WSR 18-01-035

RULES OF COURT

[December 6, 2017]

Ms. Kristy Healing and the Washington Supreme Court Commission on Children in Foster Care, having recommended the suggested amendment to APR 8—Limited Admissions, and the Court having considered the amendment and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendment as shown below is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2018.

(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, 2018. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 6th day of December, 2017.

Amend APR 8: Limited Admissions

Submitted by Kristy Healing

A. Name of Proponent: Kristy Healing, Commissioner, Washington State Supreme Court Commission on Children in Foster Care

B. Spokesperson: Kristy Healing

C. Purpose: APR 8 governs when lawyers admitted to practice law in other states or US territories may engage in the limited practice of law in Washington State. While the current law addresses various exceptions for indigent representation, military lawyers, and others, it fails to address the unique circumstance of a tribal attorney appearing as a matter of right under the Indian Child Welfare Act under federal law.

The Indian Child Welfare Act ("ICWA") 25 USC § 1901 et seq. sets minimum standards for the treatment of Indian children in state child custody proceedings and gives an Indian tribe the right to intervene and participate in any state child custody proceeding involving an Indian child from that tribe. Washington State adopted the Washington Indian Child Welfare Act ("WICWA") in 2011 to ensure state law provides the same rights of participation and intervention as the federal law. Chapter 13.38 RCW. Because tribes intervene in cases wherever the tribal children are, tribal attorneys are forced to appear in states where they are not licensed. While APR 8 is offered as solution, it has significant limitations, including the right of the state to deny the application. In addition, the high cost and requirements of local co-counsel can make appearing in a timely manner for a child welfare case nearly impossible. In child welfare matters, time is of the essence. To protect Indian children's tribal interests, tribes and their attorneys must be able to intervene as a matter of right and be protected from unauthorized practice of law charges.

Although many tribes receive federal grants for child and family services, those funds cannot be used for legal representation or for legal fees for litigation. See, e.g., 25 U.S.C. § 1931 (a)(8); 25 CFR §§ 89.40-41. Other federal moneys for social services are similarly restricted and cannot be used to pay for legal services for litigation. 25 U.S.C. §§ 450 et seq. This court rule amendment provides a solution to these funding restrictions. The Washington Court Rules ensure that those who appear in court, including Indian children, receive due process and equal treatment under the law. Accordingly, this amendment improves the welfare of Indian children in ICWA custody proceedings by ensuring that tribes can meaningfully participate in Washington child custody proceedings related to their children.

In addition, it is important to note that this amendment to the Washington Court Rules is not unprecedented. Both Oregon and Michigan recently adopted waivers for pro hac vice requirements for attorneys participating in ICWA cases. Michigan's amended rule MCR 8.126 goes into effect September 1, 2017. Oregon's amended rule UTCR 3.170 goes into effect January 1, 2018. The state of Nebraska has codified this in their state ICWA law at Neb. Rev. St. 43-1504(3)("The Indian child's tribe or tribes and their counsel are not required to associate with local counsel or pay a fee to appear pro hac vice in a child custody proceeding under the Nebraska Indian Child Welfare Act.")

Furthermore, many courts addressing the issue have held that a requirement that an Indian Tribe be represented by an attorney licensed in the state court is pre-empted by ICWA. See e.g., J.P.H. v. Fla. Dep't of Children & Families, 39 So.3d 560 (Fla. Dist. Ct. App. 2010) (per curiam); State v. Jennifer M. (In re Elias L.), 767 N.W.2d 98, 104 (Neb. 2009); In re N.N.E., 752 N.W.2d 1, 12 (Iowa 2008); State ex rel. Juvenile Dep't of Lane Cty. v. Shuey, 850 P.2d 378 (Or. Ct. App. 1993). The Nebraska Supreme Court noted that the Tribe's representative, while not a licensed attorney in Nebraska, was familiar with ICWA's procedural and substantive requirements, which mitigated the State's concern in having parties represented by counsel, and that the Tribe had authorized her to speak for it. The holding says:

"We conclude that tribal participation in state custody proceedings involving Indian children is essential to achieving the goals of ICWA. The tribal interests represented by ICWA and the Tribes right to intervene under § 1911(c) and § 43-1504(3) outweigh the State interest represented by § 7-101. Thus we determine that federal law preempts the requirement of § 7-101 that the Tribe be represented by a Nebraska licensed attorney in these proceedings."

