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GM 1220

Informing the Legislature that on May 29, 2025, the Governor signed the following bill into law: SB336 HD1 CD1 (ACT 120).

2025 Regular Session

The state may defend professionally licensed or certified employees for non-gross-negligent acts within scope of employment, and employees may hire private counsel.

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Bill Summary · GM 1220

Summary: Act 120 (SB336, HD1, CD1) – Defense of Professionally Licensed or Certified State Employees

GM 1220 notes that on May 29, 2025, the Governor signed SB336 HD1 CD1 into law as Act 120, Relating to the Defense of State Employees. The act takes effect July 1, 2025.

Purpose and Intent

  • Address gaps left by Act 44 (Hawaii Session Laws 2022) regarding when the State has a duty to defend professionally licensed or certified state employees.
  • Establish a clear framework for defense obligations, employee-lawyer arrangements, and confidential withdrawal when the State declines to defend.

Key Provisions and Changes

1) Duty to Defend
- The State (via the Attorney General) generally has a duty to defend civil actions or proceedings against professionally licensed or certified state employees when actions occur within the scope of employment and are not grossly negligent or wanton, and the employee cooperates with the State’s defense.
- The AG is not obligated to defend if the action results from gross negligence or wanton acts, or if the employee fails to provide necessary information and assistance.

2) Employee-Selected Counsel
- A professionally licensed or certified state employee may employ their own attorney at their own expense (in lieu of the AG’s defense).

3) Transfer of Defense to Employee-Selected Counsel
- If the State declines to defend on certain grounds, the AG must work with the employee to amicably transfer representation to the employee’s chosen successor counsel.

4) Confidential Withdrawal if Transfer Fails
- If an amicable transfer cannot be achieved, the AG must file a motion to withdraw as counsel no less than 30 days before the close of discovery.
- All motions, pleadings, records, and related evidence regarding the withdrawal are confidential and filed through confidential channels.
- The employee has at least 30 days to respond to the withdrawal motion.
- A hearing is held to determine the AG’s duty to defend the employee after the withdrawal motion is filed.
- Proceedings related to the withdrawal are tightly restricted in attendance (only court, court personnel, AG staff, the employee’s counsel, and other court-approved individuals).

5) Effective Date and Limitations
- The act does not affect rights or duties related to matters that matured or were initiated before its effective date.
- New material is underscored in the official text.
- Effective date: July 1, 2025.

Who Is Affected

  • Professionally licensed or certified state employees (e.g., those bearing professional licenses/certifications in the course of state employment).
  • Hawaii Attorney General’s Office and its defense practices.
  • Civil litigants against state employees in relevant actions.

Context and Implications

  • Builds on Act 44 by codifying the defense duty and introducing a formal, confidential process for withdrawal when defense is not pursued.
  • Provides employees with greater flexibility to hire private counsel, while protecting the confidentiality of withdrawal proceedings.

Compiled from official sources — confirm details with the bill’s official record.

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