WSR 16-03-040

RULES OF COURT

[January 6, 2016]

The Limited Practice Board, having recommended the expeditious adoption of the proposed amendments to APR 12—Limited Practice Rule for Limited Practice Officers; Rules for Enforcement of Limited Practice Officer Conduct (ELPOC); and APR 12 Appendix—Continuing Education Regulations of the Limited Practice Board, and the Court having considered the amendments and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

(a) That the new rules as shown below are adopted.

(b) That the new rules will be published expeditiously in the Washington Reports and will become effective upon publication.

DATED at Olympia, Washington this 6th day of January, 2016.

(a) Purpose. The purpose of this rule is to authorize certain lay persons to select, prepare and complete legal documents incident to the closing of real estate and personal property transactions and to prescribe the conditions of and limitations upon such activities.

(b) Limited Practice Board.

(1) Establishment. There is hereby established a Limited Practice Board (referred to herein as the "Board") consisting of nine members to be appointed by the Supreme Court of the State of Washington. Not less than four of the members of the Board must be admitted to the practice of law in the State of Washington. Four of the members of the Board shall be business representatives, one each of the following four industries: escrow, lending, title insurance, and real estate. Appointments shall be for 4-year terms. No member may serve more than two consecutive terms. Terms shall end on December 31 of the applicable year. The Supreme Court shall designate one of the members of the Board as chairperson.

(2) Duties and Powers.

(i) Applications. The Board shall accept and process applications for certification under this rule.

(ii) Examination. The Board shall conduct the examination for certification required by this rule. The examination shall consist of such questions as the Board may select on such subjects as may be listed by the Board and approved by the Supreme Court. The Board shall establish the number of examinations to be given each year and the dates of the examinations.

(iii) Investigation and recommendation for admission. The Board shall notify each applicant of the results of the examination and shall recommend to the Supreme Court the admission or rejection of each applicant who passes the examination. The Supreme Court shall enter an order admitting to limited practice those applicants it deems qualified, conditioned upon each applicant taking an oath that he or she will comply with this rule and paying to the Board the annual fee for the current year. Upon the entry of such order, the taking and filing of the oath, and payment of the annual fee, an applicant shall be enrolled as a limited practice officer and shall be entitled to perform those services permitted by this rule. The oath must be taken before a court of record in the State of Washington.

(iv) Education. The Board shall approve individual courses and may accredit all or portions of the entire educational program of a given organization which, in the Board's judgment, will satisfy the educational requirement of these rules. It shall determine the number of credit hours to be allowed for each such course. It shall encourage the offering of such courses and programs by established organizations, whether offered within or outside this state.

(v) Grievances and discipline. The Board shall adopt hearing and appeal procedures and shall hear complaints of persons aggrieved by the failure of limited practice officers to comply with the requirements of this rule and of the Limited Practice Officer Rules of Professional Conduct. Upon a finding by the Board that a limited practice officer has failed to comply in any material manner with the requirements of this rule, the Board shall take such action as may be appropriate to the degree of the violation, considering also the number of violations and the previous disciplinary record of the limited practice officer. Disciplinary action may include admonitions, reprimands, and recommendations to the Supreme Court for the suspension or revocation of the limited practice officer's certification.

(vi) Investigation. Upon the receipt of a complaint that a limited practice officer has violated the provisions of this rule and in other appropriate circumstances, the Board may investigate the conduct of the limited practice officer to determine whether the limited practice officer has violated the requirements, conditions or limitations imposed by this rule.

(vii) Approval of forms. The Board shall approve standard forms for use by limited practice officers in the performance of services authorized by this rule.

(viii) Fees. The Board shall establish and collect examination and annual fees in such amounts as are necessary to carry out the duties and responsibilities of the Board.

(ix) Regulations. The Board shall propose regulations to implement the provisions of this rule for adoption by the Supreme Court.

(3) Expenses of the Board. Members of the Board shall not be compensated for their services. For their actual and necessary expenses incurred in the performance of their duties, they shall be reimbursed by the Board in a manner consistent with its rules. All such expenses shall be paid pursuant to a budget submitted to and approved by the Washington State Bar Association on an annual basis. Funds accumulated from examination fees, annual fees, and other revenues shall be used to defray all expenses of the Board. The administrative support to the Board shall be provided by the Washington State Bar Association.

