RULES OF COURT
| IN THE MATTER OF THE ADOPTION OF NEW RULE GR 25 | ) ) |
ORDER NO. 25700-A-700 |
Now, therefore, it is hereby
ORDERED:
(a) That pursuant to the provisions of GR 9(f), the proposed new rule as attached hereto is to be published for comment in the Washington Reports, the Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites expeditiously.
(b) The purpose statement as required by GR 9(d), 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, 2001. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.
DATED at Olympia, Washington this 8 day of February 2001.
Gary L. Alexander
CHIEF JUSTICE
Suggested Amendment
GENERAL RULES (GR)
GR 25 PRACTICE OF LAW BOARD
(new rule)
Purpose: The Mission of the Washington State Bar Association is "to promote justice and serve its members and the public." As stated in connection with proposed GR 24 (previously published for comment as GR 22), definition of the practice of law, "Defining 'the practice of law' lies at the heart of any effort to protect the public from untrained and unregulated persons who hold themselves out as able to offer advice and counsel in matters customarily performed by lawyers that affect individuals' legal rights, property, and life."
In order to implement and make meaningful the adoption of a rule defining the practice of law previously submitted in September 1999 and slightly modified in response to comments forwarded by the Court to WSBA. The Washington State Bar Association proposes another rule that establishes a Practice of Law Board which would serve (1) to consider issues relating to the unlicensed or unauthorized practice of law and issue advisory opinions and make appropriate referrals to prosecution authorities; and (2) to regulate the practice of law by recommending to the Supreme Court any future limited licensing of nonlawyers to practice law.
The Board would be similar in structure to the Disciplinary Board and the Board of Continuing Legal Education in that it would be appointed by the Supreme Court from nominations forwarded by the WSBA and administered by the Washington State Bar Association. It would consist of both lawyers and nonlawyers. It would be empowered to recommend to the Supreme Court amendment to the Admission to Practice Rules to authorize certification of limited practice by nonlawyers pursuant to criteria set out in the rule and developed by the WSBA Board of Governors and the Supreme Court. It would also have the authority to adopt regulations subject to the approval of the WSBA Board of Governors and the Supreme Court.
This rule would not authorize anyone to practice law. Nor would it empower the Practice of Law Board to authorize anyone to practice law. Rather, it establishes a mechanism by which complaints of unauthorized practice of law may be investigated and resolved or reported to an appropriate enforcement agency. It also establishes a mechanism and criteria for consideration of any recommendation to the Supreme Court that it adopt court rules pursuant to GR 9 to authorize the limited licensing of nonlawyers to engage in the regulated practice of law. Limited licensing of nonlawyers to practice law is currently authorized by APR 9, law student legal interns, and APR 12, limited practice for closing officers. Whether similar limited licensing of nonlawyers to engage in regulated practice of law should be extended has been the subject of study and debate (see, Final Report, WSBA Task Force on Nonlawyer Practice of Law (1995)). Adoption of this rule would provide a framework to consider the issue in the context of the definition of the practice of law pursuant to proposed GR 24.
Proposed GR 25 was drafted at the direction of the Board of Governors by an expanded version of the committee that drafted the definition of the practice of law, GR 24. In addition to the members listed in the GR 9 Cover Sheet for GR 24, this expanded committee included representatives from the Superior Court Judges Association, the Washington Association of County Clerks, the Access to Justice Institute of the Seattle University School of Law, lawyers and nonlawyers from the Access to Justice Board, and former citizen members of the Disciplinary Board. An initial draft of this proposed rule was circulated for comment to the same parties and organizations who had been involved in the drafting of GR 24. The limited responses were considered by the Committee.
The Board of Governors of the Washington State Bar Association by a unanimous vote recommends that the Supreme Court adopt GR 24 and GR 25.
GENERAL RULES (GR)
GR 25 PRACTICE OF LAW BOARD
(new rule)
Submitted by the Board of Governors of the Washington State Bar
Association
(b) Appointment. The Practice of Law Board shall consist of 13 members, at least four of whom shall be non-lawyers. The appointments shall be made by the Supreme Court after considering nominations from the Board of Governors of the Washington State Bar Association and other interested people and organizations. The members shall be appointed to staggered 3-year terms of 3 years and no member may serve more than 2 consecutive full 3-year terms. Any vacancy shall be filled for the unexpired term. The Supreme Court shall annually designate a chair and vice-chair, who shall be members of the Board.
