IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 1, 2, 3, 7, 20, 21, 22, 23, 24 AND 25

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ORDER NO. 25700-A-832

     The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 1, 2, 3, 7, 20, 21, 22, 23, 24 and 25, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's web sites in January 2006.

     (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 28, 2006. 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 October 2005.

	For the Court
	Gerry L. Alexander
	CHIEF JUSTICE

     Purpose: The Board of Governors of the Washington State Bar Association appointed a Character and Fitness Committee Rules Task Force comprised of lawyers and nonlawyers knowledgeable on issues relating to the admission of bar applicants and reinstatement of disbarred lawyers, to consider revisions to the Admission to Practice Rules to address all aspects of the process for determining character and fitness. This includes the initial determination of which applicants shall be required to appear before the renamed Character and Fitness Board, standards for determining good moral character, procedural and evidentiary rules for the conduct of Character and Fitness Board hearings, and the admission and effect of evidence relating to alcohol and drug use and mental impairment. The Task Force reviewed current APR 20 (Character and Fitness Committee) and APR 21 (Reinstatement After Disbarment), as well as Washington case law on admission and reinstatement, and rules and procedures from other jurisdictions. The significant elements of these suggested rules are the following:

     APR 20 CHARACTER AND FITNESS COMMITTEE: This rule amends current APR 20, and throughout these rules the name is changed from Character and Fitness Committee to Character and Fitness Board to be consistent with other quasi-judicial and regulatory boards, such as the Disciplinary Board and the Board of Continuing Legal Education. It also includes a new section on service of papers and documents.

     APR 21 CHARACTER DEFINED: "Character" is defined, subject to proof by applicants and petitioners.

     APR 22 FITNESS DEFINED; INDEPENDENT FITNESS EXAMINATION: "Fitness" is defined, subject to proof by applicants and petitioners. The rule provides that if an applicant's or petitioner's conduct raises an issue as to requisite fitness to practice law, reports and testimony of a licensed or certified mental health professional may be presented as evidence of fitness. After reviewing such evidence, the Board may require an independent examination by a mental health professional approved by the WSBA Lawyers Assistance Program. The rule provides that the reports and testimony shall be otherwise confidential and not subject to discovery or admissible in any other proceeding or action.

     APR 23 CHARACTER AND FITNESS BOARD - PREHEARING PROCEDURE - APPLICATIONS FOR ADMISSION: This new rule addresses the procedure for reviewing and investigating bar applications, and referrals to the Character and Fitness Board.

     APR 24 APPLICATIONS FOR ADMISSION: APR 24 is a new rule that includes the following:

     APR 24.1 DUTY OF APPLICANT: Incorporates current provisions of APR 7(b).

     APR 24.2 FACTORS CONSIDERED WHEN DETERMINING CHARACTER AND FITNESS: These factors incorporate and elaborate upon the factors for admission set forth by the Supreme Court in In re Belsher, 102 Wn.2d 844, 854, 689 P.2d 1078 (1984) and In re Wright, 102 Wn.2d 855, 690 P.2d 1134 (1984). They specifically address consideration of cases involving drug or alcohol dependence or abuse, and mental impairment. They also specifically note factors that may not be considered as evidence of an applicant's character or fitness.

     APR 24.3 HEARINGS: Sets forth the procedure for admissions hearings including the right to counsel, burden of proof and rules of evidence.

     APR 24.4 DECISION AND RECOMMENDATION: Provides for the procedure to be followed after issuance of a written opinion from the Board.

     APR 24.5 ACTION ON SUPREME COURT'S DETERMINATION: Provides for procedure to be followed upon approval or disapproval of an application for admission by the Supreme Court. A substantive change from the current procedure is that bar applicants, like petitioners for reinstatement, would not be permitted to sit for the bar examination until approved by the Supreme Court.

     APR 25 PETITIONS FOR REINSTATEMENT AFTER DISBARMENT: This rule restates current APR 21 and elaborates on it to parallel the provisions of APR 24.

     APR 25.1 RESTRICTIONS ON REINSTATEMENT: Substantially the same as current APR 21.1.

     APR 25.2 REVERSAL OF CONVICTION: Substantially the same as current APR 21.2.

