AN
ACT Relating to civil legal services; amending RCW 43.08.260; adding a new
section to chapter 43.08 RCW; and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. It is
the intent of the legislature to promote the provision of civil legal services
to indigent persons, subject to available funds. To the extent that funds are
appropriated for civil legal services for the indigent, the legislature intends
that civil legal services be offered within an oversight framework that ensures
accountability.
Sec.
2. RCW
43.08.260 and 1995 c 399 s 62 are each amended to read as follows:
(1)(a)
The legislature recognizes the ethical obligation of attorneys to represent
clients without interference by third parties in the discharge of professional
obligations to clients. However, to ensure the most beneficial use of state
resources, the legislature finds that it is within the authority of the
legislature to specify the categories of legal cases in which qualified legal
aid programs may provide civil representation with state moneys. Accordingly,
moneys appropriated for civil legal representation pursuant to this section
shall not be used for legal representation that is either outside the scope of
this section or prohibited by this section.
(b)
Nothing in this section is intended to limit the authority of existing
entities, including but not limited to the Washington state bar association,
the public disclosure commission, the state auditor, and the federal legal
services corporation to resolve issues within their respective jurisdictions.
(2)
Any money appropriated by the legislature from the public safety and
education account pursuant to RCW 43.08.250 or from any other state fund or
account for civil representation of indigent persons shall be used solely
for the purpose of contracting with qualified legal aid programs for legal
representation of indigent persons in matters relating to: (a) Domestic
relations and family law matters, (b) public assistance((,)) and
health care, ((and entitlement programs,)) (c) ((public)) housing
and utilities, ((and)) (d) ((unemployment compensation)) social
security, (e) mortgage foreclosures, (f) home protection bankruptcies, (g)
consumer fraud and unfair sales practices, (h) rights of residents of long-term
care facilities, (i) wills, estates, and living wills, (j) elder abuse, and (k)
guardianship.
(3)
For purposes of this section, a "qualified legal aid program" means a
not-for-profit corporation incorporated and operating exclusively in Washington
which has received basic field funding for the provision of civil legal
services to indigents ((under Public Law 101-515)) from the federal
legal services corporation or that has received funding for civil legal
services for indigents under this section before July 1, 1997.
(((2)
Funds distributed to qualified legal aid programs under this section shall be
distributed on a basis proportionate to the number of individuals with incomes
below the official federal poverty income guidelines who reside within the
counties in the geographic service areas of such programs. The department of
community, trade, and economic development shall use the same formula for
determining this distribution as is used by the legal services corporation in
allocating funds for basic field services in the state of Washington.
(3)(a))) (4)
The department of community, trade, and economic development shall establish a
distribution formula based on the distribution by county of individuals with
incomes below the official federal poverty level guidelines. When entering
into a contract with a qualified legal services provider under this section,
the department shall require the provider to provide legal services in a manner
that maximizes geographic access in accordance with the formula established in
this subsection (4).
(5)
Funds distributed to qualified legal aid programs under this section may not be
used directly or indirectly for ((lobbying or in class action suits.
Further, these funds are subject to all limitations and conditions imposed on
use of funds made available to legal aid programs under the legal services
corporation act of 1974 (P.L. 93-355; P.L. 95-222) as currently in effect or
hereafter amended.)):
(((b)(i)))
(a) Lobbying.
(i)
For purposes of this section, "lobbying" means any personal service,
advertisement, telegram, telephone communication, letter, printed or written
matter, or other device directly or indirectly intended to influence any member
of congress or any other federal, state, or local nonjudicial official, whether
elected or appointed:
(A)
In connection with any act, bill, resolution, or similar legislation by the
congress of the United States or by any state or local legislative body, or any
administrative rule, rule-making activity, standard, rate, or other
enactment by any federal, state, or local administrative agency;
(B)
In connection with any referendum, initiative, constitutional amendment, or any
similar procedure of the congress, any state legislature, any local council, or
any similar governing body acting in a legislative capacity; or
(C)
In connection with inclusion of any provision in a legislative measure
appropriating funds to, or defining or limiting the functions or authority of,
the recipient of funds ((pursuant to chapter 54, Laws of 1992)) under
this section.
(ii)
"Lobbying" does not include the response of an employee of a legal
aid program to a written request from a governmental agency, an elected or
appointed official, or committee on a specific matter. This exception does not
authorize communication with anyone other than the requesting party, or agent
or employee of such agency, official, or committee.
(b)
Grass roots lobbying. For purposes of this section, "grass roots
lobbying" means preparation, production, or dissemination of information
the purpose of which is to encourage the public at large, or any definable
segment thereof, to contact legislators or their staff in support of or in
opposition to pending or proposed legislation; or contribute to or participate
in a demonstration, march, rally, lobbying campaign, or letter writing or
telephone campaign for the purpose of influencing the course of pending or
proposed legislation.
