WSR 01-13-036

RULES OF COURT

STATE SUPREME COURT


[ June 12, 2001 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO LIMITED PRACTICE ADMISSION AND CERTIFICATION RULES 2, 10, 11, 13, 14, 15, 16 AND NEW RULE 20; DISCIPLINARY RULES 1.3, 1.5, 1.6, 1.7, 2.6, 3.2, 8.6, 9.1 AND 11.4 AND TITLE TO DISCIPLINARY REGULATIONS )

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 ORDER

NO. 25700-A-710

     The Limited Practice Board having recommended the adoption of the proposed amendments to Limited Practice Admission and Certification Rules 2, 10, 11, 13, 14, 15, 16 and New Rule 20; Disciplinary Rules 1.3, 1.5, 1.6, 1.7, 2.6, 3.2, 8.6, 9.1 and 11.4 and Title to Disciplinary Regulations, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

     Now, therefore, it is hereby

     ORDERED:

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

     (b) That the amendments will be published in the Washington Reports and will become effective July 2, 2001.

     DATED at Olympia, Washington this 12th day of June 2001.
     Alexander, C. J.
     Smith, J.

     

     Johnson, J.

      Bridge, J.
     Madsen, J.

      Chambers, J.
     Ireland, J.

      Owens, J.


Suggested Amendment


RULE 2


Applicants



A. - B. [Unchanged.]


C.     Filing Application


     Persons applying for admission to limited practice under APR 12 should submit their application, in duplicate, together with the required attachments and fee to the OFFICE OF THE ADMINISTRATOR FOR THE COURTS, PO BOX 41172, OLYMPIA WA 98504-1172. The application shall not be considered complete and will not be approved pursuant to Rule 4 unless the applicant has provided a residential address.


     Intake of the application for admission will be handled by the staff of the OAC.


     A cutoff date for acceptance of applications will be established by the Limited Practice Board before each scheduled examination. The date shall be disseminated to each applicant when the application packet is distributed by the staff of the OAC.


Suggested Change


RULE 10


Examination Standards and Notification of Results



The passing standard for the examination is set at 75 percent for each section. All applicants will be notified by the staff of the OAC of the applicant's examination results. Those applicants who unsuccessfully sit for the examination may request that they be informed of their score on the examination by category. The request shall be made in writing by the applicant to the staff of the OAC. Test scores shall not be made available to those applicants who successfully sit for the examination. Copies of the examination shall not be available to any applicant.


Suggested Change


RULE 11


Reapplication for Examination



Applicants may take the examination three times without making reapplication. However, after three failures, an applicant shall must make reapplication in order to sit for reexamination. If more than one year passes from the date the applicant last sat for the examination without the applicant sitting for reexamination, then the applicant shall be required to make reapplication to sit for the examination.


Suggested Changes


RULE 13


Annual Fee



A. Except as set forth in section B of this Rule, Eevery Limited Practice Officer (LPO) shall pay an annual fee of $85.00 through the OAC. The fee runs in accordance with the fiscal year commencing July 1, 1984. Failure to pay the annual fee shall subject the LPO to disciplinary action.


B. The prorated annual fee for LPOs who pass the qualifying examination given in the spring and who request active status prior to July 1 of that same calendar year shall be $40. Said LPOs shall pay the annual fee set forth in Rule 13.A. to retain their active status after June 30 of the calendar year of their admission.


C. An LPO shall provide his or her residential address to the Board at the time of payment of the annual fee.


Suggested Changes


RULE 14


Insurance



Each LPO shall either be insured or covered under the financial statement of an employer or employer's parent company or other surety at all times as specified in Rule 12 herein. If the LPO is covered under a financial statement, the LPO, employer, employer's parent company or other surety who has assumed such financial responsibility shall annually file with the Limited Practice Board, by July 1, the audited financial statement for the most-recent fiscal year of the financially responsible party indicating net worth.


Each LPO shall notify the staff of the Limited Practice Board of any cancellation or lapse in coverage. During any period that a LPO is not covered in accordance with Rules 12 and 14, or is not on inactive status pursuant to Rule 16, the license of the LPO shall be suspended. Each suspended LPO must demonstrate compliance with the requirements of Rule 12 within nine (9) months of the date of the suspension or the license of the suspended LPO shall be revoked.


