 Welcome in a lot. I'm Mark Schwab, the host of Think Tech Hawaii's Law Across the Sea program. Today we're going across the sea of recent tragic events here in Hawaii to talk with Bradley Tam, the Chief Disciplinary Council of the Hawaii Supreme Court's Office of Disciplinary Council. The Office of Disciplinary Council or ODC for short, oversees and responds to issues involving the ethical practice of law in the state of Hawaii. On August 14, 2023, the ODC published public service announcements warning the public about fraud and unlicensed attorneys in connection with the wildfires on Maui and the Big Island. I've asked Bradley to provide information on what the public should know about obtaining legal help and dealing with ethical issues that may arise during these tragic times. So Bradley, welcome Aloha. It's good to see you. My name is Mark. It's an honor to be here. Thank you for being my guest today and helping us out. Now let's start right at the beginning of all of this with the little talk about the public service announcements. What are the risks that the ODC warns the public about in its public service announcements? Well, I think we've got to start with the understanding that the state requires a license to practice law to make sure that only qualified people practice law. Most people know that lawyers have to go to law school, they have to pass bar exam. That's how the state tests to make sure that the individuals are qualified. And just because you're qualified doesn't mean that you're good. So that's why they have the ODC. We work for the Supreme Court under supervision of the disciplinary board of the Hawaii Supreme Court. And what we do is we enforce the rules of professional conduct to hold these qualified practitioners to account or any failings in their practice of law. The reason why we're concerned that we have non-Hawaii lawyers trying to practice law is that we don't know if they're qualified, they may be, but they're not licensed here. So they're not part of our system. And if they're not admitted in the state of Hawaii, how are we, the ODC, that will hold these lawyers to account for any failings that they have in the representation of the individual? Also, you have people in Hawaii that are hiring unlicensed attorneys. What happens if that attorney messes up your case and you want to sue them for malpractice? If the attorney is practicing law in Florida, well, most times if you sue somebody, you've got to sue them where they live. So are you prepared to go to Florida to file a malpractice lawsuit? That's going to be really expensive. If they're admitted in Hawaii, however, they have to be sued here. They submit to the jurisdiction of the civil courts here. So that is one of the reasons why it's important not to deal with somebody who is licensed in Hawaii. And I could go on for a long time. There's all kinds of problems of dealing with unlicensed attorneys. And what was the motivation? I mean, how did the wildfires come into play? What caused this? What caused the wildfires? The public service announcements. Well, once the fires wrecked the havoc that they did, I don't know, blood's in the water. I joked a while back and I said, Maui's and islands surrounded by water and the sharks aren't necessarily limited to the ocean. I turned out to be a little bit true. There's a lot of out-of-state lawyers that are flocking to line up trying to drum up business. Well, the practice of law is not a business, it's a profession and we have rules. We put out their public service announcement so that the people of this state will know that we're here to hold these non-Hawaii lawyers to account for what they're doing with our citizens, our residents, even our visitors to this island. Let's just quickly put up, if we could, the public service announcement. There's just the first page of it and where can it be found? It can be found on our website, dbhawaii.org. If you look at the front page when you get to the website, it's over on the right-hand side, right underneath, the latest update. You see Maui wildfire press release, you can put on that. It's in three sections, by the way. There's three parts to it. The first one is a little blurb you can put on a Facebook post or something on social media. Something that 30-somethings understand is kind of beyond me as an old man. The second part is a longer but still short blurb which was intended for use by the print news media to put in news articles. And the longest part, which takes up the majority of the press release, is a detailed explanation of points produced by journalists who want to do a deep dive into the issue. Okay, well, you talked a little bit about the value of having a lawyer licensed in Hawaii because then he or she would be made to answer if they made a mistake. What should the public know about obtaining legal help? And if they come up with an ethical issue concerning the wildfire fires that they incurred and suffered? If I could sell one point to everybody in your audience is you shouldn't be dealing with an attorney who's not licensed and admitted in the state of Hawaii. Some of these law firms from out of state probably have expertise which is phenomenally good and they know what they're doing. But if they're not licensed here, they're not legally allowed to practice here. They can affiliate with local Hawaii lawyers. So if you have an opportunity to speak with anyone who is offering legal services, the first question you ask them is, are you licensed in the state of Hawaii? And if they are, fine. If they're not, I find out who