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    Stephanie SHEVELAND, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A., Defendant-Appellee, and Masood M. Foadi; Fahi S. Foadi; Mortgage Electronic Registration Systems, Inc.; CIT Bank, N.A., formerly known as OneWest Bank, FSB; OWB Reo LLC, and Doe Defendants 1-50, Defendants-Appellees.
    SCAP-17-0000325
    Supreme Court of Hawai'i.
    MARCH 18, 2019
    James J. Bickerton, Stanley H. Roehrig, and Bridget G. Morgan, Bickerton Dang, LLLP, John F. Perkin, Perkin & Faria, LLLC, Van-Alan H. Shima, Affinity Law Group, LLLC, Honolulu, for plaintiff-appellant Stephanie Sheveland
    Michael C. Bird and Summer H. Kaiawe, Honolulu, for defendant-appellee Wells Fargo Bank, N.A.
    Charles A. Price, Koshiba Price & Gruebner, Honolulu, for defendants-appellees Masood M. Foadi and Fahi S. Foadi
    Judy A. Tanaka, Pamela W. Bunn, and Meredith G. Miller, Dentons US LLP, Julie B. Strickland, Stroock & Stroock & Lavan LLP (admitted pro hac vice) for defendants-appellees CIT BANK, N.A., f/k/a OneWest Bank, FSB, and OWB REO LLC
    Steven M. Egesdal, Tom E. Roesser, and Daniel J. Padilla, Carlsmith Ball LLP, Honolulu, for amicus curiae
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

Dentons represents itself as the world's largest law firm. Dentons US LLP maintains offices throughout the United States, including, as of July 2018, an office in Hawai'i comprising the former partners (and other employees) of the former Hawai'i law firm Alston Hunt Floyd & Ing ("AHFI"). Prior to joining Dentons US LLP as partners, the AHFI partners incorporated themselves into separate lawyers' professional business organizations. See Declaration of Paul Alston ("[T]he lawyers who were to become partners in Dentons US LLP form[ed] their own individual law corporations and ha[d] those corporations become partners in Dentons.").

Dentons US LLP represents Defendant-Appellee CIT Bank in this appeal, through two former AHFI partners who are Hawai'i-licensed. During the course of the appeal, Dentons US LLP, through these two partners, filed a motion for admission pro hac vice of a California attorney with a different law firm. Counsel for Plaintiff-Appellant Stephanie Sheveland ("Sheveland") opposed the motion, alleging that Dentons US LLP, as a firm, was engaged in the unauthorized practice of law in Hawai'i, in violation of Hawai'i Revised Statutes ("HRS") § 605-14 (2016), which provides the following, in relevant part:

It shall be unlawful for any person, firm, association, or corporation to engage in or to attempt to engage in or to offer to engage in the practice of law, or to do or attempt to do or offer to do any act constituting the practice of law, except and to the extent that the person, firm, or association is licensed or authorized so to do by an appropriate court, agency, or office or by a statute of the State or of the United States....

This court is the "appropriate court" authorizing the practice of law in this state. See Haw. Const. art. VI, § 7 ("The supreme court shall have power to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure and appeals, which shall have the force and effect of law.").

The specific court rule governing the organized practice of law in Hawai'i is Rule 6 of the Rules of the Supreme Court of Hawai'i ("RSCH"), titled "Lawyer's Professional Business Organizations," which provides, in relevant part, as follows:

(a) Compliance with this rule and applicable statutes. Any person or persons seeking to practice law as a corporation, a company, an association, in partnership, or in some other lawful organizational form (hereafter, lawyers' professional business organization) shall comply with the provisions of this rule and[,] if applicable[,] statutes.
....
(d) Shares; ownership and transfer.
(1) Shares or interests in a lawyers' professional business organization may be owned only by a lawyers' professional business organization or by one or more persons licensed to practice law in this state by this court....
....
(e) Directors. Notwithstanding any statutory provisions, each director of a lawyers' professional business organization shall be licensed to practice law in this state by this court....
(f) Officers. Notwithstanding statutory provisions, each officer of a lawyers' professional business organization shall be licensed to practice law in this state by this court....

RSCH Rule 6 (2001). Sheveland contends that the language of RSCH Rule 6 requires every partner of Dentons US LLP to be Hawai'i-licensed. Sheveland argues that, without such a requirement, non-Hawai'i-licensed attorneys could direct the activities of Hawai'i-licensed attorneys in a Hawai'i firm without regulation or oversight by this court or the Office of Disciplinary Counsel. She asserts that Dentons US LLP is "majority owned by persons not licensed to practice law in Hawai'i," in violation of the rule. Sheveland asserts that the Hawai'i-licensed attorneys appearing in this appeal "should be barred from stating or representing that they are practicing or appearing as part of 'Dentons US LLP.' "

CIT Bank counter-argues that Sheveland's interpretation of RSCH Rule 6 contradicts the rule's plain text, purpose, and history. As to Rule 6(d)(1)'s plain language, CIT Bank asserts that shares or interests in a law firm can be owned either by another lawyer's professional business organization or by one or more Hawai'i-licensed attorneys:

(d) Shares; ownership and transfer.
(1) Shares or interests in a lawyers' professional business organization may be owned only by a lawyers' professional business organization or by one or more persons licensed to practice law in this state by this court....

CIT Bank points out that the "one or more persons" language allows a Hawai'i law firm to be owned by non-Hawai'i-licensed attorneys and a minimum of one Hawai'i-licensed attorney. Were the rule to require that only Hawai'i-licensed attorneys could own law firms practicing in Hawai'i, CIT Bank argues, the phrase "one or more" would have to be omitted from the rule.

CIT Bank next turns to the history of RSCH Rule 6. CIT Bank argues that when the rule was first promulgated, there were no express jurisdictional limitations contained in the statutes the rule referenced (namely, HRS Chapter 416, the Hawai'i Professional Corporation Law, and Chapter 605, the chapter governing attorney licensure in Hawai'i). Instead, CIT Bank argues, the statutes "reflected an intent only to limit management and control of professional corporations to licensed individuals." CIT Bank also points out that the rule was not updated after the repeal of the Hawai'i Professional Corporation Law in 1987 and its replacement with the Professional Corporation Act. The Professional Corporation Act expressly provided that corporate shares could be owned by anyone in the United States, its territories, and the District of Columbia.

CIT Bank further argues that Sheveland's interpretation is inconsistent with other court rules that contemplate multi-jurisdictional law firm practice in Hawai'i. CIT Bank cites to RSCH 11(b) (2016), which requires firms composed "in whole or in part" by Hawai'i-licensed attorneys to participate in the IOLTA program. It also notes that Hawai'i Rules of Professional Conduct ("HRPC") Rule 7.5 (2014) similarly permits multi-jurisdictional law firm practice, as it requires Hawai'i law firm letterheads to indicate which attorneys are not licensed to practice in Hawai'i.

