IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 19; CrR 3.4; CrRLJ 3.4; RALJ 4.3 AND APR 14

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ORDER NO. 25700-A-672

The Washington State Bar Association having recommended the adoption of the proposed amendments to GR 19; CrR 3.4; CrRLJ 3.4; RALJ 4.3 and APR 14, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendments will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 2nd day of December, 1999.

	Ireland, J.
Smith, J.	Sanders, J.
Johnson, J.	Alexander, J.
Madsen, J.	Guy, C.J.
Talmadge, J.

The cover sheet information as to purpose required by GR 9(d) is included herein solely for information purposes.

Proposed amendments to rules or sections of rules are: GR 19, APR 14, CrR 3.4, RALJ 4.3, and CrRLJ 3.4.

Additions and deletions are indicated by underlining and lining out respectively, except where the entire rule is new.]

(c) Standard for Video Conference Proceedings. The judge, counsel, all parties, and the public must be able to see and hear each other during proceedings, and speak as permitted by the judge. Video conference facilities must provide for confidential communications between attorney and client and security sufficient to protect the safety of all participants and observers. In interpreted proceedings, the interpreter must be located next to the defendant and the proceeding must be conducted to assure that the interpreter can hear all participants. The Office of Administrator for the Courts (OAC) shall promulgate standards for facilities and equipment and provide technical assistance to courts as required.

The consensus of the WSBA committee was that the provisions of GR 19 should more logically be contained in the criminal rules, where practitioners are more apt to find them. Specifically, the committee determined that they should be added as a new section to CrR 3.4, which is entitled "Presence of the Defendant." A companion amendment to CrRLJ 3.4, the parallel rule for courts of limited jurisdiction, has also been recommended. Most of the language currently in GR 19 would thus be moved to the appropriate criminal rules, except for the sentence requiring the Office of Administrator for the Courts (OAC) to "promulgate standards for facilities and equipment and provide technical assistance as required."

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The brackets and enclosed material in the text above occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

(b) Qualifications.

(1) To qualify as a Foreign Law Consultant applicant for admission to the limited practice of law in the State of Washington as provided in these rules, a person must:

(i) Present satisfactory proof of both admission to the practice of law, together with current good standing, in a foreign jurisdiction, and active legal experience as a lawyer or counselor at law or the equivalent in a foreign jurisdiction for at least 5 of the 7 years immediately preceding the application; and

(ii) Possess the good moral character and fitness requisite for a member of the Bar of the State of Washington; and

(iii) Be an actual bona fide resident of the State of Washington; and

(iv) Execute under oath and file with the Bar Association two copies of an application, one of which shall be in the applicants own handwriting, in such form as may be required by the Board of Governors; and

(iv) File with the application a certificate from the authority in such foreign country having final jurisdiction over professional discipline, certifying as to the applicants admission to practice, and the date thereof, and as to the good standing of such lawyer or counselor at law or the equivalent, together with a duly authenticated English translation of such certificate, if it is not in English; and

(vi) File with the application a letter of recommendation from one of the members of the executive body of such authority or from one of the judges of the highest law court or courts of original jurisdiction of such foreign country, together with a duly authenticated English translation of such certificate, if it is not in English; and

(vii) Provide with the application such other evidence of the applicants educational and professional qualifications, good moral character and fitness and compliance with the requirements of this rule as the Board of Governors may require; and

(viii) Pay upon the filing of the application a fee equal to that required pursuant to rule 3 (d)(2) to be paid by an attorney applicant to take the bar examination.

(2) Upon a showing that strict compliance with the provisions of subsections (b)(1)(v) or (b)(1)(vi) would cause the applicant unnecessary hardship, the Board of Governors may at its discretion waive or vary the application of such provisions and permit the applicant to furnish other evidence in lieu thereof.

(c) Procedure.

