WSR 16-13-020

RULES OF COURT

STATE SUPREME COURT

[June 2, 2016]


IN THE MATTER OF THE PROPOSED AMENDMENTS TO APR 20-25.6—CHARACTER AND FITNESS BOARD	) ) ) )	ORDER NO. 25700-A-1145

The Washington State Bar Association, having recommended the adoption of the proposed amendments to APR 20-25.6—Character and Fitness Board, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

ORDERED:

(a) That the new rules as shown below are adopted.

(b) That the new rules will be published in the Washington Reports and will become effective September 1, 2016.

DATED at Olympia, Washington this 2nd day of June, 2016.


		Madsen, C.J.
Johnson, J.		Wiggins, J.
Owens, J.		Gonzalez, J.
Fairhurst, J.		Gordon McCloud, J.
Stephens, J.		Mary Yu, J.

ADMISSION AND PRACTICE RULES (APR)

RULE 20. DEFINITIONS RELATING TO CHARACTER AND FITNESS BOARD DETERMINATIONS

(a) Applicant. "Applicant" as used in APR 20-25.6 means every applicant for admission to practice law, for limited admission or licensure to practice law, or for change of membership class or status under the Bar Association Bylaws. In matters involving investigations or hearings pursuant to the filing of a petition for reinstatement by a disbarred lawyer, "Applicant" shall also include a petitioner for reinstatement.

(b) Bar Counsel. "Bar Counsel" as used in APR 20-25.6 means one or more lawyers employed by the Bar Association who shall represent the Bar Association in reviewing applications for admission, readmission and licensure or at hearings before the Character and Fitness Board and/or act as counsel to the Character and Fitness Board. Bar Counsel who represents the Bar Association at hearings before the Character and Fitness Board may make a recommendation in support of or in opposition to the admission or reinstatement of an Applicant.

(c) Good Moral Character. 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.

(d) Fitness to Practice Law. Fitness to practice law is a record of conduct that establishes that the Applicant meets the essential eligibility requirements for the practice of law.

(e) Essential Eligibility Requirements. The essential eligibility requirements for the practice of law are:

(1) The ability to exercise good judgment and to conduct oneself with a high degree of honesty, integrity, and trustworthiness in financial dealings, legal obligations, professional relationships, and in one's professional business.

(2) The ability to conduct oneself in a manner that engenders respect for the law and adheres to the Washington Rules of Professional Conduct.

(3) The ability to diligently, reliably, and timely perform legal tasks and fulfill professional obligations to clients, attorneys, courts and others.

(4) The ability to competently undertake fundamental lawyering skills such as legal reasoning and analysis, recollection of complex factual information and integration of such information with complex legal theories, problem solving, and recognition and resolution of ethical dilemmas; and

(5) The ability to communicate comprehensibly with clients, attorneys, courts, and others, with or without the use of aids or devices.

(f) Health Diagnosis. "Health diagnosis" as used in APR 20-25.6 means a determination or conclusion regarding a sensory, mental, or physical condition that:

(1) Is medically cognizable or diagnosable; or

(2) Exists in a record or history; or

(3) Is perceived to exist whether or not it exists in fact.

(a) Composition. The 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. The validity of the Board's actions is not affected if the Board's makeup differs from the stated constitution due to a temporary vacancy in any of the specified positions.

(b) Qualifications. Lawyer members must have been active members of the Bar Association for at least 5 years.

(c) Board Chair. The Board of Governors shall annually designate one lawyer member of the 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 Board chair. If both the chair and the vice-chair will be absent from a meeting or hearing, the chair may appoint another member of the Board to serve as chair pro tern at any hearing.

(d) Vacancies. Vacancies in lawyer membership on the Board and in the office of the 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) 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, Bar Counsel and the Applicant or Petitioner may agree to 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.

RULE 20.1. APPLICATION OF RULES AUTHORITY OF BOARD

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.

