IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 1, 2, 3, 7, 20, 20.1, 20.2, 20.3, 20.4, 20.5, 21, 22, 23, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 25, 25.1, 25.2, 25.3, 25.4, 25.5 AND 25.6; RAP 1.1, 2.2, 5.2, 8.1, 9.6, 10.2, 10.3, 10.4, 10.5, 11.4, 12.3, 13.4, New RAP 13.5A, 13.7, 16.7, 16.9, 16.14, 16.16, 16.18, 17.4, 17.5, 18.1, 18.5, 18.6, 18.7, 18.13, 18.15, RAP FORMS 4, 6, 7, 12, 14, 17 AND NEW FORM 24; RALJ 4.1; NEW GR 3.1; CR 43 AND 66 AND CRLJ 43; AND ER (DELETION OF ALL COMMENTS TO THE ERS) INTRODUCTORY COMMENT, COMMENT 101, 102, 103, 104, 105, 106, 201, 301, 302, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 501, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 701, 702, 703, 704, 705, 706, 801, 802, 803, 804, 805, 806, 807, 901, 902, 903, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008 AND 1101

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ORDER NO. 25700-A-856

     The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 1, 2, 3, 7, 20, 20.1, 20.2, 20.3, 20.4, 20.5, 21, 22, 23, 24, 24.1, 24.2, 24.3, 24.4, 24.5, 25, 25.1, 25.2, 25.3, 25.4, 25.5 and 25.6, RAP 1.1, 2.2, 5.2, 8.1, 9.6, 10.2, 10.3, 10.4, 10.5, 11.4, 12.3, 13.4, New RAP 13.5A, 13.7, 16.7, 16.9, 16.14, 16.16, 16.18, 17.4, 17.5, 18.1, 18.5, 18.6, 18.7, 18.13, 18.15, RAP Forms 4, 6, 7, 12, 14, 17 and New Form 24; RALJ 4.1; New GR 3.1; CR 43 and 66 and CRLJ 43; and ER (deletion of all comments to the ERs) Introductory Comment, Comment 101, 102, 103, 104, 105, 106, 201, 301, 302, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 501, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 701, 702, 703, 704, 705, 706, 801, 802, 803, 804, 805, 806, 807, 901, 902, 903, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008 and 1101, and the Court having considered the amendments, new rules and comments submitted thereto, and having determined that the proposed amendments and new rules will aid in the prompt and orderly administration of justice;

     Now, therefore, it is hereby

     ORDERED:

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

     (b) That the amendments and new rules will be published in the Washington Reports and will become effective September 1, 2006.

     DATED at Olympia, Washington this 10th day of July, 2006.

	Alexander, C. J.
C. Johnson, J.	Chambers, J.
Madsen, J.	Owens, J.
Sanders, J.	Fairhurst, J.
Bridge, J.	Johnson, J.

     (b) Prerequisites to the Practice of Law. [No change].

     (c) Immunity. The Washington State Bar Association, its officers and agents (including but not limited to its staff, members of the Board of Governors, the Committee of Bar Examiners, the Character and Fitness Committee Board, the Law Clerk Committee, or any other individual acting under authority of these rules) are immune from all liability for conduct and communications occurring in the performance of their official duties relating to the examination, character and fitness qualifications, admission, and licensing of persons seeking to be admitted to the practice of law or for a limited license to practice law, provided only that the Bar Association, officer, or agent shall have acted in good faith. The burden of proving bad faith in this context shall be upon the person asserting it. The Bar Association shall provide defense to any action brought against an officer or agent of the Bar Association for actions taken in good faith under these rules and shall bear the costs of that defense and shall indemnify the officer or agent against any judgment taken therein. Communications to the Association, the Board of Governors, the Committee of Bar Examiners, the Character and Fitness Committee Board, the Law Clerk Committee, or any other individual acting under authority of these rules, are absolutely privileged, and no lawsuit may be predicated thereon.

     (1) Appoint a Committee of Bar Examiners (referred to in these rules as the Committee) from among the active members of the Bar Association for the purposes of assisting the Board of Governors in conducting the bar examination;

     (2) Appoint a Law Clerk Committee from among the active members of the Bar Association for the purposes of assisting the Board of Governors in supervising the Law Clerk Program;

     (3) Appoint a Character and Fitness Board pursuant to rule 20

     (3 4) Approve or deny applications for permission to take the bar examination, to enroll in the law clerk program, or to engage in the limited practice of law under pertinent provisions of rules 8 and 9;

     (4 5) Investigate all aspects of an applicants qualifications to take the bar examination, to be admitted to the practice of law, to engage in the limited practice of law under pertinent provisions of rules 8 and 9, or to enroll in the law clerk program;

     (5 6) Recommend to the Supreme Court the admission or rejection of each applicant who has passed the bar examination or who is applying to engage in the limited practice of law under pertinent provisions of rules 8 and 9;

     (6 7) Approve law schools for the purposes of these rules and maintain a list of such approved law schools on file with the Clerk of the Supreme Court;

     (7 8) Prescribe, with the approval of the Supreme Court, the amount of any fees required by these rules;

     (8 9) Prescribe the form and content of any application, certificate, or other document referred to in these rules; and

     (9 10) Perform any other functions and take any other actions provided for in these rules, or as may be delegated by the Supreme Court, or as may be necessary and proper to carry out its duties.

     (b) Written Request. [No change].

     (a) Prerequisite for Admission. [No change].

     (b) Qualification for Bar Examination. [No change].

     (c) Exceptions. The Board of Governors may, in its discretion, withhold permission for an otherwise qualified person to sit for the bar examination, until completion of an inquiry into the applicants character and fitness, if the applicant (i) has ever been convicted of a "serious crime" as defined in ELC 7.1(a)(2), or (ii) has ever been disbarred or is presently suspended from the practice of law for disciplinary reasons in any jurisdiction, or (iii) has previously been denied admission to the Bar in this or any other jurisdiction for reasons other than failure to pass a bar examination. The Board of Governors may also withhold permission to sit for the bar examination where for any other reason there are serious and substantial questions regarding the present moral character or fitness of the applicant. The Board of Governors may refer such matters to the Character and Fitness Committee Board for investigation and hearing pursuant to rule 7 these rules.

     (d) Forms; Fees; Filing. [No change].

     (e) Disclosure of Records. [No change].

     (3) Require an applicant, upon reasonable notice, to appear before the Board of Governors or any existing or special committee of the Bar Association for an examination regarding any matter deemed by the Board of Governors to be relevant to a proper consideration of the application.

     (b) Duty of Applicant. It shall be the duty of every applicant to cooperate with any investigation required by the Board of Governors, by promptly furnishing written or oral explanations, documents, releases, authorizations, or anything else reasonably required by the investigator. Failure to appear as directed or to furnish additional proof or answers as required or to cooperate fully shall be sufficient reason for the Board of Governors to reject or to recommend the rejection of an application.

     (c) Subpoenas: The chairperson of the Character and Fitness Board or Bar Counsel may issue subpoenas to compel attendance of an applicant or witness, or the production of books, documents, or other evidence, at a deposition or hearing. Subpoenas shall be served in the same manner as in civil cases in the superior court.

     (1) (a) Composition. The Committee Board shall consist of not less than three nonlawyer members, appointed by the Supreme Court, and not less than one lawyer member from each congressional district, appointed by the Board of Governors.

     (2) (b) Qualifications. Lawyer members must have been active members of the Bar Association for at least 7 years.

     (3) Quorum. A majority of the Committee members shall constitute a quorum. Given a quorum, the concurrence of a majority of those present shall constitute action of the Committee.

     (4) Disqualification. In the event a grievance is made to the Bar Association alleging an act of misconduct by a lawyer member of the committee, such member shall take a leave of absence from the Committee until the matter is resolved, unless otherwise directed by the Board of Governors.

     (5) Voting. Each member, whether non-lawyer or lawyer, shall have one vote.

     (b) Terms of Office. The term of office for a member of the Committee shall be 3 years. Newly created Committee positions may be filled by appointments of less than 3 years, as designated by the Supreme Court or the Board of Governors, to permit as equal a number of positions as possible to be filled each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later. Members may not serve more than one term except as otherwise provided in these rules. Members heretofore appointed shall continue to serve until replaced.

     (c) Committee Board Chair. The Board of Governors shall annually designate one lawyer member of the Committee Board to act as chair and another as vice-chair. The vice-chair shall serve in the absence of or at the request of the Committee Board chair.

     (d) Vacancies. Vacancies in lawyer membership on the Committee Board and in the office of the Committee Board chair and the vice-chair shall be filled by the Board of Governors. Vacancies in nonlawyer membership shall be filled by the Supreme Court. A person appointed to fill a vacancy shall complete the unexpired term of the person he or she replaces, and if that unexpired term is less than 24 months he or she may be reappointed to a consecutive term.

     (e) Pro Tempore Members. When a member of the Committee is disqualified or unable to function on a case for good cause, the chair of the Committee may, by written order, designate a member pro tempore to sit with the Committee to hear and determine the cause. A member pro tempore may be appointed from among those persons who have previously served as members of the Character and Fitness Committee, or from among lawyers appointed as alternate Board members by the Board of Governors and non-lawyers appointed as alternate Committee members by the Supreme Court. A lawyer shall be appointed to substitute for a lawyer member of the Committee, and a non-lawyer to substitute for a non-lawyer member of the Board.