Suggested Changes


RULE 15


Continuing Education



Every LPO shall attend a minimum of ten (10) hours of approved continuing education during each calendar year. Two (2) hours of the required ten (10) hours of continuing education shall be on liability issues. If an active LPO completes more than ten (10) credit hours in a given calendar year, the excess credit, up to ten credits, may be carried forward and applied to such LPO's education requirements for the next calendar year.


Every LPO shall submit proof of compliance with the continuing education attendance requirements by filing an Affidavit of Attendance as prescribed by the Limited Practice Board through the OAC at the end of each calendar year. Failure to attend the requisite hours of approved continuing education each calendar year shall subject the LPO to disciplinary action.


Suggested Changes


RULE 16


Inactive Status



Any LPO may request leave of the Limited Practice Board to move to inactive status after being certified.


Any LPO who has been granted inactive status must continue to meet all the continuing education requirements occurring during the period of inactive status before transferring to active status by the LPO.


Any LPO awarded inactive status by the Limited Practice Board is not required to pay the annual fee prescribed by Rule 13 or to meet the insurance requirements prescribed by Rule 14 during the period of inactive status.


If a LPO remains on inactive status for longer than two (2) years from the date of transfer to inactive status, the LPO can be returned to active status only after successfully taking the examination required for certification under APR 12.


If an LPO does not meet the continuing education requirements or the annual fee requirement, the LPO may lose inactive status and be suspended.


An LPO awarded inactive status by the Limited Practice Board is not required to meet the insurance requirements prescribed by Rule 14 during the period of inactive status.


An LPO who has been awarded voluntary inactive status may return to active status by filing a petition to return to active status with the Board within two (2) years from the date the LPO was granted voluntary inactive status. To be granted active status, the LPO must be current on the payment of the annual dues fees prescribed by Rule 13, must have met the continuing education requirements of Rule 15 and meet the insurance requirements prescribed by Rule 14.


Suggested Changes


[New Rule.]


RULE 20


Records Disclosure



A. The Board shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of this Rule or any other Rules and Regulations applicable to Limited Practice Officers (LPOs.) A "public record" is defined as written information, regardless of physical form or characteristic, that has been made or received by the Board or the Office of the Administrator for the Courts (OAC) in connection with the transaction of public business.


B. To the extent required to prevent an unreasonable invasion of the privacy interests set forth in this Rule or elsewhere in these Rules, the Board shall delete identifying details in a manner consistent with those rules when it makes available or publishes any public record.


C. No fee shall be charged for the inspection of public records. The fee charged for the copying of public records shall be the same fee charged by the OAC for making copies of public records.


D. The Board shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to establish whether inspection and copying would violate a statute, court order or rule which exempts or prohibits disclosure of specific information or records.


E. The following records are exempt from public inspection and copying:


     (1) Test questions, scoring keys and other examination data used by the Board to administer the qualifying examination.


     (2) Preliminary drafts, notes, recommendations, and intra-Board memorandums in which opinions are expressed or policies formulated or recommended.

     (3) Records which are relevant to a controversy to which the Board is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.


     (4) The residential address and residential telephone number of a limited practice officer.


     (5) Membership information; however, status, business addresses, business telephone numbers, facsimile numbers, electronic addresses, license number and dates of admission shall not be exempt.


     (6) Applications for admission to limited practice and related records.


F.     The disclosure of records in disciplinary files shall be governed by Disciplinary Rules 1.8 and 8.6.


G.     The exemptions to disclosure set forth in this Rule shall be inapplicable to the extent that information, the disclosure of which would violate personal privacy or fall within an exemption, can be deleted from the specific records sought.


H.     Responses to requests for public records shall be made promptly by the Board. Within five business days of receiving a public record request, the Board must respond by either (1) providing the record; or (2) acknowledging the request and providing a reasonable time estimate for responding to the request, or (3) denying the request. The Board may ask the requestor to clarify the request. If the requestor fails to clarify the request, the Board may deny the request. Denials of request must be accompanied by a written statement of the specific reasons therefore.


     I. Whenever OAC staff concludes that a public record is exempt from inspection and copying, the person may appeal that decision to the Board.


J. The disclosure of information under this section should not violate an individual's right to privacy by amounting to a disclosure of information about that person that would be highly offensive to a reasonable person and is not of legitimate concern to the public.


