IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 15, APR 19 AND ADOPTION OF NEW RULE APR 26	) ) ) )	ORDER NO. 25700-A-836

     The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 15, APR 19 and adoption of the proposed new rule APR 26, and the Court having approved the proposed amendments and proposed new rule for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendments and proposed new rule 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 websites 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 Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 1st day of December 2005.

For the Court
Gerry L. Alexander
CHIEF JUSTICE

GR 9 COVER SHEET

     APR 19 includes provisions expressly authorizing the Lawyers' Assistance Program (APR 19(b)) and the Law Office Management Assistance Program (APR 19(d)). These provisions provide for the confidentiality of information obtained by staff in the course of administering those programs, and, in the case of the Lawyers' Assistance Program, exonerate those acting under the authority of the rule from liability for actions taken in good faith.

     Although LaSD at present administers a Professional Responsibility Program, there is no concomitant provision in APR 19 pertaining to that program. (Paragraph (e) of APR 19, titled "Ethics Program," is at present "Reserved.") The program is staffed by professional responsibility counsel, WSBA staff lawyers with substantial experience in the field of legal ethics and professional responsibility. A key feature of the program is the Ethics Line, a WSBA telephone line dedicated to ethics inquiries. Washington lawyers with questions about the ethics of a prospective or hypothetical course of conduct may call the Ethics Line and speak directly with professional responsibility counsel, who will discuss the situation with the caller to help clarify the ethical issues involved so that the inquirer is able to make a decision consistent with applicable ethical requirements. Historically, these inquiries have concerned all aspects of the Rules of Professional Conduct, for example, handling trust accounts, maintaining client confidences and secrets, avoiding conflicts of interest, resolving problems caused by the termination of a lawyer's services, and advertising.

     Ethics Line policies and procedures are governed by departmental and/or WSBA policy, but they are not formally codified in the fashion ordinarily applicable to such issues. For example, the confidentiality of Ethics Line calls is critical to the success of the program, because the risk that a lawyer might be subject to discipline or liability based on information provided in the course of obtaining guidance would loom as a significant disincentive to prospective callers. Additionally, the informal guidance provided on the Ethics Line is not designed as a substitute for the lawyer's own professional judgment. Professional responsibility counsel routinely advise callers that only informal guidance is being provided, that no legal advice is given, and that the caller is responsible for making decisions about his or her course of conduct. At present, however, there is nothing in the court rules addressing these important aspects of the Ethics Line program.

     For these reasons, the Board of Governors recommends adoption of a provision parallel to APR 19 (b) and (d), expressly authorizing and defining the Ethics Line component of the Professional Responsibility Program, providing for the confidentiality of a lawyer's communications to professional responsibility counsel in the course of obtaining Ethics Line guidance, and limiting the use that may be made in other contexts of information relating to Ethics Line inquiries.

     Portions of the rule are considered necessary in light of the potential adoption of proposed amendments to Rule of Professional Conduct 8.3. At present, Washington lawyers have discretion to report another lawyer's professional misconduct. If the proposed amendments are adopted, RPC 8.3 will require a lawyer who knows of another lawyer's professional misconduct to inform the appropriate professional authority (i.e., the WSBA Office of Disciplinary Counsel). Because Ethics Line callers sometimes disclose acts of apparent misconduct in connection with an inquiry, and because the Ethics Line is staffed by WSBA lawyers, professional responsibility counsel would be required in some instances to file disciplinary grievances against lawyers who have called the Ethics Line seeking guidance. This is not a desirable outcome and it would have an adverse impact on the effectiveness and value of this program.

     The suggested provisions are based in part on similar rules in force in Georgia (Rule 4-401, Georgia Rules of Professional Conduct and Enforcement Thereof), Kentucky (Rule 3.530, Rules of the Supreme Court of Kentucky), Illinois (Rules 601 - 606 of the Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois), and New Jersey (Rule 1:19-9 of the New Jersey Rules of General Application).

