How to sue your lawyer in Hawaii.

Hawaii treats legal malpractice as governed by the 6-year statute of limitations in Haw. Rev. Stat. § 657-1(1), the contract statute. The Hawaii Supreme Court first applied it in Higa v. Mirikitani, 55 Haw. 167 (1973), and settled the question in Blair v. Ing, 95 Hawai'i 247 (2001).

In Blair, the court held that the limitations period for legal malpractice is governed by § 657-1(1) and that accrual is determined by the discovery rule. In Hawaii, a legal malpractice lawsuit must be filed within 6 years from when the client knew or should have known of the claim. The court rejected the trial judge's view that the clock started when the estate plan was drafted and said the trier of fact must decide when the plaintiffs knew or should have known. The Intermediate Court of Appeals has applied the same statute since, for example in Thomas v. Sterns (2013).

Continuous representation and repose

We found no Hawaii appellate decision adopting or rejecting a continuous representation rule for lawyers, so treat that question as unsettled and do not count on the deadline pausing while the same lawyer keeps working for you. We found no statute of repose for legal malpractice in Hawaii.

"Should have known" is the key phrase. If a reasonable person in your position would have spotted the problem, the 6 years may have started even if you did not act. Check other states in the 50-state deadline table.

A Hawaii malpractice plaintiff generally has to show four things: a duty (usually an attorney-client relationship), a breach of the standard of care, causation, and actual damages. Blair confirms the claim can be brought in negligence or in contract, and that economic loss is the usual measure. Under Hawaii law, a legal malpractice claim can be pleaded in either tort or contract, and either way the 6-year period in § 657-1(1) applies.

• Breach. A mistake a reasonably careful lawyer would not have made. A strategy that simply did not work is not malpractice.
• Causation. For mistakes in a lawsuit, this usually means proving the case within a case, that you would have done better in the original matter. See the case within a case explained.
• Damages. A real, measurable loss. Hawaii courts in Blair noted that emotional distress damages are rarely available for purely economic losses.

Experts

Hawaii has no certificate of merit or affidavit requirement for suing a lawyer that we could find. In practice, most cases still need an expert witness, usually an experienced lawyer, to explain what a careful lawyer would have done. See legal malpractice expert witnesses.

In Penaflor v. Mossman, 141 Hawai'i 358 (App. 2017), the Intermediate Court of Appeals affirmed dismissal of a former defendant's civil claims against his defense lawyer and others, holding that a Hawaii criminal defendant must first overturn his or her conviction before bringing civil claims that necessarily require proof the conviction was invalid. The court pointed to direct appeals and postconviction petitions under HRPP Rule 40 as the proper route.

We found no Hawaii appellate decision deciding whether proof of actual innocence is also required. See criminal defense malpractice and ineffective assistance vs. legal malpractice.

HSBA Fee Dispute Program

The Hawaii State Bar Association runs a voluntary Fee Dispute Program. The bar describes it as limited in scope and jurisdiction and says it is not a fit for every dispute, so start by calling the program liaison at 808-792-7350 to see whether yours qualifies. Hawaii's bar fee dispute program is voluntary, so the lawyer must agree to take part. See attorney fee dispute arbitration and overbilling and fee disputes.

Lawyers' Fund for Client Protection

The Hawaii Supreme Court's Lawyers' Fund for Client Protection reimburses losses caused by a lawyer's dishonest conduct arising from an attorney-client or fiduciary relationship. The Hawaii Lawyers' Fund for Client Protection will not award more than $100,000 to any one claimant or more than $300,000 in total for claims against any one lawyer.

Before paying, the fund needs a qualifying event: the lawyer has died, gone bankrupt, been disbarred, suspended, or resigned, been convicted of a crime based on the dishonest conduct, left the state and cannot be found, or owes you an unpaid judgment for it. Claims are due within 5 years of when you knew or should have known of the dishonest conduct, or within 2 years of the qualifying event, whichever is later. Negligence is not covered. See stolen client funds.

Complaints against Hawaii lawyers go to the Office of Disciplinary Counsel (ODC), part of the Disciplinary Board of the Hawaii Supreme Court. ODC investigates, hearing officers decide contested cases, the board recommends sanctions, and the Supreme Court decides serious discipline. ODC can be reached at 808-521-4591 or toll-free at 888-206-5622.

A Hawaii disciplinary complaint can end in suspension or disbarment, but it does not award you damages for the harm the lawyer caused. Only a civil claim does that. A bar grievance does not pause your 6-year deadline either. It can help with stolen money, because disbarment or suspension is a qualifying event for the Lawyers' Fund. See legal malpractice vs. a bar complaint.

Hawaii does not require lawyers to carry malpractice insurance. Under Rule 17(d) of the Rules of the Supreme Court, active lawyers report their professional liability insurance, if any, on the annual registration statement, with an exemption for government and in-house lawyers.

1. Pin down when you knew. Write down the date you first learned, or should have learned, of the mistake.
2. Get your file. Request your complete client file in writing. See how to get your case file.
3. Do not rely on the long deadline. Six years sounds generous, but evidence fades and the clock may have started years ago if you had warning signs.
4. Match the problem to the tool. Fees: the HSBA Fee Dispute Program. Theft: ODC plus the Lawyers' Fund. A lost case or bad advice: a malpractice review.

If you think your lawyer's mistake cost you, a free case review takes about two minutes and can connect you with an independent attorney in Hawaii who handles legal malpractice claims.