This memorandum from the Corporation Counsel responds to inquiries from the Ethics Commission about the relationship between the two agencies. It outlines that: 1) The Corporation Counsel has a duty under the city charter to provide legal advice to all city agencies and employees on matters relating to their official powers and duties, including ethics issues. This advice is considered privileged attorney-client communication. 2) While the Corporation Counsel will generally not represent individual city employees who are the subject of an Ethics Commission investigation, it may still provide legal advice regarding official powers and duties during such investigations. 3) The Corporation Counsel's role in advising the Ethics Commission includes interpreting the city charter and laws as they relate to the powers and procedures of city agencies

1. CEFARTMENT CF THE CORPORATION COUNSEL
CITY AND COUNTY OF HONOLULU
530 SOUTH KING STREET, ROOM 110 * HONOLULU, HAWAII 96813
PHONE: (8081 768-5193 * FAX: 1808) 768-5105 * INTERNET: wiwficnoh4Iu.Ov
KIRK CALDWELL
DONNA Y, L. LEONG
MAYO P
COPPOR4
ON COUNSEL
SHERYL L. NICHOLSON
FIRST DEPUTY CORPORATION COUNSEL
October 25, 2013
TO:
CHARLES W. GALL, ESQ., CHAIR
AND MEMBERS OF THE ETHICS COMMISSION
FROM:
DONNA Y. L. LEONG. CORPORATION COUNSEL
SUBJECT:
RELATIONSHIP BETWEEN THE ETHICS COMMISSION AND
THE DEPARTMENT OF THE CORPORATION COUNSEL
This memorandum responds to the memoranda from the Executive
Director and Legal Counsel to the Ethics Commission (“ED”) dated April 26, 2013
and September 9, 2013, regarding the “role [of the Department of the
Corporation Counsel].., in Commission matters.” In particular, the ED has made
the following inquiries:
1.
Is it the policy of the Department of the Corporation Counsel
(“COR”) for its deputies to give ethics advice to City officers and
employees?
a.
b.
If so, is the advice considered attorney-client privileged?
c.
2.
If so, under what circumstances?
Does COR maintain records showing who asked for ethics
advice, who responded, the content of the response, etc?
Is it the policy of COR for its deputies to represent City officers or
employees if the o,fficer or employee is the subject of an Ethics
Commission investigation?
a.
If so, under what circumstances?
b.
If so, is the representation considered attorney-client
privileged?

2. Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 2
3.
From COR’s point of view, what is the role of COR in advising the
Commission on non-ethics mailers or issues?
4.
What is the role of the COR deputy assigned to advise the
Commission when its staff attorneys are prohibited from advising
the Commission under Rule 5.10, Rules of Procedure of the Ethics
Commission, that is, after a finding of probable cause of a violation
by the Commission is a specific case?
a.
To what extent, if at all, will the assigned deputy’s advice
reflect the concerns of the administration, COR or other
agencies?
Initially, we would like to thank the ED for giving COR this opportunity to
advise the Commission as to the powers, duties and functions given and
assigned to COR under the Revised Charter of the City and County of Honolulu
1973 (2000 ed.) (“RCH” or the “Charter”). While we regret the time that has
passed since the initial inquiry was made, which was just short of one month
after I was nominated and before I was confirmed by the City Council, given the
significance of the inquiries and COR’s responses in establishing the relationship
between the Commission and COR, we felt it important to carefully consider the
issues before responding.
The Powers, Duties and Functions of the Department of the Corporation
Counsel.
The general powers, duties and functions of COR are set forth in
RCH Chapter 2 (Department of the Corporation Counsel), § 5-203:
Section 5-203. Powers, Duties and Functions
The corporation counsel shall serve as the chief legal
adviser and legal representative of all agencies, the council and all
officers and employees in matters relating to their official powers
and duties. Except as otherwise provided by federal or state law,
the determination whether a matter relates to official powers and
duties shall be made by the corporation counsel and shall include,
among other things, consideration of case law applicable to the
concept of course and scope of employment. The corporation
counsel shall represent the city in all legal proceedings, except as
otherwise provided in this charter. The corporation counsel shall
—

3. Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 3
perform all other services incident to the office as may be required
by this charter or by law.
By the express terms of the Charter, COR is mandated to provide legal
counsel and advice to all City agencies, the City Council and all officers and
employees of the City in all matters relating to their official powers and duties.
While your first inquiry asks whether it is “the policy of the Department of
the Corporation Counsel (“COR”) for its deputies to give ethics advice to City
officers and employees,” we believe the question you are asking is this: “Does
COR have the power and duty to advise the City’s officers and employees in all
matters relating to their official powers and duties, including, without limitation,
RCH Article Xl titled, ‘Standards of Conduct’?”
Our response to that question is “Yes”; RCH § 5-203 provides that COR
“shall serve as the chief legal adviser and legal representative of all agencies,
the council and all officers and employees in matters relating to their official
powers and duties.” (Emphasis added.) Such advice may pertain to the United
States Constitution, the Constitution of the State of HawaN, other state or federal
laws, the RCH and the other laws, rules and regulations of the City and County of
Honolulu, including, without limitation, the above-cited RCH Article Xl titled,
“Standards of Conduct.”
The Attorney-Client Relationship is Founded on Confidentiality and Trust.
As you are aware, the attorney-client relationship is founded on the
principle of confidentiality. ABA Model Rule 1.6. Model Rule 1 .6 Comment [2]
states: “A fundamental principle in the client-lawyer relationship is that, in the
absence of the client’s informed consent, the lawyer must not reveal information
relating to the representation.
This contributes to the trust that is the hallmark
the client-lawyer relationship.’ Hawaii Rules of Professional Conduct
of
(“HRPC”) Rule 1.6.
...
This principle is applicable to governmental lawyers and their clients. Hui
Malama Ama 0 Ko’olau v. Pacarro, 4 Haw. App. 304,313-114,66 P.2d 177
(1983). Where COR provides legal counsel and advice to its clients, including
the Council or any officer or employee of the City, on any mailer relating to their
official powers and duties, including those related to applicable standards of
conduct, COR’s counsel and advice are confidential and privileged
communications that fall within the attorney-client privilege. Under the HRPC
rules, a client’s request for legal advice to the client’s attorney, and the attorney’s

4. Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 4
response to the client, are confidential and protected by the attorney-client
privilege. Accordingly, any request for legal counsel and advice from COR by
any City officer or employee, and any response from COR to that client, are
confidential and constitute attorney-client communications, which are protected
by the attorney-client privilege.
There is no exception to these principles with regard to ethics laws, unless
the attorney believes disclosure is necessary to prevent a public official or public
agency from committing an illegal or fraudulent act. HRPC Rule 1 .6(4)(5).
COR’s Role in Matters Before the Ethics Commission.
Your second and third inquiries are related to each other, and so the
following responds to both of them.
RCH Section 11-1 07 authorizes the Ethics Commission to hold hearings
and to conduct investigations concerning the application of, and to render
advisory opinions with respect to, RCH Article Xl, “Standards of Conduct.” By its
very nature, a breach of the Standards of Conduct would appear to be outside of
the “course and scope of employment.” Henderson v. Professional Coatings
Corp., 72 Haw. 387, 392, 819 P.2d 84 (1991). That being the case, and although
there are other situations in which the factual allegations, based upon which the
Ethics Commission is conducting the investigation, would be deemed to fall
within the “course and scope of employment” of the subject City officer or
employee, COR has determined, in general, that it will refrain from representing a
City officer or employee in their individual capacity in addressing such factual
1
allegations.
Having said that, COR also has determined that its decision not to so
represent the individual City officer or employee in addressing the factual
allegations does not mean that COR’s duty to advise the City’s officers and
employees in matters relating to their official powers and duties is nullified in
such a proceeding. Rather, if legal assistance is requested by a City officer or
employee with regard to matters relating to the official powers and duties of City
officers and employees during the course of such an investigation (for example,
the Ethics Commission requests an interview in connection with an investigation
1
COR may counsel a City officer or employee that the officer or employee may wish to consider
retaining private counsel to represent his/her individual interests. Furthermore, if an officer or
employee is a member of a public employee union, he/she may be entitled to union
representation, and COR may advise him/her to consider such union representation.

