Agena v. Cleaver-Brooks, Inc., 428 F.Supp.3d 267

Over fifty former asbestos plaintiffs sued Cleaver-Brooks and its national coordinating counsel under Hawaii law and RICO, alleging discovery fraud induced low-value settlements in earlier asbestos cases.
The same firm (Galiher DeRobertis & Waxman LLP) represented those plaintiffs in the underlying settlements and now represents them (with Waters Kraus & Paul LLP) in this action.
Defendants moved to disqualify Plaintiffs’ counsel: seeking disqualification of the Galiher firm under HRPC 1.7 and immediate disqualification of four Galiher attorneys under HRPC 3.7 for all phases of litigation.
The magistrate judge denied disqualification of the Galiher firm under HRPC 1.7, and limited HRPC 3.7 disqualification to trial advocacy by two lawyers (DeRobertis and Waxman); Segawa and Aoki were not objected to on appeal.
Plaintiffs concede DeRobertis and Waxman will likely testify at trial but represented they will not serve as trial counsel or take/defend depositions; Waters firm will conduct the trial.
The district court affirmed the magistrate judge: no concurrent conflict under HRPC 1.7; HRPC 3.7 bars DeRobertis and Waxman from trying the case but does not forbid their participation in pretrial matters (subject to their agreement about depositions).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Galiher firm must be disqualified under HRPC 1.7 for concurrent conflict of interest	Galiher and plaintiffs share aligned interests in proving discovery fraud; no present conflict	Galiher’s prior role advising plaintiffs on settlements creates a significant risk of divergent interests and impaired judgment	No disqualification; defendants failed to produce substantial evidence of a likely, material conflict
Scope of HRPC 3.7 (lawyer as witness): whether witness-attorneys must be disqualified from pretrial as well as trial	DeRobertis and Waxman will testify but plaintiffs: they will not try the case and will avoid depositions, so pretrial participation is permissible	DeRobertis and Waxman should be disqualified from all phases, including pretrial, to avoid advocate-witness problems	HRPC 3.7 prohibits them from advocating at trial but does not bar their participation in pretrial proceedings (subject to voluntary deposition limitations)

Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602 (establishes clearly erroneous standard and appellate review guidance)
Optyl Eyewear Fashion Int’l Corp. v. Style Cos., 760 F.2d 1045 (motions to disqualify counsel warrant strict scrutiny to prevent tactical misuse)
In re Coordinated Pretrial Proceedings, 658 F.2d 1355 (disqualification requires clear impropriety; high proof standard)
Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94 (discusses prejudice when advocate also serves as witness and limits on combining roles)
Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85 (disqualification is discretionary)
Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687 (Haw. 2003) (recognizes reasonable reliance on opposing party’s discovery responses)