BP BHEAD INT S [atlas:bill]

AN ACT Relating to civil legal services; adding a new chapter to Title 2 RCW; adding new sections to chapter 43.131 RCW; creating new sections; repealing 43.08.260; prescribing penalties; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. INTENT. It is the intent of the legislature to promote equal access to justice for the people of the state of Washington. The legislature finds that progress toward this goal requires continued state funding for civil legal representation of low-income persons and development of an accountable, nonpartisan framework within which that representation will be provided as authorized by the legislature. By establishing the office of civil legal services, the legislature intends, subject to available funds, to provide civil legal representation to low-income state residents and to provide oversight of and information about state-funded activities of legal services providers.

The legislature intends the office of civil legal services to oversee the provision of civil legal assistance within a framework that ensures accountability and responsible, quality, client-oriented legal advocacy. Within this framework, the legislature recognizes the exclusive authority of the judicial branch to regulate and oversee the practice of law, including the provision of civil legal services to indigent residents of Washington under this chapter.

NEW SECTION. Sec. 2. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Board" means the civil legal services oversight advisory board.

(2) "Director" means the director of the office of civil legal services.

(3) "Lobby" and "lobbying" each mean attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of a rule, standard, rate, or other legislative enactment of a state agency under the state Administrative Procedure Act, chapter 34.05 RCW. Neither "lobby" nor "lobbying" includes an association's or other organization's act of communicating with the members of that association or organization.

(4) "Office" means the office of civil legal services.

(5) "Political activity" means an activity directed toward the success or failure of a political party, candidate for a partisan political office, or a partisan political group.

(6) "Political purpose" means a purpose concerned with the support or opposition to a candidate for a partisan or nonpartisan office or concerned with the support or opposition to a ballot proposition or issue, and includes but is not limited to such activities as advertising for or against any candidate or ballot measure or the solicitation of financial support.

(7) "State funding" means amounts appropriated by the legislature to the office for purposes of civil indigent legal representation and moneys in the indigent civil legal services revolving fund.

NEW SECTION. Sec. 3. OFFICE OF CIVIL LEGAL SERVICES ESTABLISHED. (1) An office of civil legal services is established as an independent agency of the judicial branch.

(2) The office shall not provide direct representation of clients.

NEW SECTION. Sec. 4. MEMBERSHIP OF THE OVERSIGHT BOARD‑-DUTIES. (1) A civil legal services oversight advisory board is established, consisting of the following members:

(a) Three persons appointed by the supreme court, one of whom should be the chair of the access to justice board established by Supreme Court Order No. 25700-B, dated May 10, 1994;

(b) Two senators, one from each of the two largest caucuses, appointed by the president of the senate;

(c) Two members of the house of representatives, one from each of the two largest caucuses, appointed by the speaker of the house of representatives;

(d) Three persons appointed by the governor, at least one of whom is an eligible low-income civil legal services consumer; and

(e) One person appointed by the Washington state bar association.

(2) Members of the board serve for three-year terms, and may be reappointed. Members receive no compensation for their services as members of the board, but may be reimbursed for travel and other expenses in accordance with rules adopted by the office of financial management.

(3) Members of the board may not be board members or employees of legal services providers receiving state funding under this chapter.

(4) The duties of the board are to:

(a) Appoint a director of the office of civil legal services meeting the qualifications of section 5 of this act;

(b) Determine the salary of the director; and

(c) Advise the director on activities of the office and provision of civil indigent representation, in accordance with section 10 of this act.

(5) A majority vote of the board is required to appoint the director and a two-thirds vote of the board is required to remove the director. Decisions of the board require the affirmative vote of at least two legislators, one from each political party.

NEW SECTION. Sec. 5. DIRECTOR‑-QUALIFICATIONS. Qualifications for the director include admission to practice law in this state for at least five years, experience in the representation of low-income people in civil matters, which experience may be in the form of volunteer representation, knowledge of and demonstrated commitment to promoting civil equal justice efforts, and proven managerial or supervisory experience. The director serves at the pleasure of the board.