The Board shall have the power and authority to:

(a) Accept referrals from the Bar Counsel concerning matters of character and fitness bearing upon the qualification of Applicants for Admission, Petitioners for Reinstatement, and any other applicants, including Association members changing status or membership class, referred to the Board pursuant to APR7 or the Bar Association Bylaws.

(b) Review each Application for Admission, other application as described in 20.1(a), or Petition for Reinstatement to practice law in the state of Washington.

(c) Investigate matters relevant to the applications or petitions of any Applicant, Petitioner, or Bar Association member changing status or membership class and conduct hearings concerning such matters.

(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.

No Board member shall offer an opinion to an Applicant, Bar Association member, or Petitioner on whether the Applicant's or Petitioner's record establishes good moral character and fitness to practice law until after the completion of a hearing regarding that Applicant's or Petitioner's application or petition.

RULE 20.2 MEETINGS

The Board shall hold meetings at such times and places as it may determine. Where the chair of the Board determines that prompt action is necessary for protection of the public, and that circumstances do not permit a full meeting of the Board, the Board may vote on a matter otherwise ready for review without meeting together, through telephone, electronic or written communication.

RULE 20.3. BAR COUNSEL

The Bar Association shall be represented by one or more lawyers appointed by the Executive Director of the Bar Association, who shall act as counsel to the Board and/or may make a recommendation in support of or in opposition to the admission or reinstatement of an Applicant or Petitioner.

RULE 20.4 CLERK

The Executive Director of the Bar Association may appoint a suitable person or persons to act as Clerk to the Board, and to assist the Board in carrying out its functions under these rules.

RULE 20.5. SERVICE

Service of papers and documents shall be made by first class postage prepaid mail to the Applicant's, Bar Association member's, or Petitioner's, or his or her counsel's, last known address on record with the Bar Association. If properly made, service by mail is deemed Suggested Amendments to Admission to Practice Rules Washington State Bar Association accomplished on the date of the mailing. Any notice of change of address shall be submitted in writing to the Bar Association.

RULE 21. FACTORS CONSIDERED WHEN DETERMINING CHARACTER AND FITNESS DEFINED

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) Factors Considered. The following factors shall be considered when determining an Applicant's 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 for limited admission to practice law, to sit for a bar examination, or otherwise for licensure or admission to the practice of law;

(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) conduct demonstrating an inability to meet one or more essential eligibility requirements for the practice of law;

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

(12) disciplinary action by any professional licensing or disciplinary agency of any jurisdiction;

(13) conduct that physically threatens or harms another person; and

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

(b) Aggravating and Mitigating Factors. The following factors shall be considered in mitigation or aggravation when determining an applicant's good moral character or fitness to practice law:

(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; and

(9) Evidence of rehabilitation, recovery, or remission, which may include but is not limited to the following, no single one of which is determinative:

(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;

(ix) length of time in which the Applicant has been in recovery or remission, where applicable, and if it is less than two years, expert opinion that the period of treatment, recovery or remission is adequate for the applicant to meet the essential eligibility requirements for the practice of law; and

(x) compliance with any recommended or prescribed treatment plans.

(c) Non-Discrimination Policy. In determining good moral character and fitness to practice law, the Bar Association and the Character and Fitness Board shall not discriminate against any applicant on the basis of:

(1) Race, color or ethnic identity;

(2) Gender or gender identity;

(3) Sexual orientation;

(4) Marital status;

(5) Creed or religion;

(6) Political beliefs or affiliation;

(7) Sensory, mental or physical disability;

(8) National origin;

(9) Age;

(10) Honorably discharged veteran or military status;

(11) Use of a trained service animal by a person with a disability; or

(12) Any other class protected under state or federal law.

RULE 22. CHARACTER AND FITNESS DEFINED REVIEW OF APPLICATIONS FOR ADMISSION; APPLICANT DUTIES AND RIGHTS INDEPENDENT FITNESS EXAMINATION

(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, Bar Association member, or Petitioner to practice law.