(c) Powers of the Practice of Law Board.
(1) Advisory Opinions. On request of any person, or in connection with the consideration of any complaint or any investigation made on its own initiative, the Board may render advisory opinions relating to the authority of non-lawyers to perform legal and law-related services and arrange for their publication. No opinion shall be rendered if, to the Board's knowledge, the subject matter either involves or might affect a case or controversy pending in any court. An advisory opinion shall be issued by the Board in writing and shall be transmitted to the person making the inquiry. At the direction of the Board, an opinion may be published in the Washington State Bar News. Published opinions shall not, insofar as practicable, identify the party or parties making an inquiry, or the complainant or respondent.
(2) Complaints. The Board shall have jurisdiction over and shall inquire into and consider complaints alleging the unauthorized practice of law by any person or entity in accordance with the procedures outlined in this rule.
(3) Investigation. The Board may, on its own initiative, and without any complaint being made to it, investigate any condition or situation of which it becomes aware that may involve the unauthorized practice of law.
(4) Recommendations to the Supreme Court Regarding the Provision of Legal and Law-Related Services by Non-Lawyers. On request of the Supreme Court or any person or organization, or on its own initiative, the Board may recommend that non-lawyers be authorized to engage in certain defined activities that otherwise constitute the practice of law as defined in GR XX. In forwarding a recommendation that non-lawyers be authorized to engage in certain legal or law-related activities that constitute the practice of law as defined in GR XX, the Board shall determine whether regulation under authority of the Supreme Court (including the establishment of minimum and uniform standards of competency, conduct, and continuing education) is necessary to protect the public interest. Any recommendation that non-lawyers be authorized to engage in the limited provision of legal or law-related services shall be accompanied by a determination:
(A) that access to affordable and reliable legal and law-related services consistent with protection of the public will be enhanced by permitting non-lawyers to engage in the defined activities set forth in the recommendation;
(B) that the defined activities outlined in the recommendation can be reasonably and competently provided by skilled and trained non-lawyers;
(C) if the public interest requires regulation under authority of the Supreme Court, such regulation is tailored to promote access to affordable legal and law-related services while ensuring that those whose important rights are at stake can reasonably rely on the quality, skill and ability of those non-lawyers who will provide such services;
(D) that, to the extent that the activities authorized will involve the handling of client trust funds, provision has been made to ensure that such funds are handled in a manner consistent with RPC 1.14 and APR 12.1, including the requirement that such funds be placed in interest bearing accounts, with interest paid to the Legal Foundation of Washington; and
(E) that the costs of regulation, if any, can be effectively underwritten within the context of the proposed regulatory regime.
Recommendations to authorize non-lawyers to engage in the limited practice of law pursuant to this section shall be forwarded to the Washington State Board of Governors for consideration and comment before transmission to the Supreme Court. Upon approval of such recommendations by the Supreme Court pursuant to the procedures set out in GR 9, those who meet the requirements and comply with applicable regulatory and licensing provisions shall be deemed to be engaged in the authorized practice of law.
(d) Expenses of the Practice of Law Board. The Practice of Law Board shall be supported through annual commitments from the Washington State Bar Association and through a portion of other licensing fees established by the Supreme Court for nonlawyers authorized to engage in the regulated practice of law. The Board shall be administered and staffed by the Washington State Bar which shall pay all expenses reasonably and necessarily incurred by the Board, pursuant to a budget approved by the Board of Governors. Members of the Board shall not be compensated for their services, but shall be reimbursed for their necessary expenses incurred in connection with the Board in a manner consistent with the Association's reimbursement policies.
(e) Records. All records of the Board shall be filed and maintained at the principal office of the Association.
(f) Procedure.
(1) Committees. The Board may establish such committees as the membership may deem necessary and appropriate to the performance of its assigned tasks.
(2) Quorum. A majority of the Board shall constitute a quorum. The chairperson of the Board may appoint temporary members of the Board or a committee when a member is disqualified or unable to function on a specific matter for good cause.
