Rule 503  Lawyer-client privilege.  (a) 
Definitions.  As used in this rule:



(1)  A "client" is a person, public officer,
or corporation, association, or other organization or entity, either public or
private, who is rendered professional legal services by a lawyer, or who
consults a lawyer with a view to obtaining professional legal services.



(2)  A "representative of the client" is one
having authority to obtain professional legal services, or to act on advice
rendered pursuant thereto, on behalf of the client.



(3)  A "lawyer" is a person authorized, or
reasonably believed by the client to be authorized, to practice law in any
state or nation.



(4)  A "representative of the lawyer" is one
directed by the lawyer to assist in the rendition of professional legal
services.



(5)  A communication is "confidential" if
not intended to be disclosed to third persons other than those to whom
disclosure would be in furtherance of the rendition of professional legal
services to the client or those reasonably necessary for the transmission of
the communication.



(b)  General rule of privilege.  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 (1) between the client or the
client's representative and the lawyer or the lawyer's representative, or (2)
between the lawyer and the lawyer's representative, or (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, or (4) between
representatives of the client or between the client and a representative of the
client, or (5) among lawyers and their representatives representing the same
client.



(c)  Who may claim the privilege.  The
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.  The person who was the lawyer or the lawyer's
representative at the time of the communication shall claim the privilege on
behalf of the client unless expressly released by the client.



(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;



(3)  Claimants through same deceased client.  As to a
communication relevant to an issue between parties who claim through the same
deceased client, regardless of whether the claims are by testate or intestate
succession or by inter vivos transaction;



(4)  Breach of duty by lawyer or client.  As to a
communication relevant to an issue of breach of duty by the lawyer to the
client or by the client to the lawyer;



(5)  Document attested by lawyer.  As to a
communication relevant to an issue concerning an attested document to which the
lawyer is an attesting witness;



(6)  Joint clients.  As to a communication relevant to
a matter of common interest between two or more clients if the communication
was made by any of them to a lawyer retained or consulted in common, when
offered in an action between any of the clients; or



(7)  Lawyer's professional responsibility.  As to a
communication the disclosure of which is required or authorized by the Hawaii rules of professional conduct for attorneys. [L 1980, c 164, pt of §1; am L 1992, c
191, §2(2)]



 



RULE 503 COMMENTARY



 



  This rule is similar to Uniform Rule of Evidence 502, which
adds to the U.S. Supreme Court proposal for the lawyer-client privilege, see
proposed Rule 503, Rules of Evidence for U.S. Courts and Magistrates as
promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6
(1975), a definition for "representative of the client," subdivision
(a)(2).  Inclusion of this provision is based on the principle that a rule of
privilege should be explicit.



  The desirability of incorporating an express definition of
who may be considered a "representative of the client" is underscored
by inconsistent federal court rulings on this issue in the context of corporate
client-attorney relationships, compare City of Philadelphia v. Westinghouse
Electric Corp., 210 F. Supp. 483 (E.D. Pa. 1962), with Harper & Row Publishers,
Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970).  The definition embodied in this
rule is more expansive than the highly-constricted "control group"
limitation imposed in City of Philadelphia, supra, in that it includes as a
"representative" not only one having authority to act upon legal
advice but also one authorized merely to obtain legal services on behalf of the
client.  Determination of what constitutes "authority" in such a case
may be made according to recognized principles of agency.



  Although Hawaii had no previous statutory provision for this
privilege, it was recognized by the Hawaii courts, see McKeague v. Freitas, 40
H. 108 (1953); Wery v. Pacific Trust Co., 33 H. 701 (1936).  Judicial
definition of the scope and limitations of the privilege in those cases is
consistent with the present rule.



 



RULE 503 SUPPLEMENTAL COMMENTARY



 



  The Act 191, Session Laws 1992 amendment modified subsection
(d)(1) and added subsections (d)(2) and (d)(7).



  Subsection(d)(1):  The language of the previous rule ("sought
or obtained 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") strongly
implied a requirement that the client be shown to have entertained an unlawful
intent at the time of the consultation with counsel, and some of the
crime-fraud exception cases have so held, e.g., Pritchard-Keang Nam Corp. v.
Jaworski, 751 F.2d 277, 281 (8th Cir. 1984).  But the crime-fraud exception
obtains without regard to the lawyer's awareness -- or lack of awareness -- of
the client's unlawful motivation.



