How the business of law works in Hawaii now - Pacific Business News - Pacific Business News (Honolulu)

The past two years of the Covid economy have been — to use that now well-worn term — pivotal to the practice and business of law in Hawaii. It accelerated trends toward automation and online services both within firms and in the courts, in ways that, while sometimes challenging, have paid off in ways that will benefit attorneys and clients alike. In a wide-ranging interview with Pacific Business News, Hawaii State Bar Association Executive Director Patricia Mau-Shimizu brings us up to speed on these changes.

Onset and aftermath

While attorneys were declared essential workers in the onset of economic restrictions launched in March 2020 to slow the spread of Covid-19, the fact is, when society stopped, so did legal activities — for a time. “Some firms did have to either cut back the hours of employees, furlough employees or terminate some,” said Mau-Shimizu.

For these firms, loans through the Paycheck Protection Program helped tide them over until business picked back up.

And it did pick back up, especially in certain practice specialties. “When people ask me, what is the current health of the legal industry, I think we are surviving this quite well, especially in the area of employment law, [trusts and estates and family law].”

Employers, beset on all side by mandates and requirements from government, questions from staff, and their own fears about navigating through all this safely, sought legal advice with urgency. At the same time, the threat of disease and the impact of lockdowns simultaneously rocked people on a personal level in ways that had them calling on attorneys.

Mau-Shimizu’s father, for example, was among many people who thought it would be a good time to update estate documents. Her parents live in Arcadia Family of Cos., where a notary normally visits twice a week — but so many residents had the same idea that the notary was booked three weeks out.

Family law has been picking up. “For a little while, they had a lull, but then it's kind of picking up and especially now. I think people went through [all] this and they're really assessing, do I want to live for the rest of my life with this person? Or would we be better off splitting?”

Also busy have been general and transactional attorneys. “Whether it's a renegotiation of leases or trying to downsize your office, they aren’t hurting for work. And, of course, the criminal attorneys — business never stops for them.”

Life without juries

While crime, disputes and negotiations never stop, one thing has — jury trials, especially in courts on Oahu that are physically smaller. The day PBN met virtually with Mau-Shimizu, Chief Justice Mark Recktenwald had just issued an order further postponing jury trials until Feb. 28, back from a set date of this month.

When they do resume, the courts will prioritize criminal trials first, mindful of Constitutional guarantees that people have a right to a speedy trial.

Consequently, “For civil practitioners, there is a concern on their part because they’re looking at maybe [being able to go to trial] three or four years down the road because we have to clear this latest backlog of criminal trials, jury trials as well as bench trials.”

What this has meant for civil disputes is that arbitrators and mediators have been in “very high demand” as a faster alternative, “especially for the business community, because they want some certainty and they want to move on with their lives. So I suspect attorneys are telling their clients, you know, maybe we should try arbitration or mediation because that may not drag this out. And especially if you have a party who may be judgment-proof down the road, that’s a consideration.”

For the legal profession, the two-year absence of jury trials has meant a lot of missing training opportunities, which is compounding a longstanding challenge for the legal profession in Hawaii — the aging of its workforce. The window of opportunity is closing for new lawyers to learn from veterans while they can. “Two years is an awfully long time and these younger attorneys are not getting the experience they need.”

The aging workforce

Thinking about law school? This could be an excellent time, because the industry’s challenge of an aging workforce is also an opportunity. Of the HSBA’s 3,840 active members in 2021, 1,578 are age 60 or older. The number of active attorneys and judges aged 70-79, at 570, is nearly as large as those aged 30 to 39, at 603.

“We did have an actuarial study done years ago and there’s going to be, as they said, a certain point at which the new admittees [to the bar] are going to be fewer than the number of people retiring, resigning from the bar, going inactive,” said Mau-Shimizu. “We haven’t reached that level yet, but I’m not sure how Covid is impacting this with people. And it’s not only Covid, but it started with the automation of the courts across the nation.”

Spurred on by the need for remote work, the judiciary in Hawaii accelerated the pace of making document filing an online process. This has already happened locally with the appellate, criminal, and civil courts, with family courts to come online in 2022. While the change has been “a godsend” to keep things moving through the past two years, she said, is just isn’t the way some older attorneys are accustomed to doing things.

The HSBA does have an active young lawyers division and some of its activities relate directly to long-term recruitment. For example, this division runs the mock trial competition for Hawaii high school teams, a competition that’s judged by actual working judges. “Because we’re doing those remotely, more schools are coming in and more Neighbor Island schools can come in, too,” she said.