(c) Certification Requirements. An applicant for certification as a limited practice officer shall:

(1) Age. Be at least 18 years of age.

(2) Moral Character. and Fitness. Be of good moral character. and possess the requisite fitness to act as a limited practice officer.

(3) Examination. Satisfy the examination requirements established by the Board.

(4) Oath Application. Execute under oath and file with the Board two copies of his or her Submit an application, in such form as may be required by the Board. Additional proof of any fact stated in the application may be required by the Board. In the event of the failure or refusal of an applicant to furnish any information or proof, or to answer any interrogatories of the Board pertinent to the pending application, the Board may deny the application.

(5) Examination Fee. Pay, upon the filing of an application, the examination fee.

(d) Scope of Practice Authorized by Limited Practice Rule. Notwithstanding any provision of any other rule to the contrary, a person certified as a limited practice officer under this rule may select, prepare and complete documents in a form previously approved by the Board for use by others in, or in anticipation of, closing a loan, extension of credit, sale or other transfer of interest in real or personal property. Such documents shall be limited to deeds, promissory notes, guaranties, deeds of trust, reconveyances, mortgages, satisfactions, security agreements, releases, Uniform Commercial Code documents, assignments, contracts, real estate excise tax affidavits, bills of sale, and powers of attorney. Other documents may be from time to time approved by the Board.

(e) Conditions Under Which Limited Practice Officers May Prepare and Complete Documents. Limited practice officers may render services authorized by this rule only under the following conditions and with the following limitations:

(1) Agreement of the Clients. Prior to the performance of the services, all clients to the transaction shall have agreed in writing to the basic terms and conditions of the transaction. In the case of a power of attorney prepared in anticipation of a transaction, the principal(s) and attorney(s)-in-fact shall have provided the limited practice officer consistent written instructions for the preparation of the power of attorney.

(2) Disclosures to the Clients. The limited practice officer shall advise the clients of the limitations of the services rendered pursuant to this rule and shall further advise them in writing:

(i) that the limited practice officer is not acting as the advocate or representative of either of the clients;

(ii) that the documents prepared by the limited practice officer will affect the legal rights of the clients;

(iii) that the clients' interests in the documents may differ;

(iv) that the clients have a right to be represented by lawyers of their own selection; and

(v) that the limited practice officer cannot give legal advice as to the manner in which the documents affect the clients.

The written disclosure must particularly identify the documents selected, prepared, and/or completed by the limited practice officer and must include the name, signature and number of the limited practice officer.

(f) Continuing Certification Requirements.

(1) Continuing Education. Each limited practice officer must complete a minimum number of credit hours of approved or accredited education, as prescribed by regulation of the Board, during each calendar license year in courses certified by the Board to be appropriate for study by limited practice officers providing services pursuant to this rule; provided, that the limited practice officer shall not be required to comply with this subsection during the calendar license year in which he or she is initially certified.

(2) Financial Responsibility. Each active limited practice officer or employer thereof shall show proof of ability to respond in damages resulting from his or her acts or omissions in the performance of services permitted by this rule. The proof of financial responsibility shall be in such form and in such amount as the Board may by regulation prescribe.

(3) Annual Fee. Each limited practice officer must pay the annual fee established by the Board.

(g) Existing Law Unchanged. This rule shall in no way expand, narrow or affect existing law in the following areas:

(1) The fiduciary relationship between a limited practice officer and his or her customers or clients;

(2) Conflicts of interest that may arise between the limited practice officer and a client or customer;

(3) The right to act as one's own attorney under the pro se exception to the unauthorized practice of law including but not limited to the right of a lender to prepare documents conveying or granting title to property in which it is taking a security interest;

(4) The lack of authority of a limited practice officer to give legal advice without being licensed to practice law;

(5) The standard of care which a limited practice officer must practice when carrying out the functions permitted by this rule.