CIT Bank also points out that this court's ethical rules once prohibited Hawai'i law partnerships from including any person not licensed to practice law in Hawai'i. See Hawai'i Code of Professional Responsibility ("HCPR") Disciplinary Rule ("DR") 2-102(D) ("A partnership shall not include any person not licensed to practice law in the courts of the State of Hawaii."); see also HCPR Ethical Consideration ("EC") 2-11 ("No partnership for the practice of law in the State of Hawaii may include a member who is not admitted to practice in the courts of the State of Hawaii."). Over 30 years ago, however, those rules were deleted. Lastly, CIT Bank asserts that statutes on similar subject matter, namely the licensure of Hawai'i professionals organized into corporations, do not limit ownership of corporate shares to just Hawai'i-licensed individuals. See HRS § 415A-9(a) (2004) ("A professional corporation may issue shares ... only to individuals authorized by law in this State or in any other state or territory of the United States or the District of Columbia to render a professional service permitted by the corporation's articles of incorporation.") (emphasis added).

Amicus Curiae Federal National Mortgage Association ("FNMA") filed a substantive joinder to CIT Bank's reply brief. FNMA is represented by Carlsmith Ball, a multi-jurisdictional law firm with offices in Hawai'i and California (and, in the past, Guam). FNMA points out an inconsistency within RSCH Rule 6: amendments to the rule to expressly include law partnerships inadvertently retained jurisdictional limitations initially intended for law corporations. FNMA submits that Carlsmith Ball was properly formed as a law partnership before this change to RSCH Rule 6 occurred. FNMA posits that the rule change "inadvertently divested properly formed partnerships like Carlsmith Ball, which had partners licensed in other jurisdictions, of their legitimate business interests," in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. FNMA adds that it was "highly doubtful" that this court would have amended RSCH Rule 6 in a manner exposing it to constitutional challenge.

This court issued an order granting Dentons US LLP's motion for pro hac vice admission and stating that an opinion on the RSCH Rule 6 issue would be forthcoming. This opinion now addresses the issue. We hold that the following underlined portions of RSCH Rule 6 have been superseded, by implication, by other rules of this court that permit law firms composed of Hawai'i-licensed and non-Hawai'i-licensed attorneys to practice law in Hawai'i, to mean "in this state or in any other state or territory of the United States or the District of Columbia":

(e) Directors. Notwithstanding any statutory provisions, each director of a lawyers' professional business organization shall be licensed to practice law in this state by this court. A lawyers' professional business organization that has only one shareholder need have only one director who shall be such shareholder. (f) Officers. Notwithstanding statutory provisions, each officer of a lawyers' professional business organization shall be licensed to practice law in this state by this court, except as provided in this subsection (f). If a lawyers' professional business organization is incorporated with a single shareholder and a single director after July 1, 1987, or if a lawyers' professional business organization converts to having a single shareholder and a single director after that date, the person or persons holding the offices of secretary and treasurer need not be licensed. If a lawyers' professional business organization had a single shareholder and single director prior to July 1, 1987, the person or persons holding the offices of vice-president and secretary need not be licensed, in which event the offices of president and treasurer shall be held by the sole shareholder as previously required by this rule. An unlicensed person, even if permitted to serve as an officer pursuant to this rule, shall in no event serve as a director or be a shareholder of a lawyers' professional business organization.

II. Discussion

Upon closer inspection, the above-identified portions of RSCH Rule 6 have been impliedly superseded by other court rules governing the organized practice of law to mean "in this state or in any other state or territory of the United States or the District of Columbia." As will be discussed in further detail below, when the rule was first promulgated, it was clear that only Hawai'i-licensed attorneys could serve as partners or shareholders in Hawai'i law corporations. Two years later, however, this court's ethical rules governing the practice of law changed dramatically, to eliminate the requirement that only Hawai'i-licensed attorneys could serve as partners in Hawai'i law firms. RSCH Rule 6, however, remained the same in all material respects. This court went further to promulgate new rules that seemed to allow law firms practicing in Hawai'i to have non-Hawai'i-licensed members, as long as these firms noted the jurisdictional limitations of these attorneys on their letterheads and firm listings (HRCP Rule 7.5) and contributed to the IOLTA program (RSCH Rule 11(b)). (Even when related statutes changed to allow non-Hawai'i-licensed individuals to serve as shareholders, officers, directors, and partners within Hawai'i professional corporations and partnerships, RSCH Rule 6 still remained materially unchanged.) Thus, the above-identified portions of RSCH Rule 6, which prohibit non-Hawai'i-licensed attorneys from serving as directors or officers of Hawai'i law firms with a multi-jurisdictional presence, were repealed by implication by these related court rules. As such, RSCH Rule 6 does not prohibit Dentons US LLP from practicing law in Hawai'i through its Hawai'i-licensed attorneys.

A. RSCH Rule 6's History

RSCH 6 (initially numbered RSCH Rule 24) originated in a per curiam opinion of this court, Petition of the Bar Association of Hawaii, 55 Haw. 121, 516 P.2d 1267 (1973) (per curiam ). In that matter, the Hawai'i State Bar Association petitioned this court to allow the incorporation of attorneys under the newly enacted Professional Corporation Act, then HRS §§ 416-141 through 154. 55 Haw. at 121, 516 P.2d at 1267-68. This court was aware that attorneys sought to establish law corporations to benefit from federal tax advantages, but it was concerned that the Bar Association's proposed rule would limit malpractice liability of incorporated attorneys, contrary to the Uniform Partnership Act, the HCPR, and a state statute forbidding abridgment of the substantive rights of client-litigants. 55 Haw. at 122, 516 P.2d at 1268. This court therefore adopted the rule, then numbered RSCH Rule 24, governing Professional Corporations, which read, in relevant part, as follows:

(b) Requirements for Issuance of Certificate of Registration. The clerk shall issue a Certificate of Registration to such corporation if its application shows that:
(1) The applicant is organized and exists pursuant to Professional Corporation Law, HRS, Sections 416-141 through 416-154, and is a professional corporation within the meaning of said law and complies with all the requirements of said law and this rule.
(2) Each shareholder, director and officer of the applicant is licensed to practice law in this state by this court....
(c) Shares; Ownership and Transfer.
(1) Shares in a law corporation may be owned only by the corporation or by one or more persons licensed to practice law in this state by this court.
....
(j) Compliance with Law and Rules of Court. A law corporation's affairs shall be conducted in compliance with law and with the rules of this court. It shall be subject to the applicable rules and regulations adopted by, and the disciplinary powers of, this court. Nothing in this rule shall affect or impair the disciplinary powers of this court over any law corporation or over any person licensed to practice in this state by this court.

RSCH Rule 24 (1979) (emphases added). RSCH Rule 24 thus prohibited non-Hawai'i-licensed attorneys from serving as shareholders, directors, or officers of Hawai'i law corporations.