The young lawyers are also often the public face of the industry, taking turns volunteering for the free legal hotline available 6 to 9 p.m. Wednesdays.

In terms of specialities that are experiencing growth and have a particular need for more attorneys, worker’s comp and medical malpractice stand out.

The automation upsides, for attorneys and you

For practicing attorneys, the revolution in automated court filings and virtual work-from-home technology has brought both good and bad. The positive side has been the flexibility to make the work — infamous for long hours and high-pressure deadlines — more humane. Professionals can mix in more of their personal lives into their days, whether it’s time with family or just doing some laundry in the background. The downside is that it’s also more possible to be on-duty 24/7.

“We always caution our attorneys, be careful, don’t burn out,” she said. “Well-being is a big thing now across the nation with bar associations and the Chief Justice here has even formed a task force on it.”

For clients, there is big upside — more than ever, the billable hours you’re paying for include a lot more lawyering and a lot less of your attorney’s time spent on travel, or on their airfare or rental car, or on working through administrative processes.

With these changes, she believes, has come a broader definition of what “access to justice” can really mean for society.

“Before the pandemic, the term ‘access to justice’ was directed towards people who are indigent who could not afford legal services,” Mau-Shimizu said. “I think because of this pandemic, the legal profession, as well as the judiciary, has expanded its view of access to justice. [Working] remotely, the attorneys can service their clients on a real-time basis.” And with the courts moving into Zoom, they’ve become more responsive to people representing themselves, too. Between shedding costs unrelated to actual legal expertise, and the digital accessibility of attorneys and courts both, more people should be able to afford the legal help they need.

HSBA efforts through Covid

Every professional association and industry trade group has spent the past two years leaping into action to help their members navigate Covid. For Mau-Shimizu and the HSBA, that meant serving as a liaison between very different worlds: the highly competitive private sector of law firms and solo practitioners on one hand and the state’s judiciary, with its unionized workforce, on the other.

She credits Recktenwald and the judiciary staff with being open to rapid changes, and with committing to keeping the best practices of this new virtual legal world on the other side of the pandemic.

“The attorneys see things a little bit differently, [just as] the courts look at things a little differently because as employers, they’re bound by collective bargaining,” she said. “To employees’ credit of the judiciary employees, where we have had to evolve or pivot into remote work, a lot of them did not have that in their job description. And nevertheless, they stepped forward and they started moving to remote.”

She has also collaborated with such organizations as the Chamber of Commerce of Hawaii, the Small Business Administration and Retail Merchants of Hawaii — with the exchange of help going in both directions. In some cases, it was, for example, the chamber offering training on PPP loans that law firms could benefit from, even if they weren’t chamber members. In other cases, it was HSBA taking the pulse of what kind of legal help the members of the other organizations were needing.

To her role, Mau-Shimizu brought with her years of working as an attorney in Hawaii, and 30 years of working with the state House of Representatives – experiences that positioned her well to be able to communicate with the different communities involved.

And all that happened while pivoting her own team of 14-and-a-half permanent employees through adopting remote work, something she was initially concerned about.

“I’m old fashioned and I was very skeptical of remote working. You know, the things come to mind: accountability, productivity,” she said. “When we had to go through it, I found that it worked well. If you have the trust of your employees and your employees have trust in you and you have a very good relationship, the productivity remains the same or gets better and the loyalty to the institution, helps. [It’s the same] for those law firms who did not have to pink slip or furlough their employees, who were able to keep them on [and work remotely]. I believe they built up more loyalty in their employees with the accommodation.”

HSBA BY THE NUMBERS

Total Membership

8,130 including:

• Active Attorneys: (Active, Government, Judge) 4,895
• Inactive Attorneys: (Voluntary/Pro Bono/Per Diem) 3,235

TOTAL ATTORNEYS IN HAWAII

5,539, including:

• Oahu Attorneys: 4,652
• Maui Attorneys: 344
• Kauai Attorneys: 141
• East Hawaii Attorneys: 221
• West Hawaii Attorneys: 181

ACTIVE MEMBERS:

3,840, of which:

• 295 are in-house counsel
• 1,219 are in solo practices
• 697 in firms of 2-5 attorneys
• 429 in firms of 6-14 attorneys
• 756 in firms of 15 or more
• 444 are Not in the Practice of Law
• 99 are judges
• 956 are government attorneys

Male to Female ratio in 2021

Either active, government, serving as judges or inactive doing pro bono or voluntary work:

• 1,986 female
• 2,666 male

source: https://www.bizjournals.com/pacific/news/2022/01/14/how-the-business-of-law-works-in-hawaii-now.html

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