WSR 16-07-024

RULES OF COURT

[March 7, 2016]

The Washington State Bar Association Limited License Legal Technician Board, having recommended the Proposed Amendments to APR 28C—Limited License Legal Technician Board, APR 28D—Requirements for Applicants, APR 28F—Limited Practice Rule for Limited License Legal Technicians, APR 28 App. 28 Regulation 2—Practice Areas-Scope of Practice Authorized by Limited License Legal Technical Rule, APR 28 App. 28 Regulation 3—Education Requirements for Applicants, and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(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 45 days after the first date of publication. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 7th Day of March, 2016.

Limited License Legal Technician (LLLT) Board

Staff Liaison/Contact:

Ellen Reed, Limited License Legal Technician Program Lead

Washington State Bar Association

1325 Fourth Avenue, Suite 600

Seattle, WA 98101-2539 (Phone: 206-727-8289)

Stephen R. Crossland

Chair of LLLT Board

P.O. Box 566

Cashmere, WA 98815 (Phone: 509-782-4418)

C. Purpose: The primary purposes for the suggested amendments are to clarify the meaning of a portion of APR 28(F) that creates uncertainty concerning the scope of an LLLT's permitted practice as it relates to writing letters, and to modify a portion of Appendix 2A that creates significant barriers to an LLLT's ability to provide meaningful and useful advice to a client in a timely manner. The issues came to the attention of the Board as the scope of practice was being taught for the first time by the University of Washington School of Law; Board members heard from faculty and students alike concerning the difficulties posed by these issues. The Board discussed the two issues at a number of meetings over many months and concluded that changes to the rule language were desirable. The Board received advice and input from a scope of practice committee which included family law professors and private attorneys with family law experience. A draft of the rule changes was submitted by Board member Ellen Dial at the Board's April 2015 meeting, and the Board approved the draft at its meeting in May, 2015.

The following describes each proposed amendment and the amendment's purpose and intended effect:

The Board suggests an administrative amendment to add a clarifying phrase after the first three words of APR 28 (F)(8). That section permits an LLLT to "draft legal letters … if the work is reviewed and approved by a Washington lawyer." The Board believes that the intent of the rules is to prohibit an LLLT from writing letters containing legal advice that are intended to be read by persons other than the client unless the work is reviewed and approved by a Washington lawyer, but that it is not the intent of the rules to imply that LLLTs may write letters to clients only after review and approval by a lawyer. The authority of an LLLT to reduce to writing the legal advice that the LLLT has given or is giving to a client, where the intended recipient of the writing is the client, is implied by the express authorizations to give advice to a client that are set forth in other subsections of APR 28(F). Prohibiting LLLTs from writing of letters to a client unless under the supervision of a lawyer would unduly hinder the LLLT in giving meaningful and timely advice to the client within the authorized scope of the LLLT's practice. The Board believes that letters containing legal advice that are intended to be read by persons other than the client should be reviewed and approved by a Washington lawyer, because advice given to third parties is beyond the authorized scope of an LLLT's practice. These letters, which are often referred to as "opinion letters," are often intended to describe to a third person a legal analysis in support of the author's client's position, another activity that is prohibited to LLLTs. Accordingly, the Board suggests an administrative amendment to clarify that the type of letters written by LLLTs that must be reviewed and approved by a Washington lawyer are letters that sets forth legal opinions and that are intended to be read by persons other than the client. The proposed amendment adds a clarifying phrase after the words "legal letters" in APR 28 (F)(8), and begins a new second clause concerning preparation of other documents by repeating the word "draft" at the commencement of the second clause.

The Board suggests a substantive amendment to subpart A of Regulation 2, to allow an LLLT to prepare a document that includes an issue that is outside of the scope of the LLLT's authorized practice if the LLLT complies fully with the obligations set forth in that Regulation to identify and describe the issue in writing and to recommend that the client secure advice from a lawyer, and if the client nonetheless elects not to seek advice from a lawyer but directs the LLLT how to complete the document with respect to the issue. As currently written, the regulation prohibits an LLLT from completing any document that involves such an issue. The result is that a client who elects not to engage a lawyer is left without effective assistance in completing the document. The Board believes the current language might also emphasize form over substance, because an LLLT is able to advise a client how to complete the portions of a form document that do lie within the authorized scope of the LLLT's practice, but is not able to complete those portions him- or herself. Under the proposed amendment, the LLLT would be able to prepare the document under those circumstances, but would still be prohibited from advising the client regarding the issue that lies outside of the authorized scope of the LLLT's practice, and would be obligated to complete any portion of the document that involves such an issue only at the client's direction. Above the LLLT's signature on the document, the LLLT would be obligated to insert a statement to the effect that the LLLT did not advise the client with respect to any issue that lies outside of the scope of the LLLT's authorized practice and completed any portions of the document with respect to any such issues at the direction of the client. The proposed amendment modifies the second full paragraph of the Regulation, adds new material in the form of a second set of subparagraphs, and modifies the last sentence of the Regulation to reflect the new material.

