State Sen. Gil Keith-Agaran said he sees no conflict between his role as a lawyer and his role as a lawmaker..

A key state senator and lawyer who likely will be a major player in the Maui recovery effort is also positioning himself to play a role in what are expected to be epic court fights over who will be held liable for the devastating Maui fires.

Sen. Gil Keith-Agaran, who represents Wailuku, Kalului and Waihee, appeared Friday in an online “Maui Wildfire Impact Community Discussion,” an event hosted by his law firm and a major mainland firm, Morgan & Morgan.

Morgan & Morgan, which bills itself as “America’s Largest Injury Law Firm,” has already filed a lawsuit against Hawaiian Electric and Maui Electric Co. over the Maui fires. Keith-Agaran’s firm is Takitani Agaran Jorgensen & Wildman.

Sen. Gil Keith-Agaran said his firm has been associated with Morgan & Morgan for a number of years, and he sees no conflict at the moment between his role as a lawyer and his role as a lawmaker. (David Croxford/Civil Beat/2023)

Maui lawyer Tony Takitani essentially used the call to introduce and describe the expertise of Morgan & Morgan, according to Bart Dame, who listened in on the call. Keith-Agaran was on the call but did not say anything, Dame said.

“My read on it is they need local people to vouch for them, and they got Tony and Gil’s firm to do that,” said Dame. He said he tuned in because he respects Takitani and Keith-Agaran, and wanted to learn more about what can be done to help Maui.

Keith-Agaran said his firm has been associated with Morgan & Morgan for a number of years and he sees no conflict at the moment between his role as a lawyer and his role as a lawmaker.

Keith-Agaran said he expects to have a hand in the wildfire litigation, but he does not know if he might end up working on a lawsuit that targets the state in connection with the Aug. 8 fires that left Lahaina and parts of Upcountry in ruins, killing at least 115 people.

“I don’t think we’ve got to the point where we’re looking at who’s going to be added to any kind of litigation other than the entities that have been named so far,” he said.

“If discovery shows that other claims need to be made, then I suppose that could happen, and if that happens, then under the rules of professional responsibility as a lawyer, then I’ll have to make some decisions,” Keith-Agaran said.

“At this point, I don’t think anyone knows who’s going to be sued other than (Hawaiian Electric) and its subsidiaries,” he said. “If an actual conflict arises, then I’ll have to take the proper steps at that point.”

Keith-Agaran said he discussed his potential role in fire-related litigation with Robert Harris, the executive director of the State Ethics Commission, and with the state Office of Disciplinary Counsel. But Keith-Agaran said he has not asked for formal opinions on the matter.

Harris said in an interview that the state ethics code does permit a state lawmaker who is an attorney to sue the state. Lawmakers can also negotiate settlements with the state Attorney General’s Office, according to commission advisory opinions.

The state ethics code prohibits state employees or lawmakers from assisting “any person or business or act(ing) in a representative capacity before any state or county agency for a contingent compensation in any transaction involving the State.”

Hawaiian Electric Co. and Maui Electric Co. are facing multiple lawsuits over the Maui fires. (David Croxford/Civil Beat/2023)

However, the ethics commission historically has held that the state Judiciary is not a “state agency” by legal definition, Harris said, which clears the way for lawmakers who are lawyers to participate in legal actions targeting or involving the state.

Another concern raised by some lawmakers is that Keith-Agaran might gather information in his role as a lawmaker that would make it easier for him and his associates to sue the state.

But Harris said the ethics code in HRS 84-12 prohibits state employees including lawmakers from using confidential information they have obtained through their official duties for their “own personal gain or for the benefit of anyone.”

“That would be an ethics violation if a state employee or legislator had access to information and then tried to use it” outside the scope of their official duties, he said.

The ethics code would also come into play in the event that a lawmaker stands to gain from a settlement or judgment against the state.

‘Well-Positioned To Attract Clients’

Large settlements or judgments in lawsuits against the state are submitted to the Legislature for votes each year, and the ethics commission issued an advisory opinion in 1984 warning lawmakers they cannot vote on those appropriations if they were involved in the litigation.

Keith-Agaran said he has dealt with that issue before. He declined to vote on Senate Bill 1277 this year to fund the various settlements and judgments because his law firm represented a plaintiff in one of the cases.

Keith-Agaran said he is having a discussion with his law partners about “what steps I would need to take” as events play out in the wildfire litigation, adding “I’ll probably have to decide that in the near future.”

Looking at the issue from his perspective as a lawyer, “you can’t let interests of a third party override your duty to your client,” he said.

Keith-Agaran is in a particularly important position at the Legislature because he is vice chairman of the powerful Senate Ways and Means Committee. In that role he shapes the Senate position on state construction spending.

That gives him considerable leverage to steer construction funding to his home island of Maui, which will be urgently needed for the recovery effort.

But he added that “until we actually have an actual session and there’s things to consider and vote on, I don’t think at this point the actual conflicts arise.”

Still questions have been raised. Keith-Agaran had been representing the Senate in a series of briefings on the Maui recovery effort, but suggested that Sen. Lynn DeCoite take his place in the meetings after his picture appeared in an online advertisement for the meeting with Morgan & Morgan.

That was done “just to take those questions out of the way because right now in a relief effort, it’s just distracting,” he said. “I can help elsewhere to make sure that relief efforts continue.”

Daniel Foley, chairman of the House Commission to Improve Standards of Conduct, said it is important that Keith-Agaran be sensitive to any conflict or perceived conflict as he navigates his dual roles as litigator and lawmaker.

Those issues will come up one-by-one as lawmakers consider appropriations, bills and resolutions in response to the fires.

“It’s the shape of the lawsuit, who they sue, why they sue, that’s going to matter,” Foley said. “Do they sue the state, do they sue the county, do they sue Hawaiian Electric, do they sue a landowner? I don’t know enough about the potential liability, but that’s certainly going to enter into it.”

Former Associate Supreme Court Justice Robert Klein said Keith-Agaran is “well-positioned” to attract clients because of his perceived political power, but may run the political risk of upsetting the voters if his firm is successful in winning a significant award or settlement.

Such a victory in court could be perceived by the public as diverting funds to his clients or to legal fees that otherwise could have been used to help rebuild the community, Klein said.

Given the extraordinary sums of money involved — the potential damages and the state and federal money that will be committed to rebuild Lahaina — it is not surprising that Keith-Agaran plans to participate in the litigation. But “I think he could make a better choice,” Klein said.

Keith-Agaran said no one should be surprised that he is getting involved in litigation over the fire. “I am a practicing attorney, and one of the areas in my law firm’s practice is plaintiff’s work,” he said.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation.

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