Contemporaneous provisions of the HCPR and the HRS provide a fuller picture of the jurisdictional limitations on organized law practice at that time. Between 1970 and 1981, HCPR DR 2-102(D) stated, "A partnership shall not include any person not licensed to practice law in the courts of the State of Hawaii." EC 2-11 likewise provided, "No partnership for the practice of law in the State of Hawaii may include a member who is not admitted to practice in the courts of the State of Hawaii." Similarly, HRS § 416-146 (1976) required that "[s]hares of capital in a professional corporation ... be issued only to a licensed person...." with "licensed person" referring to the attorney licensing provisions in HRS Chapter 605, which pertained only to Hawai'i licensure by this court. Thus, it seems clear that at that time, all law partners, shareholders, officers, and directors had to have been Hawai'i-licensed attorneys.

B. RSCH Rule 6's Inconsistency with Related Court Rules and Statutes

Just two years following RSCH Rule 24's adoption, however, inconsistencies between the rule and other court rules appeared. HCPR DR 2-102(D) and EC 2-11 were amended to delete the requirement that every partner in a law firm be licensed to practice law in Hawai'i. The 1981 amendment to HCPR DR 2-102(D) stated the following, which allowed, with conditions, Hawai'i law firm ownership by Hawai'i-licensed and non-Hawai'i-licensed attorneys:

A law firm shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the partners, associates, and "of counsel" lawyers of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those partners, associates, and "of counsel" lawyers of the firm not licensed to practice in all listed jurisdictions.

(Emphasis added.) Likewise, the 1981 amendment to EC 2-11 deleted the sentence, "No partnership for the practice of law in the State of Hawaii may include a member who is not admitted to practice in the courts of the State of Hawaii." These changes to court rules are clearly inconsistent with the prohibitions within RSCH Rule 6 against non-Hawai'i-licensed attorneys serving as directors or officers within Hawai'i law firms that have a multi-jurisdictional presence. Where court rules conflict in this way, the later rules prevail. See, e.g., Bank of America v. Reyes-Toledo, 143 Hawai'i 249, 257, 428 P.3d 761, 769 (2018) ("[W]hen interpreting rules promulgated by the court, principles of statutory construction apply.") (citations omitted); HRS § 1-9 (2009) ("The repeal of a law is ... implied when the new law contains provisions contrary to, or irreconcilable with, those of the former law."); Wahiawa Sugar Co. v. Waialua Agric. Co., 13 Haw. 109, 110, 1900 WL 2519, *1 (Haw. Terr. 1900) (acknowledging that "repeals by implication are not favored," but, as between two versions of a statute that conflict, the latter must prevail over the former). Although repeal or supersession of rules by implication is not favored, in this case, the inconsistency between the changes to court rules and the relevant portions of RSCH Rule 6 is so clear, and there is no rational basis for harmonizing the inconsistencies, that supersession by implication exists. See Fuentes v. Workers' Comp. Appeals Bd., 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449, 453 (1976) ("Repeals by implication are not favored, and are recognized only when there is no rational basis for harmonizing two potentially conflicting laws.").

RSCH Rule 6(e) and (f) also became inconsistent with related statutes governing professional corporations. The Legislature replaced HRS Chapter 416 with Chapter 415A in 1985. 1985 Haw. Sess. Laws Act 259 at 495-504. Section 9(a) of the newly enacted chapter provided that non-Hawai'i-licensed professionals could own shares in Hawai'i professional corporations or serve as partners alongside Hawai'i-licensed professionals:

A professional corporation may issues shares, fractional shares, and rights or options to purchase shares only to:
(1) Natural persons who are authorized by law in this State or in any other state or territory of the United States or the District of Columbia to render a professional service permitted by the articles of incorporation of the corporation; and
(2) General partnerships in which all the partners are qualified persons with respect to such professional corporation and in which at least one partner is authorized by law in this State to render a professional service permitted by the articles of incorporation of the corporation.

1985 Haw. Sess. Laws Act 259 § 9 at 497-98 (emphases added). ,

In September 1987, prompted by the repeal of HRS Chapter 416 (the Hawai'i Professional Corporation Law) and its replacement by HRS Chapter 415A (the Hawai'i Professional Corporation Act), RSCH Rule 6 was extensively amended, more closely resembling, sub-section by sub-section, the rule in place today:

(a) Compliance with this Rule and the Hawaii Professional Corporation Act. Any person or persons seeking to practice law as a corporation shall comply with the provisions of this rule and the Hawaii Professional Corporation Act, HRS Chapter 415A.
....
(d) Shares; Ownership and Transfer.
(1) Shares in a law corporation may be owned only by the corporation or by one or more persons licensed to practice law in this state by this court....
....
(e) Directors. Notwithstanding the provisions of HRS § 415A-14, each director of a law corporation shall be licensed to practice law in this state by this court....
....
(f) Officers. Notwithstanding the provisions of HRS § 415A-14, each officer of a law corporation shall be licensed to practice law in this state by this court....
....
(h) Compliance with Law and Rules of Court. A law corporation's affairs shall be conducted in compliance with law and with the rules of this court. It shall be subject to the applicable rules and regulations adopted by, and all the disciplinary powers of, this court. Nothing in this rule shall affect or impair the disciplinary powers of this court over any law corporation or over any person licensed to practice in this state by this court.

RSCH Rule 6 (1987).

As argued by CIT Bank, the plain language of RSCH Rule 6(d) appears to allow Dentons to practice law in Hawai'i as a lawyers' professional business organization. RSCH Rule 6(d)(1) states, in relevant part, "Shares or interests in a lawyers' professional business organization may be owned only by a lawyers' professional business organization or by one or more persons licensed to practice law in this state by this court...." Contrary to Sheveland's assertion, the word "only" modifies the two forms of share ownership that are allowed: one, by a lawyer's professional business organization, or two, by "one or more persons licensed to practice law in this state by this court...." According to Paul Alston, Dentons US LLP is owned in part by individual Hawai'i-licensed attorneys formerly from AHFI who have individually incorporated as each's own lawyer's professional business organization. See Declaration of Alston ("It was further determined that any concerns about RSC[H] 6 could also be addressed by having the lawyers who were to become partners in Dentons US LLP form their own individual law corporations and have those corporations become partners in Dentons. In that way, consistent with the language of RSC[H] 6, the interests in Dentons US LLP (a "lawyer's professional business organization") are owned by other "lawyers' professional business organizations" - i.e., our individual law corporations."). Thus, Dentons US LLP shares or interests, owned by each former AHFI partner's lawyer's professional business organization, satisfies RSCH Rule 6(d)(1).

Even if the former AHFI partners who are now Dentons US LLP partners are viewed as individuals instead of law corporations, there is still no violation of RSCH Rule 6(d)(1), as Dentons US LLP would be owned "by one or more persons licensed to practice law in this state by this court...." This is because shares or interests in Dentons US LLP are owned by one or more Hawai'i-licensed attorneys: the former AHFI partners. Thus, RSCH Rule 6 is no impediment to the former AHFI partners' practice of law in Hawai'i as part of Dentons US LLP.

C. Concerns about the Conduct of non-Hawai'i-Licensed Attorneys within Hawai'i Lawyers' Professional Business Organizations

Finally, we also address Sheveland's concern that non-Hawai'i-licensed attorneys, in Hawai'i firms with a multi-jurisdictional presence, may direct the conduct of Hawai'i-licensed attorneys in a manner free from oversight by this court or the Office of Disciplinary Counsel. For the following reasons, HRS § 605-14 would still prohibit non-Hawai'i-licensed attorneys from doing so within this jurisdiction.

