WSR 05-01-038

RULES OF COURT

STATE SUPREME COURT


[ December 6, 2004 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 12 REGULATIONS 9, 10 AND 12, CONTINUING EDUCATION REGULATIONS 102, 111, 112 RENUMBERING NEW 113, 114, 115, 116 AND 117, APR 15 PROCEDURAL RULES 5, 6 AND 7 AND GR 25 REGULATION 6 )

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ORDER

NO. 25700-A-801


The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 12 Regulations 9, 10 and 12, Continuing Education Regulations 102, 111, 112, Renumbering New 113, 114, 115, 116 and 117, APR 15 Procedural Rules 5, 6 and 7 and GR 25 Regulation 6, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that the emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(1), the amendments will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 2nd day of December 2004.
Alexander, C. J.


Johnson, J.


Bridge, J.


Madsen, J.


Chambers, J.


Sanders, J.


Owens, J.


Ireland, J.


Fairhurst, J.




PROPOSED AMENDMENTS


REGULATIONS OF THE APR 12 LIMITED PRACTICE BOARD


REGULATION 1: IN GENERAL [No change.]


REGULATION 2: APPLICATIONS [No change.]


REGULATION 3: APPROVAL OR DENIAL OF APPLICATION [No change.]


REGULATION 4: DENIAL OF APPLICATION -- RIGHT OF APPEAL [No change.]


REGULATION 5: ADMINISTRATION OF EXAMINATION. [No change.]


REGULATION 6: EXAMINATION STANDARDS AND NOTIFICATION OF RESULTS [No change.]


REGULATION 7: REAPPLICATION FOR EXAMINATION [No change.]


REGULATION 8: CERTIFICATION OF RESULTS TO SUPREME COURT; OATH [No change.]


REGULATION 9: ANNUAL FEE

A. Except as set forth in section B of this Regulation, every Limited Practice Officer shall pay an annual fee of $85.00, which is due July 1 of each year. Failure to pay the annual fee shall subject the LPO to suspension from limited practice as a Limited Practice Officer. If the LPO fails to comply with conditions for reinstatement pursuant to Regulation 10 within 9 months of the date of suspension, the license of the suspended LPO will be revoked.

B. The prorated annual fee for LPOs who pass the qualifying examination given in the spring and who request active status prior to July 1 of that same calendar year shall be $40. LPOs shall pay the annual fee set forth in Regulation 10(A) to retain their active status after June 30 of the calendar year of their admission.

C. An LPO shall provide his or her residential address to the Board at the time of payment of the annual fee.


REGULATION 10: REINSTATEMENT AFTER SUSPENSION FOR NONPAYMENT OF ANNUAL FEE. An LPO who is suspended pursuant to Regulation 9(A) shall be reinstated if the LPO has within nine (9) months of the date of suspension:

1. submitted an application for reinstatement in the form prescribed by the Board;

2. the LPO continues continued to meet the qualifications set out in APR 12 and these Regulations; and

3. paid a sum equal to the amount of all delinquent annual fees, not to exceed the equivalency of double the amount of three year's fees, plus the then current year's fees, and any investigation fees as may be determined by the Board.


REGULATION 11: FINANCIAL RESPONSIBILITY [No change.]


REGULATION 12: CONTINUING EDUCATION

Every LPO shall attend a minimum of ten (10) hours of approved continuing education during each calendar year. Two (2) hours of the required ten (10) hours of continuing education shall be on liability issues. If an LPO completes more than ten (10) credit hours in a given calendar year, the excess credit, up to ten credits, may be carried forward and applied to such LPO's education requirements for the next calendar year.

Every LPO shall submit proof of compliance with the continuing education attendance requirements by filing an Affidavit of Attendance as prescribed by the Continuing Education Regulations of the Limited Practice Board. Failure to comply with the continuing education requirements will subject the LPO to suspension of license as a Limited Practice Officer. If the suspended LPO fails to comply with conditions for reinstatement pursuant to Continuing Education Regulations of the Limited Practice Board within nine (9) months of the date of suspension, the license of the suspended LPO will be revoked.


REGULATION 13: INACTIVE STATUS [No change.]


REGULATION 14: VOLUNTARY CERTIFICATION CANCELLATION [No change.]