     (e) Quorum. A majority of the Board members shall constitute a quorum. Given a quorum, the concurrence of a majority of those present shall constitute action of the Board. In the event a quorum is not present, the Applicant or Petitioner may waive the requirement of a quorum.

     (f) Disqualification. In the event a grievance is made to the Bar Association alleging an act of misconduct by a lawyer member of the Board the procedures specified in ELC 2.3(b)(5) shall apply.

     (g) Pro Tempore Members. When a member of the Board is disqualified or unable to function on a case for good cause, the chair of the Board may, by written order, designate a member pro tempore to sit with the Board to hear and determine the cause. A member pro tempore may be appointed from among those persons who have previously served as members of the Character and Fitness Board (or its predecessor Character and Fitness Committee), or from among lawyers appointed as alternate Board members by the Board of Governors and nonlawyers appointed as alternate Board members by the Supreme Court. A lawyer shall be appointed to substitute for a lawyer member of the Board, and a nonlawyer to substitute for a nonlawyer member of the Board.

     (h) Voting. Each member, whether nonlawyer or lawyer, shall have one vote.

     (i) Terms of Office. The term of office for a member of the Board shall be 3 years. Newly created Board positions may be filled by appointments of less than 3 years, as designated by the Supreme Court or the Board of Governors, to permit as equal a number of positions as possible to be filled each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later. Members may not serve more than one term except as otherwise provided in these rules. Members shall continue to serve until replaced.

     (j) Application of Rules. These rules and any subsequent amendments will apply in their entirety, on the effective date as ordered by the Supreme Court, to any pending matter, except as would not be feasible or would work an injustice. The Chair may rule on the appropriate procedure with a view to insuring a fair and orderly proceeding.

     (1) (a) Accept referrals from the Executive Director of the Bar Association Bar Counsel by concerning itself with matters of character and fitness bearing upon the qualification of aApplicants for Admission or Petitioners for rReinstatement.

     (2) (b) Review each Application for Admission or Petition for Reinstatement to practice law in the state of Washington.

     (3) (c) Investigate matters relevant to the admission or reinstatement of any aApplicant or Petitioner and conduct hearings concerning such matters.

     (4) The committee's recommendation to grant the application shall be forwarded to the Supreme Court. The Committee's recommendation to deny the application may be forwarded to the Disciplinary Board for review upon request of the applicant. All recommendations shall contain findings of fact, conclusions of law, and rationale for the recommendation.

     (5) (d) Perform such other functions and take such other actions as provided in these rules or as may be delegated to it by the Board of Governors or Supreme Court, or as may be necessary and proper to carry out its duties.

     (b) Testimony and Evidence: If it appears that the Applicant or Petitioner has engaged in conduct that was or may have been caused in whole or in part by a mental impairment or drug or alcohol dependency or abuse, the Applicant or Petitioner may present testimony or evidence from a licensed or certified mental health professional (hereafter "examining professional").

     (c) Independent Fitness Examination: If after reviewing such testimony or evidence the Board finds that further examination is necessary, the Board by majority vote may require an examination of the Applicant or Petitioner by an examining professional approved by the Lawyers' Assistance Program of the Washington State Bar Association.

     (d) Failure to Comply: The failure of an Applicant or a Petitioner to agree or submit to a required independent fitness examination shall result in the Applicant's or Petitioner's application or petition being denied.

     (e) Costs: The cost of any examination required by the Board shall be borne by the Bar Association.

     (f) Report: The examining professional shall issue a written report of his or her findings which report shall be provided to the Applicant or Petitioner and his or her counsel, Bar Counsel and the Character and Fitness Board.

     (g) Confidentiality: Any report and testimony of an examining professional may be admitted into evidence at a hearing on, or review of, the Applicant's or Petitioner's fitness and transmitted with the record on review by the Disciplinary Board or the Supreme Court. Reports and testimony regarding the Applicant's or Petitioner's fitness shall otherwise be kept confidential in all respects and neither the report nor the testimony of the examining professional shall be discoverable or admissible in any other proceeding or action.

     (b) Admissions Staff Review - Standard. All applications which reflect one or more of the factors set forth in rule 24.2(a) shall be referred to Bar Counsel for review.

     (c) Review By Bar Counsel - Standard. Upon receiving a referral from the admissions staff, Bar Counsel may conduct such further investigation as he or she deems necessary and thereafter, applying the factors and considerations set forth in rule 24.2, and upon reviewing the material evidence in the light most favorable to the Bar Association's obligation to recommend the admission to the practice of law only those persons who possess good moral character and fitness, Bar Counsel shall refer to the Character and Fitness Board for hearing any Applicant about whom there is a substantial question whether the Applicant possesses the requisite good moral character and fitness to practice law.

     (1) unlawful conduct.

     (2) academic misconduct.

     (3) making of false statements or omitting material information in connection with an application to sit for a bar examination.

     (4) misconduct in employment.

     (5) acts involving dishonesty, making false statements, fraud, deceit or misrepresentation.

     (6) abuse of legal process.

     (7) neglect of financial responsibilities.

     (8) disregard of professional obligations.

     (9) violation of a court order.

     (10) evidence of a current substantial mental impairment, including without limitation, drug or alcohol dependency or abuse.

     (11) denial of admission to the bar in another jurisdiction on character and fitness grounds.

     (12) disciplinary action by any professional disciplinary agency of any jurisdiction.

     (13) any other conduct or condition which reflects adversely on moral character or fitness of the Applicant to practice law.

     (b) Factors Considered by the Character and Fitness Board When Determining Good Moral Character. When determining whether past conduct disqualifies the Applicant from taking the Washington Bar Examination, or for admission to the Bar, the Character and Fitness Board shall consider those factors specified in rule 24.2(a) and the following factors in mitigation or aggravation:

     (1) Applicant's age at the time of the conduct.

     (2) Recency of the conduct.

     (3) Reliability of the information concerning the conduct.

     (4) Seriousness of the conduct.

     (5) Factors or circumstances underlying the conduct.

     (6) Cumulative nature of the conduct.

     (7) Candor in the admissions process and before the Board.

     (8) Materiality of any omissions or misrepresentations.

     (9) Evidence of rehabilitation, which may include but is not limited to the following:

     (i) absence of recent misconduct.

     (ii) compliance with any disciplinary, judicial or administrative order arising out of the misconduct.

     (iii) sufficiency of punishment.

     (iv) restitution of funds or property, where applicable.

     (v) Applicant's attitude toward the misconduct, including without limitation acceptance of responsibility and remorse.

     (vi) personal assurances, supported by corroborating evidence, of a desire and intent to engage in exemplary conduct in the future;

     (vii) constructive activities and accomplishments since the conduct in question.

     (viii) the Applicant's understanding and acceptance of the factors leading to the misconduct and how similar misconduct may be avoided in the future.

     (c) Factors Considered by the Character and Fitness Board in Fitness Cases Involving Drug or Alcohol Dependence or Abuse. When determining whether an Applicant is unfit to practice law due to drug or alcohol dependence or abuse, the Character and Fitness Board shall consider the following factors, no single one of which is determinative:

     (1) Whether the Applicant is currently using drugs or alcohol.

     (2) Whether the Applicant's drug or alcohol dependence or abuse is likely to cause or contribute to any of the conduct specified in rule 24.2(a).

     (3) The nature, extent and duration of the Applicant's drug or alcohol dependence or abuse, and the Applicant's candor in the admissions process and before the Board when describing the problem.

     (4) Whether the Applicant has been or is now in treatment and, if so:

     (i) The nature and duration of the treatment.

     (ii) Whether treatment was or is voluntary or involuntary.

     (iii) Consistency of participation in or compliance with treatment.

     (iv) Whether the treatment was effective.

     (5) Whether the Applicant has undergone a drug or alcohol evaluation by a certified chemical dependency counselor or other professional with credentials acceptable to the Board and, if so, whether the substance of such person's opinion the findings have been made available to the Committee.

     (6) The length of time the Applicant has been in recovery. In cases where the period of recovery is less than two years, the Applicant must demonstrate through appropriate expert opinion that there has been an adequate period of recovery.

     (d) Factors Considered by the Character and Fitness Board in Fitness Cases Involving a Mental Impairment. When determining whether an Applicant is unfit to practice law due to a mental impairment, the Character and Fitness Board shall consider the following factors, no single one of which is determinative:

     (1) Whether there is a current mental impairment.

     (2) Whether the Applicant's mental impairment is likely to cause or contribute to any of the conduct specified in rule 24.2(a).

     (3) The nature, extent and duration of the Applicant's mental impairment, and the Applicant's candor in the admissions process and before the Board when describing the impairment.

     (4) Whether the Applicant's mental impairment is chronic or situational in nature.

     (5) Whether the applicant has received or is receiving professional mental health treatment appropriate for the impairment, and if so:

     (i) Whether the Applicant's impairment has been in remission for at least two years as verified by an appropriate mental health professional and, if not, whether the Applicant has demonstrated through appropriate expert opinion that the period of remission has been adequate.

     (ii) Whether a mental health professional has identified any conditions, including without limitation further treatment, that must be complied with to continue the Applicant's state of remission and, if so, whether the Applicant is in compliance with those conditions.

     (e) Factors Not Considered by the Character and Fitness Board. The following factors shall not be considered as evidence of an Applicant's character or fitness:

     (1) Racial or ethnic identity.

     (2) Sex.