it is they're working with who's licensed in Hawaii and then deal with that person. That Hawaii lawyer can affiliate with this non-Hawaii lawyer and pass information on to you, but your dealings should be with that Hawaii lawyer. And you can check the CF of the Hawaii lawyer is authorized to practice what we call active status by going to the Hawaii State Bar Association website, which is www.hsba.org. HSBA is the Hawaii State Bar Association. And on their front page, I scroll down a little bit, it has an attorney search function. You type in Mark Schwab's name where you type in my name and you'll see that we're listed. You look at Mark, you look at your listing and it says you are actively licensed to practice law. That means he's good. He's good to go. Okay. If you look at me, it doesn't say I'm active. It says I'm government. You can't hire me. So that's what you're looking for. You're looking to see if the person's name pops up on the HSBA website and if it shows active. Anything else, inactive, disbarred, suspended, government, judge, things like that. They're not lawyers that you should be talking to. Or not even there. If they're not there, yeah. Yeah. If they're not there, that's called a red flag. Yeah. Check them out. Now, you mentioned advertising that some lawyers, and I've noticed this. I mean, I got Facebook and emails from mainland lawyers basically, I think, soliciting wildfire victims here in Hawaii or saying they can provide services. Now, is it, I mean, can lawyers from outside the state advertise? What are the rules in Hawaii? Well, first of all, we've got a big role. I can just momentarily digression into a little bit of history. Prior to 1978, it was against the law for attorneys to advertise at all. In fact, the only thing the law said was it was okay for an attorney to have a business card, to have his name on a letterhead, or on the building directory. But other than that, prohibitive, flat, nobody was allowed to advertise. That's why so many attorneys became politicians. They didn't expect to get elected, but they'd run for office and say, I can write good laws for you because I'm a good lawyer. I know how to do it. That way they got to advertise, you know. But in 1978, U.S. Supreme Court, in a case that came out of Arizona, ruled that freedom of speech applied to lawyers in a commercial context. And since then, we invented all these rules regarding advertising. Most of these rules were written in 1980 when the law first got changed. And so most of the rules we have are directed towards the kind of advertising you had in the 20th century, which was a long, long time ago. You had things called yellow pages, which some of my employees here don't even know what those are. You had newspaper ads where you would take out an ad. I read an ad for a while for myself when I was a bankruptcy attorney. And you had that kind of advertising. Well, that is legal for an attorney to do. An attorney can post an ad in a newspaper. Two requirements on a newspaper ad. One, it has to say advertising at the top. It has to say advertising at the bottom. And it has to have the name of the Hawaii lawyer who is responsible for the content. That kind of advertising is legal. Now, another thing that most people find surprising is you can't walk into the emergency room of a hospital and start handing out your business card. That's called direct in-person solicitation. And that is against the law in this state. And I think in almost every state it's against the law. Direct in-person solicitation is prohibited. Lawyers can write you a letter and mail it to you. But if the injury involves personal injury, which is physical manifestation of harm or wrongful death, they have to wait at least 30 days before they can send you that letter. And again, I think that letter has to contain the word advertisement on it, at least in the mailed communication. See, any word advertisement has to appear on the outside of the envelope. Those are the direct solicitation rules. Other rules allow, like I mentioned earlier, putting ads in newspaper, or posting them up on a website. Now we get to the 21st century. The law hasn't caught up with this. When does these things, the new confangled mechanisms, Facebook, LinkedIn, I don't know, ask it 30-something about them. When does that become a direct solicitation? I needed a pair of shoes a couple of weeks ago. And I went to Amazon to look up brown suede shoes. And I didn't find what I wanted and I forgot about it, watched some TV shows and went to bed. Next morning I get up to read the news and I get my iPad and I open it up to MSN where it's got all these articles on it. And every third article has got an advertisement. And they're all advertisements for brown suede shoes. How'd they get that? Are they spying on me? No, it's the targeted type of communications. And the law has not caught up with this yet. Does this kind of targeted communications, where there are mining big data or AI or whatever it is, does that take a general advertisement and turn it into an in-person solicitation? That's a real good question that hasn't been answered yet. Personally, I think it does. And if I find out about it, I may be opening an investigation on it because that's how laws made. They wait for the events to happen and they interpret the existing laws. And I've actually had that happen to me. I saw on Facebook an advertisement. It did have advertisement written at the top and bottom from a mainland law firm and saying how they handle wildfire cases. And I clicked on it to read it. And then later I