Suggested Change


RULE 1.3


Disciplinary Panel



A. - C. [Unchanged.]


C. Duties. It shall be the duty of the Disciplinary Panel to:


     1.     Take cognizance of any alleged or apparent violations of these rules coming to its attention, whether by complaint grievance or otherwise, to investigate the same promptly and to submit a report to the full Board within sixty (60) days from the date the matter first came to the attention of the Disciplinary Panel unless the time is extended by the Chair of the Board; and


     2.     Submit reports to the Board which shall be in such form and pursuant to such procedures as may from time to time be prescribed by the Board; such reports shall form a part of the permanent records of the Board and may be used as a basis for the commencement of disciplinary proceedings.


D. [Unchanged.]


E.     Authority. The authority of the Disciplinary Panel shall include, but not be limited to, the power conditionally to settle and dispose of complaints grievances of a trivial nature without a hearing; provided, that a complete report of the disposition of each complaint grievance shall be made to the Board; upon the filing of the report with the Board, such conditional disposition shall be deemed conclusive unless the Board acts otherwise within sixty (60) days from receipt of such report. Settlement of, compromise of, or restitution in a matter shall not justify the Disciplinary Panel in failing to undertake or complete its investigation and report thereof to the Board.


F.     Matters Involving Related Pending Civil or Criminal Liability. Processing of grievances or complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation may be deferred when authorized by the Board. In such event, the respondent LPO shall make all reasonable efforts to obtain a prompt trial and disposition of such pending litigation. The acquittal of the respondent LPO on criminal charges or a verdict or a judgment in the LPO's favor in a civil litigation involving substantially similar material allegations shall not in and of itself justify abatement of a disciplinary investigation predicated upon the same material allegations.


Suggested Change


RULE 1.5


Respondent Limited Practice Officer



It shall be the duty and the obligation of an LPO who is the subject of a disciplinary investigation to cooperate with the Disciplinary Panel, Board, or OAC staff as requested, subject only to the proper exercise of the LPO's privilege against self-incrimination where applicable by:


A.     Furnishing any papers or documents, permitting inspection and copying of his or her business records, files and accounts;


B.     Furnishing, in writing, or orally if requested, a full and complete explanation covering the matter contained in such complaint grievance;


C.     Furnishing written releases or authorizations where needed to obtain access to documents or information in the possession of third parties; and


D.     Appearing before the Disciplinary Panel or Board at the time and place designated;


E.     An LPO may be represented by counsel during any stage of an investigation or proceeding under these rules.


Suggested Changes


RULE 1.6


Duties of Complainant Grievant



Upon request, the person complaining grievant shall furnish to the Disciplinary Panel, Board, or OAC staff, documentary and other evidence in the complainant grievant's possession and the names and addresses of witnesses, and assist in securing evidence in relation to the facts charged; and appear and testify at any proceeding resulting from the complaint. Failure to fulfill these duties may be grounds for the dismissal of a complaint grievance.


RULE 1.7


Pleadings



The only permissible pleadings upon proceedings before the Disciplinary Panel are a formal complaint, a notice to answer, answer to complaint and motions to make more definite and certain, or in the alternative, for a bill of particulars. Informality in the complaint or answer shall be disregarded.


A.     Formal Complaint. If the Disciplinary Panel determines a hearing should be had to ascertain whether a violation of these Rules has occurred, a formal complaint shall be prepared and filed in the office of the OAC, and proceedings shall be had thereon as hereinafter provided. The formal complaint, which need not be verified, shall set forth the particular acts or omissions of the respondent LPO in such detail as to enable the LPO to know the charge and shall be signed by the Chair of the Disciplinary Panel.


     1.     Prior Record of a Separate Count. Prior disciplinary proceedings and complaints grievances against a respondent LPO, excluding dismissals after a hearing before the Disciplinary Panel or Board, shall be made a separate count of the complaint if they indicate conduct demonstrating unfitness to act as an LPO.


     2. - 5. [Unchanged.]


B. - C. [Unchanged.]


RULE 2.6


Board Action



A.     Decision of Board. Prompt decision of the Board upon such review shall be made. The Board shall adopt, modify or reverse the findings, conclusions and recommendation of the Disciplinary Panel by written order, a copy of which shall be served upon the respondent LPO or the LPO's counsel.


B.     Transcript Required for Suspension or Revocation. No suspension or revocation shall be recommended by the Board unless and until a transcript of the testimony before the Disciplinary Panel shall have been reduced to writing and settled as provided in Rule 2.5.


C.     Dissent. If any member or members of the Board shall dissent from the findings, conclusions and recommendation of the majority, the member or members shall state briefly the reasons therefore and such dissent or dissents shall be made a part of the record.