The LLLT Board believes that it is important that these proposed amendments be adopted and effective as soon as possible.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is requested in order to promote the effective practice of the first cohort of LLLTs licensed in 2015. The LLLT program's goal is to provide much needed access to justice. Delay of the amendments will hinder the LLLTs in providing relief to those in need of LLLT services.

F. Supporting Material: None.

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F. Scope of Practice Authorized by Limited Practice Rule. The Limited License Legal Technician shall ascertain whether the issue is within the defined practice area for which the LLLT is licensed. If it is not, the LLLT shall not provide the services required on this issue and shall inform the client that the client should seek the services of a lawyer. If the issue is within the defined practice area, the LLLT may undertake the following:

(1) Obtain relevant facts, and explain the relevancy of such information to the client;

(2) Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;

(3) Inform the client of applicable procedures for proper service of process and filing of legal documents;

(4) Provide the client with self-help materials prepared by a Washington lawyer or approved by the Board that contain information about relevant legal requirements, case law basis for the client's claim, and venue and jurisdiction requirements;

(5) Review documents or exhibits that the client has received from the opposing party, and explain them to the client;

(6) Select, complete, file, and effect service of forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a Washington lawyer; or forms approved by the Board; and advise the client of the significance of the selected forms to the client's case;

(7)Perform legal research;

(8)Draft legal letters setting forth legal opinions that are intended to be read by persons other than the client, and draft documents beyond what is permitted in paragraph (6), if the work is reviewed and approved by a Washington lawyer;

(9) Advise a client as to other documents that may be necessary to the client's case, and explain how such additional documents or pleadings may affect the client's case;

(10) Assist the client in obtaining necessary documents or records, such as birth, death, or marriage certificates.

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REGULATION 2. PRACTICE AREAS-SCOPE OF PRACTICE AUTHORIZED BY LIMITED LICENSE LEGAL TECHNICIAL RULE

In each practice area in which an LLLT is licensed, the LLLT shall comply with the provisions defining the scope of practice as found in APR 28 and as described herein.

A. Issues Beyond the Scope of Authorized Practice.

An LLLT has an affirmative duty under APR 28(F) to inform clients when issues arise that are beyond the authorized scope of the LLLT's practice. When an affirmative duty under APR 28(F) arises, then the LLLT shall inform the client in writing that:

1. the issue may exist, describing in general terms the nature of the issue;

2. the LLLT is not authorized to advise or assist on this issue;

3. the failure to obtain a lawyer's advice could be adverse to the client's interests; and,

4. the client should consult with a lawyer to obtain appropriate advice and documents necessary to protect the client's interests.

After an issue beyond the LLLT's scope of practice has been identified, if the client engages a lawyer with respect to the issue, then an LLLT may prepare a document related to the issue only if a lawyer acting on behalf of the client has provided appropriate documents and written instructions for the LLLT as to whether and how to proceed with respect to the issue. If the client does not engage a lawyer with respect to the issue, then the LLLT may prepare documents that relate to the issue if:

1. The client informs the LLLT how the issue is to be determined and instructs the LLLT how to complete the relevant portions of the document, and

2. Above the LLLT's signature at the end of the document, the LLLT inserts a statement to the effect that the LLLT did not advise the client with respect to any issue outside of the LLLT's scope of practice and completed any portions of the document with respect to any such issues at the direction of the client.

The LLLT may proceed in the manner described above this manner only if no other defined prohibitions apply.

B. Domestic Relations.

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Limited License Legal Technician (LLLT) Board

Staff Liaison/Contact:

Ellen Reed, Limited License Legal Technician Program Lead

Washington State Bar Association

1325 Fourth Avenue, Suite 600

Seattle, WA 98101-2539 (Phone: 206-727-8289)

Stephen R. Crossland

Chair of LLLT Board

P.O. Box 566

Cashmere, WA 98815 (Phone: 509-782-4418)

When making decisions about the design of the LLLT program, the LLLT Board has always weighed whether or not each change they suggest to the Supreme Court will contribute to making the program more affordable, more accessible, and appropriately academically rigorous. In keeping with these guiding principles, the LLLT Board has noted that the rural nature of many communities in Washington suggests that in order to be truly accessible to a large portion of the state's residents, the LLLT core curriculum must be offered in areas not currently served by ABA-approved paralegal education programs and law schools.