     APR 25.3 PETITIONS AND INVESTIGATIONS: Substantially the same as current APR 21.3 except adds provision on duty to cooperate. It also provides for motions for protective orders in public reinstatement proceedings.

     APR 25.4 HEARINGS BEFORE CHARACTER AND FITNESS COMMITTEE: Substantially the same as current APR 21.4 except adds new section (c) providing that hearings are conducted pursuant to APR 24.3.

     APR 25.5 ACTION BY CHARACTER AND FITNESS COMMITTEE: Substantially the same as current APR 21.5 except adds new section (b) incorporating and elaborating upon the factors for reinstatement after disbarment set forth by the Supreme Court in In re Eddleman, 77 Wn.2d 725, 459 P.2d 387, 461 P.2d 9 (1969). It also specifically notes factors that may not be considered as evidence of a petitioner's character or fitness in APR 25.5(c), which is identical to APR 24.4(e) except it does not include age. In In re Bruener, 178 Wn. 165 (1934) and In re Lillions, 196 Wash. 272 (1938) the Court said that in considering whether a lawyer should be reinstated, fairness to the lawyer included consideration of whether the lawyer was reaching an age where there might not be another opportunity to be reinstated, and to once again practice his or her chosen profession.

     APR 25.6 ACTION ON SUPREME COURT'S DETERMINATION: Same as current APR 21.6.

     There are also several minor changes to other Admission to Practice Rules to make them conform to these changes:

     APR 1 IN GENERAL; SUPREME COURT; PREREQUISITES TO THE PRACTICE OF LAW; IMMUNITY: Change of name to Character and Fitness Board.

     APR 2 BOARD OF GOVERNORS: Specifies authority of Board of Governors to appoint the Character and Fitness Board.

     APR 3 APPLICANTS TO TAKE THE BAR EXAM: Change of name to Character and Fitness Board.

     APR 7 INVESTIGATIONS; DUTY OF APPLICANT: Amends APR 7 to conform to these rule amendments, and adds a new section regarding issuance of subpoenas.

     (a) Supreme Court. [No change].

     (b) Prerequisites to the Practice of Law. [No change].

     (c) Immunity. The Washington State Bar Association, its officers and agents (including but not limited to its staff, members of the Board of Governors, the Committee of Bar Examiners, the Character and Fitness Committee Board, the Law Clerk Committee, or any other individual acting under authority of these rules) are immune from all liability for conduct and communications occurring in the performance of their official duties relating to the examination, character and fitness qualifications, admission, and licensing of persons seeking to be admitted to the practice of law or for a limited license to practice law, provided only that the Bar Association, officer, or agent shall have acted in good faith. The burden of proving bad faith in this context shall be upon the person asserting it. The Bar Association shall provide defense to any action brought against an officer or agent of the Bar Association for actions taken in good faith under these rules and shall bear the costs of that defense and shall indemnify the officer or agent against any judgment taken therein. Communications to the Association, the Board of Governors, the Committee of Bar Examiners, the Character and Fitness Committee Board, the Law Clerk Committee, or any other individual acting under authority of these rules, are absolutely privileged, and no lawsuit may be predicated thereon.

     (a) Powers. In addition to any other power or authority in other rules, the Board of Governors of the Bar Association (referred to in these rules as the Board of Governors) shall have the power and authority to:

     (1) Appoint a Committee of Bar Examiners (referred to in these rules as the Committee) from among the active members of the Bar Association for the purposes of assisting the Board of Governors in conducting the bar examination;

     (2) Appoint a Law Clerk Committee from among the active members of the Bar Association for the purposes of assisting the Board of Governors in supervising the Law Clerk Program;

     (3) Appoint a Character and Fitness Board pursuant to rule 20

     (34) Approve or deny applications for permission to take the bar examination, to enroll in the law clerk program, or to engage in the limited practice of law under pertinent provisions of rules 8 and 9;

     (45) Investigate all aspects of an applicants qualifications to take the bar examination, to be admitted to the practice of law, to engage in the limited practice of law under pertinent provisions of rules 8 and 9, or to enroll in the law clerk program;

     (56) Recommend to the Supreme Court the admission or rejection of each applicant who has passed the bar examination or who is applying to engage in the limited practice of law under pertinent provisions of rules 8 and 9;

     (67) Approve law schools for the purposes of these rules and maintain a list of such approved law schools on file with the Clerk of the Supreme Court;

     (78) Prescribe, with the approval of the Supreme Court, the amount of any fees required by these rules;

     (89) Prescribe the form and content of any application, certificate, or other document referred to in these rules; and

     (910) Perform any other functions and take any other actions provided for in these rules, or as may be delegated by the Supreme Court, or as may be necessary and proper to carry out its duties.