NEW SECTION. Sec. 6. DIRECTOR‑-DUTIES. The director shall:

(1) Contract with one or more qualified legal services providers to provide civil indigent legal representation under this chapter;

(2) Develop a system to evaluate the use of state funding for civil legal services to ensure effective and efficient use in accordance with professional standards established by the supreme court, the American bar association, the Washington state bar association, and the access to justice board established by Supreme Court Order No. 25700-B, dated May 10, 1994. In developing the system, the director shall, to the extent practicable, focus on outcome-based, objective, and measurable factors, consistent with the considerations set forth in RCW 43.88.090(3);

(3) Monitor the use of state funding for compliance with this chapter and other applicable conditions, and periodically evaluate the effectiveness of the use of those funds in promoting access to the civil justice system for low-income residents of Washington;

(4) Receive, investigate, and respond to complaints regarding allegations of improper activities of legal services providers receiving state funding. If, in the course of performing this function, the director becomes aware of facts that reasonably give rise to the suspicion that state or federal laws or rules of professional conduct have been violated by a provider receiving state funding, the director shall report the facts to the appropriate authorities. The director shall defer when appropriate to the authority of the Washington state bar association to investigate allegations of professional misconduct on the part of attorneys licensed to practice in the state of Washington;

(5) Impose sanctions under the procedures authorized by this chapter;

(6) Coordinate with the access to justice board to define uniform standards for determining and verifying indigency;

(7) Report biennially to the supreme court and the appropriate committees of the legislature on the status of civil access to the justice system and make recommendations regarding efforts that should be undertaken to promote meaningful access to the civil justice system for low-income residents of Washington state. The reports must include appropriate detailed explanations of any sanctions that have been imposed or are pending;

(8) Cooperate with the access to justice board, the private sector, and state and local bar associations to develop initiatives that enhance the coordinated delivery of civil legal services to low-income residents and foster greater public awareness and understanding of the need to ensure equal access to the civil justice system for all residents of Washington;

(9) Submit a biennial budget request to the state legislature.

NEW SECTION. Sec. 7. CONTRACTS, QUALIFIED LEGAL SERVICES PROVIDERS‑-LIMITS ON USE OF FUNDING. (1) Subject to available appropriations, state funding of the office must be used to support the administration of the office and to contract with one or more qualified legal services providers to deliver civil legal services to eligible low-income clients.

(2) To be a "qualified legal services provider" eligible for contracts with the office under this chapter, the contract applicant must:

(a) Be a nonprofit corporation with a board of directors. The membership of its board of directors must meet the following criteria:

(i) Not more than fifty-one percent of its members are affiliated with the same political party. A board member is "affiliated" with a political party if, at the time of the person's appointment to the board of directors, the person is a national, state, or local committee member, delegate to a county, state, or national political convention, precinct committee officer, or holds another elected or appointed position within a political party or party organization;

(ii) At least fifty percent are lawyers licensed to practice law in this state;

(iii) Not less than twenty-five percent are eligible clients appointed by organizations that serve or represent low-income people;

(iv) Except as permitted by this subsection (2)(a), appointments to the applicant's board of directors must be made without regard to political philosophy or ideology but solely on the basis of an individual's interest and demonstrated commitment to ensuring access to the justice system for all residents of Washington;

(b) Adopt a biennial plan to provide civil legal services to low-income clients consistent with client needs as identified through a periodic community-based priority needs assessment process;

(c) Have an accounting and timekeeping system that meets generally accepted accounting practices and all federal office of management and budget and state auditor requirements for nonprofit organizations, and that allows for the contemporaneous segregation of costs and expenditures by funding source;

(d) Adopt a biennial plan to provide effective, reasonably equivalent access to legal services for low-income clients in all thirty-nine counties;

(e) Contract with an independent auditing firm for the preparation of an annual fiscal audit, and file the audit report with the director within one hundred twenty days of the close of the provider's fiscal year, but nothing in this subsection (e) limits the authority of the state auditor to carry out statutorily prescribed powers and duties;

(f) Adhere to the highest quality of service and professional standards;

(g) Adopt a biennial plan to ensure regular community-based advice and input into the activities of local or regional legal services offices;

(h) Adopt a biennial plan to encourage the timely and effective consideration of alternative approaches to the resolution of client legal disputes, including, but not limited to, mediation, arbitration, and facilitated negotiation;

(i) Adopt and enforce policies that prohibit the use of its resources, regardless of source (i) for political activities or political purposes, except as permitted by section 7 (2)(a)(i) and (3)(c) of this act; (ii) to represent or promote the activities or efforts of a political party; or (iii) to represent or to act as an organizer for a labor union, or for a communication or a meeting to advocate that anyone organize or join a labor union. For purposes of this subsection (2)(i)(iii), "communication" does not include advice or representation given an individual client during the course of legal consultation or representation;

(j) Adopt and enforce policies to prevent and sanction violations of this chapter;

(k) Enter into a protocol to coordinate the delivery of civil legal services to low-income persons referred by the office of the family and children's ombudsman and other public agencies that represent or assist persons receiving state family and children's services; and

(l) Adopt a biennial plan for client involvement in the provision of direct, extended legal representation supported by state funding, including but not limited to copayments, sliding fee scales, suggested voluntary contributions, or other appropriate revenue-generating mechanisms, to be effective no later than July 1, 1999. In addition to revenue-generating mechanisms, the plan may include client involvement in the form of community-based volunteer services. All receipts from client payments under this subsection must be deposited in the indigent civil legal services revolving account.