     (3) Sexual orientation.

     (4) Marital status.

     (5) Religious or spiritual beliefs or affiliation.

     (6) Political beliefs or affiliation.

     (7) Physical disability.

     (8) National origin.

     (9) Age.

     (10) Learning disabilities.

     (b) Right to Counsel. An Applicant may be represented by counsel.

     (c) Burden of Proof. An Applicant must establish by clear and convincing evidence that he or she is of good moral character and possesses the requisite fitness to practice law.

     (d) Proceedings Not Civil or Criminal. Hearings before the Character and Fitness Board are not civil nor criminal but are sui generis hearings to determine whether an Applicant possesses good moral character and fitness to be admitted to practice law.

     (e) Rules of Evidence.

     (1) Evidentiary rulings shall be made by the Board chairperson. A majority of Board members present may by vote overrule a ruling by the chairperson.

     (2) Consistent with section (d) of this rule, evidence, including hearsay evidence, is admissible if in the chairperson's judgment it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The chairperson may exclude evidence that is irrelevant, immaterial, or unduly repetitious.

     (3) Witnesses shall testify under oath; all testimony shall be transcribed by a certified court reporter.

     (4) Expert witnesses shall appear and testify in person before the Board, unless in the discretion of the Board their appearance before the Board is waived.

     (5) Generally, all documentary evidence submitted to the Board for consideration must be delivered to Bar Counsel not less than 14 days prior to the hearing. Bar Counsel will provide copies of all documentary evidence, and any hearing briefs, memoranda, or other documentary material, to the Board members and to the Applicant prior to the hearing date.

     (6) The Board may take notice of any judicially cognizable facts, or technical or scientific facts within a Board member's specialized knowledge.

     (7) Questioning of the Applicant and the Applicant's witnesses shall be conducted by Bar Counsel or his or her designee and by two members of the Board designated by the chair.

     (f) Confidentiality: All hearings and documents before the Character and Fitness Board on applications for admission to the bar are confidential.

     (b) Action on Board Recommendation. The recommendation of the Character and Fitness Board shall be served upon the Applicant pursuant to rule 20.5. If the Board recommends admission, the record, recommendation and all exhibits shall be transmitted to the Supreme Court for disposition. If the Board recommends against admission, the record and recommendation shall be retained in the office of the Bar Association unless the Applicant requests that it be submitted to the Supreme Court by filing a Notice of Appeal with the Board within 15 days of service of the recommendation of the Character and Fitness Board. If the Applicant so requests, the Board will transmit the record, including the transcript, exhibits, and recommendation to the Supreme Court for review and disposition. If the Applicant does not so request, the bar examination fee shall be refunded to the Applicant.

     (b) Application Denied. If the application is denied, the bar examination fee shall be refunded to the Applicant.

     (a) (b) When Petition May Be Filed. No petition for reinstatement shall be filed within a period of 5 years after disbarment or within a period of 2 years after an adverse decision of the Supreme Court upon a former petition, or within a period of 1 year after an adverse recommendation of the Character and Fitness Committee of the Washington State Bar Association Board on a former petition when that recommendation is not submitted to the Supreme Court. If prior to disbarment the lawyer was suspended from the practice of law pursuant to the provisions of Title 7 of the Rules for Enforcement of Lawyer Conduct, or any comparable rule, the period of such suspension shall be credited toward the 5 years referred to above.

     (b) (c) When Reinstatement May Occur. No disbarred lawyer may be reinstated sooner than 6 years following disbarment. If prior to disbarment the lawyer was suspended from the practice of law pursuant to the provisions of Title 7 of the Rules for Enforcement of Lawyer Conduct, or any comparable rule, the period of such suspension shall be credited toward the 6 years referred to above.

     (c) (d) Payment of Obligations. No disbarred lawyer may file a petition for reinstatement until costs and expenses assessed pursuant to these rules, and restitution ordered as provided herein, by the Disciplinary Board or the Supreme Court have been paid and until amounts paid out of any program maintained by the Bar Association to indemnify clients against the Lawyers' Fund for Client Protection for losses caused by the conduct of the Petitioner have been repaid to the Bar Association client protection fund, or until periodic payment plans for costs and expenses, restitution and repayment to the indemnity program client protection fund have been entered into by agreement between the respondent lawyer Petitioner and disciplinary counsel. A respondent lawyer Petitioner may seek review by the Chair of the Disciplinary Board of an adverse determination by disciplinary counsel regarding the reasonableness of any such proposed periodic payment plan. Such review will proceed as directed by the Chair of the Disciplinary Board and the decision of the Chair of the Disciplinary Board is final unless the Chair of the Disciplinary Board determines that the matter should be reviewed by the Disciplinary Board, in which case the Disciplinary Board review will proceed as directed by the Chair and the decision of the Board will be final.

     (b) Investigations. The Character and Fitness Committee may in its discretion refer the petition for reinstatement for investigation and report to the Character and Fitness Committee by disciplinary counsel, adjunct investigative counsel, or by such other person or persons as may be determined by the Character and Fitness Committee. The petition for reinstatement shall be referred to the Character and Fitness Board.

     (c) Duty to Cooperate. It shall be the duty of every Petitioner to cooperate in good faith with any investigation by promptly furnishing written or oral explanations, documents, releases, authorizations, or anything else reasonably required by the Board or Bar Counsel. Failure to appear as directed or to furnish additional proof or answers as required or to cooperate fully shall be sufficient reason for the Committee to recommend the rejection of a petition.

     (c) (d) Proceedings Public. A petition for reinstatement after disbarment shall be a public proceeding from the time the petition is filed.

     (e) Protective Orders. To protect a compelling interest, a Petitioner may, on a showing of good cause, move for a protective order prohibiting the disclosure or release of specific information, documents, or pleadings, and directing that the proceedings be conducted so as to implement the order.

     (b) Statement in Support or Opposition. On or prior to the date of hearing, anyone wishing to do so may file with the Character and Fitness Committee Board a written statement for or against the petition, such statements to set forth factual matters showing that the Petitioner does or does not meet the requirements of rule 21.5(a) for reinstatement as set forth in these rules.

     (c) Hearings. Hearings shall be conducted pursuant to rule 24.3.

     (b) Factors Considered by the Character and Fitness Board. In reaching the decision of whether the Petitioner has been rehabilitated, the Board shall consider the factors set forth in Rule 24.2 (b), (c) and (d), where applicable, and the following factors:

     (i) The Petitioner's character, standing, and professional reputation in the community in which the Petitioner resided and practiced prior to disbarment.

     (ii) The ethical standards which the Petitioner observed in the practice of law.

     (iii) The nature and character of the conduct for which the Petitioner was disbarred.

     (iv) The sufficiency of the punishment undergone in connection therewith, and the making or failure to make restitution where required.

     (v) The Petitioner's attitude, conduct, and reformation subsequent to disbarment.

     (vi) The time that has elapsed since disbarment.

     (vii) The Petitioner's current proficiency in the law; and

     (viii) The sincerity, frankness, and truthfulness of the Petitioner in presenting and discussing the factors relating to the Petitioner's disbarment and reinstatement.

     (c) Factors Not Considered by the Character and Fitness Board. The following factors shall not be considered as evidence of a Petitioner's character or fitness:

     (1) Racial or ethnic identity.

     (2) Sex.

     (3) Sexual orientation.

     (4) Marital status.

     (5) Religious or spiritual beliefs or affiliation.

     (6) Political beliefs or affiliation.

     (7) Physical disability.

     (8) National origin.

     (9) Learning disabilities.

     (b) (d) Action on Committee Board Recommendation. The recommendation of the Character and Fitness Committee Board shall be served upon the Petitioner pursuant to rule 20.5. If the Committee Board recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Committee Board recommends against reinstatement, the record and recommendation shall be retained in the office of the Bar Association unless the Petitioner requests that it be submitted to the Disciplinary Board by filing with the Clerk of the Disciplinary Board a request for Disciplinary Board review within 15 days of service of the recommendation of the Character and Fitness Committee Board. If the Petitioner so requests, the record and recommendation shall be transmitted to the Disciplinary Board for disposition and the review will be conducted under the procedure of rules 11.9 and 11.12 of the Rules for Enforcement of Lawyer Conduct. If the Petitioner does not so request, the bar examination fee shall be refunded to the Petitioner, but the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Character and Fitness Committee Board.

     (c) (e) Action on Disciplinary Board Recommendation. The recommendation of the Disciplinary Board shall be served upon the Petitioner. If the Disciplinary Board recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Disciplinary Board recommends against reinstatement, the record and recommendation shall be retained in the office of the Bar Association unless the Petitioner requests that it be submitted to the Supreme Court by filing with the Clerk of the Disciplinary Board a request for Supreme Court review within 30 days of service of the recommendation. If the Petitioner so requests, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Petitioner does not so request, the bar examination fee shall be refunded to the Petitioner, but the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Disciplinary Board under the procedure of rule 13.9 of the Rules for Enforcement of Lawyer Conduct.

     (b) Petition Denied. If the petition for reinstatement is denied, the bar examination fee shall be refunded to the Petitioner, but the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding.

     (i) General Orders. The Court of Appeals, pursuant to RCW 2.06.040, may establish rules that are supplementary to and do not conflict with rules of the Supreme Court. These supplementary rules will be called General Orders. The General Orders for each division of the Court of Appeals can be obtained from the division's clerk's office or found at www.courts.wa.gov.