     In addition, paragraph (b)(3) of the existing rule, containing Exoneration from Liability provisions applicable only to the Lawyers' Assistance Program, is renumbered as paragraph (f) so that the provisions would apply to the three programs authorized by APR 19, including the Professional Responsibility Program and the Law Office Management Assistance Program. Like the Lawyers' Assistance Program (APR 19(b)) and the Mediation Program (APR 16), both of which are shielded by Exoneration from Liability provisions, the Professional Responsibility Program and the Law Office Management Assistance Program constitute discretionary Bar Association services expressly authorized by the Supreme Court. These programs are designed to provide practice assistance of high quality at no or de minimis cost to members, thereby enhancing the quality of legal services delivered in Washington and helping to improve the integrity of the legal profession. A great many of the users of these services are recently admitted lawyers and lawyers experiencing ethical or other problems that may detrimentally affect their performance and adversely affect their clients and the public. If the Bar Association is subject to lawsuits and potential liability on account of these programs, this may require the Bar Association to limit services or to offer them at a cost that would be prohibitive for many of the intended lawyer-recipients.

     (b) Lawyers' Assistance Program (LAP)

     (1) - (2) [Unchanged.]

     (3) Exoneration from Liability.

     (i) Bar Association and Its Agents. No cause of action shall accrue in favor of any person, arising from any action or proceeding pursuant to these rules, against the Bar Association, or its officers or agents (including but not limited to its staff, members of the Board of Governors, or any other individual acting under the authority of these rules) 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.

     (ii) Other persons. Communications to the Bar Association, Board of Governors, staff, or any other individual acting under the authority of these rules, are absolutely privileged, and no lawsuit predicated thereon may be instituted against them or other person providing information.

     (c) - (d) [Unchanged.]

     (e) Ethics Professional Responsibility Program. [Reserved.]

     (1) Authorization. The Washington State Bar Association is authorized to maintain a program to assist lawyers in complying with their obligations under the Rules of Professional Conduct, thereby enhancing the quality of legal representation provided by Washington lawyers.

     (2) Professional Responsibility Counsel. "Professional responsibility counsel" denotes a lawyer employed or appointed by the Bar Association to act as counsel on the Bar Association's behalf in performing duties under part (e) of this rule, and any other lawyer employed or appointed by the Bar Association, including but not limited to disciplinary counsel or general counsel, whenever such lawyer is temporarily performing those duties.

     (3) Ethics Inquiries. Any member of the Bar Association, or any lawyer or legal intern permitted by rule to practice law in this state, may direct an ethics inquiry to professional responsibility counsel. Such inquiries should be made by telephone to the Bar Association's designated ethics inquiry telephone line. The provisions of this rule also apply to ethics inquiries initially submitted in writing, including facsimile, e-mail, or other electronic means, but do not apply to requests for written ethics opinions directed to the Bar Association's Rules of Professional Conduct Committee or its equivalent.

     (4) Scope. An inquirer may request the guidance of professional responsibility counsel in identifying, interpreting or applying the Rules of Professional Conduct as they relate to his or her prospective ethical conduct. If the inquiry presents a set of facts, those facts should ordinarily be presented in hypothetical format. Professional responsibility counsel provides only informal guidance. Professional responsibility counsel provides no legal advice or opinions, and the inquirer is responsible for making his or her own decision about the ethical issue presented. The inquiry shall be declined if it (i) requires analysis or resolution of legal issues other than those arising under the Rules of Professional Conduct; (ii) seeks an opinion about the ethical conduct of a lawyer other than the inquirer; or (iii) seeks an opinion about the ethical propriety of the inquirer's past conduct.

     (5) Limitations and Inadmissibility. Neither the making of an inquiry nor the providing of information by professional responsibility counsel under this rule creates a client-lawyer relationship. Any information or opinion provided during the course of an ethics inquiry is the informal, individual view of professional responsibility counsel only. No information relating to an ethics inquiry, including the fact that an inquiry has been made, its content, or the response thereto, may be asserted in response to any grievance or complaint under the Rules for Enforcement of Lawyer Conduct, nor is such information admissible in any proceeding under the Rules for Enforcement of Lawyer Conduct.