Fought & Co. v. Steel Eng'g and Erection, Inc., 87 Hawai'i 37, 951 P.2d 487 (1998), is instructive on this issue. In that case, the Department of Transportation withheld payment for a Kahului Airport construction project from a general contractor, who, in turn, withheld payment from its subcontractor, who, in turn, withheld payment from its subcontractor, Fought & Co. ("Fought"), a company headquartered in Oregon, which employed Oregon-licensed general counsel. 87 Hawai'i at 41-42, 43, 951 P.2d at 491-92, 493. Fought initiated a contract action in Hawai'i through Hawai'i-licensed local counsel, who filed all briefs and made all court appearances in Hawai'i courts. 87 Hawai'i at 44-45, 48, 951 P.2d at 494-95, 498. Fought's general counsel assisted local counsel by preparing the company's statement of position in anticipation of mediation, consulting and strategizing on the appeal, conducting legal research and reviewing the briefing of local counsel and other parties to the litigation, and resolving issues pertaining to the posting of another party's supersedeas bond. 87 Hawai'i at 46, 951 P.2d at 496. While we concluded Fought's general counsel was indeed engaged in the practice of law, we held that it was not the "unauthorized practice of law" because it did not take place within this jurisdiction. Id.

We reasoned that Fought's general counsel represented an Oregon corporation, rendered all legal services in Oregon, did not draft or sign any of the court filings, did not appear in Hawai'i courts, and did not communicate with counsel for other parties on Fought's behalf. 87 Hawai'i at 48, 951 P.2d at 498. In sum, we concluded that Fought's general counsel's "role was strictly one of consultant to Fought and Fought's Hawai'i counsel." Id. We emphasized that "Fought's Hawai'i counsel were at all times 'in charge' of Fought's representation within the jurisdiction so as to insure that Hawai'i law was correctly interpreted and applied." Id. Non-Hawai'i-licensed attorneys within Dentons US LLP must comply with HRS § 605-14 and Fought.

III. Conclusion

We hold that the portions of RSCH Rule 6 identified in Section I have been superseded by implication to mean "in this state or in any other state or territory of the United States or the District of Columbia" and do not prohibit the former AHFI partners' practice of law in Hawai'i as part of Dentons US LLP.

      CIT Bank also argues that Sheveland's interpretation of RSCH Rule 6 renders the rule unconstitutional under the United States Constitution's Commerce Clause and Privileges and Immunities Clause. As we dispose of the RSCH Rule 6 challenge using canons of interpretation, we do not address the constitutional issues.

      The continued need for the remainder of RSCH Rule 6 is not addressed at this time.

      In 1994, the HCPR was replaced by the Hawai'i Rules of Professional Conduct ("HRPC"); Rule 2-102(D) was replaced with the "identical" HRPC Rule 7.5(e), which provided the following, which, again, allowed, with conditions, law firms to be owned by non-Hawai'i-licensed and Hawai'i-licensed attorneys practicing in Hawai'i:
      A law firm shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the partners, associates, and "of counsel" lawyers of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those partners, associates, and "of counsel" lawyers of the firm not licensed to practice in all listed jurisdictions.
      (Emphasis added.)

      RSCH Rule 24 was renumbered RSCH Rule 6 in 1984.

      Very shortly afterward, the first provision was amended to allow corporations to issue shares, fractional shares, and rights of options to purchase shares only to "individuals," instead of "natural persons," "authorized by law in this State or in any other state or territory of the United States or the District of Columbia to render a professional service permitted by the corporation's articles of incorporation." 1987 Haw. Sess. Laws Act 135, § 115 at 271. The legislature deleted the second provision regarding general partnerships owning shares where at least one partner is authorized by law in this State. Id.

      Section 9(b) of the newly enacted chapter also provided, however, that a "licensing authority for any profession," such as this court over the legal profession, can "further restrict, condition, or abridge the authority of professional corporations to issue shares" where it is deemed "necessary ... to prevent violations of the ethical standards of such profession...." 1985 Haw. Sess. Laws Act 259 § 9 at 498. As such, this provision, codified as HRS § 415A-9(b), recognizes the inherent authority of this court to regulate the practice of law. See In re Ellis, 53 Haw. 23, 25 n.1, 487 P.2d 286, 287 n.1 (1971) ("This court has inherent power to regulate matters before it regarding the practice of law.") (quoting Hawai'i Constitution, article V, section 1, which vests judicial power in the courts). Thus, section 9(b) does not purport to affect this court's authority to prohibit non-Hawai'i-licensed attorneys from serving as directors or officers of Hawai'i law firms with a multi-jurisdictional presence. As we have already noted, however, it appears that this court's later-enacted rules contemplating multi-jurisdictional law practice in Hawai'i repealed, by implication, those parts of RSCH Rule 6(e) and (f) prohibiting non-Hawai'i-licensed attorneys from serving as officers and directors of Hawai'i law firms.

      Even after the amendments to court rules authorizing law practice ownership by non-Hawai'i-licensed and Hawai'i-licensed attorneys, the provisions of RSCH Rule 6 currently at issue remained substantively unchanged for over three decades. During this period, RSCH Rule 6 was amended multiple times, but never to account for the changing regulatory landscape surrounding organized law practice in Hawai'i. First, in 1995, RSCH Rule 6(a) was amended to include organized law practice in the form of partnerships, as follows (with new material underscored):
      (a) Compliance With this Rule and Either the Hawai'i Professional Corporation Act or the Hawai'i Partnership Act. Any person or persons seeking to practice law as a corporation or in partnership shall comply with the provisions of this rule and either the Hawai'i Professional Corporation Act, HRS Chapter 415A, or the Hawai'i Partnership Act, HRS Chapter 425 or both, if applicable.
      (We note that, despite the express addition of "partnership" as an organizational form for law practice, Rule 6(d)(1), (e), and (f) still referred to only the corporate concepts of shares, directors, and officers, and not partnership concepts.)
      Second, in 1999, RSCH Rule 6 was amended to introduce the term "lawyer's professional business organization" to cover law practiced in the form of a "corporation, a company, an association," or a "partnership." RSCH Rule 6(a) was also amended to require compliance with the rest of the provisions of RSCH Rule 6 as well as "any applicable statutes," instead of expressly referencing HRS Chapters 415A and 425 (governing corporations and partnerships, respectively) as it once had.
      Lastly, in 2001, RSCH Rule 6(d)(1) was amended slightly to delete the bracketed "the" and replace it with the underscored "a", as follows: "Shares or interests in a lawyer's professional business organization may be owned only by [the] a lawyer's professional business organization or by one or more persons licensed to practice law in this state by this court...." RSCH Rule 6 has not changed since this 2001 amendment.
      The relevant portions of RSCH Rule 6 (e) and (f) did not appropriately evolve in response to dramatic changes to related court rules contemplating the inclusion of non-Hawai'i-licensed attorneys in Hawai'i lawyers' professional business organizations with a multi-jurisdictional presence. Thus, for the reasons stated in this opinion, RSCH Rule 6 is no impediment to the former AHFI partners' practice of law in Hawai'i as part of Dentons US LLP.