     (1) - (2) [Unchanged.]

     (3) Decision Determining Action. Any written decision affecting a substantial right in a civil case which that in effect determines the action and prevents a final judgment or discontinues the action.

     (4) - (5) [Unchanged.]

     (6) Deprivation Termination of All Parental Rights. A decision depriving a person of all terminating all of a person's parental rights with respect to a child.

     (7) - (12) [Unchanged.]

     (13) Final Order After Judgment. Any final order made after judgment which that affects a substantial right.

     (b) Appeal by State or a Local Government in Criminal Case. Except as provided in section (c), the State or a local government may appeal in a criminal case only from the following superior court decisions and only if the appeal will not place the defendant in double jeopardy:

     (1) Final Decision, Except Not Guilty. A decision which that in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty, including but not limited to a decision setting aside, quashing, or dismissing an indictment or information.

     (2) - (4) [Unchanged.]

     (5) Disposition in Juvenile Offense Proceeding. A disposition in a juvenile offense proceeding which that is below the standard range of disposition for the offense or which that the state or local government believes involves a miscalculation of the standard range.

     (6) Sentence in Criminal Case. A sentence in a criminal case which that is outside the standard range for the offense or which that the state or local government believes involves a miscalculation of the standard range.

     (c) [Unchanged.]

     (d) Multiple Parties or Multiple Claims or Counts. In any case with multiple parties or multiple claims for relief, or in a criminal case with multiple counts, an appeal may be taken from a final judgment which that does not dispose of all the claims or counts as to all the parties, but only after an express direction by the trial court for entry of judgment and an express determination in the judgment, supported by written findings, that there is no just reason for delay. The findings may be made at the time of entry of judgment or thereafter on the court's own motion or on motion of any party. The time for filing notice of appeal begins to run from the entry of the required findings. In the absence of the required findings, determination and direction, a judgment that adjudicates less than all the claims or counts, or adjudicates the rights and liabilities of less than all the parties, is subject only to discretionary review until the entry of a final judgment adjudicating all the claims, counts, rights, and liabilities of all the parties.

     (e) Effect of Certain Motions Decided After Entry of Appealable Order. A notice of appeal of orders deciding certain timely motions designated in this section must be filed in the trial court within (1) 30 days after the entry of the order, or (2) if a statute provides that a notice of appeal, a petition for extraordinary writ, or a notice for discretionary review must be filed within a time period other than 30 days after entry of the decision to which the motion is directed, the number of days after the entry of the order deciding the motion established by the statute for initiating review. The motions to which this rule applies are a motion for arrest judgment under CrR 7.4, a motion for new trial under CrR 7.65, a motion for judgment as a matter of law under CR 50(b), a motion to amend findings under CR 52(b), a motion for reconsideration or new trial under CR 59, and a motion for amendment of judgment under CR 59.

     (f) - (g) [Unchanged.]

     (b) Right to Stay Enforcement of Trial Court Decision. A trial court decision may be enforced pending appeal or review unless stayed pursuant to the provisions of this rule. Any party to a review proceeding has the right to stay enforcement of a money judgment, or a decision affecting real, personal or intellectual property, pending review. Stay of a decision in other civil cases is a matter of discretion.

     (1) Money Judgment. Except when prohibited by statute, a party may stay enforcement of a money judgment by filing in the trial court a supersedeas bond or cash, or by alternate security approved by the trial court pursuant to subsection (b)(4), below.

     (2) Decision Affecting Property. Except where prohibited by statute, a party may obtain a stay of enforcement of a decision affecting rights to possession, ownership or use of real property, or of tangible personal property, or of intangible personal property, by filing in the trial court a supersedeas bond or cash, or by alternate security approved by the trial court pursuant to subsection (b)(4), below. If the decision affects the rights to possession, ownership or use of a trademark, trade secret, patent, or other intellectual property, a party may obtain a stay in the trial court only if it is reasonably possible to quantify the loss which that would be incurred by the prevailing party in the trial court as a result of the party's inability to enforce the decision during review.

     (3) [Unchanged.]

     (4) Alternate Security. Upon motion of a party, or stipulation, the trial court or appellate court may authorize a party to post security other than a bond or cash, may authorize the establishment of an account consisting of cash or other assets held by a party, its counsel, or a non-party, or may authorize any other reasonable means of securing enforcement of a judgment. The effect of doing so is equivalent to the filing of a supersedeas bond or cash with the Superior Court.

     (c) [Unchanged.]

     (d) Form of Cash Supersedeas; Effect of Filing Bond or Other Security.

     (1) A party superseding a judgment with cash deposited with the Superior Court should deposit the supersedes amount with the Superior Court Clerk, accompanied by a Notice of Cash Supersedeas. The Notice may direct the clerk to invest the funds, subject to the clerk's investment fee, as provided in RCW 36.48.090.

     (2) Upon the filing of a supersedeas bond, cash or alternate security approved by the trial court pursuant to subsection (b)(4) above, enforcement of a trial court decision against a party furnishing the bond, cash or alternate security is stayed. Unless otherwise ordered by the trial court or appellate court, upon the filing of a supersedeas bond, cash or alternate security any execution proceedings against a party furnishing the bond, cash or alternate security shall be of no further effect.

     (e) - (h) [Unchanged.]

     (b) Designation and Contents.

     (1) The clerk's papers shall include, at a minimum:

     (A) the notice of appeal;

     (B) the indictment, information, or complaint in a criminal case;

     (C) any written order or ruling not attached to the notice of appeal, of which a party seeks review;

     (D) the final pretrial order, or the final complaint and answer or other pleadings setting out the issues to be tried if the final pretrial order does not set out those issues;

     (E) any written opinion, findings of fact or conclusions of law; and

     (F) any jury instruction given or refused which that presents an issue on appeal.; and

     (G) any order sealing documents if sealed documents have been designated.

     (2) Each designation or supplement shall specify the full title of the pleading, the date filed, and, in counties where subnumbers are used, the clerk's subnumber.

     (3) Each designation of exhibits shall include the trial court clerk's list of exhibits and shall specify the exhibit number and the description of the exhibit to be transmitted.

     (c) [Unchanged.]

     (c) Brief of Respondent in Criminal Case. The brief of respondent in a criminal case should be filed with the appellate court within 60 days after service of the brief of appellant or petitioner. If a pro se supplemental brief is filed the state shall, within 30 days after receiving service, file a supplemental response addressing any of the issues raised in the pro se supplemental brief or stating that no response is necessary.

     (d) - (e) [Unchanged.]

     (f) Brief of Amicus Curiae. A brief of amicus curiae not requested by the appellate court should be received by the appellate court and counsel of record for the parties and any other amicus curiae not later than 30 days before oral argument in the appellate court or consideration on the merits, unless the court sets a later date or allows a later date upon a showing of particular justification by the applicant.

     (g) - (i) [Unchanged.]

     (1) Title Page. A title page, which is the cover.

     (2) Tables. A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where cited.

     (3) Introduction. A concise introduction. This section is optional. The introduction need not contain citations to the record or authority.

     (34) Assignments of Error. A separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error.

     (45) Statement of the Case. A fair statement of the facts and procedure relevant to the issues presented for review, without argument. Reference to the record must be included for each factual statement.

     (56) Argument. The argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record. The argument may be preceded by a summary. The court ordinarily encourages a concise statement of the standard of review as to each issue.

     (67) Conclusion. A short conclusion stating the precise relief sought.

     (78) Appendix. An appendix to the brief if deemed appropriate by the party submitting the brief. An appendix may not include materials not contained in the record on review without permission from the appellate court, except as provided in rule 10.4(c).

     (b) - (h) [Unchanged.]

     (b) Length of Brief. A brief of appellant, petitioner, or respondent, and a pro se brief in a criminal case should not exceed 50 pages. Appellant's reply brief should not exceed 25 pages. An amicus curiae brief, or answer thereto, should not exceed 20 pages. In a cross-appeal, the brief of appellant, brief of respondent/cross appellant, and reply brief of appellant/cross respondent should not exceed 50 pages and the reply brief of the cross respondent appellant should not exceed 25 pages. For the purpose of determining compliance with this rule appendices, the title sheet, table of contents, and table of authorities are not included. For compelling reasons the court may grant a motion to file an over-length brief.

     (c) - (f) [Unchanged.]

     (g) [Reserved. See GR 14(d).] Citation Format. Citations should conform with the format prescribed by the Reporter of Decisions pursuant to GR 14(d). The format requirements of GR 14(a) - (b) do not apply to briefs filed in an appellate court.

     (h) [Unchanged.]

     (i) The format requirements of GR 14 do not apply to briefs filed in an appellate court.

     (c) Service and Notice to Appellant in Criminal Case when Defendant is Appellant. In a criminal case, the clerk will, at the time of filing of defendant/appellant's brief, advise the defendant/appellant of the provisions of rule 10.10.

     (j) Submitting Case without Oral Argument. The appellate court may, on its own initiative or on motion of a all partiesy, decide a case without oral argument. If the appellate court decides that the case will be decided without oral argument, the clerk will advise the parties and others who have filed briefs of the date the case is set for consideration on the merits.