(b) Testimony and Evidence: If it appears that the Applicant, Bar Association member, 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, Bar Association member, 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 the testimony or evidence at a hearing the Board finds that examination or further examination is necessary or would assist the Board in performing its duties, the Board by majority vote may require an examination of the Applicant, Bar Association member, or Petitioner by an examining professional approved by Bar Counsel and the Lawyers' Assistance Program of the Washington State Bar Association.

(d) Failure to Comply: The failure of an Applicant, Bar Association member, or a Petitioner to agree or submit to a required independent fitness examination shall result in the Applicant's, Bar Association member'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, Bar Association member'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, Bar Association member'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 without the consent of the Applicant, Bar Association member, or Petitioner.

RULE 22.1 REVIEW OF APPLICATIONS

(a) Admissions Staff Review. All applications for admission or licensure to practice law in Washington state or to change membership class or status with the Bar Association, and all petitions for readmission to the practice of 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 21(a) are present.

(b) Referral to Bar Counsel—Standard. All applications and petitions which reflect one or more of the factors set forth in Rule 21(a) shall be referred to Bar Counsel for review.

(c) Review By Bar Counsel. Upon receiving a referral from the admissions staff, Bar Counsel may conduct such further investigation as he or she deems necessary. Any investigation or inquiry into a health diagnosis, alcohol or drug dependence, or treatment for either must comply with sections (e) and (f) of this Rule.

(d) Referral for Hearing—Standard. 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. In determining whether a substantial question exists, Bar Counsel shall apply the factors and considerations set forth in Rule 21(a) and review the material evidence in the light most favorable to the Bar Association's obligation to recommend the licensure or admission to the practice of law of only those persons who possess good moral character and fitness to practice law.

(e) Basis for Inquiry into Health Diagnosis and Drug or Alcohol Dependence. Any inquiry by the Bar Association or the Character and Fitness Board about drug or alcohol dependence, a health diagnosis, or treatment for either can occur only if it appears that the Applicant has engaged in conduct that demonstrates the inability to meet one or more of the essential eligibility requirements and (1) the drug or alcohol dependence, health diagnosis, or treatment information was disclosed voluntarily to explain the conduct or as a voluntary response to any question on the application; or (2) the Association or the Board learns from a third-party source that the drug or alcohol dependence, health diagnosis, or treatment was raised as an explanation for the conduct.

(f) Scope of Inquiry into Health Diagnosis and Drug or Alcohol Dependence. When a basis for an inquiry by the Bar Association or the Character and Fitness Board has been established under section (e), any such inquiry must be narrowly, reasonably, and individually tailored and adhere to the following:

(1) The first inquiry will be to request statements from the Applicant;

(2) Following completion of the inquiry in section (f)(1) above, additional statements may be requested from treatment providers if reasonably deemed necessary by the Bar Association or the Board. The statements of treatment providers shall be accorded considerable weight; and

(3) In those cases in which the statements from the Applicant and treatment providers do not resolve reasonable concerns about the Applicant's ability to meet the essential eligibility requirements, the Bar Association or Board may seek medical or treatment records. Any requests for medical or treatment records shall be by way of narrowly tailored requests and releases that provide access only to information that is reasonably necessary to assess the Applicant's ability to meet the essential eligibility requirements.

(4) Any testimony or records from medical or other treatment providers may be admitted into evidence at a hearing on, or review of, the Applicant's fitness and transmitted with the record on review to the Disciplinary Board and/or the Supreme Court. Records and testimony regarding the Applicant's fitness shall otherwise be kept confidential in all respects and neither the records nor the testimony of the medical or treatment provider shall be discoverable or admissible in any other proceeding or action without the written consent of the Applicant.

RULE 22.2 APPLICANT DUTIES AND RIGHTS

(a) Duty of Applicant. It shall be the duty of every Applicant to cooperate in good faith with any investigation by promptly furnishing written or oral explanations, documents, releases, authorizations, or anything else reasonably required by Bar Counsel, the Bar Association or the Character and Fitness Board consistent with these rules. 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 to recommend the rejection of an application.

