WSR 09-01-033

RULES OF COURT

STATE SUPREME COURT


[ December 5, 2008 ]

IN THE MATTER OF THE ADOPTION OF NEW APR 28 -- LEGAL TECHNICIAN AND THE NEW NON-LAWYER PRACTICE COMMISSION REGULATIONS )

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ORDER

NO. 25700-A-914

The Practice of Law Board having recommended the adoption of the proposed New APR 28 -- Legal Technician and the New Non-Lawyer Practice Commission Regulations, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's web sites in January 2009.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2009. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 5th day of December, 2009 [2008].
For the Court
Gerry L. Alexander
CHIEF JUSTICE

GR 9 COVER SHEET

Suggested Rule

ADMISSION TO PRACTICE RULES (APR)


ADMISSION TO PRACTICE RULES (APR)

APR 28. LIMITED PRACTICE RULE FOR LEGAL TECHNICIANS

Submitted by the Practice of Law Board for the State of Washington




Purpose: The Practice of Law Board has suggested a new rule, APR 28, which would authorize qualified and trained nonlaywers to provide legal assistance to the public in specific defined and authorized areas of law under careful regulation. GR 25 provides that one of the purposes of the Practice of Law Board is to make recommendations regarding the circumstances under which nonlaywers may be involved in the delivery of certain types of legal and law-related services. This rule is the Board's fulfillment of that purpose.


New Admission to Practice Rule 28: Limited Practice Rule for Legal Technicians


A) Purpose. The Civil Legal Needs Study (2003), commissioned by the Supreme Court, clearly established that the legal needs of the consuming public are not currently being met. The public is entitled to be assured that legal services are rendered only by qualified trained legal practitioners. Only the legal profession is authorized to provide such services. The purpose of this rule is to authorize certain persons to render legal assistance or advice in defined areas of law. This rule shall prescribe the conditions of and limitations upon the provision of such services in order to ensure that only trained and qualified legal practitioners may provide the same. This rule is intended to permit trained legal technicians to provide limited legal assistance under carefully regulated circumstances in ways that expand the affordability of quality legal assistance which protects the public interest.

B) Definitions. For purposes of this rule, the following definitions will apply:

1) "Approved and reviewed by a lawyer" means that a lawyer has supervised the legal work and documented that supervision by the lawyer's signature and bar number.

2) "APR" means the Supreme Court's Admission to Practice Rules.

3) "Board" when used alone means the Practice of Law Board.

4) "Commission" when used alone means the Nonlawyer Practice Commission which is authorized and directed to carry out the functions established by this rule.

5) "Lawyer" means a person licensed in accordance with the APR's to engage in the general practice of law in the State of Washington and whose activities are governed by the RPC's.

6) "Legal Technician" means a trained practitioner authorized to engage in the limited practice of law as specified by this rule and related rules. The legal technician does not represent the client in court proceedings or negotiations, but provides limited legal assistance as set forth in this rule to a pro se client.

7) "Paralegal" shall mean a person qualified by education, training or work experience, who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.

8) "RPC" means the Rules of Professional Conduct.

9) "Substantive legal work" shall mean work performed by a person that requires knowledge of legal concepts and is customarily, but not necessarily, performed by a lawyer.

10) "Supervised" means a lawyer directs, approves and has responsibility for work performed by the Legal Technician.

11) Words of authority:

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

b) "Must" or "shall" mean "is required to".

c) "Should" means recommended but not required.

C) Certification Requirements. An applicant for certification as a Legal Technician shall:

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

2) Moral Character. Be of good moral character.

3) Education. Have graduated from a paralegal/legal assistant program that is approved by the American Bar Association or the Commission and is:

a) An associate degree or other paralegal/legal assistant program that consists of a minimum of 90 quarter hours (900 clock hours or 60 semester hours) of which at least 45 quarter hours (450 clock hours or 30 semester hours) are substantive legal courses; or

b) A bachelor's degree program in paralegal/legal assistant studies; or

c) A post-baccalaureate certificate program in paralegal/legal assistant studies.

4) Experience. Possess the following substantive legal experience as a paralegal/legal assistant under the supervision of a lawyer:

a) Those with an associates degree from an American Bar Association approved institution or who hold a bachelor's degree need a minimum of 2 years experience; or

b) Those who are graduates of any other program set out in sub-section (3) need 3 years experience.