got an email from that law firm. And that email was more like a newsletter, if you will. But it was the same type of thing, basically telling what they're doing and how good they are. I don't think it directly solicited me or anyone, but it was, I mean, come on. That's what it was. Oh, okay. So I hear what you're saying is, you know, if you're a local Hawaii person, deal with local Hawaii lawyers, look with lawyers that are licensed. Now, let's say I am a honest out-of-state lawyer that wants to help. What should the out-of-state attorney do if she really wants to represent, here she really wants to represent clients in Hawaii? What's the ethical way for them to proceed? That is being done by a number of high-powered mainland law firms. And a good number of calls that I've received have been from attorneys looking to find out what the process is. And the answer to that question is they need to affiliate with a Hawaii law firm or have a Hawaii licensed attorney on staff with the firm. Then the negotiations that contact with residents and property owners in Hawaii have to be made or need to be made through that Hawaii licensed attorney. Now, there is a provision that once a court case has been filed, the non-Hawaii lawyers can file applications with the local court to get admitted for purposes of that case only. We call this pro-hack v. che administration, admission. Pro-hack v. che is Latin for meaning justice once. So the lawyer, the non-Hawaii lawyer would file an application for admission pro-hack v. che. They have to have a local attorney sponsor them. And then that foreign lawyer, that non-Hawaii lawyer, becomes admitted in the state of Hawaii. They become admitted for all purposes and that non-Hawaii lawyer can then talk to people in Hawaii and can negotiate these things and deal in the case. But that only happens once a lawsuit is commenced. There is another form of pro-hack v. che admission which has not been implemented yet in Hawaii. It is pending before the Supreme Court. I don't know if they're going to implement it as an emergency basis out of this or not. But that is too early to talk about yet, but it's temporary admission for other purposes. And it's another pro-hack v. che thing. We are moving to catch up with what went on in the mainland. There's a thing that they refer to in a lot of states called the Katrina rule that arose out of the 2005 hurricane or Katrina in Louisiana, which allowed for temporary admission under the ABA model rules. And to my knowledge, only Texas and Hawaii don't have this in place yet, but we're working on it. OK. So the ODC is concerned about the public and how they are represented and to make sure that they're covered and that they're not going to be taken advantage of and that they have proper legal help. Now, let me ask you, we've all been devastated by what's been happening on the big island and on Maui, especially right now. How have lawyers been affected? How have you found lawyers to be affected and what does the ODC do to help them? That's a tough question. It's heartbreaking. Some of the lawyers that have been wiped out that were in Lahaina were the first things they did when I found out about this, about the fires and taking out Lahaina. I think the last time I was there was in 2008. What a beautiful neighborhood that was. And I've taken depositions in a couple of those law firms. That was the first thing that popped in my head. Oh, my God, what about so-and-so? I had my IT department do a run on any lawyer who had a Lahaina address and we got their email addresses and I sent out emails to everybody there and to the Maui County Bar Association and the West Hawaii Bar as well because they had some problems over there. And I said, any of these lawyers that are affected and have been injured or damaged in this thing, give us a call, let's talk. And I received numerous calls from people who I suffered tragically. Now, if you're a lawyer who, as I suffered injury in this, you lost your law firm or some of your practice or if you know a lawyer who's been impacted like this, they got two things right off the top they can do. One is they can call my office and we'll do what we can but mostly we'd like to put you in touch with the Attorneys and Judges Assistance Program, otherwise known as NAAAP. And I get you hooked up with Mr. Liam Deely, who's their executive director. They are well suited for helping people deal with the trauma that has gone on. My office can help you with at least getting out in front of problems where we need to contact your clients and tell them of your inability to be able to help them and to try and get things sorted out. We don't practice law. We can't get involved in taking over the stuff, but we can help run interference for you. And it's best to get out ahead of these things and don't just let them fester until they explode on you. So I guess I've known some stores in Lahaina that lost everything and I guess is the same thing happened with attorneys if they lost all their files? I mean is that what have you heard in that regard? I had a heartbreaking story from this one attorney in Lahaina who talked to me and she told me that when she found out the fire was coming and all she had time to do was grab her laptop and her client trust account folder and run for the hills or run out the door and get to safety. And she lost her house. She lost her practice. She lost everything. Fortunately a lot of her stuff is on her computer and it was on the cloud. God bless. Ten years ago, Mark, everything we had was on paper, right? That would have