(1) The Board of Governors shall approve or disapprove applications for admission of Foreign Law Consultants. Additional proof of any facts stated in the application may be required by the Board. In the event of the failure or refusal of the applicant to furnish any information or proof, or to answer any inquiry of the Board pertinent to the pending application, the Board may deny the application. Upon approval of the application by the Board of Governors, the Board shall recommend to the Supreme Court the admission of the applicant for the purposes herein stated. The Supreme Court may enter an order admitting to practice those applicants it deems qualified, conditioned upon such applicants:

(i) Taking and filing with the Clerk of the Supreme Court the Oath of Attorney pursuant to rule 5; and

(ii) Paying to the Bar Association its membership fee for the current year in the maximum amount required of active members admitted for 3 or more years; and

(iii) Filing with the Bar Association in writing his or her address in the State of Washington, or the name and address of his or her registered agent as provided in APR 5(e), together with a statement that the applicant has read the Rules of Professional Conduct and Rules for Lawyer Discipline, is familiar with their contents and agrees to abide by them.

(2) Upon the entry of an order of admission, the filing of the required materials and payment of the membership fee, the applicant shall be enrolled as a Foreign Law Consultant and shall be entitled to the limited practice of law as specified by this rule.

(d) Scope of Practice. A Foreign Law Consultant shall be authorized to engage in the limited practice of law only as authorized by the provisions of this rule. A Foreign Law Consultant may not:

(1) Appear for a person other than the Foreign Law Consultant as lawyer in any court or before any magistrate or other judicial officer in this state (other than upon admission for a particular action or proceeding pursuant to rule 8(b)) or prepare pleadings or any other papers or issue subpoenas in any action or proceeding brought in any court or before any judicial officer of this state;

(2) Prepare any deed, mortgage, assignment, discharge, lease or any other instrument affecting title to real estate located in the United States; or

(3) Prepare any will or trust instrument affecting the disposition on death of any property located in the United States and owned by a resident thereof; or any instrument related to the administration of a decedents estate in the United States; or

(4) Prepare any instrument with respect to the marital relations, rights or duties of a resident of the United States, or the custody or care of the children of such a resident; or

(5) Render legal advice on the law of the State of Washington, of any other state or territory of the United States, of the District of Columbia or of the United States (whether rendered incident to preparation of legal instruments or otherwise) unless and to the extent that the Foreign Law Consultant is admitted to practice law before the highest court of such other jurisdiction; or

(6) In any way hold himself or herself out as a member of the Bar of the State of Washington; or

(7) Use any title other than "Foreign Law Consultant", the firm name, and/or authorized title used in the foreign country where the Foreign Law Consultant is admitted to practice. In each case, such title or name shall be used in conjunction with the name of such foreign country.

(e) Disciplinary Provisions. A Foreign Law Consultant shall be subject to the Rules for Lawyer Discipline and the Rules of Professional Conduct as adopted by the Supreme Court and to all other laws and rules governing lawyers admitted to the Bar of this state. Jurisdiction shall continue whether or not the Consultant retains the authority for the limited practice of law in this state, and regardless of the residence of the Consultant.

(f) Continuing Requirements.

(1) Continuing Legal Education. Foreign Law Consultants shall comply with rule 11 concerning Continuing Legal Education.

(21) Annual Fee. A Foreign Law Consultant shall pay to the Bar Association its membership fee for the current year in the maximum amount required of active members admitted to practice for 3 or more years.

(32) Report. A Foreign Law Consultant shall promptly report to the Bar Association any change in his or her status in any jurisdiction where he or she is admitted to practice.

(g) Termination of License. A limited license is granted at the sufferance of the Supreme Court and may be revoked at any time upon the courts own motion, or upon the motion of the Board of Governors, with or without cause, including failure to comply with the terms of this rule.

(h) Reciprocity. A Foreign Law Consultant applicant shall demonstrate that the country or jurisdiction from which he or she applies does not impose, by any law, rule or regulation, any requirements, limitations, restrictions or conditions upon the admission of members of the Washington State Bar Association as Foreign Law Consultants in that foreign country or jurisdiction which are significantly more limiting or restrictive than the requirements of this rule. The Supreme Court may deny admission to a Foreign Law Consultant applicant upon that basis, or may impose similar limitations, restrictions or conditions upon foreign legal consultant applicants from that foreign country or jurisdiction.