Under the current rules and regulations governing the LLLT education, LLLT applicants must meet the LLLT core education requirement at an ABA-approved paralegal program or law school. There are currently four colleges with ABA-approved paralegal programs in Washington and three ABA-approved law schools. All of these schools are located in the Puget Sound area and Spokane. The southern, northern and central portions of the state's population cannot access the LLLT core education except through piecing together an online course schedule, undertaking a long commute to school, or moving closer to the institutions which offer the education. For many students, none of these options are realistic. Furthermore, many schools with excellent paralegal programs are ready and willing to offer the LLLT education to their students, but cannot do so because they lack ABA approval. The ABA approval process is rigorous and respected, but it is also expensive and not an attainable goal for many schools with scarce economic resources.

In order to expand access to the LLLT core education, the LLLT Board has consulted with educators and representatives from paralegal programs and law schools from across the state to develop standards that can be used to approve paralegal or legal studies programs that have not gone through the ABA approval process. The Board also consulted extensively with the Washington State Board of Community and Technical Colleges (SBCTC). The standards developed by the LLLT Board ("LLLT Educational Program Approval Standards") are based on the ABA Guidelines for the Approval of Paralegal Education Programs, with a few notable differences. Key differences between the two sets of standards can be found in the "Brief Comparison of the ABA Guidelines for the Approval of Paralegal Programs and LLLT Educational Program Approval Standards" document which is attached hereto as supporting material item #2.

Implementation of the LLLT Educational Program Approval Standards is possible only if accompanying amendments are made to APR 28 that will allow the LLLT core education to be offered by non-ABA approved programs and will give the LLLT Board the authority to establish and apply an approval process for the LLLT core education programs in Washington. The Standards allow the LLLT Board to delegate the power to review and approve programs to a third party. The LLLT Board has created a partnership with the SBCTC to fill the role of the third party delegate. The SBCTC carries out educational program review and approval for colleges across the state and is a logical and experienced body to which to delegate the LLLT educational program review and approval. In addition, the SBCTC played a very active part in assisting in the creation of the LLLT Educational Program Approval Standards with the intent of fulfilling the role of the delegate responsible for the program approval process.

Two amendments are suggested to APR 28(C); the first is merely a grammatical change suggested in order to maintain consistency in the text of APR 28. To that end, the Board suggests that "Limited License Legal Technician" in APR 28 (C)(2)(c) be changed to read "LLLT". The second change suggested to APR 28(C) is substantive; the Board proposes adding a new subsection (h) to APR 28 (C)(2) that would grant the LLLT Board the power to "establish and maintain criteria for approval of educational programs that offer LLLT core education."

Three amendments are proposed to APR 28(D). Similarly to APR 28(C), two of the suggested amendments seek to standardize the use of "LLLT" within the rules, rather than using "Limited License Legal Technician" and "LLLT" interchangeably. These proposed amendments can be found in sections (D) and (D)(2). A substantive amendment is suggested in APR 28 (D)(3)(b), that will expand the accessibility of the LLLT core education by permitting LLLT applicants to complete the LLLT core curriculum at an educational institution with an LLLT education program approved by the LLLT Board. Again, the LLLT Board plans to delegate coordination of the program review, approval, and ongoing monitoring to the State Board of Community and Technical Colleges.

Amendments to APR 28 Regulation 3 will allow students completing the LLLT core curriculum to do so at a program approved under the LLLT Educational Program Approval Standards, in addition to an ABA approved law school or paralegal program. It also clarifies how credits are calculated by specifying the number of credit hours needed for completion of the curriculum and allows the evaluation of courses to be focused on the subject matter of the course rather than the name under which it is taught. The language in the proposed amendments to Regulation 3 (A)(2) details the responsibility of the Board to establish and maintain standards for approval of non-ABA approved programs.

These proposed rule amendments seek to uphold the spirit and intent of APR 28 and move toward the expansion of access to legal services for all of Washington's residents, regardless of their socioeconomic status or geographic location. Approving these changes to APR 28 will allow Washington's 29 community and technical colleges, as well as universities and private colleges, to have the chance to participate in educating future practitioners of this innovative program. It will also allow more LLLT candidates to learn and make professional connections in their communities as they move through their pathway to becoming a LLLT. The LLLT Board believes that it is important that these proposed amendments be adopted and effective as soon as possible.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is requested in order to allow schools that wish to offer the LLLT core education to begin the approval process and start developing their curriculum in anticipation of the 2016-17 school year.