     (b) Written Request. [No change].

     (a) Prerequisite for Admission. [No change].

     (b) Qualification for Bar Examination. [No change].

     (c) Exceptions. The Board of Governors may, in its discretion, withhold permission for an otherwise qualified person to sit for the bar examination, until completion of an inquiry into the applicants character and fitness, if the applicant (i) has ever been convicted of a "serious crime" as defined in ELC 7.1 (a)(2), or (ii) has ever been disbarred or is presently suspended from the practice of law for disciplinary reasons in any jurisdiction, or (iii) has previously been denied admission to the Bar in this or any other jurisdiction for reasons other than failure to pass a bar examination. The Board of Governors may also withhold permission to sit for the bar examination where for any other reason there are serious and substantial questions regarding the present moral character or fitness of the applicant. The Board of Governors may refer such matters to the Character and Fitness Committee Board for investigation and hearing pursuant to rule 7 these rules.

     (d) Forms; Fees; Filing. [No change].

     (e) Disclosure of Records. [No change].

     (a) Investigations. The Board of Governors may refer any application for permission to take the bar examination, to be admitted to the practice of law or to be admitted to the limited practice of law under pertinent provisions of rules 8 and 9, or to enroll in the law clerk program to state bar counsel or to any existing or special committee of the Bar Association the Character and Fitness Board for investigation pursuant to these rules. In connection with any investigation, the Board of Governors shall have the power to:

     (1) Direct the issuance of subpoenas by the Executive Director of the Bar Association in the name of the Board of Governors to compel the attendance of witnesses at depositions or hearings, or for the production of books, records, or other documents;

     (2) Require additional proof or answers to interrogatories relating to any fact stated in an application; and

     (3) Require an applicant, upon reasonable notice, to appear before the Board of Governors or any existing or special committee of the Bar Association for an examination regarding any matter deemed by the Board of Governors to be relevant to a proper consideration of the application.

     (b) Duty of Applicant. It shall be the duty of every applicant to cooperate with any investigation required by the Board of Governors, by promptly furnishing written or oral explanations, documents, releases, authorizations, or anything else reasonably required by the investigator. Failure to appear as directed or to furnish additional proof or answers as required or to cooperate fully shall be sufficient reason for the Board of Governors to reject or to recommend the rejection of an application.

     (c) Subpoenas: The chairperson of the Character and Fitness Board or Bar Counsel may issue subpoenas to compel attendance of an applicant or witness, or the production of books, documents, or other evidence, at a deposition or hearing. Subpoenas shall be served in the same manner as in civil cases in the superior court.

     (a) Membership.

     (1) (a) Composition. The Committee Board shall consist of not less than three nonlawyer members, appointed by the Supreme Court, and not less than one lawyer member from each congressional district, appointed by the Board of Governors.

     (2) (b) Qualifications. Lawyer members must have been active members of the Bar Association for at least 7 years.

     (3) Quorum. A majority of the Committee members shall constitute a quorum. Given a quorum, the concurrence of a majority of those present shall constitute action of the Committee.

     (4) Disqualification. In the event a grievance is made to the Bar Association alleging an act of misconduct by a lawyer member of the committee, such member shall take a leave of absence from the Committee until the matter is resolved, unless otherwise directed by the Board of Governors.

     (5) Voting. Each member, whether non-lawyer or lawyer, shall have one vote.

     (b) Terms of Office. The term of office for a member of the Committee shall be 3 years. Newly created Committee positions may be filled by appointments of less than 3 years, as designated by the Supreme Court or the Board of Governors, to permit as equal a number of positions as possible to be filled each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later. Members may not serve more than one term except as otherwise provided in these rules. Members heretofore appointed shall continue to serve until replaced.