REGULATION 15: CHANGE IN STATUS [No change.]


REGULATION 16: LPO NAME, SIGNATURE, AND NUMBER REQUIRED ON DISCLOSURE FORM [No change.]


REGULATION 17: RECORDS DISCLOSURE [No change.]


REGULATION 18. NOTICE AND FILING; ADMINISTRATION [No change.]


REGULATION 19. AMENDMENT. [No change.]


PROPOSED AMENDMENTS


CONTINUING EDUCATION REGULATIONS OF THE LIMITED PRACTICE BOARD



REGULATION 101 Definitions [No change.]


REGULATION 102 Continuing Education Requirement

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 year, except as exempted by Regulation 114. Two (2) hours of the required ten (10) hours of continuing education per year must be on liability issues. These classes must be approved by the Board and must be taken annually. If an LPO completes more than ten (10) such credit hours in a given calendar 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 year. Liability credit hours may be carried forward as liability credits or regular 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 year shall subject the Limited Practice Officer to suspension or revocation of license as an LPO.


REGULATION 103 Credits/Computation [No change.]


REGULATION 104 Standards for Approval [No change.]


REGULATION 105 Procedure for Approval of Continuing Education Activities [No change.]


REGULATION 106 Delegation [No change.]


REGULATION 107 Staff Determinations and Review [No change.]


REGULATION 108 Submission of Information--Reporting of Attendance [No change.]


REGULATION 109 Submission of Information--Credit for Teaching or Participating [No change.]


REGULATION 110 Extensions, Waivers, Modifications [No change.]


REGULATION 111 Non-compliance -- Board Procedures

An LPO who has not complied with the educational or reporting requirements of APR 12 and these regulations by April 30 of each year may be removed (or conditionally removed) from the roll of certified LPO's and ordered suspended until in compliance with the regulations.

To effect such removal 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 removal suspension proceedings, and the provisions for revocation of license, unless within ten (10) days of receipt 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 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.


REGULATION 112. Reinstatement of LPOs Suspended from Practice for Failure to Comply with the Continuing Education Requirement

(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 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.


REGULATION 112 113 Appeals to the Supreme Court [No change.]


REGULATION 113 114 Reactivation of Inactive Members [No change.]


REGULATION 114 115 Exemptions [No change.]


REGULATION 115 116 Rulemaking Authority [No change.]


REGULATION 116 117 Confidentiality [No change.]


LAWYERS' FUND FOR CLIENT PROTECTION (APR 15)

PROCEDURAL RULES



RULE 5. ELIGIBLE CLAIMS

A. Eligibility. [No change].

B. Time Limitations. Any application must be made within three years from the date on which discovery of the loss was made or reasonably should have been made by the applicant, and in no event more than three years from the date the lawyer dies, is disbarred, is disciplined for misappropriation of funds, or is criminally convicted for matters relating to the applicant's loss, provided that the Committee or Trustees in their discretion may waive any limitations period for excusable neglect or other good cause.

C. Dishonest Conduct. [No change].

D. Excluded Losses. [No change].

E. Special and Unusual Circumstances. [No change].

F. Unjust Enrichment. [No change].

G. Exhaustion of Remedies. The Committee may consider whether an applicant has made reasonable attempts to seek reimbursement of a loss before taking action on an application. This may include, but is not limited to, the following:

(1) Filing a claim with an appropriate insurance carrier;

(2) Filing a claim on a bond, when appropriate;

(3) Filing a claim with any and all banks which honored a financial instrument with a forged endorsement;

(4) As a prelude to possible suit under part (5) below, demanding payment in from any business associate or employer who may be liable for the actions of the dishonest lawyer; or

(5) Commencing appropriate legal action against the lawyer or against any other party or entity who may be liable for the applicant's loss.