5) Pro Bono Service Requirement. Complete at least 20 hours of pro bono service to a legal services organization approved by the Commission within the two years prior to taking the Legal Technician examination.

6) Examination. Satisfactorily complete an examination which shall, at a minimum, cover the rules of professional conduct applicable to Legal Technicians, rules of ethics, rules relating to the attorney-client privilege, procedural rules and substantive law issues related to one or more discrete areas of practice.

7) Oath. Execute under oath and file with the Commission 2 copies of his/her application, in such form as may be required by the Commission. In the event of the failure or refusal of an applicant to furnish any information or proof, or to answer any interrogatories of the Commission pertinent to the pending application, the Commission may deny the application.

8) Examination Fee. Pay, upon the filing of the application, the examination fee as established by the Commission.

D) Scope of Practice Authorized by Limited Practice Rule. The Legal Technician may undertake the following only in the defined area(s) of law for which the Legal Technician has been certified:

1) Ascertain whether the problem is within the defined practice area, and if so, obtain relevant facts, and explain the relevancy of such information to the client;

2) Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;

3) Inform the client of applicable procedures for proper service of process for motion papers, and proper filing procedures;

4) Provide the client with self-help materials prepared by a lawyer or approved by the Commission, which contain information as to statutory requirements, case law basis for the client's claim, and venue and jurisdiction requirements;

5) Review pleadings or exhibits presented by the client from the opposing side, and explain the documents;

6) Select and complete forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a lawyer; or forms approved by the Commission; and advise the client of the significance of the selected forms to the client's case;

7) Perform legal research and draft legal letters and pleadings, if the work is reviewed and approved by a lawyer.

8) Advise client as to other documents which may be necessary (such as exhibits, witness declarations, or party declarations), and explain how such additional documents or pleadings may affect the client's case;

9) Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.

While acting within the scope of authority set forth in this rule, the relationship between the Legal Technician and the client shall be governed by all rules, expectations, privileges and considerations that govern the relationship between lawyers and their clients.

E) Conditions Under Which A Legal Technician May Provide Services. A Legal Technician may render services authorized by this rule only under the following conditions and with the following limitations:

1) Be certified pursuant to these rules;

2) Have a staffed office for the acceptance of service in the State of Washington;

3) Personally perform the services for the client. The Legal Technician shall not supervise a non-certified individual to perform the services in the legal technician's place. Nothing in this prohibition shall prevent a person who is not certified from performing translation services; and

4) Prior to the performance of the services, the Legal Technician shall enter into a written contract that includes the following provisions:

(a) An explanation of the services to be performed, including a conspicuous statement that the Legal Technician may not appear or represent the client in court;

(b) Identification of all compensation and costs to be charged to the client for the services to be performed;

(c) A statement that documents submitted by the client to the Legal Technician may not be retained by the Legal Technician for any purpose, including payment of compensation or costs;

(d) A statement that the Legal Technician is not a lawyer and may only perform limited legal services. This statement shall be on the face of the contact in twelve-point bold type print;

(e) A statement describing the Legal Technician's duty to protect the confidentiality of information provided by the client and the Legal Technician's work product associated with the services sought or provided by the Legal Technician;

(f) A statement that the client has the right to rescind the contract at any time and receive a full refund of unearned fees. This statement shall be conspicuously set forth in the contract; and

(g) Such other conditions as the Commission may require.

5) A Legal Technician may not provide services to a client who requires assistance exceeding the scope of practice authorized by this rule, and shall inform the client, in such instance, that the client requires the services of a lawyer. The scope of practice shall be determined as provided in regulations adopted by the Commission and approved by the Board and the Supreme Court.

6) A Legal Technician must sign all pleadings completed by the Legal Technician and include his/her certificate number.

F) Prohibited Acts. In the course of dealing with clients or prospective clients, a Legal Technician shall not:

1) Make any statement that the Legal Technician can or will obtain special favors from or has special influence with any court or governmental agency;

2) Retain any compensation for services not performed;

3) Refuse to return documents supplied by, prepared by, or paid for by the client upon the request of the client. These documents must be returned upon request even if there is a fee dispute between the Legal Technician and the client; or

4) Represent or advertise, in connection with the provision of services, other titles or credentials that could cause a client to believe that the Legal Technician possesses professional skills beyond those authorized by the certificate for which the Legal Technician is approved.