D.     Disposition Not Requiring Supreme Court Action. If the formal complaint is dismissed or if there is no recommendation of discipline by the Board or if the recommendation is that the respondent LPO be admonished, censured or reprimanded, the record of the proceeding shall be retained in the office of the OAC.


E.     Disposition Requiring Supreme Court Action. If the recommendation of the Board is that the respondent LPO be suspended or revoked, that recommendation along with the record shall be transmitted to the Supreme Court.


F.     Chair Not Disqualified. Neither the Chair of the Board nor a member or members of the Board who also serve on the Disciplinary Panel are, by virtue of that office or service, disqualified from participating in the review before the Board of that Disciplinary Panel's findings, conclusions and recommendation or from participating in that Board's vote on the matter.


G.     Information to Grievant. The grievant complainant in all cases shall be advised by the Board of the final disposition of the grievance or complaint.


RULE 3.2


Suspended or Revoked LPOs



A.     A revoked LPO, or one that is suspended for longer than thirty (30) days, shall promptly notify by registered or certified mail, return receipt requested, all clients being represented in pending matters of the revocation or suspension and the consequent inability to act as a Limited Practice Officer after the effective date of the revocation or suspension and shall advise clients to seek services elsewhere.


B.     The revoked or suspended LPO, after entry of the revocation or suspension order, shall not accept any new clients or engage in work as an LPO in any matter.


C.     Within ten (10) days after the effective date of the revocation or suspension order, the revoked or suspended LPO shall file with the Clerk of the Supreme Court an affidavit showing:


     1.     That the LPO has fully complied with the provision of the order and with these rules;


     2.     The residence or other address of the revoked or suspended LPO where communications may hereafter be directed to the LPO; and


     3.     Attaching to such affidavit a copy of the form of letter of notification sent to clients, together with a list of the names and addresses of all clients to whom such notice was sent.


D.     The Board shall cause a notice of the suspension or revocation to be published in the Washington State Escrow Association newsletter and a newspaper of general circulation in the county in which the disciplined LPO worked. However, if the Board determines that the LPO no longer resides in Washington State at the conclusion of the disciplinary process, then the notice may be published solely on the electronic website maintained by the OAC for the courts of the State of Washington.


E.     A revoked or suspended LPO shall keep and maintain written records of the various steps taken by the LPO under these rules so that, upon any subsequent proceeding instituted by or against the LPO, proof of compliance with these rules and with the revocation or suspension order will be available. Proof of compliance with these rules shall be a condition precedent to any petition for reinstatement.


RULE 8.6


Disclosure



A.     Disciplinary Files and Records Confidential. Except as otherwise provided in these rules, the file in a disciplinary proceeding and a disciplinary record shall be open only to the Board, Disciplinary Panel, staff of the OAC and the Supreme Court if filed for recommendation or review or requested by a member of the Supreme Court; however,


     1.     The respondent LPO or the LPO's counsel may have access to the file consisting of the formal complaint, and all other pleadings, documents and instruments filed in the proceeding subsequent thereto.


     2.     When requested by the official disciplinary body of another state in connection with a pending disciplinary action in that state, the Clerk of the Supreme Court will certify and transmit to the official disciplinary body of that state the record of the LPO involved.


B.     Disclosure. Notwithstanding all existing rules relating to confidentiality of these proceedings, the Board may inform the public of disciplinary investigation or proceedings against any LPO when, in the judgment of the Board, it is determined that the matters involved are of such grave importance that the public interest is affected thereby.


C.     Notice of Disciplinary Action Taken.


     1.     If an LPO be permitted to resign during the pendency of disciplinary hearings, or upon suspension or revocation, the fact of such resignation, suspension or revocation, including the LPO's name, shall be published in the Washington State Escrow Association publication.


     2.     If an admonition or censure is given to an LPO who has previously been suspended or revoked or reprimanded, notice of such admonition or censure, including the LPO's name, shall be published in the publication of the Washington State Escrow Association.


     3.     Notice of all reprimands, including the LPO's name, shall be published in the publication of the Washington State Escrow Association.