     (e) Motion to Publish. A motion requesting the Court of Appeals to publish an opinion that had been ordered filed for public record should be served and filed within 20 days after the opinion has been filed. The motion must be supported by addressing the following criteria: (1) if not a party, the applicant's interest and the person or group applicant represents; (2) applicant's reasons for believing that publication is necessary; (3) whether the decision determines an unsettled or new question of law or constitutional principle; (4) whether the decision modifies, clarifies or reverses an established principle of law; (5) whether the decision is of general public interest or importance; or (6) whether the decision is in conflict with a prior opinion of the Court of Appeals. Rule 17.4 applies to motions to publish. A party should not file an answer to a motion to publish or a reply to an answer unless requested by the appellate court. The court will not grant a motion to publish without requesting an answer.

     (b) - (c) [Unchanged.]

     (d) Answer and Reply. A party may file an answer to a petition for review. If the party wants to seek review of any issue which that is not raised in the petition for review, including any issues that were raised but not decided in the Court of Appeals, that the party must raise that those new issues in an answer. Any answer should be filed within 30 days after the service on the party of the petition. A party may file a reply to an answer only if the answering party raises a new issue seeks review of issues not raised in the petition for review. A reply to an answer should be limited to addressing only the new issues raised in the answer. A reply to an answer should be filed within 15 days after the service on the party of the answer. An answer or reply should be filed in the Supreme Court. The Supreme Court may call for an answer or a reply to an answer.

     (e) - (f) [Unchanged.]

     (g) Service and Reproduction of Petition, Answer, and Reply. The clerk will arrange for the reproduction of copies of a petition for review, an answer, or a reply, and bill the appropriate party for the copies as provided in rule 10.5. The clerk will serve the petition, answer, or reply as provided in rule 10.5(b) if the party has not done so.

     (h) - (i) [Unchanged.]

     (1) Decisions dismissing or deciding personal restraint petitions, as provided in rule 16.14(c);

     (2) Decisions dismissing or deciding post-sentence petitions, as provided in rule 16.18(g);

     (3) Decisions on accelerated review that relate only to a juvenile offense disposition, juvenile dependency, or termination of parental rights, as provided in rule 18.13(e); and

     (4) Decisions on accelerated review that relate only to an adult sentence, as provided in rule 18.15(g).

     (b) Considerations Governing Acceptance of Review. In ruling on motions for discretionary review pursuant to this rule, the Supreme Court will apply the considerations set out in rule 13.4(b).

     (c) Procedure. The procedure for motions pursuant to this rule shall be the same as specified in rule 13.5(a) and (c).

     (d) Supplemental Briefs, Authorized. Within 30 days after the acceptance by the Supreme Court grants of a petition for review or a motion for discretionary review, any party may file and serve a supplemental brief in accordance with these rules. No response to a supplemental brief may be filed or served except by leave of the Supreme Court.

     (e) [Unchanged.]

     (1) Status of Petitioner. The restraint on petitioner; the place where petitioner is held in custody, if confined; the judgment, sentence, or other order or authority upon which petitioner's restraint is based, identified by date of entry, court, and cause number; any appeals taken from that judgment, sentence or order; and a statement of each other petition or collateral attack as that term is defined in RCW 10.73.090, whether filed in federal court or state court, filed with regard to the same allegedly unlawful restraint, identified by the date filed, the court, the disposition made by the court, and the date of disposition.

     (3) - (4) [Unchanged.]

     (5) Oath. If a notary is available, the petition must be signed by the petitioner or his attorney and verified substantially as follows:

     After being first duly sworn, on oath, I depose and say: That I am the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

or

     After being first duly sworn, on oath, I depose and say: That I am the attorney for the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

[Signature]

     Subscribed and sworn to before me this ____ day of ____________, 19____[date].

	Notary Public in and for the State of Washington, residing
at

     If a notary is not available, the petition must be subscribed by the petitioner or his attorney substantially as follows:

     I declare that I have examined this petition and to the best of my knowledge and belief it is true and correct.

     Dated this _______ day of ____________________, 19____[date].

	[Signature]

     If a notary is available and a petition is filed which that is not verified, the appellate court will return the petition for verified signature and advise the petitioners custodian to make a notary available.

     (6) Verification. In all cases where the restraint is the result of a criminal proceeding and the petition is prepared by the petitioner's attorney, the petitioner must file with the court no later than 30 days after the petition was received by the court a document that substantially complies with the following form:

     I declare that I have received a copy of the petition prepared by my attorney and that I consent to the petition being filed on my behalf.

     Dated this ___ day of ________, 19 __[date].

	[Signature]

     If the petitioner has been declared incompetent, the verification may be filed by the guardian ad litem. If a petition has been filed to determine competency, the verification procedure shall be tolled until competency is determined.

     (b) [Unchanged.]

     (c) Other Decisions. If the petition is dismissed by the Chief Judge or decided by the Court of Appeals on the merits, the decision is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rule 13.5(a), (b), and (c)A.

     (e) Briefs.

     (1) Procedure. The federal court shall designate who will file the first brief. The first brief should be filed within 30 days after the record is filed in the Supreme Court. The opposing party should file the opposing brief within 20 days after receipt of the opening brief. A reply brief should be filed within 10 days after the opposing brief is served. The briefs should be served in accordance with rule 10.2. The time for filing the record, the supplemental record, or briefs may be extended for cause.

     (2) Form and Reproduction of Briefs. Briefs should be in the form provided by rules 10.3 and 10.4. Briefs will be reproduced and sent to the parties by the clerk in accordance with rule 10.5.

     (f) - (g) [Unchanged.]

     (g) Review of Court of Appeals Decision. If the petition is dismissed by the Chief Judge or decided by the Court of Appeals on the merits, the decision is subject to review by the Supreme Court by a motion for discretionary review on the terms and in the manner provided in rule 13.5(a), (b), and (c)A.

     (g) Length of Motion, Response and Reply; Form of Papers and Number of Copies.

     (1) A motion and response should not exceed 20 pages, not including supporting papers. A reply should not exceed 10 pages, not including supporting papers. For compelling reasons, the court may grant a motion to file an over-length motion, response, or reply.

     (2) All papers relating to motions or responses should be filed in the form provided for briefs in rule 10.4(a), provided an original only and no copy should be filed. The appellate court commissioner or clerk will reproduce additional copies that may be necessary for the appellate court and charge the appropriate party as provided in rule 10.5(a).

     (d) Time Allowed, Order, and Conduct of Oral Argument. The Supreme Court and each division of the Court of Appeals will define by general order the amount of time each side is allowed for oral argument. If there is more than one party to a side in a single review or in a consolidated review, the parties on that side will share the allotted time equally, unless the parties on that side agree to some other allocation. The appellate court may grant additional time for oral argument upon motion of a party. The moving party is entitled to open and conclude oral argument. Rule 11.5 applies to the conduct of argument of motions.

     (e) [Unchanged.]

     (b) Argument in Brief. The party must devote a section of its opening brief to the request for the fees or expenses. Requests made at the Court of Appeals will be considered as continuing requests at the Supreme Court. The request should not be made in the cost bill. In a motion on the merits pursuant to rule 18.14, the request and supporting argument must be included in the motion or response if the requesting party has not yet filed a brief.

     (c) Affidavit of Financial Need. In any action where applicable law mandates consideration of the financial resources of one or more parties regarding an award of attorney fees and expenses, each party must serve upon the other and file a financial affidavit no later than 10 days prior to the date the case is set for hearing or submitted for consideration oral argument or consideration on the merits; however, in a motion on the merits pursuant to rule 18.14, each party must serve and file a financial affidavit along with its motion or response. Any answer to an affidavit of financial need must be filed and served within 7 days after service of the affidavit.

     (d) [Unchanged.]

     (e) Objection to Affidavit of Fees and Expenses; Reply. A party may object to a request for fees and expenses filed pursuant to section (d) by serving and filing an answer with appropriate documentation containing specific objections to the requested fee. The response answer must be served and filed within 10 days after service of the affidavit of fees and expenses upon the party. In a rule 18.14 proceeding, an answer to an affidavit of financial need may be served and filed at any time before oral argument. A party may reply to an answer by serving and filing the reply documents within 5 days after the service of the answer upon that party.

     (f) - (j) [Unchanged.]

     (b) Proof of Service. Proof of service should be made by an acknowledgment of service, or by an affidavit, or, if service is by mail, as provided in CR 5(b). Proof of service may appear on or be attached to the papers filed.

     (c) Filing. Papers required or permitted to be filed in the appellate court must be filed with the clerk, except that an appellate court judge may permit papers to be filed with the judge, in which event the judge will note the filing date on the papers and promptly transmit them to the appellate court clerk.

     (d) Filing by Facsimile. [Reserved. See GR 17 -- Facsimile Transmission.]

     (e) Service and Filing by an Inmate Confined in an Institution. An inmate confined in an institution may file and serve papers by mail in accordance with GR 3.1.

     (b) Service by Mail. Except as otherwise provided in rule 17.4 or GR 3.1, if the time period in question applies to a party serving a paper by mail, the paper is timely served if mailed within the time permitted for service. Except as provided in GR 3.1, Iif the time period in question applies to the party upon whom service is made, the time begins to run 3 days after the paper is mailed to the party.

     (c) Filing by Mail. Except as provided in GR 3.1, Aa brief authorized by Title 10 or Title 13 is timely filed if mailed to the appellate court within the time permitted for filing. Except as provided in rule 17.4 or GR 3.1, any other paper, including a petition for review, is timely filed only if it is received by the appellate court within the time permitted for filing.