(3) State funding may not be used, directly or indirectly, to support in whole or in part:

(a) The representation of any client in a criminal proceeding;

(b) Preparation, production, or dissemination of information the purpose of which is to encourage the public at large, or any definable segment of it, to contact legislators or their staff in support of or in opposition to pending or proposed legislation; or contribute to or participate in a demonstration, march, rally, lobbying campaign, or letter writing or telephone campaign for the purpose of influencing the course of pending or proposed legislation; or

(i) To support lobbying activities designed to provide legislative or executive officials, committees, or staff members with information about the activities of a qualified legal services provider or civil access to justice needs of residents of Washington;

(ii) To appear and testify at public hearings in response to a written request by a state legislator.

The provider shall simultaneously file with the office copies of any filings it makes with the public disclosure commission.

(4) Contracts entered into by the office under the authority of this section must require that attorneys' fees awarded in cases supported by state funding be deposited into the indigent civil legal services revolving account. Attorneys' fees awards in cases supported in part by state funding and in part by funding from other sources must be apportioned on a pro rata basis, with the portion attributable to representation provided with state funding deposited in the indigent civil legal services revolving account.

NEW SECTION. Sec. 8. The indigent civil legal services revolving account is created in the custody of the state treasurer. All receipts generated under sections 7 and 11 of this act must be deposited into the account. Expenditures from the account may be used only for purposes of this chapter. Only the director of the office of civil legal services or the director's designee may authorize expenditures from the account. The account is subject to the allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION. Sec. 9. NONPARTISAN STATUS. Except as provided in section 7 (2)(a)(i) and (3)(c) of this act, the office, qualified legal services providers receiving state funding, and board members and employees of the providers shall not:

(1) Identify the office or provider with a partisan or nonpartisan political activity, with a political purpose, or with the campaign of a candidate for elective public or party office;

(2) Use a partisan or ideological political test or qualification in making a decision, taking action, or performing a function connected with providing civil legal services funded in whole or in part with funding provided by the office.

NEW SECTION. Sec. 10. NONINTERFERENCE WITH PROFESSIONAL RESPONSIBILITIES. (1) The director must ensure that no person associated with the office or the board interferes with the discharge of professional responsibilities to clients by an attorney providing legal services with state funding.

(2) Nothing in this chapter abrogates or limits the professional responsibilities of attorneys providing legal services to low-income clients with funding provided by the office under this chapter.

(3) For purposes of this section, "professional responsibilities" are duties and responsibilities established by the rules of professional conduct and other nondiscretionary duties applicable generally to members of the legal profession, including the duty to preserve inviolate and prevent the disclosure of client information protected by the United States Constitution, the Washington Constitution, the attorney-client privilege, or any applicable attorney rule of professional conduct.

NEW SECTION. Sec. 11. OVERSIGHT‑-SANCTIONS. (1) The director must ensure that legal services providers receiving state funding comply with the requirements of this chapter and any other applicable requirements. If the director determines that a provider receiving state funding, or a board member or employee of such a provider, has used the state funding or caused the provider to use the state funding in violation of this chapter, or has otherwise failed to comply with this chapter, the director may impose one or more of the following sanctions:

(a) Issue a reprimand describing the facts giving rise to the director's determination that a violation of this chapter has occurred. The director shall forward copies of all reprimands issued under authority of this section to the board;

(b) Withhold from the provider's next contractual payment the amount, if any, found to have been improperly expended on activities prohibited under this chapter;

(c) Levy a fine of up to two thousand five hundred dollars against the provider for each violation found by the director, which amounts must be deducted from the provider's next contractual payment; or

(d) Commence proceedings to terminate state funding of the provider.

In determining the appropriate sanction, the director shall consider, among other things, the nature of the violation, the client interest intended to be served by the conduct constituting a violation, the potential consequences resulting from the violation, the manner in which the provider responded to any prior notices of noncompliance, and whether the violation was an isolated or negligent oversight on the part of the provider's governing board or administration, or was the result of willful or repeated acts, including a demonstrated history of failure to comply with this chapter or other applicable law.

(2) Sanctions imposed under subsection (1)(c) of this section are authorized only when there has been a substantial failure on the part of a legal services provider to comply with a provision of law or a condition of a contract under which state funding is made available to the provider.

(3) Sanctions imposed under subsection (1)(d) of this section are authorized only where there has been either a substantial ongoing failure by a legal services provider to provide effective legal assistance as measured by generally accepted professional standards, or a pattern of willful disregard of the requirements of this chapter. In the absence of unusual circumstances, state funding of a legal services provider shall not be terminated for this cause unless the director provides the provider with notice of the failure(s) and a reasonable period of time for the provider to take effective corrective action.