     (6) Records. Professional responsibility counsel shall not make or maintain any permanent record of the identity of an inquirer or the substance of a specific inquiry or response. Professional responsibility counsel may keep records of the number of inquiries and the nature and type of inquiries and responses. Such records shall be used solely to aid the Bar Association in developing the Professional Responsibility Program and developing additional educational programs. Such records shall be exempt from public inspection and copying and shall not be subject to discovery or disclosure in any proceeding.

     (7) Confidentiality. Communications between an inquirer and professional responsibility counsel are confidential and shall be privileged against disclosure except by consent of the inquirer or as authorized by the Supreme Court. Professional responsibility counsel shall not use or reveal information learned during the course of an ethics inquiry except as RPC 1.9 would permit with respect to information of a former client. The provisions of RPC 8.3 do not apply to information received by professional responsibility counsel during the course of an ethics inquiry.

     (f) Exoneration From Liability.

     (1) Bar Association and Its Agents. No cause of action shall accrue in favor of any person, arising from any action or proceeding pursuant to this rule, against the Bar Association, or its officers or agents (including but not limited to its staff, members of the Board of Governors, or any other individual acting under the authority of this rule) 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 this rule and shall bear the costs of that defense and shall indemnify the officer or agent against any judgment taken therein.

     (2) Other persons. Communications to the Bar Association, Board of Governors, staff, or any other individual acting under the authority of this rule, are absolutely privileged, and no lawsuit predicated thereon may be instituted against them or other person providing information.

GR 9 COVER SHEET

     This is consistent with settled law which provides that judicial officers, whether acting in their judicial or legislative capacities, enjoy absolute immunity from civil rights damages actions. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed. 2d 641 (1980); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed. 2d 331 (1978). Case law in the Ninth Circuit holds that immunity extends to the WSBA in carrying out the functions of the Supreme Court pursuant to court rule. Clark v. State of Washington, 366 F.2d 678 (9th Cir., 1966); Hirsh v. Justices of the Supreme Court of California, 67 F. 3d 708 (1995).

     When the WSBA conducts admissions, disciplinary or disability proceedings, it does so as the agent of the Supreme Court. Hahn v. Boeing Company, 95 Wn. 2d 28, 621 P.2d 1263 (1980); State ex rel. Schwab v. State Bar Association, 80 Wn. 2d 266, 493 P.2d 1237 (1972). The same is true for proceedings relating to applications to the Fund.

     Although many of the applications to the Fund are also the subject of disciplinary investigations, in many instances the Fund and its staff, Committee members and Trustees have to conduct an independent investigation, for example where applications are submitted after a lawyer has been disbarred. The investigation is conducted in the same manner as a disciplinary investigation, and the Lawyers' Fund for Client Protection Committee and the Fund Trustees are charged with the duty to determine whether the applicant has been the victim of dishonest conduct by a lawyer. This is a comparable adjudicatory function to that conducted by the Disciplinary Board.

     The American Bar Association Model Rules for Lawyers' Fund for Client Protection comment that "As a matter of public policy, immunity should attach to the Fund's activities and proceedings in the same way that absolute immunity attaches in lawyer disciplinary proceedings." The comment notes, "Immunity from civil liability encourages lawyers and nonlawyers to serve on the [Fund Committee], and protects their independent judgment in the evaluation of claims. Immunity also protects the fiscal integrity of the Fund, and encourages claimants and lawyers to participate in seeking reimbursement for eligible losses."

     For these reasons, exoneration from liability provided for persons operating under the court rules relating to lawyer disciplinary proceedings should be extended to persons operating under court rules relating to the Fund.

     (b) Establishment. [No change].

     (c) Funding. [No change].

     (d) Enforcement. [No change].

     (e) Restitution. [No change].

     (f) Administration. [No change].

     (g) Subpoenas. [No change].

     (h) Reports. [No change].

     (i) Exoneration from Liability.

