Mixed Deck — All HI BAR Topics Flashcards

In a diversity action filed in federal court, which of the following issues is a federal judge most likely to decide by applying state law under the Erie doctrine?

Answer: The statute of limitations for the underlying claim.

The Erie doctrine requires federal courts sitting in diversity to apply state substantive law and federal procedural law. Statutes of limitations are considered substantive for Erie purposes because they can determine the outcome of the case. The other options—time for filing an appeal, discovery limits (number of depositions), and deadlines for motions—are procedural matters governed by the Federal Rules of Civil Procedure and federal statutes.

A permanent injunction requires the plaintiff to demonstrate:

Answer: Success on the merits and that legal remedies are inadequate

A permanent injunction requires the plaintiff to succeed on the merits and show that legal remedies are inadequate to remedy the continuing or threatened harm.

What type of tenancy is created when two or more people own property together with equal shares and the right of survivorship in Hawaii?

Answer: Joint tenancy

Joint tenancy is a form of co-ownership characterized by the 'four unities' (possession, interest, time, and title) and, crucially, the right of survivorship. This means that upon the death of one joint tenant, their interest automatically passes to the surviving joint tenant(s) without the need for probate.

An 'accounting for profits' as an equitable remedy requires the defendant to:

Answer: Disgorge profits earned through wrongful conduct

An accounting for profits compels the wrongdoer to disgorge profits gained through wrongful conduct, focusing on stripping ill-gotten gains from the defendant rather than compensating the plaintiff's own losses.

In Hawaii, punitive damages are available when the defendant's conduct was:

Answer: Willful, wanton, or oppressive

Hawaii permits punitive damages when the defendant's conduct was willful, wanton, or oppressive, demonstrating a conscious disregard for the plaintiff's rights that goes beyond ordinary negligence.

What does the Hawaii State Constitution say about the establishment of religion?

Answer: It prohibits the establishment of religion

The Hawaii State Constitution includes provisions that mirror the Establishment Clause of the First Amendment to the U.S. Constitution. It explicitly prohibits the government from establishing or endorsing any religion, ensuring religious freedom and maintaining a separation between church and state.

A lawyer in Hilo receives a $5,000 retainer from a new client for a civil litigation matter. According to the HRPC, where must the lawyer initially deposit these funds?

Answer: In a separate, interest-bearing client trust account (IOLTA).

HRPC 1.15(a) explicitly requires that a lawyer hold property of clients separate from the lawyer's own property. [8] Funds, such as a retainer, must be kept in a separate client trust account. [7, 10] In Hawaii, these are typically Interest on Lawyers' Trust Accounts (IOLTA). [10] Commingling client funds with the firm's operating or personal accounts is a serious violation. [22] Funds paid in advance are considered unearned and must remain in the trust account until they are earned by the lawyer. [3, 8, 10]

A preliminary injunction requires the moving party to show all of the following EXCEPT:

Answer: That money damages would be an adequate remedy

A preliminary injunction requires the movant to show likelihood of success, irreparable harm, a favorable balance of equities, and no disservice to the public interest — the movant must show damages are INADEQUATE, not adequate.

Which of the following is an example of a legal (common law) form of restitution, as opposed to an equitable restitutionary remedy?

Answer: Action for money had and received (quasi-contract/assumpsit)

An action for money had and received (quasi-contract or assumpsit) is a legal form of restitution historically available at common law, while constructive trusts, equitable liens, and accountings for profits are equitable restitutionary remedies.

The equitable doctrine of laches bars relief when:

Answer: The plaintiff unreasonably delayed bringing suit and the defendant was prejudiced by the delay

Laches bars equitable relief when the plaintiff unreasonably delayed asserting their rights AND the defendant suffered prejudice as a result of that delay; both elements are required.

Under Hawaii law, a court may modify an existing child support order if:

Answer: There has been a material change in circumstances since the last order

Hawaii courts will modify child support only upon a showing of a material change in circumstances, such as a significant change in income or the child's needs.

In Hawaii, which of the following best describes the doctrine of 'equitable distribution' in divorce proceedings?