5) Represent or otherwise provide legal or law related services to a client, except as permitted by law or elsewhere in this rule.

G) Continuing Certification Requirements.

1) Continuing Education Requirements. Each Legal Technician must complete a minimum number of credit hours of approved or accredited education as prescribed by Commission regulations, during each calendar year in courses certified by the Commission to be appropriate for study by Legal Technicians pursuant to this rule; provided that the Legal Technician shall not be required to comply with this subsection during the calendar year in which he or she is initially certified.

2) Pro Bono Publico Service. Each Legal Technician should aspire to render at least 30 hours of pro bono publico service per year.

H) Financial Responsibilities

1) Financial Responsibility. Each certified Legal Technician shall show proof of ability to respond in damages resulting from his/her acts or omissions in the performance of services permitted by this rule. The proof of financial responsibility shall be in such form and in such amount as the Commission may by regulation prescribe.

2) Annual Fee. Each certified Legal Technician must pay the annual fee established by the Commission.

I) Existing Law Unchanged. This rule shall in no way expand, narrow or affect existing law in the following areas as they apply to both lawyers, and Legal Technicians engaged in the limited practice of law, under the exclusive regulatory authority of the Supreme Court in the State of Washington:

1) The fiduciary relationship between a certified Legal Technician and his/her customers or clients;

2) Conflicts of interest that may arise between the certified Legal Technician and a client or customer; and

3) The lack of authority of a Legal Technician to give legal advice without being licensed to practice law other than an authorized under this rule.

J) Professional Responsibility.

1) As grantees by the Supreme Court of authority heretofore reserved exclusively to lawyers, Legal Technicians acting within the scope of authority set forth in this rule shall be held to the standard of care of a lawyer.

2) Legal Technicians shall be held to the same ethical standards as a lawyer, except to the extent that the RPCs conflict with these rules, in which case these rules shall apply.

3) All funds that come into a Legal Technician's possession are subject to RPC 1.15B.


GR 9 COVER SHEET

Suggested Rule

ADMISSION TO PRACTICE RULES (APR)


ADMISSION TO PRACTICE RULES (APR)

APR 28. NONLAWYER PRACTICE COMMISSION REGULATIONS

Submitted by the Practice of Law Board of the State of Washington




C. Purpose: The Practice of Law Board has suggested a new rule, APR 28, which would authorize qualified and trained nonlaywers to provide legal assistance to the public in specific defined and authorized areas of law under careful regulation. These regulations are necessary to provide the administrative framework for proposed APR 28.



NON-LAWYER PRACTICE

COMMISSION REGULATIONS

Current Draft




REGULATION 1. PURPOSE

The purpose of these regulations is to establish procedures for the Non-Lawyer Practice Commission (Commission) in order to carry out its purposes and exercise its powers pursuant to General Rule 25 (GR 25) and APR 28.

REGULATION 2. PRACTICE OF LAW BOARD

A. For purposes of these regulations, the Practice of Law Board (POL Board) shall determine Commission membership; hear discipline appeals; recommend the Commission's annual budget; and consider and recommend areas of practice to be submitted to the Supreme Court.

REGULATION 3. ESTABLISHMENT OF THE COMMISSION

A. Commission Responsibilities. The Commission shall be responsible for the following:

(1) Holding public hearings regarding scope of practice area;

(2) Processing applications, screening applicants and fees;

(3) Testing of general, ethical and procedural aspects;

(4) Continuing Legal Education (CLE) requirements and approval of such programs;

(5) Approval of education requirements for certification in specific areas;

(6) Initial discipline and grievance hearings;

(7) Establishing and over-seeing committees and tenure of members;

(8) Trust account requirements and procedures; and

(9) Such other activities and functions as the POL Board may determine.

B. Members. The Commission shall consist of 7 members (Member[s]) appointed by the Supreme Court of the State of Washington (Supreme Court) at least 4 of whom shall be lawyers licensed to practice law in the State of Washington, and the remainder of whom shall be non-lawyer Washington residents. At least 4 members of the Commission shall be existing or former members of the POL Board. At least one Member shall be a legal educator. Appointments shall be made by the Supreme Court after considering nominations from the POL Board and after input from the WSBA Board of Governors and any other interested people or organizations.