(b) Applicant Contact with Character and Fitness Board. Applicants shall not have direct contact with any member of the Character and Fitness Board from the time the Applicant's application is filed with the Bar Association until the matter is finally resolved by the Board or the Supreme Court, except to the extent direct contact is required during the hearing. If the Applicant believes that communication with the Board is necessary outside the hearing, such communication shall take place through Bar Counsel. If the Applicant believes that contact about the Applicant's matter with members of the Board is necessary after the matter is finally resolved by the Board or the Court, such contact should be made only through Bar Counsel.

RULE 23. CHARACTER AND FITNESS BOARD--PREHEARING PROCEDURE--APPLICATIONS FOR ADMISSION

(a) Admissions Staff Review. All applications for admission or licensing to practice law in Washington State or to change membership class or status with the Bar Association, and all petitions for readmission to the practice of 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 and petitions 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 licensing or 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.

(a) Composition. The Character and Fitness Board shall consist of not less than three community representatives who are not lawyers, appointed by the Supreme Court, and not less than one lawyer member from each congressional district, appointed by the Board of Governors. The validity of the Board's actions is not affected if the Board's makeup differs from the stated constitution due to a temporary vacancy in any of the specified positions.

(b) Qualifications. Lawyer members must be active members of the Bar Association and have been active members for at least 5 years.

(c) Board Chair. The Board of Governors shall annually designate one lawyer member of the Character and Fitness Board to act as chair and another as vice-chair. The vice-chair shall serve as chair in the absence of or at the request of the chair. If both the chair and the vice-chair will be absent from a meeting or hearing, the chair may appoint another member of the Board to serve as chair pro tern at any hearing.

(d) Vacancies. Vacancies in lawyer membership on the Board and in the office of the chair and vice-chair shall be filled by the Board of Governors. Vacancies in community representative 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.

(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 community representatives 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 community representative to substitute for a community representative member of the Board.

(h) Voting. Each member, whether community representative 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 two nonconsecutive terms with a minimum of three years between terms except as otherwise provided in these rules. Members shall continue to serve until replaced.

RULE 23.1. AUTHORITY OF BOARD

(a) The Board shall have the power and authority to:

(1) Conduct hearings concerning matters of character and fitness bearing upon the qualification of Applicants referred to the Board by Bar Counsel and of all petitioners for reinstatement;

(2) Request medical or other treatment records, hear testimony from and ask questions of medical or other treatment providers in accordance with Rule 22.1 (e) and (f);

(3) Request an Applicant to submit to an Independent Medical Examination in accordance with Rule 24.1(f);

(4) Recommend the approval or denial of an Applicant's application after hearing; and,

(5) 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.

(b) No Board member shall offer an opinion to an Applicant on whether the Applicant's record establishes good moral character and fitness to practice law until after the completion of a hearing regarding that Applicant's application or petition.

RULE 23.2. MEETINGS

RULE 23.3. CLERK

The Executive Director of the Bar Association may appoint a suitable person or persons to act as Clerk to the Board, and to assist the Board in carrying out its functions under these rules.

RULE 23.4. SERVICE

Unless otherwise agreed by the parties in writing, service of papers and documents shall be made by first class postage prepaid mail to the Applicant's, or his or her counsel's, last known address on record with the Bar Association. If properly made, service by mail is deemed accomplished on the date of the mailing. Any notice of change of address shall be submitted in writing to the Bar Association.

RULE 24. CHARACTER AND FITNESS BOARD HEARINGS APPLICATIONS FOR ADMISSION

RULE 24.1. HEARING PROCEDURE DUTY OF APPLICANT

"Applicant", as used in APR 20-25.6, means every applicant for admission to practice, for limited licensing or admission, or for change of membership class or status under the Bar Association Bylaws. In matters involving investigations or hearings pursuant to the filing of a petition for reinstatement by a disbarred lawyer, "Applicant" shall also include "Petitioner".