(4) No sanction imposed under authority of this section is effective until the director:

(a) Issues a notice to the provider's director and board chair advising (i) of the director's intent to impose one or more specified sanctions, (ii) of the reasons for the proposed sanction, (iii) of the right of the provider to obtain review of the proposed sanction by requesting a hearing before the proposed sanction's taking effect, and (iv) that the sanction will become effective if the provider does not request review within thirty days of receipt of the notice of intent to impose sanctions; and

(b) Provides a copy of the notice to the board.

(5) Hearings must be on the record and completed within sixty days of the provider's request for review of the proposed action. The board shall request assignment of an administrative law judge in accordance with chapter 34.12 RCW to conduct the hearing. A written decision must be issued within thirty days of the hearing. Review of the decision is available under chapter 34.05 RCW. The reviewing court may grant relief only if the decision is arbitrary and capricious or in violation of law.

(6) Sanctions authorized under this chapter are not exclusive. Nothing in this chapter limits the ability of the director, the state auditor, the state bar association, or other interested persons to pursue civil or criminal remedies otherwise authorized under applicable laws.

NEW SECTION. Sec. 12. All employees of the office are exempt from state civil service under chapter 41.06 RCW.

NEW SECTION. Sec. 13. On January 1, 1998:

(1) All powers, duties, and functions of the department of community, trade, and economic development pertaining to civil indigent legal representation are transferred to the office of civil legal services.

(2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of community, trade, and economic development pertaining to the powers, functions, and duties transferred must be delivered to the custody of the office of civil legal services. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the department of community, trade, and economic development in carrying out the powers, functions, and duties transferred must be made available to the office of civil legal services. All funds, credits, or other assets held in connection with the powers, functions, and duties transferred must be assigned to the office of civil legal services.

(b) Any appropriations made to the department of community, trade, and economic development for carrying out the powers, functions, and duties transferred must, on the effective date of this act, be transferred and credited to the office of civil legal services.

(c) Whenever any question arises as to the transfer of any personnel, moneys, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify that determination to the state agencies concerned.

(3) All employees of the department of community, trade, and economic development engaged in performing the powers, functions, and duties transferred are transferred to the jurisdiction of the office of civil legal services. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the office of civil legal services to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

(4) All rules, contracts, and all pending business before the department of community, trade, and economic development pertaining to the powers, functions, and duties transferred are continued and must be acted upon by the office of civil legal services. All existing contracts and obligations remain in full force and must be performed by the office of civil legal services.

(5) The transfer of powers, duties, functions, and personnel of the department of community, trade, and economic development does not affect the validity of any act performed before the effective date of this act.

(6) If apportionments of budgeted moneys are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

(7) Nothing in this section may be construed to alter an existing collective bargaining unit or the provisions of an existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel board as provided by law.

NEW SECTION. Sec. 14. A new section is added to chapter 43.131 RCW to read as follows:

The office of civil legal services and its powers and duties are terminated on June 30, 2001, as provided in section 15 of this act.

NEW SECTION. Sec. 15. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective June 30, 2002:

(1) RCW 2.---.--- and 1997 c --- s 1 (section 1 of this act);

(2) RCW 2.---.--- and 1997 c --- s 2 (section 2 of this act);

(3) RCW 2.---.--- and 1997 c --- s 3 (section 3 of this act);

(4) RCW 2.---.--- and 1997 c --- s 4 (section 4 of this act);

(5) RCW 2.---.--- and 1997 c --- s 5 (section 5 of this act);

(6) RCW 2.---.--- and 1997 c --- s 6 (section 6 of this act);

(7) RCW 2.---.--- and 1997 c --- s 7 (section 7 of this act);

(8) RCW 2.---.--- and 1997 c --- s 8 (section 8 of this act);

(9) RCW 2.---.--- and 1997 c --- s 9 (section 9 of this act);

(10) RCW 2.---.--- and 1997 c --- s 10 (section 10 of this act);

(11) RCW 2.---.--- and 1997 c --- s 11 (section 11 of this act); and

(12) RCW 2.---.--- and 1997 c --- s 12 (section 12 of this act).

NEW SECTION. Sec. 16. Sections 1 through 12 of this act constitute a new chapter in Title 2 RCW.

NEW SECTION. Sec. 17. Section captions used in this act are not part of the law.

NEW SECTION. Sec. 18. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 19. Effective January 1, 1998, RCW 43.08.260 and 1995 c 399 s 62 & 1992 c 54 s 4 are each repealed.

NEW SECTION. Sec. 20. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1997.