C. Member Terms. The Members shall initially be appointed to staggered terms of 1 to 3 years. Thereafter, appointments shall be for 3-year terms. No Member may serve more than 2 consecutive full 3-year terms.

D. Resignation. A Member may resign from the Commission by letter addressed to the Commission and the Supreme Court with resignation to be effective 2 days following the date of the letter or any effective date thereafter which may be specified in the letter.

E. Vacancies. A membership vacancy shall be deemed to occur on the resignation of a Member or upon declaration of a vacancy by the Supreme Court following any request to the Supreme Court by the Commission for the reasons set forth in section O below, or if a Member has three unexcused absences from regular Commission meetings or is not present at more than a majority of the Commission meetings during any 12-month period as determined by the chairperson. A membership vacancy shall be filled by the Supreme Court for the unexpired term.

F. Administration of Commission. The Washington State Bar Association (WSBA), in consultation with the POL Board and Commission shall provide the Commission with an administrator (Commission Administrator) and any additional staff support as designated by the Executive Director of the WSBA. The Commission Administrator shall not be entitled to vote on Commission matters.

G. Funding and Expenses. The POL Board and Commission shall prepare an annual budget to be submitted for approval on a schedule set by the WSBA Board of Governors. The WSBA shall pay all expenses reasonably and necessarily incurred by the Commission pursuant to the budget and the expense policy of the WSBA. Funding for the Commission shall be generated by Legal Technician certification fees, as well as commitments from the WSBA.

H. Officers. The POL Board shall annually designate a chairperson and a vice-chairperson from among the Commission membership.

I. Regular Meetings. The Commission shall meet as necessary to complete its business, as determined by the Commission or upon call of the chairperson, but not less than once per year.

J. Regular Meeting/Agenda Notice. In January of each year, the Commission may file the times and places of its regularly scheduled meetings with the Office of the Code Reviser for publication in the Washington State Register. At least 7 days prior to each regularly scheduled meeting, the Commission shall submit agendas to the Administrative Office of the Courts and to WSBA for website posting.

K. Special Meetings. A special meeting of the Commission may be called at any time by the chairperson or by a majority of the Commission membership by delivering written notice personally, by mail, or by e-mail to each Member at least 2 business days before the time of such meeting and by providing notice of the special meeting to the public by submitting notice for posting on the Administrative Office of the Courts website and the WSBA website.

L. Voting. Each Member shall be entitled to 1 vote on each matter submitted to a vote at a meeting of the Commission. A majority vote of the Members present at a meeting at which a quorum exists shall, unless a greater vote is required by other provisions of these regulations or by APR 28, decide any issue submitted. Members shall not be permitted to vote by proxy.

M. Quorum. A majority of the Members shall constitute a quorum. The chairperson may appoint temporary members of the Commission (or any designated committee) from among former members of the Commission, when a Member is disqualified or unable to function on a specific matter, for good cause. If less than a quorum is present at a meeting, a majority of the Members present may adjourn the meeting and continue it to a later date and time upon notice. At any reconvened meeting at which a quorum is present, any business may be transacted which might have been transacted at the adjourned meeting. Members present at a properly called meeting may continue to transact business until adjournment, notwithstanding the withdrawal of Members leaving less than a quorum.

N. Action by Communication Equipment. The Members or any committee may participate in a meeting of the Commission or such committee by means of a conference phone or similar communications equipment by which all persons participating in the meeting can hear each other at the same time, and participation by such means will constitute presence in person at a meeting.

O. Removal of a Member. The Commission may request the Supreme Court to declare a membership vacancy with respect to any Member whose removal from the Commission would, upon a 2/3 vote of the Commission excluding the affected Member, be in the best interest of the Commission; however, such action may only be taken by the Commission at a regular or special meeting following notice of such proposed action.

P. Committees. The Commission shall establish such committees as it deems necessary and appropriate with each committee having a specified function determined by the Commission and as required otherwise under these regulations.

Q. Records. The Commission Administrator shall maintain deliberations, recommendations, and decisions of the Commission and its committees. All records of the Commission and its committees shall be filed and maintained at the principal office of the WSBA.