     (b) Accelerated Review by Motion. The accelerated review of the disposition shall be done by motion. The motion must include (1) the name of the party filing the motion; (2) the offense in a juvenile offense proceeding or the issues in a juvenile dependency or termination of parental rights; (3) the disposition of the trial court; (4) the standard range for the offense, as may be appropriate; (5) a statement of the disposition urged by the moving party; (6) copies of the clerk's papers and a written verbatim report of those portions of the disposition proceeding which that are material to the motion; (7) an argument for the relief the party seeks; and (8) a statement of any other issues to be decided in the review proceeding.

     (c) - (d) [Unchanged.]

     (e) Supreme Court Review. A decision by the Court of Appeals on accelerated review that relates only to a juvenile offense disposition, juvenile dependency and termination of parental rights is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rules 13.3(e) and 13.5(a), (b) and (c)A.

     (g) Content of Motion and Response. In addition to the requirements of section (b) of this rule, a party appealing from the disposition decision following a finding of dependency by a juvenile court or a decision depriving a person of all terminating all of a person's parental rights with respect to a child should (1) append to the motion a copy of the trial court's finding of facts and conclusions of law and copies of all dependency review orders; (2) identify by specific assignments of error those findings and conclusions challenged on appeal; and (3) set forth the applicable standard of governing review of those issues. Counsel for the respondent should respond to each assignment of error and should provide citations to the record for any evidence supporting the trial court's findings.

     (b) - (f) [Unchanged.]

     (g) Supreme Court Review. A decision by the Court of Appeals on accelerated review that relates only to an adult sentence is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rules 13.3(e) and 13.5(a), (b) and (c)A.

     [State issues presented for review. See Part A of Form 6 for suggestions for framing issues presented for review.]

     The reasons for granting direct review are:

     [Briefly indicate and argue grounds for direct review. State and argue briefly whether the case is one which the Supreme Court would probably review if decided by the Court of Appeals in the first instance. See rule 4.2.]

     [Date]

	Respectfully submitted,
	Signature
	[Name, address, telephone number, and Washington State Bar Association membership number of attorney]

     I. Introduction [Optional. See rule 10.3(a)(3).]

     A II. Assignments of Error ______

     Assignments of Error

     No. 1 ______

     No. 2 ______

     No. 3 ______

     Issues Pertaining to Assignments of Error

     No. 1 ______

     No. 2 ______

     B III. Statement of the Case ______

     C IV. Summary of Argument ______

     D V. Argument ______

     [If the argument is divided into separate headings, list each separate heading and give the page where each begins.]

     E VI. Conclusion ______

     F VII. Appendix ______ A-1

     [List each separate item in the Appendix and give page where each item begins.]

     Note: For form of citations generally, see sections 71 through 76 of F. Wiener, Briefing and Arguing Federal Appeals (1967) GR 14(d).

     I. Introduction

     [An introduction is optional and may be included as a separate section of the brief at the filing party's discretion. The introduction need not contain citations to the record or authority.]

     A II. Assignments of Error

     "1. The trial court erred in entering the order of May 12, 1975, denying defendant's motion to vacate the judgment entered on May 1, 1975."

     [Examples of issues presented for review are:

     "Does an attorney, without express authority from his client, have implied authority to stipulate to the entry of judgment against his client as a part of a settlement which limits the satisfaction of the judgment to specific property of the client? (Assignment of Error 1.)"

     B III. Statement of the Case

     [Write a statement of the procedure below and the facts relevant to the issues presented for review. The statement should not be argumentative. Every factual statement should be supported by a reference to the record. See rule 10.4(f) for proper abbreviations for the record. For a good discussion of this aspect of brief writing, see Wiener, supra, sections 23 through 28 and 42 through 45.]

     C IV. Summary of Argument

     [This is optional. For suggestions for preparing a summary of argument, see Wiener, supra, section 65.]

     D V. Argument

     [The argument should ordinarily be separately stated under appropriate headings for each issue presented for review. Long arguments should be divided into subheadings. The argument should include citations to legal authority and references to relevant parts of the record. See Wiener, supra, Sections 34 through 36, 38, and 46 through 64. The court ordinarily encourages a concise statement of the standard of review as to each issue.]

     E VI. Conclusion

     [Here state the precise relief sought.]

     [Date]

	Respectfully submitted,
	Signature
	[Name of Attorney] Attorney for [Appellant, Respondent, or Petitioner]
	Washington State Bar Association membership number

     [Name and address of appellate court]

     1. The filing fee is waived.

     1 2. [Name of indigent] is entitled to counsel for review wholly at public expense. When review is discretionary, counsel will be provided and the expenses detailed below will be paid if review is accepted or as applicable law permits.

     2 3. The appellate court shall appoint counsel for review pursuant to RAP 15.2 [If applicable: "Trial counsel must assist appointed counsel for review in preparing the record."]

     3 4. [Name of indigent] is entitled to the following at public expense:

     (a) Those portions of the verbatim report of proceedings reasonably necessary for review as follows:

     [Designate parts of report.]

     (b) A copy of the following clerk's papers:

     [Designate papers by name and trial court clerk's subnumber.]

     (c) Preparation of original documents to be reproduced by the clerk as provided in rule 14.3(b).

     (d) Reproduction of briefs and other papers on review which that are reproduced by the clerk of the appellate court.

     (e) The cost of transmitting the following cumbersome exhibits:

     [Designate cumbersome exhibits needed for review. See rule 9.8(b).]

     (f) Other items:

     [Designate items.]

     [Date]

	Signature
	[Name of Judge]
	Judge of the Superior Court

     Presented by:

     [Name of party and attorney

     for party presenting order;

     Washington State Bar Association

     membership number]

	Signature
	[Name of Superior Court Clerk] Clerk of the Superior Court of Washington for [____________] County

     A. STATUS OF PETITIONER

     I, (full name and address)

apply for relief from confinement. I am ___ am not ___ now in custody serving a sentence upon conviction of a crime. (If not serving a sentence upon conviction of a crime) I am now in custody because of the following type of court order:

(identify type of order) .

     1. - 2. [Unchanged.]

     3. I was sentenced after trial ___, after plea of guilty ___ on (date of sentence) , 19___. The judge who imposed sentence was (name of trial court judge) .

     4. - 8. [Unchanged.]

     B. - D. [Unchanged.]

     E. OATH OF PETITIONER

THE STATE OF WASHINGTON	)
	) ss.
County of ________	)

     After being first duly sworn, on oath, I depose and say: That I am the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

	[sign here]

     SUBSCRIBED AND SWORN to before me this ___ day of_________, 19__ __________________.

[date]

	Notary Public in and for the State of Washington, residing at ________

     If a notary is not available, explain why none is available and indicate who can be contacted to help you find a notary: __________________________________________________________

__________________________________________________________

__________________________________________________________

     Then sign below:

     I declare that I have examined this petition and to the best of my knowledge and belief it is true and correct.

     DATED this _______ day of ____________________, 19____ _____________________[date].

	[sign here]

     [Pursuant to RCW 36.48.090, the clerk is directed to invest the funds in an interest bearing trust account to accrue to the benefit of _______________, subject to the clerk's investment service fee, all as provided in RCW 36.48.090.] The funds shall be held pending return of the mandate in Court of Appeals Cause No. ________ and thereafter until disbursed pursuant to further order of court or by agreement of the parties.

     DATED [date].

	Signature
	Attorney for [Plaintiff or Defendant]

     (b) Court of Limited Jurisdiction. After a notice of appeal has been filed, and while the case is on appeal, the court of limited jurisdiction has authority to act in a case only to the extent provided in these rules, unless the superior court limits or expands that authority in a particular case.

     (c) Questions Relating to Indigency. The court of limited jurisdiction has authority to decide questions relating to indigency.

     (d) Attorney Fees and Costs. When a party is entitled to an award of attorney fees or costs, the court of limited jurisdiction has authority to determine such an award for a party's efforts in the court of limited jurisdiction. A party may obtain review of a court of limited jurisdiction's decision on attorney fees or costs in the same review proceeding as that challenging the judgment without filing a separate notice of appeal.

     (b) Whenever service of a document on a party is permitted to be made by mail, the document is deemed "mailed" at the time of deposit in the institution's internal mail system addressed to the parties on whom the document is being served.

     (c) If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing or mailing may be shown by a declaration or notarized affidavit in form substantially as follows:

DECLARATION
	I, [name of inmate], declare that, on [date], I deposited the foregoing [name of document], or a copy thereof, in the internal mail system of [name of institution] and made arrangements for postage, addressed to:
	[name and address of court or other place of filing];
	[name and address of parties or attorneys to be served].
	I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
	DATED at [city, state] on [date].
	[signature]

     (d) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after filing or service of a document, and if an inmate files or serves the document under this rule, that period shall begin to run on the date the document is received by the party.

     (f) Adverse Party as Witness.

     (1) Party or Managing Agent as Adverse Witness. A party, or anyone who at the time of the notice is an officer, director, or other managing agent (herein collectively referred to as "managing agent") of a public or private corporation, partnership or association which that is a party to an action or proceeding may be examined at the instance of any adverse party. Attendance of such deponent or witness may be compelled solely by notice (in lieu of a subpoena) given in the manner prescribed in rule 30(a) (b)(1) to opposing counsel of record. Notices for the attendance of a party or of a managing agent at the trial shall be given not less than 10 days before trial (exclusive of the day of service, Saturdays, Sundays, and court holidays). For good cause shown in the manner prescribed in rule 30(b) 26(c), the court may make orders for the protection of the party or managing agent to be examined.