(3) Action by Board. The full jurisdiction and authority of the Board, as provided in this rule, may be exercised by a committee, except that (1) no advisory opinion may be given without the approval of a majority of the Board; (2) no determination of the unauthorized practice of law by a respondent and referral of a matter to a law enforcement or other agency may be made without the approval of a majority of the Board: and (3) the action of a committee on any matter shall be subject to review and the approval or disapproval of the Board.
(4) Formal Complaint Procedure.
(A) Preliminary Investigation. The investigation or review of a complaint shall be promptly instituted by the Board or by a member thereof designated by the chair of the Board. If a complaint has been filed, the investigating member shall interview the complainant and respondent and shall conduct such further investigation as is deemed appropriate.
(B) Report and Written Agreement. Upon the conclusion of an investigation of a complaint, a report shall be made to the Board. If, after consideration of the report, the Board concludes that there has been no unauthorized practice of law, the complaint shall be dismissed and the Board shall so notify the complainant and the respondent in writing and shall close the file in the matter. If the Board concludes that there has been unauthorized practice of law, the Board shall attempt to persuade the respondent to enter into a written agreement to refrain from such conduct in the future. The written agreement may include a stipulation to penalties in the event of continued violation.
(C) Pending Controversy. The Board may defer investigation if, to the Board's knowledge, the conduct complained of is the subject matter of or might affect a case or controversy pending in any court.
(D) Informal Disposition. The Board may attempt to arrive at an amicable disposition of any matter within its jurisdiction with the respondent. At any time during the pendency of a matter before it, the Board may conduct an informal conference with the respondent. At the Board's discretion, an electronic recording or written transcription of the proceeding may be made. A respondent subject to an informal conference may be represented by counsel. After a finding by the Board of the unauthorized practice of law, the Board shall endeavor to have the respondent enter into a written agreement to refrain in the future from such conduct. If the respondent declines to enter into a written agreement pursuant to this rule, the Board shall refer the matter to an appropriate law enforcement or other agency in accordance with this rule.
(g) Petitions for Review.
(1) Notice. Within 20 days after an opinion is published, or within 30 days after any final action of the Board other than the publication of any opinion, any aggrieved member of the bar, bar association, person or entity may seek review thereof by serving on the Board a notice of petition for review by the Supreme Court and by filing the original notice with the Clerk of the Supreme Court. The notice shall set forth the petitioner's name and address and, if represented, the name and address of counsel. The notice shall designate the action of the Board sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved.
(2) Procedure. Petitions for review to the Supreme Court shall comply with the Rules for Appellate Procedure.
(3) Final Determination. The final determination of a petition for review may be either by written opinion or by order of the Supreme Court and shall state whether the opinion or the action of the Board is affirmed, reversed or modified or shall provide for such other final disposition as is appropriate.
(h) Referral to Enforcement Agency.
(1) Referral. When the Board concludes from its preliminary investigation, or from the failure of an informal conference as provided these rules, that an amicable disposition of any matter within its jurisdiction cannot be effected with the respondent, it shall, based upon the nature of the complaint, the relief sought, and the facts as then known, refer the matter to the law enforcement or other agency the Board determines is best suited to conduct an investigation and any prosecution of such matter.
(2) Contents of File. Upon making a determination that an amicable disposition of a matter cannot be effected, and that the matter should be referred to a particular law enforcement or other agency, the Board shall send such agency the original complaint, response, evidence or other proof, investigative report and, if an informal conference has been conducted, a transcript of such proceedings. The Board shall retain copies of all such documents for its file.
(3) Notice to Complainant. Upon referring a matter to a law enforcement or other agency, the shall notify the complainant of such action in writing.
(i) Immunity from Suit.
(1) The members and staff of the Board shall be absolutely immune from suit, whether legal or equitable in nature, for any conduct in the performance of their official duties.
(2) Persons who bring allegations concerning any individual or entity to the Board shall be immune from suit, whether legal or equitable in nature, for all communications to the Board or to its staff.
(j) Regulations.
The Board may adopt regulations pertinent to these powers subject to the approval of the Supreme Court.
Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.