Answer: Marital property is divided fairly, considering relevant factors, but not necessarily equally

Hawaii uses equitable distribution, meaning the court divides marital property fairly based on relevant factors rather than automatically splitting it equally.

In Hawaii, what is the effect of a "right of first refusal" clause in a real estate contract?

Answer: It allows the tenant to purchase the property before the owner sells it to someone else.

A 'right of first refusal' clause in a real estate contract grants a specific party, often a tenant, the option to match any bona fide offer made by a third party to purchase the property. This means the owner must offer the property to the holder of the right before selling it to anyone else, giving them the first opportunity to buy.

An attorney in Honolulu represents the buyer and seller in a single real estate transaction. The parties' interests are not directly adverse, but there is a significant risk that the attorney's representation of one will be materially limited by her responsibilities to the other. Under the Hawaii Rules of Professional Conduct (HRPC), what is the MINIMUM requirement for the attorney to continue with this concurrent representation?

Answer: The attorney reasonably believes she can provide competent representation, and both clients give informed consent, confirmed in writing.

HRPC 1.7(b) permits representation in a concurrent conflict of interest situation only if four conditions are met: (1) the lawyer reasonably believes they can provide competent and diligent representation to each client; (2) the representation is not prohibited by law; (3) the representation does not involve asserting a claim by one client against another in the same litigation; and (4) each affected client gives informed consent, confirmed in writing. Simply believing one can provide competent representation is insufficient, and verbal consent is not enough; the consent must be informed and confirmed in writing. [5, 9, 25, 26]

Which of the following is NOT a factor a Hawaii court would consider when determining if an attorney's fee is reasonable under HRPC 1.5?

Answer: The client's ability to pay the fee.

HRPC 1.5(a) lists eight factors for determining the reasonableness of a fee. These include the time and labor required, the novelty of the issue, the customary fee, the amount involved and results obtained, time limitations, the nature of the professional relationship, and the experience and ability of the lawyer. [2, 11] While a client's financial situation might influence a lawyer's decision to take a case or structure a payment plan, the client's subjective ability to pay is not one of the enumerated factors for determining the objective reasonableness of the fee itself.

A shareholder of a large Hawaii-based agricultural corporation believes the CEO and other top executives are paying themselves excessive, unwarranted bonuses, thereby wasting corporate assets and harming the company. The shareholder wishes to file a lawsuit on behalf of the corporation to recover these funds. Which of the following is a mandatory prerequisite for the shareholder before commencing this shareholder derivative action under Hawaii law?

Answer: Make a written demand on the board of directors to take suitable action.

Under Hawaii law (specifically HRS §414-173 and Hawaii Rules of Civil Procedure 23.1), before a shareholder can bring a derivative suit, they must first make a written demand on the corporation's board of directors, requesting that the board pursue the action itself. The shareholder can only proceed with the suit if the board rejects the demand or a certain period of time passes without a response, unless it can be shown that making such a demand would be futile.

Under HRE Rule 801, which of the following is NOT hearsay?

Answer: A prior inconsistent statement made under oath at a prior proceeding, offered to impeach

Under HRE 801(b)(1), a prior inconsistent statement made under oath at a prior proceeding is defined as non-hearsay when offered to impeach.

A mandatory injunction differs from a prohibitory injunction in that it:

Answer: Commands a party to perform an affirmative act rather than refrain from acting

A mandatory injunction commands affirmative action (e.g., 'tear down the fence'), while a prohibitory injunction restrains a party from acting (e.g., 'do not build the fence').

Under Hawaii law, a domestic violence protective order (TRO) in a family court proceeding may:

Answer: Temporarily prohibit the restrained person from contacting or coming near the petitioner

Hawaii family courts may issue ex parte temporary restraining orders to immediately prohibit contact or proximity by an abuser, pending a full hearing.

Which court has jurisdiction over probate matters in Hawaii?

Answer: Circuit Court

In Hawaii, the Circuit Courts have general jurisdiction over most civil and criminal matters, including probate cases. While some states have dedicated probate courts, Hawaii's judicial system assigns the responsibility for overseeing the administration of estates to its Circuit Courts.