     (c) Committee Board Chair. The Board of Governors shall annually designate one lawyer member of the Committee Board to act as chair and another as vice-chair. The vice-chair shall serve in the absence of or at the request of the Committee Board chair.

     (d) Vacancies. Vacancies in lawyer membership on the Committee Board and in the office of the Committee Board chair and the vice-chair shall be filled by the Board of Governors. Vacancies in nonlawyer membership shall be filled by the Supreme Court. A person appointed to fill a vacancy shall complete the unexpired term of the person he or she replaces, and if that unexpired term is less than 24 months he or she may be reappointed to a consecutive term.

     (e) Pro Tempore Members. When a member of the Committee is disqualified or unable to function on a case for good cause, the chair of the Committee may, by written order, designate a member pro tempore to sit with the Committee to hear and determine the cause. A member pro tempore may be appointed from among those persons who have previously served as members of the Character and Fitness Committee, or from among lawyers appointed as alternate Board members by the Board of Governors and non-lawyers appointed as alternate Committee members by the Supreme Court. A lawyer shall be appointed to substitute for a lawyer member of the Committee, and a non-lawyer to substitute for a non-lawyer member of the Board.

     (e) Quorum. A majority of the Board members shall constitute a quorum. Given a quorum, the concurrence of a majority of those present shall constitute action of the Board. In the event a quorum is not present, the Applicant or Petitioner may waive the requirement of a quorum.

     (f) Disqualification. In the event a grievance is made to the Bar Association alleging an act of misconduct by a lawyer member of the Board the procedures specified in ELC 2.3 (b)(5) shall apply.

     (g) Pro Tempore Members. When a member of the Board is disqualified or unable to function on a case for good cause, the chair of the Board may, by written order, designate a member pro tempore to sit with the Board to hear and determine the cause. A member pro tempore may be appointed from among those persons who have previously served as members of the Character and Fitness Board (or its predecessor Character and Fitness Committee), or from among lawyers appointed as alternate Board members by the Board of Governors and nonlawyers appointed as alternate Board members by the Supreme Court. A lawyer shall be appointed to substitute for a lawyer member of the Board, and a nonlawyer to substitute for a nonlawyer member of the Board.

     (h) Voting. Each member, whether nonlawyer or lawyer, shall have one vote.

     (i) Terms of Office. The term of office for a member of the Board shall be 3 years. Newly created Board positions may be filled by appointments of less than 3 years, as designated by the Supreme Court or the Board of Governors, to permit as equal a number of positions as possible to be filled each year. All terms of office begin October 1 and end September 30 or when a successor has been appointed, whichever occurs later. Members may not serve more than one term except as otherwise provided in these rules. Members shall continue to serve until replaced.

     (j) Application of Rules. These rules and any subsequent amendments will apply in their entirety, on the effective date as ordered by the Supreme Court, to any pending matter, except as would not be feasible or would work an injustice. The Chair may rule on the appropriate procedure with a view to insuring a fair and orderly proceeding.

     (1) (a) Accept referrals from the Executive Director of the Bar Association Bar Counsel by concerning itself with itself with matters of character and fitness bearing upon the qualification of aApplicants for Admission or Petitioners for rReinstatement.

     (2) (b) Review each Application for Admission or Petition for Reinstatement to practice law in the state of Washington.

     (3) (c) Investigate matters relevant to the admission or reinstatement of any aApplicant or Petitioner and conduct hearings concerning such matters.

     (4) The committee's recommendation to grant the application shall be forwarded to the Supreme Court. The Committee's recommendation to deny the application may be forwarded to the Disciplinary Board for review upon request of the applicant. All recommendations shall contain findings of fact, conclusions of law, and rationale for the recommendation.

     (5) (d) Perform such other functions and take such other actions as provided in these rules or as may be delegated to it by the Board of Governors or Supreme Court, or as may be necessary and proper to carry out its duties.

     Good moral character is a record of conduct manifesting the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibilities, adherence to the law, and a respect for the rights of other persons and the judicial process.

     (a) Fitness - defined. Fitness is the absence of any current mental impairment or current drug or alcohol dependency or abuse which, if extant, would substantially impair the ability of the Applicant or Petitioner to practice law.