(h) Treatment of Funds Received Incident to the Closing of Real or Personal Property Transactions. Persons admitted to practice under this rule shall comply with LPORPC 1.12A and B regarding the manner in which they identify, maintain and disburse funds received incidental to the closing of real and personal property transactions, unless they are acting pursuant to APR 12 (g)(3).

(1) GR 12.4 shall apply to access to Board records.

Comment

[1] Comment Re: APR 12(d)

Powers of attorney authorizing a person to negotiate and sign documents in anticipation of, or in the closing of, a transaction are included in the documents limited practice officers are authorized to prepare. Such documents may include, but are not limited to, purchase and sale agreements for real or personal property, loan agreements, and letters of intent.

[2] Comment Re: LPO Professional Standard Of Care

The purpose of this comment is to discuss the legal standard of care to which a limited practice officer is subject, while also clarifying the limited duties of a limited practice officer compared to an attorney when selecting and preparing legal documents and to show the greater breadth of a lawyer's duties and services which a party may not expect when engaging a limited practice officer.

Generally, when a non-lawyer selects and prepares a legal document for another, the non-lawyer engages in the unauthorized practice of law. Despite this, the non-lawyer (including a licensed limited practice officer) will be held to the standard of a lawyer: "to comply with the duty of care, an attorney must exercise the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction…." Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 246 (1992). However, when selecting and preparing approved forms a limited practice officer, though having a limited license to practice law as defined and limited in APR 12, will not be authorized nor charged with many of the duties of a lawyer. Except as provided otherwise in APR 12 rules and regulations, these include the duty to investigate legal matters, to form legal opinions (including but not limited to the capacity of an individual to sign for an entity or whether a legal document is effective), to give legal advice (including advice on how a legal document affects the rights or duties of a party), or to consult with a party on the advisability of a transaction. See also LPORPC 1.1, Competence, and LPORPC 1.3, Communication.

Unless the context clearly indicates otherwise, terms used in these rules have the following meanings:

(a) "Association" means the Washington State Bar Association;

(b) "Public file" means the pleadings, motions, rulings, decisions, and other formal papers filed in a proceeding;

(c) "Board" when used alone means the Limited Practice Board;

(d) "Board of Governors" means the Board of Governors of the Washington State Bar Association;

(e) "Chair" when used alone means the Chair of the Limited Practice Board;

(f) "Clerk" when used alone means the Association's staff designated to work with the Limited Practice Board and includes the Directory of Regulatory Services and other Association counsel where appropriate;

(g) "Closing Firm" means any bank, depository institution, escrow agent, title company, law firm, or other business, whether public or private, that employs, or contracts for the services of, an LPO for the purpose of providing real or personal property closing services for a transaction;

(h) "Court" unless otherwise specified, means the Supreme Court of Washington;

(i) "Disciplinary action" means sanctions under rule 13.1 and admonitions under rule 13.5;

(j) "ELC" means the Rules for Enforcement of Lawyer Conduct;

(k) "Final" means no review has been sought in a timely fashion or all appeals have been concluded;

(l) "Grievant" means the person or entity who files a grievance (except for a confidential source under rule 5.2);

(m) "Hearing Officer" means the person assigned under rule 10.2 (a)(1) or, when a hearing panel has been assigned, the hearing panel chair;

(n) "LPO" means limited practice officer;

(o) "Mental or physical incapacity" includes, but is not limited to, insanity, mental illness, senility, or debilitating use of alcohol or drugs;

(p) "Panel" means a hearing panel under rule 10.2 (a)(2);

(q) "Party" means disciplinary counsel or respondent, except in rule 2.3(f) "party" also includes a grievant;

(r) "Respondent" means an LPO against whom a grievance is filed or an LPO investigated by the Clerk or disciplinary counsel;

(s) "APR" means the Admission to and Practice Rules;

(t) "CR" means the Superior Court Civil Rules;

(u) "RAP" means the Rules of Appellate Procedure;

(v) "LPORPC" means the Limited Practice Officer Rules of Professional Conduct adopted by the Washington Supreme Court.

(1) "May" means "has discretion to," "has a right to," or "is permitted to".

(2) "Must" means "is required to".

(3) "Should" means recommended but not required.