State v. Jennifer M. (In re Elias L.), 767 N.W.2d 98, 104 (Neb. 2009) at 104. The state of Nebraska has since codified this provision. Neb. Rev. St. 43-1504(3). In order to prevent Washington Courts and parties in ICWA cases from having to expend time and resources litigating on a case by case basis whether an out of state Indian Tribe may send its tribal attorney as a representative, the proposed amendment would resolve the issue and preserve the due process rights of the parties in the ICWA case.

This proposed amendment is necessary because under ICWA Indian Tribes have a right to participate in proceedings, and the rule as written presents significant barriers to out of state Tribes seeking to timely intervene in an ICWA case. The Washington State Supreme Court Commission on Children in Foster Care is in support of the proposed amendment.

The Proponent requests that this proposed amendment be considered expeditiously.

(a) In General. Lawyers admitted to the practice of law in any state or territory of the United States or the District of Columbia or in any foreign jurisdiction, who do not meet the requirements of rule 1(b) or 3(c), may engage in the limited practice of law in this state as provided in this rule.

(b) Exception for Particular Action or Proceeding. A lawyer member in good standing of, and permitted to practice law in, the bar of any other state or territory of the United States or of the District of Columbia, or a lawyer who is providing legal services for no fee through a qualified legal services provider pursuant to rule 8(f), may appear as a lawyer in any action or proceeding only

(i) with the permission of the court or tribunal in which the action or proceeding is pending, and

(ii) in association with an active member of the Washington State Bar Association, who shall be the lawyer of record therein, responsible for the conduct thereof, and present at proceedings unless excused by the court or tribunal. The requirement in (ii) is waived for a lawyer who is a full-time active duty military officer serving in the office of a Staff Judge Advocate of the United States Army, Air Force, Navy, Marines, or Coast Guard, or a Naval Legal Service Office or a Trial Service Office, located in the State of Washington.

(1) An application to appear as such a lawyer shall be made by written motion to the court or tribunal before whom the action or proceeding is pending, in a form approved by the Board of Governors, which shall include certification by the lawyer seeking admission under this rule and the associated Washington lawyer that the requirements of this rule have been complied with, and shall include an indication on which date the fee and assessment required in part (2) were paid, or indicating that the fee and assessment were waived pursuant to part (2). The motion shall be heard by the court or tribunal after such notice to the Washington State Bar Association as is required in part (2) below, together with the required fee and assessment, unless waived pursuant to part (2), and to adverse parties as the court or tribunal shall direct. Payment of the required fee and assessment shall only be necessary upon a lawyer's first application to any court or tribunal in the same case. The court or tribunal shall enter an order granting or refusing the motion, and, if the motion is refused, the court or tribunal shall state its reasons.

(2) The lawyer making the motion shall submit a copy of the motion to the Washington State Bar Association accompanied by,

(A) a nonrefundable fee in each case in an amount equal to the license fee required of active lawyer members of the Bar, and

(B), the Client Protection assessment as required of active lawyer members of the Bar.

(3) Payment of the fee and assessment shall only be necessary upon a lawyer's first motion to any court or tribunal in the same case. The associated Washington counsel shall be jointly responsible for payment of the fee and assessment. The fee and assessment shall be waived for:

(A) a lawyer providing legal services for no fee through a qualified legal services provider pursuant to rule 8(f).

(B) a lawyer rendering service for no fee in either a bar association or governmentally sponsored legal services organization or in a public defender's office or similar program providing legal services to indigents and only in that capacity, or

(C) a lawyer who is a full-time active duty military officer serving in the office of a Staff Judge Advocate of the United States Army, Air Force, Navy, Marines, or Coast Guard, a Naval Legal Service Office or a Trial Service Office, located in the State of Washington, and who is not receiving any compensation from clients in addition to the military pay to which they are already entitled.

(4) The Bar shall maintain a public record of all motions for permission to practice pursuant to this rule.

(5) No member of the Bar Association shall lend his or her name for the purpose of, or in any way assist in, avoiding the effect of this rule.

(c) UNCHANGED

(d) UNCHANGED

(e) UNCHANGED

(f) UNCHANGED

(g) UNCHANGED