LAWYERS' FUND FOR CLIENT PROTECTION (APR 15)

PROCEDURAL RULES



RULE 6. PROCEDURES

A. Ineligibility. [No change].

B. Investigation and Report. [No change].

C. Notification of Lawyer. [No change].

D. Testimony. [No change].

E. Finding of Dishonest Conduct. [No change].

F. Evidence and Burden of Proof. [No change].

G. Pending Disciplinary Proceedings. [No change].

H. Exhaustion of Remedies. The Committee may direct an applicant to see reimbursement of a loss before making a recommendation to the Trustees on an application. This may include, but is not limited to, the following:

(1) File a claim with the lawyer's insurance carrier;

(2) File a claim on a bond, when appropriate;

(3) File a claim with any and all banks which honored a financial instrument with a forged endorsement;

(4) Request payment in writing from any lawyer who was a partner of the dishonest lawyer at the time of the dishonest conduct; or any lawyer who was a principal of the professional corporation in which the dishonest lawyer was an employee or member; or against the employer of the dishonest lawyer; or

(5) Commence appropriate legal action against the lawyer or against any third party or entity who may be liable for the applicant's loss.

I H. Public Participation. Public participation at Committee meetings shall be permitted only by prior permission granted by the Committee chairperson.

J I. Committee Action.

(1) Actions of the Committee Which Are Final Decisions. A decision by the Committee on an application for payment of $10,000 $25,000 or less -- whether such decision be to make payment, to deny payment, to defer consideration, or for any action other than payment of more than $10,000 $25,000 --shall be final and without right of appeal to the Trustees.

(2) Actions of the Committee Which Are Recommendations to the Trustees. A decision by the Committee (a) on an application for more than $10,000 $25,000, or (b) involving a payment of more than $10,000 $25,000 (regardless of the amount stated in the application), is not final and is a recommendation to the Trustees which shall have sole authority for final decisions in such cases.


LAWYERS' FUND FOR CLIENT PROTECTION (APR 15)

PROCEDURAL RULES



RULE 7. ADJUDICATION BY TRUSTEES

A. A recommendation by the Committee (a) concerning applications for more than $10,000 $25,000, or (b) that payments of more than $10,000 $25,000 be made to applicants regarding any one lawyer, shall be reported to the Trustees which may, in its discretion, adopt, modify, disapprove or take any other appropriate action on the Committee's recommendation.

B. A decision of the Trustees shall be final and there shall be no right of appeal from that decision.


SUGGESTED AMENDMENTS TO PRACTICE OF LAW BOARD REGULATIONS AS APPROVED BY THE PRACTICE OF LAW BOARD.


AMENDMENTS TO REGULATION 6(C), (E), (F), and (H)





PRACTICE OF LAW BOARD

REGULATIONS

(approved by Practice of Law Board 12/13/02; as amended 2/14/03; approved by the Supreme Court 7/22/03)





REGULATION 1. PURPOSE. [No change].


REGULATION 2. PRACTICE OF LAW. [No change].


REGULATION 3. ESTABLISHMENT OF THE BOARD. [No change].


REGULATIONS 4. CONFLICT OF INTEREST. [No change].


REGULATION 5. ADVISORY OPINIONS. [No change].


REGULATION 6. COMPLAINTS.

A. Filing Complaints. Complaints alleging the unauthorized or unlicensed practice of law shall be submitted to the POL Board, in writing, in a form and manner prescribed by the POL Board.

B. Investigation. The POL Board may, on its own initiative and without any complaint being made to it, investigate any condition, situation or activity involving the unauthorized or unlicensed practice of law of which it becomes aware in the same manner as if a complaint had been made under section A above.

C. Initial Review of Complaints. Upon receipt of a complaint, the Board Administrator shall conduct an initial review to determine whether it is within the jurisdiction of the POL Board or may be subject to deferral. If not within the jurisdiction of the POL Board or if it is subject to deferral, the Board administrator shall advise the complainant that the matter will not be opened as a complaint, and the reasons. The complainant may submit additional information. All such items will be placed on the next POL Board agenda for review and any action deemed appropriate by the POL Board. If the complaint is deemed to be within the jurisdiction of the POL Board and not subject to deferral, the administrator shall assign the complaint to a committee of the POL Board consisting of at least two Members (Investigating Committee), designating one of the Members as the chair the complaint will be opened for investigation.

D. Request for Response. If a complaint is opened for investigation, a copy shall be send to the respondent with a request to respond within 20 days, and with notice that if the respondent does not respond, the complaint shall be considered without a response.

