The Hawaiʻi Supreme Court has launched a pilot program to address critical staffing shortages in criminal litigation at state agencies by allowing attorneys licensed in other states to practice in Hawaiʻi without taking the state bar exam.
This initiative, established in a June order, aims to alleviate the strain on public defenders’ offices and county prosecutors, permitting these lawyers to work for government agencies, including the state Attorney General’s Office, the county prosecutors’ offices, and the Office of the Public Defender.
The proposal stems from a letter sent to the court in January, which was signed by all four county prosecutors, Attorney General Anne Lopez, and state Public Defender Jon Ikenaga.
They articulated that the decreasing number of practicing attorneys poses a serious threat to the integrity of Hawaiʻi’s criminal justice system, citing specific instances such as the Kailua-Kona Public Defender’s Office halting the acceptance of serious felony and drunken driving cases due to staff shortages.
In a sign of desperation, there are still seven vacancies in public defenders’ offices across the state.
First Deputy Public Defender Hayley Cheng expressed optimism about the new program, proclaiming it as a great opportunity to widen recruitment efforts and attract individuals wishing to serve the community through legal work in Hawaiʻi.
Despite the welcoming outlook from many within the legal community, some advocates highlight the need to focus on nurturing local talent.
Megan Kau, a former Honolulu prosecutor who now runs her own practice, emphasized the importance of fostering opportunities for local residents, stating that while the pilot program is necessitated by urgent staffing needs, it represents a drastic measure.
The number of graduates from the University of Hawaiʻi William S. Richardson School of Law has been relatively stable, with around 100 students completing their degrees yearly over the past two decades.
Yet, the number of new lawyers joining the Hawaiʻi State Bar Association has declined.
In 2011, there were 206 new admissions compared to just 138 in 2023.
The association’s president, Mark M. Murakami, noted that the decline in new applicants is insufficient to replace older attorneys retiring or becoming inactive.
While some states have established reciprocity programs, the criteria and conditions differ significantly.
Alaska, for example, allows attorneys from 41 states to practice without taking the state’s bar exam.
The number of active members in the Hawaiʻi bar association has plummeted from 4,632 in 2011 to 3,884 last year, stressing the pressing need for recruitment.
Murakami underscored that the state is not attracting enough new lawyers, irrespective of the causes behind this trend.
Among the active members, only 1,087 are government attorneys, revealing a stark shortage in this critical sector.
Kori Weinberger, vice president of the West Hawaiʻi Bar Association, highlighted that the dearth of lawyers extends beyond government positions, posing challenges for residents on the Big Island who cannot find representation for their legal needs.
Maui-based private criminal defense attorney, Joanne Hicks, pointed out that retention remains a significant issue for government agencies, where low salaries and poor work-life balance can lead to high employee turnover.
To combat this problem, agencies have recently increased their salaries.
This year, lawmakers approved a 20% salary increase for public defenders, marking the first raise in two decades; the entry-level salary for public defenders now stands at $91,000.
In Honolulu, the City Council has granted a 5% increase for deputy prosecutors, who will now earn a starting salary of $98,120.
Maui County has also seen substantial raises, with deputy prosecutors earning between $122,000 and $213,000 following a 38% hike approved by the county salary commission.
Meanwhile, deputy prosecutor salaries in Hawaiʻi County range from $98,508 to $177,288, while Kauaʻi’s range from $120,000 to $141,289.
Despite these pay increases, they have not sufficiently addressed the staffing vacancies within agencies.
Since the announcement of the reciprocity program, interest from out-of-state applicants has surged.
Maui County Prosecuting Attorney Andrew Martin noted a remarkable 70 applications have been received since June, indicating a substantial increase in interest compared to previous efforts, with many applicants hailing from outside Hawaiʻi.
Similarly, Honolulu Prosecuting Attorney Steve Alm confirmed that he is in the process of hiring seven out-of-state law clerks and deputy prosecutors under the new program, significantly lowering the number of vacant prosecutor positions in his office.
Kelden Waltjen, the Hawaiʻi County Prosecuting Attorney, remarked that the reciprocity program would encourage many prospective lawyers hesitant to undergo additional bar exams to consider positions.
Kauaʻi County Prosecuting Attorney Rebecca Like expressed hope that the initiative would attract qualified candidates while emphasizing her desire for them to have a thorough understanding of the state’s culture and norms.
The pilot program will expire on November 30, 2027, at which point the government agencies will present a report to the state Supreme Court by June 1, 2027, highlighting recommendations for its potential permanent implementation.
Mark Murakami, president of the state bar association, conveyed his preference for attorneys working in Hawaiʻi to be licensed in the state, reflecting the islands’ demographic diversity.
However, he acknowledged that the urgent need to address staffing shortages makes the recruitment of out-of-state lawyers a justifiable strategy.
Public defenders and prosecutors must maintain adequate staffing in order for Hawaiʻi’s criminal justice system to function effectively.
Martin conveyed that while he appreciates the commitment to hiring locally, ongoing staffing shortages have led his office to pursue qualified individuals from beyond the state.
With a vacancy rate of approximately 15%-20% during Martin’s tenure as prosecutor, he emphasized the necessity of a careful and meticulous selection process to ensure the best fit for the community.
In a civil society, a well-functioning criminal justice system is paramount, and addressing the staffing crisis is imperative for maintaining its effectiveness.
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