(a) Declaration. The Association annually sends each active LPO a written declaration designed to determine whether the LPO or the LPO's Closing Firm is complying with LPORPC 1.12A & B. Each active LPO must complete, execute, and deliver to the Association this file a trust account declaration by the date specified in the declaration as required by APR 12.

(b) Noncompliance. Failure to file the declaration by the date specified in section (a) is grounds for discipline. This failure also may subjects the LPO who has failed to comply with this rule to a full audit of his or her books and records, or the Closing Firm's records, as provided in rule 15.1(c), upon request of the Clerk or disciplinary counsel to the discipline committee. A copy of any request made under this section must be served on the LPO. The request must be granted on a showing that the LPO has failed to comply with section (a) of this rule. If the LPO should later comply, the discipline committee has discretion to determine whether an audit should be conducted, and if so the scope of that audit. An LPO or Closing Firm audited under this section is liable for all actual costs of conducting such audit, and also a charge of $100 per day spent by the auditor in conducting the audit and preparing an audit report. Costs and charges are assessed in the same manner as costs under rule 5.3(e).

The Board may adopt regulations regarding the powers in this title subject to the approval of the Board of Governors and the Supreme Court.

As used in these regulations, the following definitions shall apply:

A. A "Limited Practice Officer" (LPO) shall mean any person admitted to practice under Washington Supreme Court Rule APR 12.

B. An "approved" continuing education activity shall mean an individual seminar, course, or other continuing education activity approved by the Continuing Education Committee of the Limited Practice Board.

C. A "credit hour" equals one (1) clock hour of actual attendance.

D. The "Committee" shall mean the Continuing Education Committee of the Limited Practice Board.

E. The "staff" shall mean the staff of the Washington State Bar Association.

F. "APR 12" shall mean Admission to and Practice Rule 12, together with any subsequent amendments thereto, as adopted by the Supreme Court of the state of Washington.

G. "Teaching" in an approved continuing education activity shall mean and encompass the preparation and/or delivery of a prepared talk, lecture, or address at such activity.

H. "Participating" in an approved continuing education activity shall mean and encompass: 1) acting as a planning and organizing chair of such activity, or 2) taking part in such activity as a member of a panel discussion, without the preparation of written materials or the delivery of a prepared talk, lecture, or address.

I. "Calendar License year" shall mean January July 1 to December 31 June 30.

J. To qualify for "liability credit," a course or subject must deal with the legal rights, duties, or responsibilities of LPOs.

K. "Distance Education" shall mean delivery method where instruction takes place in other than a live classroom setting, the instructor and the student are in physically separate locations, and interactive instructional methods such as video-based instruction, computer conferencing, video conferencing, interactive audio, interactive computer software, or internet-based instruction are used.

L. "Interactive" for purposes of instructional methods shall mean the course structure and technologies promote active student involvement with the course content, including the ability to: (a) submit questions or answer test items, and receive direct feedback; and (b) communicate with the instructor and/or other students on an immediate or reasonably delayed basis. Interactive instruction specifically excludes courses that only provide passive delivery of instructional content.

A. As provided for in Regulation 12 of the Regulations of the APR 12 Limited Practice Board, each active and inactive Limited Practice Officer shall complete a minimum of ten (10) credit hours of approved education during each calendar license year (July 1 – June 30), except as exempted by Regulation 114. Up to five (5) credit hours may be completed through Distance Education. Two (2) hours of the required ten (10) hours of continuing education per year must be on liability issues, which may be completed through Distance Education. These classes must be approved by the Board and must be taken annually.

B. If an LPO completes more than ten (10) such credit hours in a given calendar license year, the excess credit, up to ten (10) credits, may be carried forward and applied to such LPO's education requirement for the next calendar license year. Liability credit hours may be carried forward as liability credits or regular credits; however, a maximum of two (2) liability credits may be carried forward as liability credits. Failure to comply with the provisions of this Regulation and Regulation 12 of the Regulations of the APR 12 Limited Practice Board each calendar license year shall subject the Limited Practice Officer to suspension or revocation of license as an LPO.