E. Report and Written Agreement. The Investigating Committee shall, with the assistance of the Board Administrator or the Board Administrator's designee, review the complaint and response, any additional information and documents, and interview t The complainant and respondent shall be interviewed and undertake such other and further review or investigation may be conducted as is deemed appropriate by the Investigating Committee chair. The Investigating Committee shall exert its best effort to complete the investigation within two weeks (14 calendar days) after assignment and submit a A written report and recommendation will be submitted to the Board, by transmitting it to the Board Administrator and the Members. All Members shall have one week (5 working days) to submit comments respecting the report by transmitting them to the Board Administrator and the Members. If the report recommends dismissal of the complaint and there are no adverse comments from the Members within the comment period, the report of the Investigating Committee and recommendation shall be deemed adopted by the POL Board and the chairperson shall immediately notify the complainant and the respondent, in writing, of the dismissal and the matter shall be closed. If one or more Members disagree with the recommendation of the Investigating Committee for dismissal, the matter shall be placed on the agenda of the next meeting of the POL Board for action by the POL Board. If the report of the Investigating Committee concludes that there has been an unauthorized or unlicensed practice of law, the matter shall be placed on the agenda of the next POL Board meeting for action.

F. POL Board Review. If upon POL Board review of a matter investigated on its own initiative or upon review required in either of the ways described in section D above report and recommendation, the POL Board concludes that there has been no unauthorized or unlicensed practice of law, the complaint shall be dismissed and the chairperson shall so notify the complainant and the respondent, in writing, and shall close the file. If the POL Board concludes that there has been unauthorized or unlicensed practice of law, the POL Board shall proceed in the following manner:

(1) The POL Board shall attempt through the Chairperson or his or her designee to persuade the respondent to enter into a written agreement to refrain from the objectionable conduct in the future. Such written agreement shall be prepared by the Chairperson or his or her designee and may include a stipulation as to penalties in the event of continued unauthorized or unlicensed practice of law which is the subject matter of the agreement or violation of other terms of the agreement.

(2) If the respondent will not enter into a written agreement as set forth in (1) above, the POL Board may attempt to arrive at any other satisfactory disposition as determined by the POL Board. In attempting to arrive at a satisfactory disposition, the POL Board may, at a regular or special POL Board meeting, or by a designated committee, conduct an informal conference with the respondent, which conference may, in the discretion of the chairperson or designated committee chair, be recorded electronically or reported by a certified court reporter. At such informal conference, the respondent may be represented by counsel, but the informal conference shall not be public, nor shall rules of evidence apply. If the informal conference was held by a designated committee, the chair shall render a report, in writing, to the POL Board at the next POL Board meeting for action. If the POL Board determines that the respondent has engaged in the unauthorized or unlicensed practice of law, the POL Board shall endeavor to have the respondent enter into a written agreement to refrain from the objectionable conduct in the future, in the same manner as provided in (1) above. If, however, the respondent declines to enter into a written agreement, the POL Board may refer the matter to the appropriate law enforcement or other agency in accordance with GR 25(h).

G. Pending Controversy. Notwithstanding the foregoing, the POL Board may defer an investigation in any matter that, to its knowledge, is the subject of or might affect a case or controversy pending in any court or administrative [attorney disciplinary] proceeding.

H. Notice of Board Action.

(1) Notice to Parties. The chairperson shall provide notice to any complainant who has not been previously notified of dismissal and each respondent, other than a respondent who has entered into a written agreement, of POL Board action with respect to the complaint or self-initiated investigation within ten days of POL Board action. All such notices of POL Board action shall inform the recipients of the right to petition for review by the Supreme Court as prescribed in GR 25(g). Such notice shall also be published, in the discretion of the POL Board, in the Washington State Bar News or posted on the WSBA website.

(2) Publication of Notice: The POL Board may, in its discretion, publish notice of Board action on a complaint alleging the unauthorized practice of law in the Washington State Bar News, on the WSBA website, or elsewhere as it deems appropriate. The Board Administrator has discretion in drafting notices for publication, and they should include sufficient information to adequately inform the public of the reasons for the Board's action and conclusions.


REGULATION 7. PETITIONS FOR REVIEW. [No change].


REGULATION 8. RECOMMENDATIONS TO THE SUPREME COURT. [No change].

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

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