1. LLLT Educational Program Approval Standards

2. Brief Comparison of the ABA Guidelines for the Approval of Paralegal Programs and LLLT Educational Program Approval Standards

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C. Limited License Legal Technician Board

(1)

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(2) Board Responsibilities. The Board shall be responsible for the following:

(a) Recommending practice areas of law for LLLTs, subject to approval by the Supreme Court;

(b) Processing applications and fees, and screening applicants;

(c) Administering the examinations required under this rule which shall, at a minimum, cover the rules of professional conduct applicable to LLLTs Limited License Legal Technicians, rules relating to the attorney-client privilege, procedural rules, and substantive law issues related to one or more approved practice areas;

(d) Determining LLLT Continuing Legal Education (LLLT CLE) requirements and approval of LLLT CLE programs;

(e) Approving education and experience requirements for licensure in approved practice areas;

(f) Establishing and overseeing committees and tenure of members;

(g) Establishing and collecting examination fees, LLLT CLE fees, annual license fees, and other fees in such amounts approved by the Supreme Court as are necessary to carry out the duties and responsibilities of the Board; and

(h i) Such other activities and functions as are expressly provided for in this rule.

(3) Rules and Regulations. The Board shall propose rules and regulations for adoption by the Supreme Court that:

(a) Establish procedures for grievances and disciplinary proceedings;

(b) Establish trust account requirements and procedures;

(c) Establish rules of professional and ethical conduct; and

(d) Implement the other provisions of this rule.

(4) Administration and Expenses of the Board. The Washington State Bar Association shall provide reasonably necessary administrative support for the Board. Members of the Board shall not be compensated for their services but shall be reimbursed for actual and necessary expenses incurred in the performance of their duties according to the Washington State Bar Association's expense policies. Funds accumulated from examination fees, annual fees, and other revenues shall be used to defray the expenses of the Board. All anticipated expenses and anticipated revenues shall be submitted on a proposed budget for approval by the Washington State Bar Association's Board of Governors.

D. Requirements for Applicants. An applicant for licensure as an LLLT Limited License Legal Technician shall:

(1) Age. Be at least 18 years of age.

(2) Moral Character and Fitness to Practice. Be of good moral character and demonstrate fitness to practice as an LLLT Limited License Legal Technician.

(3) Education. Have the following education, unless waived by the Board through regulation:

(a) An associate level degree or higher;

(b) 45 credit hours of core curriculum instruction in paralegal studies as approved by the Board with instruction to occur at:

(i) an ABA approved law school; or

(ii) an educational institution with an ABA approved paralegal education program; or and

(c) In each practice area in which an applicant seeks licensure, instruction in the approved practice area, which must be based on a curriculum developed by or in conjunction with an ABA approved law school. For each approved practice area, the Board shall determine the key concepts or topics to be covered in the curriculum and the number of credit hours of instruction required for admission in that practice area.

(d) For the purposes of satisfying APR 28 (D)(3), one credit hour shall be equivalent to 450 minutes of instruction.

(4) Application. Execute under oath and file with the Board an application, in such form as the Board requires. An applicant's failure to furnish information requested by the Board or pertinent to the pending application may be grounds for denial of the application.

(5) Examination Fee. Pay, upon the filing of the application, the examination fee and any other required application fees as established by the Board and approved by the Supreme Court.

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An applicant for licensure shall satisfy the following education requirements:

A. Core Curriculum.

1. Credit Requirements. An applicant for licensure shall have earned 45 credit hours as required by APR 28 (D)(3)(b). The core curriculum must include the following required subject matters with minimum credits hours earned as indicated: the following course credits at an ABA approved law school or ABA approved paralegal program:

1. Civil Procedure, minimum 8 credits hours;

2. Contracts, minimum 3 credits hours;

3. Interviewing and Investigation Technique, minimum 3 credits hours;

4. Introduction to Law and Legal Process, minimum 3 credits hours;

5. Law Office Procedures and Technology, minimum 3 credits hours;

6. Legal Research, Writing and Analysis, minimum 8 credits hours; and

7. Professional responsibility, minimum 3 credits hours;

The core curriculum courses in which credit for the foregoing subject matters is earned shall satisfy the curricular requirements approved by the Board and published by the Association. If the required core curriculum courses completed by the applicant do not total 45 credits hours as required by APR 28 (D)(3)(b), then the applicant may earn the remaining credits hours by taking legal or paralegal elective courses. at an ABA approved law school or ABA approved paralegal program. All core curriculum course credit hours must be earned at an ABA approved law school, an educational institution with an ABA approved paralegal program, or at an educational institution with an LLLT core curriculum program approved by the Board under the Washington State LLLT Educational Program Approval Standards.

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