(c)
Class action lawsuits.
(d)
Participating in or identifying the program with prohibited political
activities. For purposes of this section, "prohibited political
activities" means (i) any activity directed toward the success or failure
of a political party, a candidate for partisan or nonpartisan office, a
partisan political group, or a ballot measure; (ii) advertising or contributing
or soliciting financial support for or against any candidate, political group,
or ballot measure; or (iii) voter registration or transportation activities.
(e)
Representation in fee-generating cases. For purposes of this section,
"fee-generating" means a case that might reasonably be expected to
result in a fee for legal services if undertaken by a private attorney. The
charging of a fee pursuant to subsection (6) of this section does not establish
the fee-generating nature of a case.
A
fee generating case may be accepted when: (i) The case has been rejected by
the local lawyer referral services or by two private attorneys; (ii) neither
the referral service nor two private attorneys will consider the case without
payment of a consultation fee; (iii) after consultation with the appropriate
representatives of the private bar, the program has determined that the type of
case is one that private attorneys do not ordinarily accept, or do not accept
without prepayment of a fee; or (iv) the director of the program or the
director's designee has determined that referral of the case to the private bar
is not possible because documented attempts to refer similar cases in the past
have been futile, or because emergency circumstances compel immediate action
before referral can be made, but the client is advised that, if appropriate and
consistent with professional responsibility, referral will be attempted at a
later time.
(f)
Organizing any association, union, or federation, or representing a labor
union. However, nothing in this subsection (5)(f) prohibits the provision of
legal services to clients as otherwise permitted by this section.
(g)
Representation of undocumented aliens.
(h)
Picketing, demonstrations, strikes, or boycotts.
(i)
Engaging in inappropriate solicitation. For purposes of this section,
"inappropriate solicitation" means promoting the assertion of
specific legal claims among persons who know of their rights to make a claim
and who decline to do so. Nothing in this subsection precludes a legal
services program or its employees from providing information regarding legal
rights and responsibilities or providing information regarding the program's
services and intake procedures through community legal education activities,
responding to an individual's specific question about whether the individual
should consult with an attorney or take legal action, or responding to an
individual's specific request for information about the individual's legal
rights or request for assistance in connection with a specific legal problem.
(j)
Conducting training programs that: (i) Advocate particular public policies;
(ii) encourage or facilitate political activities, labor or antilabor
activities, boycotts, picketing, strikes, or demonstrations; or (iii) attempt
to influence legislation or rule making. Nothing in this subsection (5)(j)
precludes representation of clients as otherwise permitted by this section.
(6)
The department may establish requirements for client participation in the
provision of civil legal services under this section, including but not limited
to copayments and sliding fee scales.
(7)(a)
Contracts entered into by the department of community, trade, and economic
development with qualified legal services programs under this section must
specify that the program's expenditures of moneys distributed under this
section:
(i)
Must be audited annually by an independent outside auditor. These audit
results must be provided to the department of community, trade, and economic
development; and
(ii)
Are subject to audit by the state auditor.
(b)(i)
Any entity auditing a legal services program under this section shall have
access to all records of the legal services program to the full extent
necessary to determine compliance with this section, with the exception of
confidential information protected by the United States Constitution, the state
Constitution, the attorney-client privilege, and applicable rules of attorney
conduct.
(ii)
The legal services program shall have a system allowing for production of
case-specific information, including client eligibility and case type, to
demonstrate compliance with this section, with the exception of confidential
information protected by the United States Constitution, the state
Constitution, the attorney-client privilege, and applicable rules of attorney
conduct. Such information shall be available to any entity that audits the
program.
(8)
The department of community, trade, and economic development must recover or
withhold amounts determined by an audit to have been used in violation of this
section.
(9)
The department of community, trade, and economic development may adopt rules to
implement this section.
NEW
SECTION. Sec. 3. A
new section is added to chapter 43.08 RCW to read as follows:
The
joint legislative civil legal services oversight committee is established.
(1)
The committee's members are one member from each of the minority and majority
caucuses of the house of representatives, who are appointed by the speaker of
the house of representatives, and one member from each of the minority and
majority caucuses of the senate, who are appointed by the president of the
senate.
(2)(a)
The committee shall oversee the provision of civil legal services funded
through RCW 43.08.260 and shall act as a forum for discussion of issues related
to state-funded civil legal services.
(b)
By December 1, 1997, and by December 1st of each year thereafter, the committee
must report to the appropriate standing policy and fiscal committees of the
legislature on the provision of legal services under RCW 43.08.260.
(3)
The committee chairman is selected by the members and shall serve a one-year
term. The chairman position rotates between the house and senate members and
the political parties.
(4)
The committee shall meet at least four times during each fiscal year. The
committee shall accept public testimony at a minimum of two of these meetings.