  That being so, and keeping in mind that the paramount policy
of the crime-fraud exception is to thwart the exploitation of legal advice and
counseling in furtherance of unlawful goals, courts have extended the exception
to cases where the client's criminal intent is formed only after legal
consultation, e.g., Fidelity-Phoenix Fire Ins. Co. of New York v. Hamilton, 340
S.W.2d 218, 219 (Ky. 1960), where the client, after learning from his first lawyer
that his fire damages were exempted from insurance coverage by a suspension
provision in the policy, went to a second lawyer and falsely represented facts
that supported a claim under the policy.  The court held that the claim was
fraudulent and that the communications to the first lawyer were not
privileged.  The extension of the crime-fraud exception to this sort of case is
approved in Fried, Too High a Price for Truth:  The Exception to the
Attorney-Client Privilege for Contemplated Crimes and Frauds, 64 N.C.L. Rev.
443, 458-59, 480-81 (1986).  It is, moreover, fully consistent with the
lawyers' rule of professional responsibility, see Hawaii Code of Professional
Responsibility, DR 7-102(B)(1), requiring the lawyer to rectify or to reveal
client fraud committed "in the course of the representation." 
Indeed, one advantage of the current amendment is to expand the crime-fraud
exception to allow for revelations that Hawaii lawyers are professionally
committed to making.



  Subsection(d)(2):  This new addition to the attorney-client
privilege exceptions conforms the rule of privilege to the lawyers'
professional responsibility rule, see Hawaii Code of Professional
Responsibility, DR 4-101(C)(3), permitting a lawyer to reveal the client's
intention "to commit a crime, and the information necessary to prevent the
crime."  DR 4-101(C)(3) is permissive, but tort law, cf. Tarasoff v.
Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976), may
compel such a revelation.



  There may be substantial overlap between subsections (d)(1)
(crime-fraud exception) and (d)(2) (this rule), but the underlying policies are
not the same.  The crime-fraud exception is designed to promote the
rectification of client fraud committed in exploitation of legal consultation;
the present rule, on the other hand, relaxes the privilege bar to enable the
lawyer to try to prevent the crime or fraud.



  Subsection (d)(7):  This new rule recognizes that, in the
exercise of their professional responsibility and in complying with applicable
professional norms, lawyers may be duty bound to divulge what would otherwise
constitute confidential information covered by Rule 503.  In such instances the
privilege should yield.  Most such revelations would not be testimonial, and so
the privilege, which applies only in court proceedings, see Rules 101 and 1101,
would strictly speaking not be a bar.  Just such an analysis likely explains
the failure of the former rule to countenance revelation of a client's intent
to commit a serious crime.  On the other hand, many lawyers believe that Rule
503 expresses policy that should carry over and inform the exercise of
professional obligations and norms.  This rule makes clear that the privilege
will yield to the professional duty.



 



Rules of Court



 



  See HRPC rule 1.6.



 



Law Journals and Reviews



 



  Searching for Confidentiality in Cyberspace:  Responsible Use
of E-mail for Attorney-Client Communications.  20 UH L. Rev. 527.



  Endangering Individual Autonomy in Choice of Lawyers and
Trustees--Misconceived Conflict of Interest Claims in the Kamehameha Schools
Bishop Estate Litigation.  21 UH L. Rev. 487.



  Understanding the Attorney-Client and Trustee-Beneficiary
Relationships in the Kamehameha Schools Bishop Estate Litigation:  A Reply to
Professor McCall.  21 UH L. Rev. 511.



 



Case Notes



 



  Where defendant contended that documents were privileged from
discovery pursuant to joint defense privilege arising from rule 503(b)(3),
"pending action ... concerning a matter of common interest" not
established.  925 F. Supp. 1478.



  Attorney-client privilege did not apply where (1)  defendant
had not met its burden of establishing that a document was a confidential
communication between defendant and its counsel; and (2) defendant had not
provided any information regarding how another document was transmitted to
counsel and the court could not find that the communication was confidential. 
447 F. Supp. 2d 1131.



  Cases decided before adoption of statute -- scope and
limitations of privilege generally.  62 H. 34, 609 P.2d 137.



  Statement by insured to insurer after accident not within
privilege.  68 H. 528, 723 P.2d 171.



  Discussion between defendant and defendant's attorney not
confidential within meaning of subsections (a)(5) and (b) where communications
between them were knowingly conducted in police informant's presence in
courthouse hallway.  84 H. 229, 933 P.2d 66.



  When a prosecutor seeks arguably privileged testimony, the
prosecutor must either (1) give notice to the person who might claim the
privilege and the person's counsel, so that the person or the person's attorney
can seek judicial review of any claim or privilege or waive the privilege, or
(2) give notice to the person's counsel and, if the person's counsel does not
raise the privilege and seek judicial review, the prosecutor must seek the
court's ruling on the privilege issue.  97 H. 512, 40 P.3d 914.



  Where memorandum was prepared on behalf of a representative
of developer in an effort to ensure that proposed development met all
applicable laws and developer's needs, memorandum was a confidential
communication made for the purpose of facilitating the rendition of legal
services for developer between developer's representative and a lawyer; thus,
trial court did not abuse discretion in determining that memorandum was
privileged.  102 H. 465, 78 P.3d 1.