text:
    STATE of Hawai'i, Respondent/Plaintiff-Appellant, v. Laura PITOLO, Petitioner/Defendant-Appellee.
    SCWC-16-0000413
    Supreme Court of Hawai'i.
    MARCH 18, 2019
    John M. Tonaki, Darcia Forester, and Taryn R. Tomasa, for petitioner
    Douglas S. Chin, Honolulu, and Michael S. Kagami, for respondent
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case arises out of the Circuit Court of the First Circuit's ("circuit court") dismissal of criminal charges based on the statute of limitations. Section 701-108(3)(a) of the Hawai'i Revised Statutes ("HRS") enables prosecution to be commenced "within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense," despite the expiration of the statute of limitations if the charged offense contains an element of "fraud, deception ... or a breach of fiduciary obligation[.]"

The circuit court dismissed all six counts of theft filed by the State of Hawai'i ("State") against Laura Pitolo ("Pitolo") on the grounds that the March 17, 2015 felony information was filed after any extension of the three-year statute of limitations based on HRS § 701-108(3)(a) had expired. After the State appealed, in a published opinion, the Intermediate Court of Appeals ("ICA") reinstated Counts 4, 5, and 6. State v. Pitolo, 141 Hawai'i 131, 406 P.3d 354 (App. 2017). Pitolo seeks certiorari review of the ICA's reinstatement of those counts.

We hold that the ICA did not err by reinstating Counts 4 through 6 because there are questions of fact regarding the statute of limitations applicable to those counts that must be determined by the factfinder, the jury, and the circuit court therefore erred by dismissing these charges. As factual issues exist, however, the ICA erred by ruling that the earliest date of the "discovery of [Counts 4 through 6] by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense" under HRS § 701-108(3)(a) was the State Department of Human Services' ("DHS") September 5, 2013 commencement of an investigation regarding the allegations. Pitolo, 141 Hawai'i at 143, 406 P.3d at 366.

II. Background

A. Factual Background

Pitolo is a former employee of Waianae Community Outreach ("WCO"), a non-profit organization funded in part by DHS to provide services to houseless people of O'ahu's Leeward Coast. Pitolo left her position with WCO in early May 2010.

WCO Executive Director Sophina Placencia ("Placencia") allegedly then discovered some questionable checks written by Pitolo on WCO funds on May 27, 2010. Placencia filed a report with the Honolulu Police Department ("HPD") on August 7, 2010, accusing Pitolo of theft from WCO. Placencia alleged she had discovered eight unauthorized checks written by Pitolo. On August 16, 2010, Placencia reported to HPD an additional twenty-nine unauthorized checks allegedly written by Pitolo. These thirty-seven checks included checks allegedly written by Pitolo to herself, to her friend and co-worker, Jayme Windsor, and to her father, Pulouoleola Salausa.

HPD did not further investigate the allegations against Pitolo, allegedly because of an inability to locate the individuals that were allegedly also involved and based on an alleged "failure to obtain additional documents from Ms. Placencia." As it turns out, Placencia, who reported Pitolo's alleged theft from WCO, had herself stolen WCO funds for personal use from 2007 to 2013.

Almost three years later, on July 25, 2013, WCO filed a civil complaint against Pitolo, alleging that, during the course of Pitolo's employment with WCO, Pitolo made various unauthorized transactions totaling approximately $762,046.25. WCO's complaint asserted that from 2007 to 2010, Pitolo converted WCO funds to her own use through ATM cash withdrawals, debit purchases using WCO's debit card, and by writing checks from WCO's bank accounts to herself as well as friends and family members, who cashed the checks for Pitolo at a local bank and then shared the funds with her.

After the filing of the civil lawsuit, DHS began an investigation and audit of WCO's finances and accounting practices on September 5, 2013. After Department of the Attorney General ("DAG") Chief Special Agent Daniel Hanagami ("Hanagami") became aware of a news broadcast regarding the allegations against Pitolo, DAG began an investigation into WCO's financial practices on November 13, 2013. Shortly thereafter, DAG investigators took over the investigation from DHS and obtained all relevant records and documents in DHS's possession. During its investigation, DAG discovered additional alleged unauthorized transactions not specified in Placencia's 2010 police reports.

B. Circuit Court Proceedings

1. Felony Information

On March 17, 2015, DAG filed the felony information that is the subject of this appeal, charging Pitolo with five counts ("Counts 1 through 5") of Theft in the First Degree, in violation of HRS §§ 708-830(2) and 708-830.5(1)(a), and one count ("Count 6") of Theft in the Second Degree, in violation of HRS §§ 708-830(2) and 708-831(1)(b).

Counts 1 through 5 allege that Pitolo, in separate continuing courses of conduct, "did obtain or exert control over the property of the [State] and/or [WCO] by deception, with the intent to deprive the [State] and/or [WCO] of the property," which exceeded $20,000 in value, specifically: in Count 1, by writing unauthorized checks from WCO to Jayme Windsor from February 13, 2009 to July 16, 2010; in Count 2, by writing unauthorized checks from WCO to Pulouoleola Salausa from December 8, 2008 to April 16, 2010; in Count 3, by writing unauthorized checks from WCO to herself from March 16, 2007 to July 6, 2010; in Count 4, by making unauthorized cash withdrawals from a WCO account at ATMs from December 27, 2007 to May 26, 2010; and in Count 5, by making unauthorized debit transactions using a WCO account from January 14, 2008 to June 2, 2009. In Count 6, the State alleges Pitolo "did obtain or exert control over the property of the [State] and/or [WCO] by deception, with the intent to deprive the [State] and/or [WCO] of the property," which exceeded $300 in value, by writing an unauthorized check from WCO to Young Ho Sim. Count 6 pertains to one check written to Young Ho Sim, and does not allege a continuing course of conduct.

In each of the six counts, the State alleges the following: "the earliest date of the discovery of the offense by the State of Hawai[']i or by a person who has a legal duty to represent the State of Hawai[']i and who was not a party to the offense was after September 5, 2013," which is the date DHS started its investigation and audit of WCO.

2. Motion to Dismiss

a. Pitolo's Motion and Arguments

On January 12, 2016, Pitolo filed a motion to dismiss the felony information with prejudice ("motion to dismiss"), asserting the State failed to file the charges within the three-year statute of limitations of HRS § 701-108(2)(d), and failed "to accurately state the date of the earliest discovery of the alleged offenses in the Felony Information" as required by HRS § 701-108(3)(a) and State v. Stan's Contracting, Inc., 111 Hawai'i 17, 137 P.3d 331 (2006). Pitolo argued that pursuant to Stan's Contracting, to rely on the statute of limitations extension provision of HRS § 701-108(3)(a), the State was required to allege in the felony information "the earliest date of the 'discovery of the offense by an aggrieved party ... or person who has a legal duty to represent [the] aggrieved party.' " Stan's Contracting, 111 Hawai'i at 34, 137 P.3d at 348.