     (2) Effect of Discovery, etc. A party who has served interrogatories to be answered by the adverse party or who has taken the deposition of an adverse party or of the managing agent of an adverse party shall not be precluded for that reason from examining such adverse party or managing agent at the trial. Matters admitted by the The testimony of an adverse party or managing agent at the trial or on deposition or interrogatories shall not bind the adversary but in interrogatory answers, deposition testimony, or trial testimony are not conclusively established and may be rebutted.

     (3) Refusal to Attend and Testify; Penalties. If a party or a managing agent refuses to attend and testify before the officer designated to take his deposition or at the trial after notice served as prescribed in rule 30(a)(b)(1), the complaint, answer, or reply of the party may be stricken and judgment taken against the party, and the contumacious party or managing agent may also be proceeded against as in other cases of contempt. This rule shall not be construed:

     (A) to compel any person to answer any question where such answer might tend to incriminate him;

     (B) to prevent a party from using a subpoena to compel the attendance of any party or managing agent to give testimony by deposition or at the trial; nor

     (C) to limit the applicability of any other sanctions or penalties provided in rule 37 or otherwise for failure to attend and give testimony.

     (g) - (k) [Unchanged.]

     (e) Notices and Hearings. Notice of any of the proceedings set out in section (d) of this rule (except petitions for the sale of perishable property, or other personal property, the keeping of which will involve expense or loss) shall be addressed to such person, or his attorney, at his stated post office address and deposited in the United States Post Office, with the postage thereon prepaid, at least 5 days before the hearing on any of the matters above described; or personal service of such notice may be made on such person or his attorney not less than 5 days before such hearing; and proof of mailing or personal service must be filed with the clerk before the hearing. If upon the hearing it appears to the satisfaction of the court that the notice has been regularly given, the court shall so find in its order of judgment, and such judgment shall be final and conclusive.

     (f) Adverse Party as Witness.

     (1) Party or Managing Agent as Adverse Witness. A party, or anyone who at the time of the notice is an officer, director, or other managing agent (herein collectively referred to as "managing agent") of a public or private corporation, partnership or association which that is a party to an action or proceeding may be examined at the instance of any adverse party. Attendance of such deponent or witness may be compelled solely by notice (in lieu of a subpoena) given in the manner prescribed in rule 30(a) CR 30(b)(1) to opposing counsel of record. Notices for the attendance of a party or of a managing agent at the trial shall be given not less than 10 days before trial (exclusive of the day of service, Saturdays, Sundays, and court holidays). For good cause shown in the manner prescribed in rule 30(b) CR 26(c), the court may make orders for the protection of the party or managing agent to be examined.

     (2) Effect of Discovery, etc. A party who has filed served interrogatories to be answered by the adverse party or who has taken the deposition of an adverse party or of the managing agent of an adverse party shall not be precluded for that reason from examining such adverse party or managing agent at the trial. Matters admitted by The testimony of an adverse party or managing agent in interrogatory answers, deposition testimony, or trial testimony are not conclusively established and at the trial or on deposition or interrogatories shall not bind his adversary but may be rebutted.

     (3) Refusal to Attend and Testify; Penalties. If a party or a managing agent refuses to attend and testify before the officer designated to take his deposition or at the trial after notice served as prescribed in rule 30(a) CR 30(b)(1), the complaint, answer, or reply of the party may be stricken and judgment taken against the party, and the contumacious party or managing agent may also be proceeded against as in other cases of contempt. This rule shall not be construed:

     (i) to compel any person to answer any question where such answer might tend to incriminate him;

     (ii) to prevent a party from using a subpoena to compel the attendance of any party or managing agent to give testimony by deposition or at the trial; nor

     (iii) to limit the applicability of any other sanctions or penalties provided in rule CR 37 or otherwise for failure to attend and give testimony.

     (g) - (k) [Unchanged.]

     The rules do not purport to codify constitutional law. The application of a rule may be subject to constitutional restrictions or limitations which are not defined in the rule. See, for example, the comments to rules 104, 105, and 804.

     [Unchanged.]

     "Judges should indicate which factors are significant and which goals paramount in a particular case and why, so that members of the Bar can adjust to changing nuances in the law in advising their clients and in conducting litigations. This process of accommodation to change will itself promote desirable change while preserving the sound fundamentals of the law of evidence." J. Weinstein, at 102-13.

     To be distinguished is the extent to which counsel may acquiesce in a trial court ruling and then move for a new trial on the ground that the ruling was in error. That determination is made by reference not to the appellate rules but to the rules of civil and criminal procedure and decisional law. See, e.g., CR 46; CrR 8.7; Sherman v. Mobbs, 55 Wn.2d 202, 347 P.2d 189 (1959).

     Section (e). This section is the same as Federal Rule 104(e) and is consistent with prior Washington law. See CrR 3.5, discussed above.

     The rules neither imply that limiting instructions are sufficient in all situations nor restrict the court's authority to order a severance in a multidefendant case. The availability and effectiveness of these practices must be taken into consideration in deciding whether to exclude evidence under rule 403. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the court ruled that a limiting instruction did not effectively protect the accused against the prejudicial effect of admitting in evidence the confession of a codefendant which implicated him.

     Existing Washington rules, CR 32(a) and 33(b), provide that the rules of evidence apply with respect to the admission of depositions and interrogatories. The drafters of Federal Rule 106 considered a number of suggestions to include language in the rule indicating that the other rules of evidence apply. The language was not included in the final draft, not because the other rules did not apply, but because the drafters thought such a provision would be surplusage. 1 J. Weinstein, Evidence ¶ 106[01] (1975). Thus, the rules of evidence apply to the admission of any additional evidence under rule 106, and irrelevant portions of documents remain inadmissible under this rule.

     The drafters of the Washington rules felt that the court must be given more discretion, both with respect to whether to receive evidence contrary to a judicially noticed fact, and with respect to the manner of instructing the jury. Recognizing the difficulty of codifying a procedure which would be constitutional in every case, the drafters felt that the constitutional requirement would be better served by deleting the rule and permitting the courts to fashion a constitutional procedure on a case-by-case basis.

     The Judicial Council recommends that this rule be reserved, and that it be the subject of further study.

     The rule's deference to other codified law making relevant evidence inadmissible applies generally throughout the rules in Title IV. For example, in rape cases, RCW 9A.44.020 defines detailed restrictions upon disclosure of the victim's past sexual behavior. The statute prevails over conflicting provisions in rule 404.

     In deciding whether to exclude evidence on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. The availability of other means of proof may also be an appropriate factor. These procedural factors may favor admission or exclusion, depending on the circumstances.

     The fact that section (b) uses the discretionary word "may" does not confer arbitrary discretion on the trial judge. Whether evidence is admissible under this section is determined by reference to the considerations set forth in rule 403. Federal Rule 404, Report of the House Committee on the Judiciary. Although the words "crimes, wrongs, or acts" are deliberately imprecise, a number of recent decisions indicate that evidence of this sort should be admitted with extreme caution to avoid prejudice against the defendant, particularly when admitting acts which are not unlawful but which may tend to disparage the defendant. In State v. Draper, 10 Wn.App. 802, 521 P.2d 53 (1974), the court held that in a prosecution for delivery of a controlled substance, it was prejudicial error to admit evidence of a perhaps unusual amount of prescription drugs, lawfully in the defendant's possession. The error may be prejudicial even though the judge has instructed the jury to disregard the evidence of other conduct. State v. Miles, 73 Wn.2d 67, 436 P.2d 198 (1968). These and other decisions are collected and discussed in Meisenholder § 4 (Supp. 1975).

     In rape cases RCW 9A.44.020 defines in detail the extent to which the victim's past behavior is admissible and the procedure for seeking its admission. By the terms of rule 402, the statute prevails over inconsistent provisions in rule 405.

     Rule 406, however, appears to clarify Washington law rather than to significantly change it. Despite the cases cited above, evidence of habit has been held properly admitted in a number of cases collected in 5 R. Meisenholder, Wash. Prac. § 6 (1965 & Supp.). Evidence offered under this rule could, of course, still be excluded if the court determined that the conduct sought to be shown did not reach the level of habit or routine practice.

     Under rule 407, the permissible "other purpose" must be controverted in order to avoid the introduction of evidence under false pretenses. The evidence must be relevant as proof upon the actual issues in the case. See 5 R. Meisenholder, Wash. Prac. § 10 (1965).

     The fourth sentence is consistent with previous Washington law admitting evidence of compromise and offers of compromise when offered for some purpose other than liability. Meisenholder § 9. See Matteson v. Ziebarth, 40 Wn.2d 286, 242 P.2d 1025 (1952) (to prove lack of good faith where good faith in issue); Robinson v. Hill, 60 Wash. 615, 111 P. 871 (1910) (to prove employer-employee relationship). Settlement agreements may be introduced where breach is the issue, or to show bias or interest of witnesses. Meisenholder § 9. The word "negating" is substituted for "negativing," the word used in the federal rule. This is only an improvement in style. No substantive change is intended.

     A final sentence was added to the federal rule to provide that the rule does not govern the admission or exclusion of evidence of a deferred sentence. That determination is made by reference to the statutes cited in the rule, the decisions construing them, and in some instances, constitutional principles. See also 5 R. Meisenholder, Wash. Prac., Evidence §§ 9, 300, 421, 423.