A. Continuing education credit may be obtained by attending, teaching, or participating in, continuing education activities which have 1) been previously approved by the Committee, or 2) have been afforded retroactive approval by the Committee pursuant to APR 12 and these regulations.

B. A credit shall be awarded for each hour actually spent by an LPO in attendance at an approved education activity.

C. Credit will not be given for time spent in meal breaks.

D. Excess or "carry-over" credits may be applied to the succeeding calendar next license year's credit hour requirement. Such credits shall be reported to the Committee on or before January 31 August 1 as required by Regulation 108 A.

E. Credit toward the continuing education requirements set forth in APR 12 and Regulation 102 may be earned through teaching or participating in an approved continuing education activity on the following basis:

1. An LPO teaching in an approved education activity shall receive credit on the basis of one (1) credit for each hour actually spent by such LPO in attendance at and teaching in a presentation of such activity. Additionally, an LPO teaching in such an activity shall also be awarded further credit on the basis of one credit for each hour actually spent in preparation time, provided that in no event shall more than ten (10) hours of credit be awarded for the preparation of one (1) hour or less of actual presentation.

2. An LPO participating in an approved educational activity shall receive credit on the basis of one (1) credit for each hour actually spent by such LPO in attendance at a presentation of such activity. Additionally, an LPO participating in such an activity shall also be awarded further credit on the basis of one (1) credit for each hour actually spent in preparation time, provided that in no event shall more than five (5) hours of credit be awarded for such preparation time in any one such continuing education activity.

F. Service on the Limited Practice Board or Escrow Commission is considered an approved continuing education activity for both eight general and two liability credits.

The following standards shall be met by any course or activity for which approval is sought:

A. The course shall have significant intellectual or practical content and its primary objective shall be to increase the attendee's professional competence as an LPO.

B. The course shall constitute an organized program of learning dealing with matters directly relating to the limited practice of law and/or to the professional responsibility or ethical obligations of an LPO, which may include continuing legal education seminars and courses approved by the Washington State MCLE Board.

C. Each faculty member shall be qualified by practical or academic experience to teach a specific subject.

D. Thorough, high quality, readable, and carefully prepared written materials should be distributed or accessible to all attendees in printed or electronic form to all attendees during or immediately subsequent (no more than 10 days) to the applicable course. at or before the time the course is presented. It is recognized that written materials are not suitable or readily available for some types of subjects;, however the absence of written materials for distribution should, however, be the exception and not the rule.

E. Courses should be conducted in a setting physically suitable to the educational activity of the program. A suitable writing surface should be provided where feasible.

F. No course will be approved which involves solely television viewing in the home or office or correspondence work or self-study except as may be an approved Distance Education activity. Video, motion picture, or sound tape presentations may be approved, provided a teacher or moderator is in attendance at each presentation to comment thereon, answer questions, or conduct the discussion.

A. An LPO or sponsoring agency desiring approval of a continuing education activity shall submit to the Committee all information called for by Form 1 at least thirty (30) days prior to the date scheduled for the class, along with an application fee. The application fee shall be set by the Board with the approval of the WSBA Board of Governors. The fee and approved application shall be valid for all occurrences of the identical activity in the same calendar license year.

B. Approval shall be granted or denied in accordance with the provisions of Regulation 107 herein. Upon approval of the activity, a list of certified limited practice officers will be provided to the class sponsor if requested in the initial application, along with written acknowledgment of approval.

C. As to a course that has been approved, the sponsoring agency may announce, in informational brochures and/or registration materials: "This course has been approved by the Continuing Education Committee of the Limited Practice Board for ___ hours of credit."

D. On the date of the continuing education activity, the sponsoring agency shall provide to each participating LPO a copy of the LPB course approval form or other document certifying the LPO's attendance and completion of the continuing education activity.

A. Compliance Report. Each LPO shall, on or before January 31 August 1 of each year, submit an affidavit certify to the Committee, setting forth all information required by Form No. 2, concerning such LPO's completion of approved continuing education during the preceding calendar license year in a form and manner as prescribed by the Limited Practice Board. Such affidavit shall also contain a report of "carryover" credits, if any, as delineated in Regulation 102. The LPO may be required by the Committee to verify completion of continuing education activities by producing the forms specified in Regulation 105 D.