(a) It shall be the duty of every Applicant 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 Board to recommend the rejection of an application.

(b) Applicants shall not have direct contact with any member of the Board from the time the Applicant's application is filed with the Bar Association until the matter is finally resolved by the Board or the Supreme Court, except to the extent direct contact is required during the hearing. If the Applicant believes that communication with the Board is necessary outside the hearing, such communication shall take place through Bar Counsel. If the Applicant believes that contact about the Applicant's matter with members of the Board is necessary after the matter is finally resolved by the Board or the Court, such contact should be made only through Bar Counsel.

(c) Applicants shall appear in person at any hearing before the Board, unless the Applicant's presence is waived by the Board for good cause shown. The presumption is that the Applicant's personal attendance at the hearing will be required.

(a) Notice. The Character and Fitness Board may fix a time and place for a hearing on the application, and Bar Counsel shall serve notice thereof not less than 30 days prior to the hearing upon the Applicant and upon such other persons as may be ordered by the Character and Fitness Board. This notice requirement may be waived by the Applicant.

(b) Appearance and Right to Counsel. Applicants shall appear in person at any hearing before the Board, unless the Applicant's presence is waived by the Board for good cause shown. The presumption is that the Applicant's personal attendance at the hearing will be required. 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 civilnor criminal but are sui generis hearings to determine whether an Applicant is of good moral character and possesses the requisite fitness to practice law.

(e) Rules of Evidence.

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

(2) Consistent with section (d) of this Rule, evidence, including hearsay evidence, is admissible if in the chair'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 or by telephone or video conference before the Board, unless in the discretion of the Board their appearance before the Board is waived.

(5) Generally, all documentary evidence to be submitted to the Board for consideration must be delivered to Bar Counsel not less than 30 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, by members of the Board, and by the Applicant or the Applicant's counsel.

(8) The Board may question medical or other treatment providers and seek medical or other treatment records consistent with the provisions of Rule 22.1(e), 22.1(f) and Rule 24.1(f).

(f) Independent Medical Examination. An independent medical examination may be requested by the Character and Fitness Board only when a basis for an inquiry by the Board exists under Rule 22.1(e) and only after testimony and evidence presented at the hearing has failed to resolve the Board's reasonable concerns regarding the Applicant's ability to meet the essential eligibility requirements to practice law. If the applicant has not previously been requested to provide information under APR 22.1 (f)(1), (2) and (3), the Board shall provide the applicant with the opportunity to submit such information, within such reasonable timelines as the Board shall establish, prior to requesting the independent medical examination.

(1) Time and Place. Any independent medical examination shall occur at a time and place convenient to the applicant and shall be conducted by a provider mutually agreed upon by the applicant and the Bar Association.

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

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

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

(5) Confidentiality of IME: Any report and testimony of an examining professional may be admitted into evidence at a hearing on, or review of, the Applicant's fitness and transmitted with the record on review to the Disciplinary Board and/or the Supreme Court. Reports and testimony regarding the Applicant'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 without the consent of the Applicant.

(6) Rebuttal to IME: Applicants shall have the right to provide rebuttal medical information from their treating clinicians if such information is provided within thirty (30) days from the receipt of the independent medical examination report provided pursuant to section (i).

(g) Confidentiality: All hearings and documents before the Character and Fitness Board on applications for admission or limited admission to the Bar Association, admission to the law clerk program, and return to active membership are confidential, but may be provided to the Disciplinary Board or Supreme Court in connection with any appeal, or to other entities with the written consent of the applicant.

RULE 24.2. DECISION AND RECOMMENDATION FACTORS CONSIDERED WHEN DETERMINING CHARACTER AND FITNESS

(a) Decision. Within 30 days after the proceedings are concluded, or if a transcript is ordered, within 30 days after the transcript is received by the Board, 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 23.5.

(1) If the Character and Fitness Board recommends admission, the record, recommendation and all exhibits shall be transmitted to the Supreme Court for disposition.