R. Open Meeting and Records. All records, files, meetings and proceedings of the Commission and its designated committees shall be open and public, except that the Commission may meet in executive session and records and files may be made confidential where the preservation of confidentiality is desirable or where public disclosure might result in the violation of individual rights or in unwarranted private or personal harm as determined by the Commission. All discussions of particular complaints and investigations will be held in Executive Session.

S. Public Participation. The chairperson or the chair of any designated committee may allow for public participation at any meeting. Members of the public who wish to address the Commission or a designated committee at any meeting shall be required to provide contact information on a form provided for that purpose and shall be required to comply with any time limitation deemed appropriate by the chairperson or the designated committee chair.

REGULATION 4. PROCEDURE FOR DETERMINING AREAS OF PRACTICE

A. Notice and Public Hearing. Before any area of practice is authorized, notice shall be given to interested parties, including any group or individual who has requested notice and also to the WSBA Board of Governors, any WSBA section that might be affected and such other groups or individuals the Commission believes might be interested in such matter. Notice shall also be given in the WSBA Bar News, on the WSBA website and the POL Board website. Notices shall be given no less than 90 days prior to submission to the Commission for consideration. In addition, a minimum of 2 public hearings shall be held at separate locations within the State of Washington.

B. Commission Committees

1. Establishment of Committees. The Commission shall establish a separate committee for each area of practice by Legal Technicians when an area of practice is under consideration. Each such committee shall be composed of no less than 5 members, including 1 of each of the following: a lawyer licensed in the State of Washington whose practice area emphasizes the area of practice under consideration; a legal educator in the state of Washington; a person who is interested in practicing as a Legal Technician in this area; a member or former member of the POL Board.

2. Committee Responsibilities. The committee shall first determine whether the proposed area promotes access to affordable and reliable law related services in an area of unmet civil legal need that is practical and feasible for non-lawyer practice. If so, the committee shall determine the scope and nature of practice for Legal Technicians and any limitations and conditions to be imposed. The Commission shall report its recommendation to the POL Board. If this area of practice if approved by the Supreme Court, the Committee shall develop the forms and materials which may be used by the Legal Technicians; the test to be administered to those seeking certification; the continuing education/ethics requirements to be developed; and such other functions as the Commission shall request. The committee shall remain in place if the area of practice is approved by the Supreme Court, to continue such functions as shall be necessary, subject to the terms of tenure as established by the Commission.

C. Transmittal of Recommendations to Supreme Court. The Commission recommendation shall be forwarded to the POL Board for a determination whether to send the recommendation to the Supreme Court of the State of Washington. If such a recommendation is sent to the Supreme Court, all comments received and the Board of Governors recommendation shall also be sent to the Court. The Supreme Court of the State of Washington shall make the final determination on whether or not to open any area of practice of law to Legal Technicians as provided under these rules and regulations governing the same.

REGULATION 5. DISCIPLINE. The Commission shall have the authority to hold such hearings and impose such discipline as may be appropriate for any violations of the Admission to Practice Rules (APR). Such discipline shall be consistent with the Rules of Professional Conduct (RPC), as such apply to Legal Technicians. A disciplinary finding by the Commission may be reviewed by the POL Board. The POL Board decision may be reviewed by the Supreme Court at the Court's discretion.

REGULATION 6. CONFLICT OF INTEREST.

A. In General. A Member who has or has had a lawyer/client relationship or financial relationship with, or who is an immediate family member of, a person or entity who is a complainant or the subject of a matter before the Commission shall not participate in the investigation or deliberation on any matter involving that person. No WSBA employee shall participate in deliberation on any matter which is pending in, or likely to be referred to, the WSBA attorney disciplinary or bar admission systems.

B. Disclosure. A Member with a past or present relationship, other than that as provided in section A above, with a person or entity who is the complainant or subject of a matter before the Commission, shall disclose such relationship to the Commission and, if the Commission deems it a conflict, that Member shall not participate in any action relating to that matter.

REGULATION 7. PETITIONS FOR REVIEW.

Petitions for review from any action of the Commission to the Supreme Court shall comply with GR 25(g).

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 typographical error in the above material occurred in the copy filed by the State Supeme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office