     (b) Testimony and Evidence: If it appears that the Applicant or Petitioner has engaged in conduct that was or may have been caused in whole or in part by a mental impairment or drug or alcohol dependency or abuse, the Applicant or Petitioner may present testimony or evidence from a licensed or certified mental health professional (hereafter "examining professional").

     (c) Independent Fitness Examination: If after reviewing such testimony or evidence the Board finds that further examination is necessary, the Board by majority vote may require an examination of the Applicant or Petitioner by an examining professional approved by the Lawyers' Assistance Program of the Washington State Bar Association.

     (d) Failure to Comply: The failure of an Applicant or a Petitioner to agree or submit to a required independent fitness examination shall result in the Applicant's or Petitioner's application or petition being denied.

     (e) Costs: The cost of any examination required by the Board shall be borne by the Bar Association.

     (f) Report: The examining professional shall issue a written report of his or her findings which report shall be provided to the Applicant or Petitioner and his or her counsel, Bar Counsel and the Character and Fitness Board.

     (g) Confidentiality: Any report and testimony of an examining professional may be admitted into evidence at a hearing on, or review of, the Applicant's or Petitioner's fitness and transmitted with the record on review by the Disciplinary Board or the Supreme Court. Reports and testimony regarding the Applicant's or Petitioner's fitness shall otherwise be kept confidential in all respects and neither the report nor the testimony of the examining professional shall be discoverable or admissible in any other proceeding or action.

     (a) Admissions Staff Review. All applications for admission to practice law in Washington State shall be reviewed by the Bar Association Admissions staff for purposes of determining whether any of the factors set forth in rule 24.2(a) are present.

     (b) Admissions Staff Review - Standard. All applications which reflect one or more of the factors set forth in rule 24.2(a) shall be referred to Bar Counsel for review.

     (c) Review By Bar Counsel - Standard. Upon receiving a referral from the admissions staff, Bar Counsel may conduct such further investigation as he or she deems necessary and thereafter, applying the factors and considerations set forth in rule 24.2, and upon reviewing the material evidence in the light most favorable to the Bar Association's obligation to recommend the admission to the practice of law only those persons who possess good moral character and fitness, Bar Counsel shall refer to the Character and Fitness Board for hearing any Applicant about whom there is a substantial question whether the Applicant possesses the requisite good moral character and fitness to practice law.

     (1) unlawful conduct.

     (2) academic misconduct.

     (3) making of false statements or omitting material information in connection with an application to sit for a bar examination.

     (4) misconduct in employment.

     (5) acts involving dishonesty, making false statements, fraud, deceit or misrepresentation.

     (6) abuse of legal process.

     (7) neglect of financial responsibilities.

     (8) disregard of professional obligations.

     (9) violation of a court order.

     (10) evidence of a current substantial mental impairment, including without limitation, drug or alcohol dependency or abuse.

     (11) denial of admission to the bar in another jurisdiction on character and fitness grounds.

     (12) disciplinary action by any professional disciplinary agency of any jurisdiction.

     (13) any other conduct or condition which reflects adversely on moral character or fitness of the Applicant to practice law.

     (b) Factors Considered by the Character and Fitness Board When Determining Good Moral Character. When determining whether past conduct disqualifies the Applicant from taking the Washington Bar Examination, or for admission to the Bar, the Character and Fitness Board shall consider those factors specified in rule 24.2(a) and the following factors in mitigation or aggravation:

     (1) Applicant's age at the time of the conduct.

     (2) Recency of the conduct.

     (3) Reliability of the information concerning the conduct.

     (4) Seriousness of the conduct.

     (5) Factors or circumstances underlying the conduct.

     (6) Cumulative nature of the conduct.

     (7) Candor in the admissions process and before the Board.

     (8) Materiality of any omissions or misrepresentations.

     (9) Evidence of rehabilitation, which may include but is not limited to the following:

     (i) absence of recent misconduct.

     (ii) compliance with any disciplinary, judicial or administrative order arising out of the misconduct.

     (iii) sufficiency of punishment.

     (iv) restitution of funds or property, where applicable.