(2) If the Character and Fitness 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 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. The Applicant must pay to the Supreme Court any fee required by the Court in connection with the appeal and review.

(c) Reapplication. No application for admission may be filed within a period of one year after a decision of the Board recommending against admission that is not appealed to the Supreme Court, and the Bar Association shall maintain a record of the application, hearing and Board recommendation in the Bar Association records.

(a) Factors. The following factors shall be considered by the Admissions staff and Bar Counsel when determining whether an applicant shall be referred to the Character and Fitness Board for a determination of the applicant's character and/or fitness to practice law:

(1) unlawful conduct.

(2) academic misconduct.

(3) making of false statements or omitting material information in connection with an application for limited licensing to practice law, to sit for a bar examination, or otherwise for licensing or admission to the practice of law.

(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 licensing or 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.

RULE 24.3. ACTION ON SUPREME COURT'S DETERMINATION HEARINGS

(a) Application Approved. If the application is approved by the Supreme Court, admission shall be subject to the Applicant's taking and passing any required qualifying examinations and complying with all other requirements for admission.

(b) Application Denied. If the application is denied, the Bar Association shall maintain a record of the application, hearing, and appeal in the Bar Association records. No new application for admission shall be filed within a period of one year after the date of the Supreme Court decision denying the application.

(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 is of good moral character and possesses the requisite fitness to be admitted to practice law.

(e) Rules of Evidence.

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

(2) Consistent with section (d) of this rule, evidence, including hearsay evidence, is admissible if in the chair'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 or by telephone or video conference 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 30 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 members of the Board.

(f) Confidentiality: All hearings and documents before the Character and Fitness Board on applications for admission or limited admission to the Bar Association, admission to the law clerk program, and return to active membership are confidential, but may be provided to the Disciplinary Board or Supreme Court in connection with any appeal, or to other entities with the written consent of the applicant.

RULE 24.4. DECISION AND RECOMMENDATION

(b) Action on Board Recommendation. The recommendation of the Character and Fitness Board shall be served upon the Applicant pursuant to rule 20.5.

(1) If the Board recommends admission, the record, recommendation and all exhibits shall be transmitted to the Supreme Court for disposition.

(2) 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. The Applicant must pay to the Supreme Court any fee required by the Court in connection with the Appeal and review.

(c) Reapplication. No application for admission may be filed within a period of one year after a decision of the Board recommending against admission that is not appealed to the Supreme Court.

RULE 24.5. ACTION ON SUPREME COURT'S DETERMINATION

(a) Application Approved. If the application is approved by the Supreme Court, admission shall be subject to the Applicant's taking and passing the bar examination and complying with all other requirements for admission.

(b) Application Denied. If the application is denied, the Bar Association shall maintain a record of the application, hearing, and appeal in the Bar Association records. No new petition for admission shall be filed within a period of one year after the date of the Supreme Court decision denying the application.

RULE 25. PETITIONS FOR REINSTATEMENT AFTER DISBARMENT

RULE 25.1. RESTRICTIONS ON REINSTATEMENT

(a) Petitions For Reinstatement. All Petitions for Reinstatement after Disbarment shall be referred for hearing before the Character and Fitness Board. The provisions of Rules 20 through 24.3 shall apply to Petitions for Reinstatement unless otherwise provided for in Rules 25 through 25.6.

(b) When Petition May Be Filed. No petition for reinstatement shall be filed within a period of 5 five years after disbarment or within a period of 2 two 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 Board or the Disciplinary 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 five years referred to above.

(c) When Reinstatement May Occur. No disbarred lawyer may be reinstated sooner than 6 six 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 six years referred to above.

(d) Payment of Obligations. No disbarred lawyer may file a petition for reinstatement until costs and expenses and restitution ordered by the Disciplinary Board or the Supreme Court have been paid and until amounts paid out of the Lawyers' Fund for Client Protection for losses caused by the conduct of the Petitioner have been repaid to the client protection fund, or until periodic payment plans for costs and expenses, restitution and repayment to the client protection fund have been entered into by agreement between the Petitioner and disciplinary counsel. A 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.