Pitolo asserted the "date of discovery" of the charged offenses was sometime in May 2010, when Placencia discovered evidence of the alleged theft. Pitolo contended that based on the alleged May 2010 discovery date, the statute of limitations for all six counts of the felony information expired in 2013, well before the felony information was filed on March 17, 2015. Pitolo asserted that "discovery of the offense" was not extended until September 5, 2013 pursuant to HRS § 701-108(3)(a), as alleged by the State, because of dilatory investigation and prosecution.

Pitolo also argued that the circuit court should not look to when particular checks were discovered, because discovery of one check triggered a duty to investigate. Pitolo further asserted the State may not eliminate particular transactions and selectively prosecute transactions found in a later investigation to avoid the statute of limitations.

b. State's Arguments

In response, the State conceded that charges based on the thirty-seven checks Placencia allegedly discovered and reported to police in May to August 2010 were time-barred, but insisted that, as charged, Counts 1, 2, and 3 excluded those specific checks. The State argued the felony information was therefore timely filed because the earliest date of discovery for the offenses in the felony information was after September 5, 2013, when DHS began its investigation, making September 5, 2016 the earliest statute of limitations expiration date for all six counts. The State also argued that discovery of one check or transaction in a continuing-course-of-conduct offense did not mean that all transactions constituting the crime were discovered, and therefore the full extent of Pitolo's offenses was not discovered until the September 2013 investigation was commenced by DHS. The State also contended the civil complaint did not set the discovery date because it was unclear what transactions the complaint was based upon or what specific acts it alleged, and thus it was unclear what WCO had actually discovered and when. The State alternatively argued that even if the civil complaint established the discovery date, the State's felony information was timely filed.

c. Circuit Court's Ruling

At the hearing on the motion to dismiss, the circuit court opined that WCO's 2013 civil complaint against Pitolo appeared to cover the same criminal conduct or scheme as was charged in the felony information, and inferred that WCO had sufficient information about Pitolo's crimes to file suit at that time. The circuit court acknowledged that there were two ways to read the word "offense" in HRS § 701-108(3)(a). One reading would mean the limitations period was triggered upon discovery of "the specific crimes that were charged," while a broader reading based on Stan's Contracting would mean the statute of limitations was triggered upon "discovery of the scheme."

On April 25, 2016, the circuit court filed its Findings of Fact, Conclusions of Law, and Order Granting Defendant Laura Pitolo's Motion to Dismiss Felony Information with Prejudice. The circuit court concluded that both WCO and the State were aggrieved parties for purposes of determining a "discovery date" under HRS § 701-108(3)(a).

The circuit court determined all six counts of the felony information were based on conduct that constituted "one criminal scheme," and discovery of the "offense" under HRS § 701-108(3)(a) in this case meant discovery of the criminal scheme. The circuit court ruled that the discovery date of Pitolo's scheme was either May 27, 2010 or no later than August 7, 2010, and the statute of limitations for prosecution of the scheme accordingly expired on either May 27, 2013 or August 7, 2013. The circuit court granted Pitolo's motion to dismiss all counts in the felony information with prejudice.

C. ICA Ruling

The State appealed to the ICA, generally asserting that the circuit court erred (1) by concluding that the applicable statute of limitations expired on either May 27, 2013 or August 7, 2013, and (2) by concluding Pitolo's alleged conduct constituted a single criminal scheme. Pitolo, 141 Hawai'i at 143, 406 P.3d at 366. The ICA held as follows:

We hold, inter alia , that: (1) the State properly exercised its prosecutorial discretion in charging Pitolo with multiple offenses, even though several of the offenses were charged as similar continuing-course-of-conduct crimes and the charges overlapped in time; (2) each count of a felony information constitutes a separate offense for the purpose of determining "the earliest date of the discovery of the offense" for the purpose of determining the extended statute of limitations pursuant to Hawai[']i Revised Statutes (HRS) § 701-108(3)(a) ; (3) to the extent that the Circuit Court, in effect, treated all six counts charged against Pitolo as a single "offense" for the purpose of determining "the earliest date of the discovery of the offense" in its application of HRS § 701-108(3)(a), it erred in doing so; and (4) while it is permissible to charge and prove an offense covering any part of the time span of a continuing crime, and the State was free to do so in this case, it is not permissible to disregard discovered conduct that is (a) indisputably part of the continuing course of conduct, as charged, and (b) that occurred within the charged period, in order to avoid the running of the statute of limitations. We affirm in part, vacate in part, and remand.

141 Hawai'i at 132, 406 P.3d at 355. Based on these holdings, the ICA affirmed the circuit court's dismissal with prejudice of Counts 1, 2, and 3, but vacated the circuit court's dismissal of Counts 4, 5, and 6.

III. Standards of Review

A. Motion to Dismiss

This court has stated:

A trial court's ruling on a motion to dismiss an indictment is reviewed for an abuse of discretion. The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant. The burden of establishing abuse of discretion is on appellant, and a strong showing is required to establish it.

State v. Hinton, 120 Hawai'i 265, 273, 204 P.3d 484, 492 (2009) (citations, internal quotation marks, and brackets omitted).

B. Conclusions of Law

Conclusions of law are ordinarily reviewed under the right/wrong standard. Estate of Klink ex rel. Klink v. State, 113 Hawai'i 332, 351, 152 P.3d 504, 523 (2007). A conclusion of law that is supported by the trial court's findings of fact and reflects an application of the correct rule of law will not be overturned. Id. Additionally, in reviewing a trial court's decision, that court's label of a finding or fact or conclusion of law is not determinative of the standard of review. Crosby v. State Dep't of Budget & Fin., 76 Hawai'i 332, 340, 876 P.2d 1300, 1308 (1994).

IV. Discussion

Pitolo presents two questions on certiorari:

(1) Whether the ICA gravely erred in misconstruing [ Stan's Contracting ], and holding in Counts 4, 5, and 6, that each count constituted a separate offense for the purpose of determining the earliest date of discovery under HRS § 701-108(3)(a) despite the State charging Pitolo with theft by deception from a single complainant, in a continuing course of conduct, by multiple methods, e.g., unauthorized checks, unauthorized debit transactions, and unauthorized ATM withdrawals, occurring simultaneously during overlapping periods of time.
(2) Whether the ICA gravely erred in disregarding HRS § 701-108(3)(a) and [ Stan's Contracting ] in applying its own transaction test to hold that the earliest date of discovery for Counts 4, 5, and 6 required that the individual transactions be discovered by law enforcement for the statute of limitations to be triggered.

We address the questions on certiorari as follows.

A. The ICA Correctly Held That Prosecutorial Discretion Allowed Counts 4, 5, and 6 to be Charged as Separate Offenses and That There Are Questions of Fact Regarding the Statute of Limitations Applicable Thereto.