     The rule does not affect the view that if the mention of insurance is inadvertent and it appears that neither the attorney nor the witness deliberately raised the subject, a mistrial will not be granted. See, e.g., Williams v. Hofer, 30 Wn.2d 253, 191 P.2d 306 (1948). The reference to insurance may, on motion, be stricken and the jury instructed to disregard it. Meisenholder § 8.

     Inclusion of a reserved ER 412 was intended to remind users of the rules to refer to the statute for guidance. It also recognized the Washington Supreme Court's continuing rulemaking authority in this area (as the statute covers a subject within the court's purview) and thus preserved the court's flexibility should it decide at some future time to adopt a rule relating to a victim's past sexual conduct.

     Only the name of the privilege was given, with the text reserved and a statutory reference provided. The qualified journalist's privilege, though found in case law and based on common law rather than the constitution, was included as well. The amendment allowed ready reference to the more common privileges by the bench and bar without eliminating a less often used privilege by accidental omission from the list.

     The rule does not prevent the judge from testifying in collateral proceedings as to what occurred in an earlier trial. A judge is barred from testifying only at a trial over which he is presiding.

     Section (b) of Federal Rule 606 concerns the extent to which testimony, affidavits, or statements of jurors may be received for the purpose of invalidating or supporting a verdict or indictment. Previous Washington law has defined the extent to which jurors' testimony and affidavits are admissible in terms of their being inadmissible if the evidence "inheres in the verdict." For a more complete discussion of this doctrine, see 2 L. Orland, Wash. Prac. § 294 (3d ed. 1972). Federal Rule 606(b) is omitted in deference to existing Washington law.

     Prior Washington law has allowed a party to impeach the party's own witness but only if the party was "taken by surprise by reason of affirmative testimony prejudicial to the interests of the party calling the witness". State v. Thomas, 1 Wn.2d 298, 303, 95 P.2d 1036 (1939). The two-part test required both the showing of surprise and testimony prejudicial to the party's interests. The requirement of prejudice was not met when the witness merely failed to testify as favorably as expected. Cole v. McGhie, 59 Wn.2d 436, 361 P.2d 938, 367 P.2d 844 (1961). Cf. State v. Calhoun, 13 Wn.App. 644, 536 P.2d 668 (1975).

     This section was omitted from the Washington rule, not because of any fundamental disagreement with the policy expressed, but because the drafters felt that the subject was more appropriately left to developing principles of constitutional law.

     The drafters concluded that prior convictions for felonies not involving dishonesty or false statement can be highly prejudicial and that the restrictive test set forth in rule 609(a)(1) should apply evenhandedly to all witnesses in any kind of case to which these rules apply.

     Under previous Washington law, there has been a distinction between memoranda used to refresh memory before trial and those used during the appearance of the witness in court. Under State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961), memoranda used in court are clearly subject to a right of inspection by opposing counsel, but there has been no similar right to inspect memoranda used to refresh memory before trial. State v. Paschall, 182 Wash. 304, 47 P.2d 15 (1935). The rule changes previous law to the extent that it gives the court discretion to permit inspection of memoranda used before trial.

     It should be remembered that rule 613 relates to the admission of evidence for impeachment rather than as substantive evidence. Section (b) of rule 613 expressly disclaims any application to admissions of a party-opponent as defined in rule 801(d)(2). The admissibility of hearsay statements as substantive evidence is governed by the rules in Title VIII.

     Section (c). Counsel may object to the judge's questions on the basis of any of the rules of evidence. This section is designed to relieve counsel of the embarrassment of objecting to the judge's questions in front of the jury. The objection is not automatic, however, as it is under rule 605.

     The rule modifies previous Washington law in that it delineates certain witnesses who may not be excluded. Under previous law, the judge was given more discretion in this regard. State v. Weaver, 60 Wn.2d 87, 371 P.2d 1006 (1962).

     The subject matter of rule 701 is analyzed in greater detail in Powell & Burns, A Discussion of the New Federal Rules of Evidence, 8 Gonz. L. Rev. 1, 14 - 16 (1972).

     The Washington Supreme Court has more recently cited section 401 of the Model Code of Evidence as governing the admissibility of expert testimony. See Church v. West, 75 Wn.2d 502, 452 P.2d 265 (1969). However, the results and language of these opinions indicate that in effect the court interprets section 401 in line with the prior general Washington case law. 5 R. Meisenholder, Wash. Prac. § 351 (Supp. 1975).

     Several older Washington cases suggest that the opinion of an expert based solely upon hearsay reports or other hearsay is inadmissible. Meisenholder § 357. One case, however, held that a doctor could state his opinion that the eyesight of a person was normal when the doctor's opinion was based upon his office record of visual field charts prepared by a technician during the course of examination by the technician. Engler v. Woodman, 54 Wn.2d 360, 340 P.2d 563 (1959). And in State v. Wineberg, 74 Wn.2d 372, 444 P.2d 787 (1968), the court held that an expert could, in the trial court's discretion, be permitted to give an opinion as to the value of property even though some of the factors (e.g., comparable sales prices) would be inadmissible as hearsay, so long as the opinion was the product of the expert's own independent judgment. Rule 703 reflects the approach taken in the more recent cases.

     The introduction of evidence under rule 704 is subject to the restrictions of rules 701 and 702, which require opinions to be helpful to the trier of fact, and rule 403, which authorizes the exclusion of time-wasting evidence.

     Without preliminary disclosure at trial of underlying data, effective cross examination is often impossible unless the information has been obtained through pretrial discovery. The court, therefore, should liberally grant permission for depositions and other discovery with respect to experts under CR 26(b)(4). Smith & Henley, Opinion Evidence: An Analysis of the New Federal Rules and Current Washington Law, 11 Gonz.L.Rev. 692, 697-98 (1976).

     There is an obvious danger that the jury will be more impressed by an expert appointed by the court than by one called by a party. It has been argued that to disclose to the jury the fact that an expert was appointed by the court would violate the state constitutional prohibition against a judge commenting on the evidence. 5 R. Meisenholder, Wash.Prac. § 363 (1965); Const. art. 4, § 16. The court's discretion to make such a disclosure under section (c) should be used with extreme caution to avoid the possibility of commenting on the evidence.

     The provision concerning statements by coconspirators is consistent with previous Washington law. Meisenholder § 430.

     Flexibility in construction of the rules so as to promote growth and development of the law of evidence is called for by rule 102. Under this mandate there will be room to construe an existing hearsay exception broadly in the interest of ascertaining truth, as distinguished from creating an entirely new exception based upon the trial judge's determination of equivalent trustworthiness, a guideline which the most conscientious of judges would find extremely difficult to follow.

     Subsection (b)(5). Federal Rule 804(b)(5) is deleted for the same reasons that Federal Rule 803(24) is deleted. See the comment to rule 803(b).

     The use of an inconsistent statement to impeach a hearsay declarant is not subject to the usual requirement that the witness have been afforded an opportunity to deny or explain it. Cf. rule 613. The foundation requirement is relaxed here because, as a practical matter, the declarant seldom will have been confronted with inconsistent statements when making an out-of-court statement later admitted as an exception to the hearsay rule. See 4 J. Weinstein, Evidence ¶ 806[01] (1975).

     The reserved rule again recognized that the admissibility of a child's statement is a proper area for the Washington Supreme Court's rulemaking authority.

     Example 10. Statutes and other court rules defining methods of authentication are not superseded by rule 901.

     The second portion of the amendment, adding the language "treaty or convention" to "law of the United States," acknowledged that international agreements may affect the admissibility of evidence in a state court. For example, the recently enacted notary statute recognized foreign notarial acts by providing that "[a]n 'apostille' in the form prescribed by the Hague Convention of October 5, 1961, conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the designated office." RCW 42.44.150(2). See also RCW 42.44.180. While it may be that the term "law" encompasses treaties and conventions, the drafters concluded that no room should be left for debate.

     The rules in Title X do not govern the authenticity of an "original". That determination is made by reference to the rules in Title IX. The authenticity of any piece of evidence, even documents which are self-authenticating under rule 902, may be disputed by the opposing party. Federal Rule 902 advisory committee note. Thus, for example, an opposing party may challenge the integrity of an electronic recording even though it qualifies as an "original" under Title X. See also Comments, ER 901 and 902. Similarly, the rules do not prevent a party from challenging the accuracy of data fed into a computer or the integrity of the computer's storage system, even though a printout qualifies as the "original".

     Thus, for example, in State ex rel. Walton v. Superior Court, 18 Wn.2d 810, 140 P.2d 554 (1943), the principal issue was whether an easement over the land to be condemned was necessary in order to reach certain timber. The court held that oral testimony concerning ownership of the land to be benefited by the easement was admissible because ownership was a collateral question. In another case, oral testimony concerning a contract was held admissible to show the relationship between the plaintiffs and their right to sue jointly. Hull v. Seattle, R. & S. Ry., 60 Wash. 162, 110 P. 804 (1910).

     The last sentence of the rule authorizes proof by other forms of secondary evidence if neither a certified nor a compared copy can be obtained with reasonable diligence. Although this approach has been authorized in a number of factual situations, no previous authority has been found which applies the rule generally to public records. See 5 R. Meisenholder, Wash.Prac. §§ 95, 96 (1965 & Supp.).

     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.

     Reviser's note: The spelling errors in 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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