides: (d) Exceptions. There is no privilege under this rule: (1) Furtherance of crime or fraud. If the services of the lawyer were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (2) Prevention of crime or fraud. As to a communication reflecting the client's intent to commit a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another.
Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)	Yes, Hawaii Rules of Civil Procedure ("HRCP") Rule 26(b)(4).
What are the elements of the protection in your jurisdiction?	To invoke Work Product Doctrine the document, information, or tangible thing must be "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." HRCP Rule 26(b)(4) provides, in pertinent part: A party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Does your jurisdiction recognize an accountant-client privilege?	No, Hawaii does not recognize an accountant-client privilege.
Does your jurisdiction recognize a mediation privilege?	While not a "privilege," our jurisdiction does provide that mediation or mediation attempts are not admissible. *HRE* Rule 408 provides: RULE 408 Compromise, offers to compromise, and mediation proceedings. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, or (3) mediation or attempts to mediate a claim which was disputed, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations or mediation proceedings is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation proceedings. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving the bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Does your jurisdiction recognize a settlement negotiation privilege?	While not a "privilege," our jurisdiction does provide that settlement negotiations and conduct or statements made during negotiations are not admissible. See HRE Rule 408 above.

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Is the ACP recognized in your jurisdiction?

Yes. See Hawaii Rules of Evidence ("HRE") Rule 503 and Hawaii Rules of Professional Conduct ("HRPC") Rule 1.6.

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...

Not applicable.

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?

No. Pursuant to HRE Rule 1101 (b),"[t]hese rules apply generally to civil and criminal proceedings. "Pursuant to HRE Rule 1101(c), "[t]he rule with respect to privileges applies at all stages of all actions, cases, and proceedings." May government authorities require disclosure of attorney-client communications and legal work product? "A communication is protected by the attorney-client privilege—and we hold today is protected from government intrusion under the [s]ixth [a]mendment—if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential." State v. Soto,84 Hawai`i 229, 239, 933 P.2d 66, 76 (1997)

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)

HRE Rule 503(a)(1) defines "client" to include a corporation or other organization or entity who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services. HRE Rule 503 (a)(2) defines "representative of the client" as "one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client." Pursuant to HRE Rule 504(b), "a client" has a privilege to refuse to disclose communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the lawyer or the lawyer's representative, or (4) between representatives of the client or between the client and a representative of the client. Pursuant to HRE Rule 503(c), "[t]he privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence." Thus, the privilege may be claimed by a successor, trustee, or similar representative of a corporation pertaining to communications made by a "representative of the client," defined as having authority to obtain professional legal services, or to act on advice rendered pursuant thereto on behalf of the corporation.

Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?

No, in-house counsel is not expected to meet a higher burden than outside counsel in order to establish the application of privilege to in-house counsel's communications.

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

Not applicable.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Not applicable.

Is the common interest doctrine recognized in your jurisdiction?

Yes. See HRE Rule 503(b)(3).

How is the doctrine articulated in your jurisdiction?

"A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . (3) by the client or the client's representative or the lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest" HRE Rule 503(b)(3). "We do not hold that disclosures between and among several defendants and their counsel in ... group defense contexts would lack confidentiality, and therefore lack [s]ixth [a]mendment protection. On the contrary, ... the attorney-client privilege applies to confidential communications among attorneys and their clients for purposes of a common defense." State v. Soto, 84 Hawai`i 229, 239, 933 P.2d 66, 76 (1997).

Must a common interest agreement be in writing?

Nothing in HRE Rule 503 requires a common interest agreement to be in writing.

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

The Hawaii Rules of Civil Procedure ("HRPC") does not touch on this topic.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

No, this has not been addressed by the courts in Hawaii.

Is the crime-fraud exception recognized in your jurisdiction?

Yes. See HRE Rule 503(d).

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

HRE Rule 503(d) provides:

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2) Prevention of crime or fraud. As to a communication reflecting the client's intent to commit a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another.

Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)

Yes, Hawaii Rules of Civil Procedure ("HRCP") Rule 26(b)(4).

What are the elements of the protection in your jurisdiction?

To invoke Work Product Doctrine the document, information, or tangible thing must be "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative."

HRCP Rule 26(b)(4) provides, in pertinent part:

A party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Does your jurisdiction recognize an accountant-client privilege?

No, Hawaii does not recognize an accountant-client privilege.

Does your jurisdiction recognize a mediation privilege?

While not a "privilege," our jurisdiction does provide that mediation or mediation attempts are not admissible. HRE Rule 408 provides: RULE 408 Compromise, offers to compromise, and mediation proceedings. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, or (3) mediation or attempts to mediate a claim which was disputed, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations or mediation proceedings is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation proceedings. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving the bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Does your jurisdiction recognize a settlement negotiation privilege?

While not a "privilege," our jurisdiction does provide that settlement negotiations and conduct or statements made during negotiations are not admissible. See HRE Rule 408 above.

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