READ FIRST TIME 02/21/05.   

     AN ACT Relating to state-funded civil representation of indigent persons; amending RCW 43.08.250 and 43.08.260; adding a new chapter to Title 2 RCW; creating a new section; recodifying RCW 43.08.260; repealing RCW 43.08.270; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that the provision of civil legal aid services to indigent persons is an important component of the state's responsibility to provide for the proper and effective administration of civil and criminal justice. The legislature further finds that state-funded legal aid services should be administered by an independent office of civil legal aid located within the judicial branch and subject to formal continuing oversight that includes bipartisan legislative representation.

Sec. 2   RCW 43.08.250 and 2003 1st sp.s. c 25 s 918 are each amended to read as follows:
     The money received by the state treasurer from fees, fines, forfeitures, penalties, reimbursements or assessments by any court organized under Title 3 or 35 RCW, or chapter 2.08 RCW, shall be deposited in the public safety and education account which is hereby created in the state treasury. The legislature shall appropriate the funds in the account to promote traffic safety education, highway safety, criminal justice training, crime victims' compensation, judicial education, the judicial information system, civil representation of indigent persons under RCW 43.08.260 (as recodified by this act), winter recreation parking, drug court operations, and state game programs. During the fiscal biennium ending June 30, 2005, the legislature may appropriate moneys from the public safety and education account for purposes of appellate indigent defense and other operations of the office of public defense, the criminal litigation unit of the attorney general's office, the treatment alternatives to street crimes program, crime victims advocacy programs, justice information network telecommunication planning, treatment for supplemental security income clients, sexual assault treatment, operations of the office of administrator for the courts, security in the common schools, alternative school start-up grants, programs for disruptive students, criminal justice data collection, Washington state patrol criminal justice activities, drug court operations, unified family courts, local court backlog assistance, financial assistance to local jurisdictions for extraordinary costs incurred in the adjudication of criminal cases, domestic violence treatment and related services, the department of corrections' costs in implementing chapter 196, Laws of 1999, reimbursement of local governments for costs associated with implementing criminal and civil justice legislation, the replacement of the department of corrections' offender-based tracking system, secure and semi-secure crisis residential centers, HOPE beds, the family policy council and community public health and safety networks, the street youth program, public notification about registered sex offenders, and narcotics or methamphetamine-related enforcement, education, training, and drug and alcohol treatment services.

Sec. 3   RCW 43.08.260 and 1997 c 319 s 2 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 administered by the office of civil legal aid established under section 5 of this act, and 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, (c) housing and utilities, (d) 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)) aid to indigents from the federal legal services corporation or that has received funding for civil legal ((services)) aid for indigents under this section before July 1, 1997.
     (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)) aid provider under this section, the ((department)) office of civil legal aid shall require the provider to provide legal ((services)) aid in a manner that maximizes geographic access ((in accordance with the formula established in this subsection (4))) throughout the state.
     (5) Funds distributed to qualified legal aid programs under this section may not be used directly or indirectly for:
     (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 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)) aid 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)) aid 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)) aid 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)) office of civil legal aid may establish requirements for client participation in the provision of civil legal ((services)) aid 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)) office of civil legal aid with qualified legal ((services)) aid 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)) office of civil legal aid; and
     (ii) Are subject to audit by the state auditor.
     (b)(i) Any entity auditing a legal ((services)) aid program under this section shall have access to all records of the legal ((services)) aid 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)) aid 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)) office of civil legal aid 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)) office of civil legal aid may adopt rules to implement this section.

NEW SECTION.  Sec. 4   (1) There is created a civil legal aid oversight committee consisting of the following members:
     (a) Three persons appointed by the supreme court from a list of nominees submitted by the access to justice board, one of whom at the time of appointment is income eligible to receive state-funded civil legal aid;
     (b) Two persons appointed by the board for judicial administration;
     (c) Two senators, one from each of the two largest caucuses, appointed by the president of the senate; and two members of the house of representatives, one from each of the two largest caucuses, appointed by the speaker of the house of representatives;
     (d) One person appointed by the Washington state bar association; and
     (e) One person appointed by the governor.
     (2) During the term of his or her appointment, an appointee may not be employed by a state-funded legal aid provider.
     (3) Members shall each serve a three-year term, subject to renewal for no more than one additional three-year term. The oversight committee shall develop rules that provide for the staggering of terms so that, after the first three years of the committee's existence, the terms of one-third of the members expire each year. Members of the oversight committee receive no compensation for their services as members of the oversight committee, but may be reimbursed for travel and other expenses in accordance with rules adopted by the office of financial management.
     (4) The oversight committee shall: Oversee the activities of the office of civil legal aid created in section 5 of this act; review the performance of the director of the office of civil legal aid; and may, from time to time, make recommendations to the supreme court, the access to justice board, and the legislature regarding the provision of civil legal aid funded through RCW 43.08.260 (as recodified by this act).

NEW SECTION.  Sec. 5   (1) There is created an office of civil legal aid as an independent agency of the judicial branch.
     (2) Activities of the office of civil legal aid shall be carried out by a director of civil legal aid services. The director of civil legal aid services shall be appointed by the supreme court from a list of three names forwarded by the access to justice board. Qualifications for the director include admission to practice law in this state for at least five years; experience in representation of low-income people in civil matters, which experience may be in the form of volunteer representation; knowledge of and demonstrated commitment to promoting access to the civil justice system for indigent persons; and proven managerial or supervisory experience. The director shall serve at the pleasure of the supreme court and receive a salary to be fixed by the oversight committee.
     (3) The director shall:
     (a) Contract with one or more qualified legal aid providers to provide civil legal aid services authorized by RCW 43.08.260 (as recodified by this act);
     (b) Monitor and oversee the use of state funding to ensure compliance with this chapter;
     (c) Report quarterly to the civil legal aid oversight committee established in section 4 of this act and the supreme court's access to justice board on the use of state funds for legal aid; and report biennially on the status of access to the civil justice system for low-income people eligible for state-funded legal aid; and
     (d) Submit a biennial budget request.
     (4) The office shall not provide direct representation of clients.

NEW SECTION.  Sec. 6   RCW 43.08.270 (Joint legislative civil legal services oversight committee) and 1997 c 319 s 3 are each repealed.

NEW SECTION.  Sec. 7   Sections 4 and 5 of this act constitute a new chapter in Title 2 RCW.

NEW SECTION.  Sec. 8   RCW 43.08.260 (as amended by this act) is recodified in the chapter created under section 7 of this act.

NEW SECTION.  Sec. 9   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2005.