     (1) Bar Association and Its Agents. No cause of action accrues in favor of a lawyer or any other person, arising from an investigation or proceeding under these rules, against the Association, or its officers or agents (including but not limited to its staff, members of the Board of Governors (Fund Trustees), members of the Committee, or any other individual acting under authority of these rules) provided only that the Association or individual acted in good faith. The burden of proving bad faith in this context is on the person asserting it. The Association must defend any action against an officer or agent of the Association for actions taken in good faith under these rules, bear the costs of that defense, and indemnify the officer or agent against any such judgment.

     (2) Applicants and Other Persons. Communications to the Association, Board of Governors (Trustees), Committee, Association staff, or any other individual acting under authority of these rules, are absolutely privileged, and no lawsuit predicted thereon may be instituted against any applicant or other person providing information.

GR 9 COVER SHEET

     This rule would require that each active status lawyer certify on the annual license registration form (a) whether the lawyer is in private practice; (b) if so, whether the lawyer maintains professional liability insurance; (c) whether the lawyer intends to continue to maintain insurance; and (d) whether the lawyer is a full-time government lawyer or house counsel and does not represent clients outside that capacity. The form would also require notification to the WSBA within 30 days if the lawyer in private practice ceases to be insured.

     This is Admission to Practice Rule requiring disclosure, and not a disciplinary rule. It does not mandate that lawyers be insured. However, failure to comply with the disclosure requirement would result in administrative suspension from practice until the information is disclosed, in the same way that lawyers may be suspended for failure to comply with the continuing legal education reporting requirements.

     This insurance information would be available to clients or prospective clients by such means as the Board of Governors designates, such as posting on the WSBA website or by contacting the WSBA. In practice, this would operate similarly to the contractor insurance and bonding information available to the public through the Department of Labor and Industries by contacting the Department or searching the Department's website.

     Fourteen states currently require disclosure of insurance, either through the lawyer licensing or regulatory agency (Delaware, Illinois, Kansas, Michigan, Nebraska, New Mexico, North Carolina, Virginia, and West Virginia), or in writing directly to clients (Alaska, New Hampshire, Ohio, and South Dakota). The experience in states that have had a disclosure rule in effect for some time has shown no increase in either frequency of insurance claims or in increased premium rates. There has also been no indication of any disproportionate impact on new lawyers, solo and small firm lawyers, or minority lawyers, nor that it has made legal services more expensive or reduced lawyers' willingness to provide pro bono services.

     This suggested rule was circulated for comment among the WSBA members. It was e-mailed to approximately 15,000 active WSBA members, it was posted on the WSBA website, and it was published in the July 2005 Bar News. The WSBA received e-mail responses from about 90 members and a few letters, both pro and con, One concern that was expressed is that such disclosure is misleading because professional liability insurance is "claims made," and the disclosure does not indicate policy limits, deductibles, whether defense costs are within or without the policy limits, etc. If the rule is adopted and this information is posted on the WSBA website and otherwise made available, there will be additional information about professional liability insurance and suggested questions that a client may want to ask. The website information would note that lawyers may make a responsible decision not to maintain insurance because the lawyer may choose to be financially responsible (self-insured), or is an in-house or government lawyer whose employer has chosen to bear the risk of errors, or for other reasons.

     Another issue that was raised concerned government lawyers and in-house counsel who provide pro bono work through qualified legal services providers that maintain professional liability insurance. It was suggested that the rule should specifically address this. However, as the rule is written, if a government lawyer or in-house counsel represents clients outside of that employment, but does so in a context where he/she is insured, then the answer to (a)(2) would be "yes" and the answer to (a)(4) would be "no."

     Lawyers take their responsibility to the public seriously, and this is one simple means to make this information available.

     (b) The information submitted pursuant to this rule will be made available to the public by such means as may be designated by the Board of Governors, which may include publication on the website maintained by the Bar Association.

     (c) Any lawyer admitted to the active practice of law who fails to comply with this rule by the date specified in section (a) may be ordered suspended from the practice of law by the Supreme Court until such time as the lawyer complies. Supplying false information in response to this rule shall subject the lawyer to appropriate disciplinary action.

     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.