B. Supplemental Report Late Fee. If an LPO has not completed the minimum education requirement for the preceding calendar license year, or complied with Regulation 108 A by August 1, compliance may still be accomplished by the LPO must:

1. Submitting by April 30 the affidavit called for by Regulation 108 A (Form 2) setting forth therein the extent of the LPO's compliance with Complete the minimum education requirement,

2. Certify to completion of the approved continuing education in the form and manner prescribed by the Limited Practice Board, and

2. 3. Paying at the time of filing such supplemental affidavit a special Pay a $50 service late fee.

C. An LPO who fails to comply with the provisions of this regulation shall be subject to the procedures and provisions of Regulation 111.

An LPO who seeks credit for teaching or participating in an approved continuing education activity pursuant to Regulation 103 E, shall, certify to the Committee in the form and manner prescribed, on or before January 31 August 1 of the year following the calendar license year in which such teaching or participating participation was accomplished, submit an affidavit to the Committee setting forth all information required by the appropriate portions of Form 3, concerning such teaching and/or participating in approved education courses or activities during the preceding calendar year.

The Committee may grant extensions, waivers, or modifications of these regulations in cases of undue hardship, age, or infirmity. Requests for extensions, waivers, or modifications shall be made in writing.

An LPO who has not complied with the educational or reporting requirements of APR 12 and these regulations by April 30 August 1 of each year may be ordered suspended until in compliance with the regulations.

To effect such suspension, the Committee shall send to the non-complying LPO by certified mail, directed to the LPO's last known address as maintained on the records of the Board, a written notice of non-compliance. The notice shall advise such LPO of the pendency of suspension proceedings, and the provisions for revocation of license, unless within ten (10) thirty (30) days of receipt from the date of such notice such LPO completes and returns to the Committee an accompanying form of petition, to which supportive affidavit(s) may be attached for extension of time for, or waiver of, compliance with the requirements of APR 12 and these regulations or for a ruling by the Committee of substantial compliance with the requirements.

A. If such petition is not filed, such lack of action shall be deemed acquiescence by the LPO in the finding of non-compliance. The Committee shall report such fact to the Board with the Committee's recommendations for appropriate action. The Board shall take such action as it deems appropriate.

B. If such petition is filed, the Committee may, at its discretion, approve the same without hearing or may enter into an agreement on terms with such LPO as to time and other requirements for achieving compliance with APR 12 and these regulations.

C. If the Committee does not approve such petition or enter into such agreement, the Board will recommend to the Court that the LPO's license be suspended. affected LPO may request a hearing before the Board. At the discretion of the Chair of the Board, the hearing may be held before the entire Board or panel thereof. The Board or panel thereof shall enter written findings of fact and an appropriate order, a copy of which shall be transmitted by certified mail to the LPO affected at the address of such member on file with the Board. Any such order shall be final and, in case of an adverse determination, shall be transmitted to the Supreme Court. The Court may enter an order suspending the LPO from limited practice.

A. An LPO who is suspended from practice for failure to comply with the Continuing Education Requirement must make up the deficiency and fully comply with the provisions of APR 12 and these Regulations before he or she can be reinstated to active or inactive status.

B. Once a suspended LPO has complied with the immediately preceding provisions of this Regulation, the Board shall notify the Supreme Court that the suspended LPO has satisfied the requirements of APR 12 and these Regulations.

An adverse decision of the Board may be appealed by the LPO affected to the Supreme Court in accordance with the applicable provisions of APR 12. As to such appeals, the Board shall be represented by counsel.

New Admission. An LPO shall not be required to comply with the minimum continuing education requirements of APR 12, as implemented by these regulations, during the calendar license year in which the LPO is admitted to practice.

The Committee, subject to the approval of the Board, has continuing authority to make or amend regulations consistent with APR 12 in furtherance of the development of continuing education for LPO's and the regulation thereof.

The files and records of the Committee shall be deemed confidential and shall not be disclosed except in furtherance of the Committee's duties, or upon the request of an affected LPO member, or pursuant to a proper subpoena duces tecum, or as directed by the Supreme Court.