D.     Disciplinary Records. The disciplinary record of an LPO shall consist of a brief summary of any grievance made against the LPO and the disposition or status thereof. Information with reference thereto may be released by the Board when:


     1.     Specified by these rules;


     2.     Requested in writing by the LPO;


     3.     Requested by the Chair of the Disciplinary Panel;


     4.     Requested by a licensing authority or law enforcement agency;


     45.     Directed by the Board in the public interest; or


     56.     Directed by the Supreme Court.


E.     Contempt. Disclosure, except as herein provided, of any matter made confidential by these rules by any person whomsoever shall subject such person to a proceeding as for contempt.


RULE 9.1


Exoneration from Liability



A.     Board and its Agents. No cause of action shall accrue in favor of a respondent LPO or any other person arising from an investigation or proceeding pursuant to these rules against the Limited Practice Board, its members or agents (including, but not limited to, its staff, Disciplinary Panel or staff of the Administrator for the Courts) provided that such Board or individual shall have acted in good faith. The burden of proving bad faith in this context shall be upon the party asserting same. The state shall provide a defense to any action brought against a member or agent of the Board for actions taken in good faith under these rules and the state shall bear the cost of the defense.


B.     Complainants and Witnesses. Communications to the Board, Disciplinary Panel, OAC staff, or any other individual acting under authority of these rules, are absolutely privileged and no lawsuit predicated thereon may be instituted against any grievant, witness or other person providing information.


RULE 11.4


Declaration or Questionnaire



A.     Questionnaire. The Board shall cause to be directed annually to each active LPO a written declaration or questionnaire designed to determine whether such LPO is complying with APR 12.1. Such declaration or questionnaire shall be completed, executed and delivered to the OAC on or before the date of delivery specified in such declaration or questionnaire.


B.     Noncompliance. Failure to file the declaration or questionnaire on or before the date specified in Section A shall be grounds for discipline. If an active LPO fails to comply with the requirements of Rule 11.4.A., compliance may still be accomplished by:


     1. Submitting to OAC by April 30 the completed declaration or questionnaire called for by Rule 11.4.A., AND


     2. Paying at the time of filing such declaration or questionnaire a special $50 service fee.


C.     Noncompliance. An active LPO who has failed to file the declaration or questionnaire on or before the date specified in Section B may be removed (or conditionally removed) from the roll of certified LPOs and suspended until in compliance with Rule 11.4.


     1. To effect such removal, the Board shall send to the non-complying LPO by certified mail, directed to the LPO's last known address as maintained on the records of the Office of the Administrator for the Courts, a written notice of non-compliance. The notice shall advise such active LPO of the pendency of removal proceedings unless within ten (10) days of receipt of such notice such active LPO completes and returns to the Board an accompanying form of petition, to which supportive affidavit(s) may be attached for extension of time for, or waiver of, compliance with the requirements of Rule 11.4 or for a ruling by the Board of substantial compliance with the requirements.


     2. If such petition is not filed, such lack of action shall be deemed acquiescence by the active LPO in the finding of non-compliance. The Board shall take such action as it deems appropriate.


     3. If such petition is filed, the Board may, at its discretion, approve the same without hearing or may enter into an agreement on terms with such active LPO as to time and other requirements for achieving compliance with Rule 11.4.


     4. If the Board does not approve such petition or enter into such agreement, the affected LPO may request a hearing before the Board. At the discretion of the Chair of the Board, the hearing may be held before the entire Board or panel thereof. The Board or panel thereof shall enter written findings of fact and an appropriate order, a copy of which shall be transmitted by certified mail to the active LPO affected at the address of such member on file with the Office of the Administrator for the Courts. Any such order shall be final and, in case of an adverse determination, shall be transmitted to the Supreme Court.


     5. An adverse decision of the Board may be appealed by the active LPO affected to the Supreme Court in accordance with the applicable provisions of APR 12. As to such appeals, the Board shall be represented by counsel as the Board may designate.


D.     Such failure shall also subject the LPO who has failed to comply with this rule to a full audit of his or her books and records as provided in Rule 11.1(C) upon request of the Board Chair. A copy of the request made under this section shall be served upon the LPO involved. The request shall be granted upon a showing that the LPO has failed to comply with Section A of this rule. If the LPO shall later comply, the Chair of the Board shall have discretion to determine whether an audit should be conducted, and if so the scope of the audit. An LPO audited pursuant to this section shall be liable for the actual costs of conducting such audit.


DISCIPLINARY REGULATIONS APPLICABLE TO APR 12.1


REGULATIONS 101 - 106



[Unchanged.]

     Reviser's note: The brackets and enclosed material in the above text 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 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.

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