     (v) Applicant's attitude toward the misconduct, including without limitation acceptance of responsibility and remorse.

     (vi) personal assurances, supported by corroborating evidence, of a desire and intent to engage in exemplary conduct in the future;

     (vii) constructive activities and accomplishments since the conduct in question.

     (viii) the Applicant's understanding and acceptance of the factors leading to the misconduct and how similar misconduct may be avoided in the future.

     (c) Factors Considered by the Character and Fitness Board in Fitness Cases Involving Drug or Alcohol Dependence or Abuse. When determining whether an Applicant is unfit to practice law due to drug or alcohol dependence or abuse, the Character and Fitness Board shall consider the following factors, no single one of which is determinative:

     (1) Whether the Applicant is currently using drugs or alcohol.

     (2) Whether the Applicant's drug or alcohol dependence or abuse is likely to cause or contribute to any of the conduct specified in rule 24.2(a).

     (3) The nature, extent and duration of the Applicant's drug or alcohol dependence or abuse, and the Applicant's candor in the admissions process and before the Board when describing the problem.

     (4) Whether the Applicant has been or is now in treatment and, if so:

     (i) The nature and duration of the treatment.

     (ii) Whether treatment was or is voluntary or involuntary.

     (iii) Consistency of participation in or compliance with treatment.

     (iv) Whether the treatment was effective.

     (5) Whether the Applicant has undergone a drug or alcohol evaluation by a certified chemical dependency counselor or other professional with credentials acceptable to the Board and, if so, whether the substance of such person's opinion the findings have been made available to the Committee.

     (6) The length of time the Applicant has been in recovery. In cases where the period of recovery is less than two years, the Applicant must demonstrate through appropriate expert opinion that there has been an adequate period of recovery.

     (d) Factors Considered by the Character and Fitness Board in Fitness Cases Involving a Mental Impairment. When determining whether an Applicant is unfit to practice law due to a mental impairment, the Character and Fitness Board shall consider the following factors, no single one of which is determinative:

     (1) Whether there is a current mental impairment.

     (2) Whether the Applicant's mental impairment is likely to cause or contribute to any of the conduct specified in rule 24.2(a).

     (3) The nature, extent and duration of the Applicant's mental impairment, and the Applicant's candor in the admissions process and before the Board when describing the impairment.

     (4) Whether the Applicant's mental impairment is chronic or situational in nature.

     (5) Whether the applicant has received or is receiving professional mental health treatment appropriate for the impairment, and if so:

     (i) Whether the Applicant's impairment has been in remission for at least two years as verified by an appropriate mental health professional and, if not, whether the Applicant has demonstrated through appropriate expert opinion that the period of remission has been adequate.

     (ii) Whether a mental health professional has identified any conditions, including without limitation further treatment, that must be complied with to continue the Applicant's state of remission and, if so, whether the Applicant is in compliance with those conditions.

     (e) Factors Not Considered by the Character and Fitness Board. The following factors shall not be considered as evidence of an Applicant's character or fitness:

     (1) Racial or ethnic identity.

     (2) Sex.

     (3) Sexual orientation.

     (4) Marital status.

     (5) Religious or spiritual beliefs or affiliation.

     (6) Political beliefs or affiliation.

     (7) Physical disability.

     (8) National origin.

     (9) Age.

     (10) Learning disabilities.

     (b) Right to Counsel. An Applicant may be represented by counsel.

     (c) Burden of Proof. An Applicant must establish by clear and convincing evidence that he or she is of good moral character and possesses the requisite fitness to practice law.

     (d) Proceedings Not Civil or Criminal. Hearings before the Character and Fitness Board are not civil nor criminal but are sui generis hearings to determine whether an Applicant possesses good moral character and fitness to be admitted to practice law.

     (e) Rules of Evidence.

     (1) Evidentiary rulings shall be made by the Board chairperson. A majority of Board members present may by vote overrule a ruling by the chairperson.

     (2) Consistent with section (d) of this rule, evidence, including hearsay evidence, is admissible if in the chairperson's judgment it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The chairperson may exclude evidence that is irrelevant, immaterial, or unduly repetitious.

     (3) Witnesses shall testify under oath; all testimony shall be transcribed by a certified court reporter.