5. Memo to Chartes W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 5
or an appearance before it in a proceeding), the officer or employee can request
COR’s legal assistance.
COR retains the power to advise its clients in order that the City’s overall
interests are protected, while being mindful that COR does not intend to interfere
with, nor obstruct, the investigation or the Commission’s proceedings in anyway.
COR’s clients include the executive branch and its departments and agencies,
the City Council, the boards and commissions, and any City officer or employee.
The subject matters of COR’s advice would include interpretation of the Charter,
the Revised Ordinances of Honolulu, the rules and regulations implementing the
same, and the power, authority and procedures of the various agencies, boards
and commissions.
Accordingly, COR may advise its clients, including the Ethics Commission,
if COR determines that its counsel and advice, or presence with a City officer or
employee in any Commission proceeding, are necessary or desirable to ensure
that the Commission’s proceedings and procedures are in accordance with
(a) the Commission’s jurisdiction granted under the Charter, (b) the
Commission’s duly adopted rules of practice and procedure, (c) COR’s
interpretation of applicable laws, including the Standards of Conduct, and (d)
fundamental principles of ethics in public ilfe: to treat all people equally, fairly,
and impartially. Further, COR would encourage the Commission to refer legal
2
issues to COR that are outside of the Commission’s jurisdiction, such as
questions about procurement, land use, environmental laws, personnel and so
forth to assist the Commission with the legal analysis of the underlying law for its
ethics proceedings. COR has a form of Request for Legal Services that we
would ask the Commission to use.
The inquiry as to the confidential relationship between COR and COR’s
clients has been addressed in response to the first inquiry.
COR as the Legal Advisor to the Ethics Commission.
The fourth inquiry has been phrased as follows:
“What is the role of the COR deputy assigned to advise the
Commission when its staff attorneys are prohibited from advising
2
is coR’s practice to have separate deputies attend and provide counsel at administrative
hearings or meetings. One would advise the board or commission, and the other would advise a
City department or agency appearing before the board or commission. State v. Klattenhoff,
71 Haw. 598 (1990).

6. Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 6
the Commission under Rule 5.10, Rules of Procedure of the Ethics
Commission, that is, after a finding of probable cause of a violation
by the Commission is a specific case?
a.
To what extent, if at all, will the assigned deputy’s
advice reflect the concerns of the administration, COR
or other agencies?”
Ethics Commission Rule 5.10 provides:
5.10
Ex Parte Communications
In any matter pending where the commission has found
probable cause:
a.
No person shall communicate privately regarding the
facts or contentions of the case with any member of
the commission or designee unless specifically allowed
by law or these rules;
b.
No commissioner or designee shall communicate
privately regarding the facts or contentions of the case
with any party, witness, counsel or representative for a
party or a witness unless specifically allowed by law or
these rules; and
c.
All written and oral ex parte communications received
by any commissioner or designee containing facts or
contentions in a matter where probable cause has
been determined by the commission, that are known or
believed to be unauthorized at the time of receipt, shall
be immediately sent to all interested parties to the
proceeding and made an official part of the record.
d.
The following classes of ex parte communications are
authorized:
(1) Communication that relates solely to matters
which a commissioner or designee is authorized
to dispose of on an ex parte basis;

7. Memo to Charles W. Gall, Esq., Chair,
and Members of the Ethics Commission
October 25, 2013
Page 7
(2) Communication with counsel or staff for the
commission or designee relating solely to matters
of practice and procedure;
(3) Communication had after adequate notice and
opportunity for all parties to participate; and
(4) Communication with counsel for the commission
or designee other than the legal counsel to the
commission. [Eff
1 (Imp: RCH Sec.
11-107; ROH Secs. 3-6.3 through 3-6.7).
(Emphasis added.) Pursuant to Ethics Commission Rule 5.10.d(4), COR, as
counsel for the Commission, may continue to counsel and advise the
Commission, including on an ex parte basis, even after the Commission has
found probable cause.
As indicated above, the role of the Deputy Corporation Counsel assigned
to the Ethics Commission would be to advise the Ethics Commission as to COR’s
interpretation of the Charter, the ordinances, and the Ethics Commission Rules
and not about the specific facts or contentions of the specific case. A second
Deputy Corporation Counsel would, upon request of any of COR’s clients, advise
the Ethics Commission of COR’s interpretation of the same and other
considerations that, in the overall interest of the City, COR believes the
Commission should properly consider in rendering its decision on the ethics
issue.
On behalf of the Department of the Corporation Counsel, we look forward
to working with the Ethics Commission to ensure that the laws of the City and
County of Honolulu are interpreted correctly and implemented in a fair, just and
equitable manner.
DONNA Y. L. LEONG
Corporation Counsel
DYLL:ey
13-02737/305552