With respect to the first question on certiorari, in granting the motion to dismiss, the circuit court concluded, "[t]he alleged conduct that serves as the basis for all 6 Counts of the Felony Information filed in the instant case constitute[d] one criminal scheme." In effect, the circuit court treated Pitolo's alleged conduct as a single continuing-course-of-conduct offense that was discovered at the latest by the August 2010 referral by Placencia of additional checks to HPD. The circuit court also in effect ruled as a matter of law that Placencia was a "person with a legal duty to represent an aggrieved party [WCO] who is oneself not a party to the offense," placing the March 17, 2015 filing of the charges outside the statute of limitations.

Pitolo argues that the circuit court correctly concluded that Counts 4 through 6 are all a part of one continuing-course-of-conduct offense as a matter of law and that the ICA therefore erred by concluding Counts 4, 5, and 6 were separate offenses, each with an individual discovery date. Pitolo argues that under Stan's Contracting, Placencia's May 2010 discovery of Pitolo's alleged writing of unauthorized checks constituted discovery of Pitolo's "scheme" to defraud the WCO; that the "scheme" included the conduct charged by the State in Counts 4 through 6; that Placencia was a person who has a legal duty to represent an aggrieved party and was not herself a party to the offense; and that, therefore, Placencia's discovery of the "scheme" in 2010 did not allow HRS § 701-108(3)(a) to extend the statute of limitations until March 17, 2015, as this was more than three years past Placencia's "discovery" of the "scheme" in 2010.

We first clarify the ICA's relevant holdings. The ICA did not actually hold that Counts 4, 5, and 6 are separate offenses, as argued by Pitolo. Rather, the ICA correctly held that the State has wide prosecutorial discretion in framing charges, 141 Hawai'i at 140, 406 P.3d at 363, and that "the State properly exercised its prosecutorial discretion in charging Pitolo with multiple offenses, even though several of the offenses were charged as similar continuing-course-of-conduct crimes and the charges overlapped in time," 141 Hawai'i at 132, 406 P.3d at 355. The ICA also correctly held that "[t]he determination of whether a defendant may be convicted of more than one offense, is based on 'whether the evidence discloses one general intent or discloses separate and distinct intents,' is a question of fact that must be decided by the trier-of-fact after trial[,]" and that, therefore, "the issue of whether the six separate offenses charged against Pitolo merged was not subject to the determination of the Circuit Court on Pitolo's Motion to Dismiss." 141 Hawai'i at 140 n.13, 406 P.3d at 363 n.13.

Relying on HRS § 701-108(3)(a), the State charged Pitolo with first degree theft in Counts 4 and 5 and second degree theft in Count 6, all by deception, and alleged for each count that the earliest discovery of the offense by the State of Hawai'i was after September 5, 2013, the date DHS began its investigation. The State clearly had discretion to charge Counts 4 and 5 as continuing-course-of-conduct offenses, and Count 6 as a separate discrete offense. See State v. Yokota, 143 Hawai'i 200, 206, 426 P.3d 424, 430 (2018) (concluding theft may be charged as a continuing course of conduct).

The ICA also correctly determined that Stan's Contracting did not support Pitolo's position that discovery of "any part of the criminal scheme or plan, necessarily constitutes the 'discovery of the offense' for each and every offense charged, pursuant to the tolling provision in HRS § 701-108(3)(a)." Pitolo, 141 Hawai'i at 139-40, 406 P.3d at 362-63. Stan's Contracting did not hold that discovery of any part of a criminal "scheme" necessarily triggers the statute of limitations on a specific count, as argued by Pitolo.

Thus, the ICA did not err in holding that Stan's Contracting did not require dismissal of the counts in the felony information based on Placencia's 2010 discovery of unauthorized checks allegedly written by Pitolo. For the reasons stated, it was improper for the circuit court to determine on a pre-trial motion to dismiss that Pitolo intended to engage in a single continuing course of conduct, rather than multiple continuing courses of conduct (remaining Counts 4 and 5) and a single, discrete offense (remaining Count 6), as charged by the State. See Yokota, 143 Hawai'i at 206, 426 P.3d at 430 (citations omitted). Therefore, the ICA correctly reinstated Counts 4 through 6.

The ICA correctly ruled that "[e]ach count of the Felony Information constitutes a separate offense for the purpose of determining 'the earliest date of the discovery of the offense,' for the purpose of determining the extended statute of limitations pursuant to HRS § 701-108(3)(a)." Pitolo, 141 Hawai'i at 141, 406 P.3d at 364. It follows that the determination of whether the evidence discloses one general intent or discloses separate and distinct intents is a question of fact that must be decided by the jury. Therefore, although the State was free to charge separate offenses, and the ICA correctly reinstated Counts 4 through 6, it will be for the jury to determine whether there was one general intent as to Counts 4 through 6 or separate intents as to one or more of those counts. It will also be for the jury to determine the discovery dates of the "offense" or "offenses" "by an aggrieved party or person with a legal duty to represent an aggrieved party" "who oneself is not a party" to the "offense" or "offenses."

B. The ICA Erred in Holding the Earliest Date of Discovery for Counts 4, 5, and 6 was September 5, 2013.

In her second question, Pitolo contends the ICA gravely erred "in applying its own transaction test," to hold "the earliest date of discovery for Counts 4, 5, and 6 required that the individual transactions be discovered by law enforcement for the statute of limitations to be triggered." The ICA stated that the discovery date of the offense by the WCO and/or the State of Hawai'i for Counts 4 through 6 was September 5, 2013. Pitolo, 141 Hawai'i at 143, 406 P.3d at 366.

The "transaction test" Pitolo refers to is the ICA's determination that if a type of transaction or type of activity, such as the writing of checks to herself, was among those Placencia discovered in May 2010, the State could not further extend the statute of limitations under HRS § 701-108(3)(a) by omitting the checks Placencia had discovered from the offense charged in a count covering the same time period and type of activity. Pitolo, 141 Hawai'i at 142, 406 P.3d at 365. Distinguishing this case from State v. Martin, 62 Haw. 364, 616 P.2d 193 (1980), in which we held a prosecutor has discretion "to prosecute under an indictment covering only part of the entire duration of a continuing offense," the ICA stated:

While it is permissible to charge and prove the offense covering any part of the time span of a continuing crime, and the State was free to do so in this case, we hold that it is not permissible to disregard discovered conduct that is (1) indisputably part of the continuing course of conduct as charged, and (2) that occurred squarely within the charged period, in order to avoid the running of the statute of limitations.

Pitolo, 141 Hawai'i at 142, 406 P.3d at 365. Based on this reasoning, the ICA held that Counts 1 through 3, which each could have included checks discovered by Placencia in 2010, were time-barred. 141 Hawai'i at 142-43, 406 P.3d at 365-66.

Applying the same reasoning, the ICA held that Counts 4 through 6 did not contain any "discovered-but-omitted" transactions and that these counts are not time-barred because the conduct they encompassed, ATM and debit transactions, as well as Pitolo's single check to Young Ho Sim, were not included in Placencia's report to HPD, Agent Hanagami's affidavit, or admitted by the State. 141 Hawai'i at 143, 406 P.3d at 366. The ICA thus held the circuit court "erred in dismissing Counts 4, 5, and 6, based on its erroneous reading of Stan's Contracting and its failure to properly apply HRS § 701-108(3)(a) to the offenses charged in these counts." Id.