     (4) Expert witnesses shall appear and testify in person before the Board, unless in the discretion of the Board their appearance before the Board is waived.

     (5) Generally, all documentary evidence submitted to the Board for consideration must be delivered to Bar Counsel not less than 14 days prior to the hearing. Bar Counsel will provide copies of all documentary evidence, and any hearing briefs, memoranda, or other documentary material, to the Board members and to the Applicant prior to the hearing date.

     (6) The Board may take notice of any judicially cognizable facts, or technical or scientific facts within a Board member's specialized knowledge.

     (7) Questioning of the Applicant and the Applicant's witnesses shall be conducted by Bar Counsel or his or her designee and by two members of the Board designated by the chair.

     (f) Confidentiality: All hearings and documents before the Character and Fitness Board on applications for admission to the bar are confidential.

     (a) Decision. Within 20 days after the proceedings are concluded, unless a greater or shorter period is directed by the Board chair, the Board will file with the Bar Association written findings of fact, conclusions of law, and a recommendation. Any Board member or members may file a written dissent within the same time period.

     (b) Action on Board Recommendation. The recommendation of the Character and Fitness Board shall be served upon the Applicant pursuant to rule 20.5. If the Board recommends admission, the record, recommendation and all exhibits shall be transmitted to the Supreme Court for disposition. If the Board recommends against admission, the record and recommendation shall be retained in the office of the Bar Association unless the Applicant requests that it be submitted to the Supreme Court by filing a Notice of Appeal with the Board within 15 days of service of the recommendation of the Character and Fitness Board. If the Applicant so requests, the Board will transmit the record, including the transcript, exhibits, and recommendation to the Supreme Court for review and disposition. If the Applicant does not so request, the bar examination fee shall be refunded to the Applicant.

     (b) Application Denied. If the application is denied, the bar examination fee shall be refunded to the Applicant.

     (a) (b) When Petition May Be Filed. No petition for reinstatement shall be filed within a period of 5 years after disbarment or within a period of 2 years after an adverse decision of the Supreme Court upon a former petition, or within a period of 1 year after an adverse recommendation of the Character and Fitness Committee of the Washington State Bar Association Board on a former petition when that recommendation is not submitted to the Supreme Court. If prior to disbarment the lawyer was suspended from the practice of law pursuant to the provisions of Title 7 of the Rules for Enforcement of Lawyer Conduct, or any comparable rule, the period of such suspension shall be credited toward the 5 years referred to above.

     (b) (c) When Reinstatement May Occur. No disbarred lawyer may be reinstated sooner than 6 years following disbarment. If prior to disbarment the lawyer was suspended from the practice of law pursuant to the provisions of Title 7 of the Rules for Enforcement of Lawyer Conduct, or any comparable rule, the period of such suspension shall be credited toward the 6 years referred to above.

     (c) (d) Payment of Obligations. No disbarred lawyer may file a petition for reinstatement until costs and expenses assessed pursuant to these rules, and restitution ordered as provided herein, by the Disciplinary Board or the Supreme Court have been paid and until amounts paid out of any program maintained by the Bar Association to indemnify clients against the Lawyers' Fund for Client Protection for losses caused by the conduct of the Petitioner have been repaid to the Bar Association client protection fund, or until periodic payment plans for costs and expenses, restitution and repayment to the indemnity program client protection fund have been entered into by agreement between the respondent lawyer Petitioner and disciplinary counsel. A respondent lawyer Petitioner may seek review by the Chair of the Disciplinary Board of an adverse determination by disciplinary counsel regarding the reasonableness of any such proposed periodic payment plan. Such review will proceed as directed by the Chair of the Disciplinary Board and the decision of the Chair of the Disciplinary Board is final unless the Chair of the Disciplinary Board determines that the matter should be reviewed by the Disciplinary Board, in which case the Disciplinary Board review will proceed as directed by the Chair and the decision of the Board will be final.

     (b) Investigations. The Character and Fitness Committee may in its discretion refer the petition for reinstatement for investigation and report to the Character and Fitness Committee by disciplinary counsel, adjunct investigative counsel, or by such other person or persons as may be determined by the Character and Fitness Committee. The petition for reinstatement shall be referred to the Character and Fitness Board.