been gone. She had the presence of mind to grab her client's stuff and get that to safety. And she left all of her personal stuff behind. Jesus, somebody ought to give her the Lahaina gold medal for this. Talking about going above and beyond the call. I think I would have been looking for pictures of my kids when they were, you know, so, yeah. But other lawyers weren't so fortunate. Some of them in our age group, you know, paper is gone and what are they going to do? Yeah, so I kind of, I'm taking away a couple things by what you're talking about with the AI and that is that it can hurt and it can help. And so there's two different avenues to it. There's some good and there's some bad, perhaps, in the same thing. In other words, this one lawyer in Lahaina was able to save some important client information and she called you for help at the ODC. Is that right? Yeah, just a touch base and let me know her situation and we keep notes because you've always got what we call my dog ate my homework excuse, you know, from high school days. Well, a lot of times you investigate lawyers and you write them a letter and they go, all that stuff was lost in the flood. Well, gee whiz, did you notify us when you had the flood? We keep records. So these people call, they tell us what tragedy they've gone through and we keep a contemporary record of it. So then if it later comes up, yeah, we can verify they were telling the truth. They let us know when it happened. Yeah. And can the ODC help with client relations or just to help them get through it? Well, we can't represent anybody, but if a client is angry and they think that the attorney is lying to them and the attorney authorizes us to make disclosures because everything that goes on here is confidential, but that confidentiality can be waived by the attorney who's affected. So if the attorney authorizes talk to him, I'll talk candidly with the client and let him know that yeah, what that guy's telling you is that's what we observed, you know, and it's not just you as other people that have been harmed. ODC has looked upon as the rat squad, you know, we're the ones that go out and hammer lawyers and all lawyers quite can shake when they see one of two letters show up in the mail, either from the ODC or the IRS. What's going to make your heart beat? But for the most part, we do a lot of peacekeeping here and we try and get people together to talk things out because I'd much rather see a resolution to the problem where people walk away feeling better about themselves and I'd rather, you know, harrowing anybody. That's not what I do in old age. That was back from when I was younger. So I hear you telling me that the ODC wants to help both the public and attorneys through this wildfire problems that have happened. Now let me ask you, I mean, what have you learned about life and the practice of law as a result of the wildfires on Maui and the Big Arm? Well, it's never a dull moment. As my old mentor used to say, why do you think they call it the practice of law? By the time you get done practicing, it's time to retire. Yeah, but this has been probably the worst tragedy that I have witnessed in all the decades that I've been practicing law and it's something that I don't think anybody was prepared for. I'll admit straight up, I got an email from the executive director of HSBA when it first happened and she says, Bradley, would you please share with me your emergency response plan? And I went, by what? And pointed, I feel like a dum-dum and immediately I went out to the National Organization of Bar Council reaching out to Louisiana and Katrina people and the people in Georgia and everything else and says, you guys got an emergency response plan you can share? Yeah, I was like, and I think a lot of people were caught flat footed. How many of us are ready for these kind of things? You know, we're kind of almost ready for tsunamis and hurricanes, but to us, all this stuff can happen and you never know what mother nature is going to throw at you again. Just try and get along with people, try and give people a little bit of slack and let's all try and remember we're human beings and we've got to treat each other right. And so we've got to help each other out and it appears that we are. We just got a little bit left in our program to close out. Is there anything you'd like to add to or I'd like to say to the wildfire victims concerning law and practice of law? I mean, I like what you've said, those are good comments. Okay, the one thing I'd like to leave you with and it goes to not only the victims of the wildfire but for those who want to have something to do you're going to see a lot of ads out there for donations, soliciting for contributions to wildfire victims. Be careful with the stuff. There's a lot of fraud going on out there. I've seen one that I looked a little suspicious and I managed to trace it down to a lawyer on the East Coast who's soliciting contributions to an agency which is not registered through our AG's office and I'm definitely going to try and find out where the money is going. But if you want to donate, donate to legitimate organizations that you know that are well grounded. It comes to mind the American Red Cross, the United Way, Salvation Army. A lot of these things that are legitimate, registered, responsible, beneficial organizations. If you hadn't heard of them, you know, be suspicious. Thank you. All right, well, yes. Bradley, Tim, thank you very much for sharing your knowledge and your comments and your help with all of us. So Aloha, take care. Bye-bye.