2003-02 OIP Opinion Re Executive Meetings

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Mr. Al Konishi Mr. Lincoln S.T. Ashida July 14, 2003 Page 9 special matter presenting a real necessity." Charter § 6-2.5 (2000). The OIP recognizes that the Council may need to consult with both the special counsel and the Corporation Counsel or assigned deputy. Thus, the OIP concludes that, when necessary, all attorneys assigned to the matter for which the executive meeting is convened are authorized to attend to advise the board on its "powers, duties, privileges, immunities and liabilities." Haw. Rev. Stat. § 92F-5(4) (Supp. 2002). Any other interpretation of the term "attorney" in section 92-5(4), Hawaii Revised Statutes, would be cumbersome for the Council to implement and would not advance the purpose of the open meeting exception to allow confidential consultation with a board's attorney. The OIP simply cannot conclude that the interpretation of section 92F-5(4), Hawaii Revised Statutes, advanced by Mr. Pranke is reasonable or was the Legislature's intention. Likewise, the OIP can see no reason why the Sunshine Law would prohibit a supervisory attorney or an attorney newly assigned to a matter to be present for learning purposes. Besides representing the Council, the Corporation Counsel represents all county agencies, and all officers and employees in matters related to their official powers and duties. Charter, § 6-2.3 (2000). Thus, there may be times when there could be a potential conflict of interest between the Council and a county agency, employee or officer. See In re Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000); Chun v. Board of Trustees of the Employees' Retirement Sys., 87 Haw. 152, 952 P.2d 1215 (1998). In such cases, the Rules of Professional Responsibility direct the Corporation Counsel to appropriately screen9 its potential deputies to avoid any potential conflict.10 Mr. Ashida advised the OIP that, although the Corporation Counsel encountered "conflict" situations, his office complies with rule 1.10(d) of the Hawaii Rules of Professional Responsibility which requires that a government lawyer who has a conflict of interest be screened from participation in the matter. 9 An attorney is"screened"when an ethical wall is put in place that"protects client confidences by preventing one or more lawyers within an organization from participating in any matter involving that client." Black's Law Dictionary 573 (7h Ed. 1999). io A case-by-case inquiry has been held to be appropriate in the context of a conflict within the public defender's office: "where the practice of the attorneys in the office is so separated that the interchange of confidential information can be avoided or where it is possible to create such separation,the office is not equated with a firm and no inherent ethical bar would be present to the office's representation of antagonistic interests." State v. Pitt,77 Haw. 374, 380,884 P.2d 1150, 1156 (1994),cites Graves v. State,94 Md.App.649, 669-70,619 A.2d 123, 133 (1993). OIP Op. Ltr. No. 03-12