RULE 25.2. REVERSAL OF CONVICTION

If a lawyer has been disbarred solely because of his or her conviction of a crime and the conviction is later reversed and the charges dismissed on their merits, the Supreme Court may in its discretion, upon direct application by the lawyer, enter an order reinstating the lawyer upon such conditions as determined by the Supreme Court. At the time such direct application is filed with the court a copy shall be filed with the Bar Association. The Supreme Court may request a response to the application from the Bar Association.

RULE 25.3. PETITIONS AND INVESTIGATIONS

(a) Form of Petition. A petition for reinstatement after disbarment shall be in writing in such form as the Character and Fitness Board may prescribe. The petition shall be and filed with the Character and Fitness Board Bar Association. The petition shall set forth the age, residence and address of the Petitioner, the date of disbarment, and a concise statement of facts claimed to justify reinstatement. The petition shall be accompanied by the total fees required of a lawyer Applicant for admission under these rules, and by a completed application for admission.

(b) Investigations. The petition for reinstatement shall be referred to the Character and Fitness Board for hearing. Bar Counsel and Admissions staff shall conduct such investigation as appears necessary, and in accordance with APR 20-24.3.

(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 Character and Fitness 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 Board to recommend the rejection of a petition.

(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.

RULE 25.4. HEARING BEFORE CHARACTER AND FITNESS BOARD

(a) Notice. The Character and Fitness Board may fix a time and place for a hearing on the petition, and Bar Counsel shall serve notice thereof not less than 30 days prior to the hearing upon the Petitioner and upon such other persons as may be determined by Bar Counsel or as ordered by the Character and Fitness Board. Notice of the hearing shall also be published at least once in the Washington State Bar News Bar Association's official members' magazine and such other newspaper or periodical as the Character and Fitness Board may direct. Such published notice shall contain a statement that a petition for reinstatement has been filed and shall give the date fixed for the hearing.

(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 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 for reinstatement as set forth in these rules.

(c) Hearings. Hearings shall be conducted pursuant to rule 24.13 except to the extent that provisions of rules 25-25.6 conflict with the provisions of Rule 24.1, and except that such hearings shall be public.

RULE 25.5. ACTION BY CHARACTER AND FITNESS BOARD

(a) Requirements for Favorable Recommendation. Reinstatement may be recommended by the Character and Fitness Board only upon a showing, supported by clear and convincing evidence, that the Petitioner possesses the qualifications and meets the requirements for reinstatement as set forth in these rules and that the Petitioner has been rehabilitated.

(b) Rehabilitation--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 21(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) Non-Discrimination. Factors Not Considered by the Character and Fitness Board. The Bar Association and the Character and Fitness Board shall not discriminate against any petitioner based on the factors in Rule 21(c). 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.

(d) Action on Board Recommendation. The recommendation of the Character and Fitness Board shall be served upon the Petitioner pursuant to rule 23.5 20.5. If the Board recommends reinstatement, the record and recommendation shall be transmitted to the Supreme Court for disposition. If the 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 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 record and recommendation shall be retained in the records of the Bar Association and the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Character and Fitness Board.

(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 record and the recommendation shall be retained in the records of the Bar Association and 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.

RULE 25.6. ACTION ON SUPREME COURT'S DETERMINATION

(a) Petition Approved. If the petition for reinstatement is approved by the Supreme Court, the reinstatement shall be subject to the Petitioner's taking and passing the bar examination, completing all requirements for admission, paying to the Bar Association its license fee for the current year, and paying the costs incidental to the reinstatement proceeding as directed by the Supreme Court.

(b) Petition Denied. If the petition for reinstatement is denied, the Petitioner shall still be responsible for payment of the costs incidental to the reinstatement proceeding as directed by the Supreme Court.

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears 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.