     (c) Duty to Cooperate. It shall be the duty of every Petitioner to cooperate in good faith with any investigation by promptly furnishing written or oral explanations, documents, releases, authorizations, or anything else reasonably required by the Board or Bar Counsel. Failure to appear as directed or to furnish additional proof or answers as required or to cooperate fully shall be sufficient reason for the Committee to recommend the rejection of a petition.

     (c) (d) Proceedings Public. A petition for reinstatement after disbarment shall be a public proceeding from the time the petition is filed.

     (e) Protective Orders. To protect a compelling interest, a Petitioner may, on a showing of good cause, move for a protective order prohibiting the disclosure or release of specific information, documents, or pleadings, and directing that the proceedings be conducted so as to implement the order.

     (b) Statement in Support or Opposition. On or prior to the date of hearing, anyone wishing to do so may file with the Character and Fitness Committee Board a written statement for or against the petition, such statements to set forth factual matters showing that the Petitioner does or does not meet the requirements of rule 21.5(a) for reinstatement as set forth in these rules.

     (c) Hearings. Hearings shall be conducted pursuant to rule 24.3.

     (b) Factors Considered by the Character and Fitness Board. In reaching the decision of whether the Petitioner has been rehabilitated, the Board shall consider the factors set forth in Rule 24.2 (b), (c) and (d), where applicable, and the following factors:

     (i) The Petitioner's character, standing, and professional reputation in the community in which the Petitioner resided and practiced prior to disbarment.

     (ii) The ethical standards which the Petitioner observed in the practice of law.

     (iii) The nature and character of the conduct for which the Petitioner was disbarred.

     (iv) The sufficiency of the punishment undergone in connection therewith, and the making or failure to make restitution where required.

     (v) The Petitioner's attitude, conduct, and reformation subsequent to disbarment.

     (vi) The time that has elapsed since disbarment.

     (vii) The Petitioner's current proficiency in the law; and

     (viii) The sincerity, frankness, and truthfulness of the Petitioner in presenting and discussing the factors relating to the Petitioner's disbarment and reinstatement.

     (c) Factors Not Considered by the Character and Fitness Board. The following factors shall not be considered as evidence of a Petitioner's character or fitness:

     (1) Racial or ethnic identity.

     (2) Sex.

     (3) Sexual orientation.

     (4) Marital status.

     (5) Religious or spiritual beliefs or affiliation.

     (6) Political beliefs or affiliation.

     (7) Physical disability.

     (8) National origin.

     (9) Learning disabilities.

     (b) (d) Action on Committee Board Recommendation. The recommendation of the Character and Fitness Committee Board shall be served upon the Petitioner pursuant to rule 20.5. If the Committee Board recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Committee Board recommends against reinstatement, the record and recommendation shall be retained in the office of the Bar Association unless the Petitioner requests that it be submitted to the Disciplinary Board by filing with the Clerk of the Disciplinary Board a request for Disciplinary Board review within 15 days of service of the recommendation of the Character and Fitness Committee Board. If the Petitioner so requests, the record and recommendation shall be transmitted to the Disciplinary Board for disposition and the review will be conducted under the procedure of rules 11.9 and 11.12 of the Rules for Enforcement of Lawyer Conduct. If the Petitioner does not so request, the bar examination fee shall be refunded to the Petitioner, but the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Character and Fitness Committee Board.

     (c) (e) Action on Disciplinary Board Recommendation. The recommendation of the Disciplinary Board shall be served upon the Petitioner. If the Disciplinary Board recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Disciplinary Board recommends against reinstatement, the record and recommendation shall be retained in the office of the Bar Association unless the Petitioner requests that it be submitted to the Supreme Court by filing with the Clerk of the Disciplinary Board a request for Supreme Court review within 30 days of service of the recommendation. If the Petitioner so requests, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the Petitioner does not so request, the bar examination fee shall be refunded to the Petitioner, but the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Disciplinary Board under the procedure of rule 13.9 of the Rules for Enforcement of Lawyer Conduct.

     (b) Petition Denied. If the petition for reinstatement is denied, the bar examination fee shall be refunded to the Petitioner, but the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding.

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency 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.