This court has repeatedly confirmed that "timeliness is a factual issue." State v. Abdon, 137 Hawai'i 19, 26, 364 P.3d 917, 924 (2016) (citations omitted). Section 701-114(e) of the HRS requires that to convict a defendant of an offense, the prosecutor must prove beyond a reasonable doubt "facts establishing that the offense was committed within the time period specified in section 701-108." HRS § 701-114(e) (2014). We have also held that when relying on the extension under HRS § 701-108(3)(a), "the prosecution must not only allege the timely date or dates of the commission of the offense in the indictment, but also the earliest date of the 'discovery of the offense by an aggrieved party or ... a person who has a legal duty to represent [the] aggrieved party.' " Stan's Contracting, 111 Hawai'i at 34, 137 P.3d at 348 (ellipses and brackets in original).

Thus, two facts must be alleged in the charging instrument and proven beyond a reasonable doubt for a conviction of an offense sought in reliance on HRS § 701-108(3)(a) : (1) the earliest date of the discovery of the offense by (2) the aggrieved party or a person with a legal duty to represent the aggrieved party. Id. Both facts are essential to determining timeliness under HRS § 701-108(3)(a).

In this case, for purposes of Counts 4 through 6, (1) the earliest date of discovery of the offense or offenses by (2) an "aggrieved party or person with a legal duty to represent an aggrieved party," and (3) whether the State through DHS is such a party, are questions of fact for the jury, and the ICA should have remanded this case to the circuit court without answering those questions. In addition, as noted earlier, the determination of whether Pitolo had the requisite intent for one single course of conduct encompassing all six charged counts was a question of fact. Thus, to the extent the ICA ruled on a discovery date of these offenses (or offense) based on discovery by DHS, it erred.

V. Conclusion

For the foregoing reasons, we affirm the ICA's November 30, 2017 Judgment on Appeal filed pursuant to its October 30, 2017 opinion reinstating Counts 4, 5, and 6 of the March 17, 2015 felony information and remanding this case to the circuit court for further proceedings, but as further clarified by this opinion.

      The Honorable Rom A. Trader presided.

      In no event, however, does HRS § 701-108(3)(a) extend the statute of limitations by more than six years after the expiration of the statute of limitations prescribed in HRS § 701-108(2). HRS § 701-108(3)(a) (2014).

      Jayme Windsor is also referred to as "Jamye Windsor" throughout the record. For consistency, we use the spelling "Jayme" throughout this opinion.

      Placencia was charged by felony information on March 23, 2015 and eventually pled no contest to four counts of Theft in the First Degree and one count of Theft in the Second Degree. Placencia was sentenced to a four-year term of probation and was ordered to pay a total of $554,495.43 in restitution to DHS.

      WCO's civil complaint accused Pitolo of issuing checks totalling $60,844.60 to Jayme Windsor, $169,215.00 to Pulouoleola Salausa, and $141,190.87 to herself. The civil complaint also asserted Pitolo withdrew a total of $390,795.78 from WCO's bank accounts by making unauthorized ATM or direct cash withdrawals at WCO's bank.

      HRS § 708-830(2) (2006) provides: "Property obtained or control exerted through deception. A person obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property."

      HRS § 708-830.5(1)(a) (Supp. 2006) provided, in relevant part: "A person commits the offense of theft in the first degree if the person commits theft ... [o]f property or services, the value of which exceeds $20,000[.]" "Theft in the first degree is a class B felony." HRS § 708-830.5(2).

      HRS § 708-831(1)(b) (Supp. 2012) provided, in relevant part: "A person commits the offense of theft in the second degree if the person commits theft ... [o]f property or services the value of which exceeds $300[.]" "Theft in the second degree is a class C felony." HRS § 708-831(2).

      HRS § 701-108(2)(d) (2014) provided: "Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation: ... [a] prosecution for any other felony must be commenced within three years after it is committed[.]" This section was amended in 2016, but those amendments are not relevant here.

      HRS § 701-108(3)(a) provided:
      (3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:
      (a) Any offense an element of which is fraud, deception as defined in section 708-800, or a breach of fiduciary obligation, ... within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense, but in no case shall this provision extend the period of limitation by more than six years from the expiration of the period of limitation prescribed in subsection (2)[.]

      To the extent this concession by the State and statements made in the ICA opinion, Pitolo, 141 Hawai'i at 142-43, 406 P.3d at 365-66, can be construed to suggest that HPD, not Placencia, was "a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense" for purposes of the statute of limitations extension provision of HRS § 701-108(3)(a), we note that HPD is not "a person who has a legal duty to represent an aggrieved party" under the circumstances of this case. See also infra n.15.

      The State did not apply for certiorari to request reinstatement of Counts 1 through 3. Therefore, we do not address whether those counts were also improperly dismissed by the circuit court.

      See supra n.11.

      Whether a continuing-course-of-conduct offense occurred is a question that should be submitted to the jury, and requires a finding that "the facts demonstrate 'one intention, one general impulse, and one plan.' " State v. Martin, 62 Haw. 364, 368, 616 P.2d 193, 196 (1980) (citation omitted) ("[T]he applicable test in determining whether there is a continuing crime 'is whether the evidence discloses one general intent or discloses separate and distinct intents.' "). Whether a defendant has one general intent or specific intent is a factual question. See HRS § 701-114(b) (requiring the State to prove beyond a reasonable doubt "[t]he state of mind required to establish each element of the offense").

      Although the statute and our legislative history are silent on the meaning of a "person who has a legal duty to represent an aggrieved party," because "the Hawai'i Penal code is substantially derived from the Model Penal Code" we may "look to the Model Penal Code and its commentary for guidance." State v. Aiwohi, 109 Hawai'i 115, 126, 123 P.3d 1210, 1221 (2005), as corrected (Dec. 12, 2005).
      Section 1.06(3)(a) of the Model Penal Code ("MPC") is substantially similar to HRS § 701-108(3)(a). Compare MPC § 1.06(3)(a) (1962) with HRS § 701-108(3)(a). The commentary to MPC § 1.06 provides examples of who may have a legal duty to represent an aggrieved party, including "a guardian or trustee." MPC Part I Commentaries, vol. 1, at 91 (1985).

      Again, the State did not request certiorari review of this holding. See supra n.12.

      WCO's civil complaint against Pitolo, filed July 25, 2013, details the same types of transactions and the same time periods as Counts 1 through 5 of the felony information, but does not appear to include the single check to Young Ho Sim in Count 6. This suggests that WCO "discovered" Pitolo's conduct some time before DHS began its investigation, and therefore suggests September 5, 2013 was not the earliest discovery date for Counts 4 and 5. However, as explained above, the State was required to prove at trial whether it brought its case against Pitolo within the statute of limitations period, and the ICA erred, as the circuit court did, in determining as a matter of law without factual findings whether the felony information was timely.