WSR 02-01-023

RULES OF COURT

STATE SUPREME COURT


[ December 6, 2001 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 23 )

)

ORDER

NO. 25700-A-719

The Certified Professional Guardian Board having recommended the adoption of the proposed amendment to GR 23, and the Court having approved the proposed amendment for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(f), the proposed amendment as attached hereto is to be published for comment expeditiously in the Washington Reports, Washington Register, Washington State Bar Association and the Administrative Office of the Courts' websites.

(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 60 days from the date published. 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 6th day of December 2001.
Gerry L. Alexander
CHIEF JUSTICE

GR 9 COVER SHEET


Suggested New Section


GR 23 (m)



RULE FOR CERTIFYING PROFESSIONAL GUARDIANS


Purpose: To authorize the Certified Professional Guardian Board (Board) to issue written ethics advisory opinions for Certified Professional Guardians (Guardians) and Certified Professional Guardian Agencies (Agencies.) The Board's procedure for issuing the opinions would be similar to the procedure used by the Ethics Advisory Committee pursuant to GR 10 to issue ethics advisory opinions for judges.

The reasons for the Board to issue such opinions are as follows:

(1) To respond to inquiries from Guardians and Agencies who seek to maintain the highest level of practice.

(2) To respond to Guardians and Agencies who have a question regarding whether a specific practice is permitted under the Standards of Practice adopted by the Board.

(3) To educate all Guardians and Agencies regarding acceptable ethical practices.

The profession of certified professional guardian is a new one in the state of Washington. In 1997, the legislature passed Engrossed Second House Bill 1771 addressing the certification of guardians under RCW Title 11. (C 312, L 97.) Section 3 of the new law required the Office of the Administrator for the Courts (OAC) to study and make recommendations on implementing a system of certification of professional guardians.

In response to the OAC's recommendations, the Supreme Court established the Professional Guardian Oversight Board in July, 1998. That Board developed the recommendations that led to the adoption of GR 23, effective January 25, 2000, implementing the professional guardian certification program.

The Supreme Court has certified over 200 Guardians and 35 Agencies. In 2001, the Board adopted Standards of Practice governing the ethical conduct of Guardians and Agencies and has adopted a disciplinary process to address complaints regarding the conduct of Guardians and Agencies.

The Board sees a need for ethical advisory opinions to provide guidance to Guardians and Agencies on issues involving the ethical Standards of Practice for Guardians and Agencies. The issuance of advisory opinions is the preferred means of announcing ethical guidelines of general application, and is in the interests of the public, Guardians, Agencies and courts that supervise guardians. Otherwise, the only means available to the Board to provide ethical guidelines is the litigation of specific issues in the context of individual disciplinary proceedings, which results would be far more limited in application, time-consuming and expensive to attain, and would not fulfill the purpose of assisting and educating Guardians, rather than punishing them.

The Board will respond to questions based on the stated facts in the inquiry. If the inquirer follows the opinion, it creates a rebuttable presumption that the inquirer acted ethically. The Board will not issue an opinion upon an issue in a pending case or controversy involving a Guardian or Agency.

Opinion requests must be in writing. Requests may come from a Guardian, an Agency, the Board's Standards of Practice Committee or a Board member.

Opinions will be based on existing case law, statutes, court rules, Board regulations and standards, Board decisions, previously-issued ethics opinions and other secondary sources typically used in legal decision-making. The Board as a whole must approve opinions.

Advisory opinions shall be public and copies in either paper or electronic format shall be distributed to all Guardians and Agencies. A request that the Board issue an opinion shall be confidential.

The opinions are subject to being overruled, revised or withdrawn based upon any subsequent change or reinterpretation of the law, legal decisions, court rules, regulations and the Standards of Practice.



[Suggested New Section]


GR 23. RULE FOR CERTIFYING PROFESSIONAL GUARDIANS



(a) - (l) [Unchanged.]

(m) Ethics Advisory Opinions.

(1) The Board may issue written ethics advisory opinions to inform and advise Certified Professional Guardians and Certified Agencies of their ethical obligations.

(2) Any Certified Professional Guardian or Certified Agency may request in writing an ethical advisory opinion from the Board. Compliance with an opinion issued by the Board shall be considered as evidence of good faith in any subsequent disciplinary proceeding involving a Certified Professional Guardian or Certified Agency.

(3) The Board shall publish opinions issued pursuant to this rule in electronic or paper format. A request for an opinion is confidential and not public information.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office