•	APR 14 (b)(1)(iii): This proposed amendment would delete the requirement that a Foreign Law consultant be a resident of the State of Washington for the reason that is serves no demonstrable purpose. There is no similar requirement in the ABA Model Rule for Licensing Legal Consultants. The International Law Section, in making this recommendation, noted that in order to work in the United States foreign lawyers must comply with immigration laws regarding labor certification. They also argued that the requirements might conflict with national treaty obligations, such as the North American Free Trade Act (NAFTA).
•	APR 14 (c)(1)(iii): This corollary amendment would require nonresident Foreign Law Consultants to file with the Washington State Bar Association the name and address of a registered agent, as required for nonresident active members of the bar by APR 5(e).
•	APR 14 (f)(1): This proposed amendment would eliminate the continuing legal education requirement for Foreign Law Consultants. Foreign Law Consultants are limited to advising on the law of their home jurisdiction. Requiring them to meet continuing legal education on Washington law does not improve their ability to serve as Foreign Law Consultants, and generally there are no qualifying legal education programs on foreign law.
•	APR 14 (c)(1)(i) and 14 (f)(2): These proposed amendments change the language regarding the annual membership fee to be paid by Foreign Law Consultants from "the amount required of active members admitted three of more years" to "the maximum amount required of active members." This change will accurately reflect the license fee structure of the Washington State Bar Association which has been changed since the original adoption of APR 14.
•	APR 14(h): This proposed "reciprocity" amendment would permit the Supreme Court to deny admission to, or place additional conditions upon, applicants from foreign jurisdictions which are more limiting or restrictive in their admissions requirements for Washington lawyers to become Foreign Law Consultants in that jurisdiction.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

(d) Video Conference Proceedings.

(1) Authorization. Preliminary appearances held pursuant to CrR 3.2B, arraignments held pursuant to this rule and CrR 4.1, bail hearings held pursuant to CrR 3.2, and trial settings held pursuant to CrR 3.3, may be conducted by video conference in which all participants can simultaneously see, hear, and speak with each other. Such proceedings shall be deemed held in open court and in the defendant's presence for the purposes of any statute, court rule or policy. All video conference hearings conducted pursuant to this rule shall be public, and the public shall be able to simultaneously see and hear all participants and speak as permitted by the trail court judge. Any party may request an inperson hearing, which may in the trial court judge's discretion be granted.

(2) Agreement. Other trial court proceedings including the entry of a Statement of Defendant on Plea of Guilty as provided for by CrR 4.2 may be conducted by video conference only by agreement of the parties, either in writing or on the record, and upon the approval of the trial court judge pursuant to local court rule.

(3) Standards for Video Conference Proceedings. The judge, counsel, all parties, and the public must be able to see and hear each other during proceedings, and speak as permitted by the judge. Video conference facilities must provide for confidential communications between attorney and client and security sufficient to protect the safety of all participants and observers. In interpreted proceedings, the interpreter must be located next to the defendant and the proceeding must be conducted to assure that the interpreter can hear all participants.

(b) Criminal Case. In a criminal case, the court of limited jurisdiction has authority, subject to RCW 9.95.062 and 9.95.064, to stay enforcement of the sentence pending appeal and to fix conditions of release of a defendant and to revoke a suspended or deferred sentence if the enforcement of the sentence is not stayed pending appeal. Where the sentence is stayed pending appeal, the court of limited jurisdiction has authority to revoke the stay upon proof of violation of the conditions of release.

In considering this letter, the committee determined that the current language of the rule was confusing. It made more sense to the committee to allow the court to fix conditions of release when the sentence is stayed, rather than when it is not stayed. Moreover, if the sentence is not stayed, the court retains jurisdiction to enforce the sentence and no further authority in the form of a rule is required.

The proposed amendment thus states simply that the court of limited jurisdiction has authority, subject to the statutory provisions, to stay enforcement of the sentence and to fix conditions of release.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

(d) Video Conference Proceedings.

(1) Authorization. Preliminary appearances held pursuant to CrRLJ 3.2.1(d), arraignments held pursuant to this rule and CrRLJ 4.1, bail hearings held pursuant to CrRLJ 3.2, and trial settings held pursuant to CrRLJ 3.3(f), may be conducted by video conference in which all participants can simultaneously see, hear, and speak with each other. Such proceedings shall be deemed held in open court and in the defendant's presence for the purposes of any statute, court rule or policy. All video conference hearings conducted pursuant to this rule shall be public, and the public shall be able to simultaneously see and hear all participants and speak as permitted by the trial court judge. Any party may request an inperson hearing, which may in the trial court judge's discretion be granted.

(2) Agreement. Other trial court proceedings including the entry of a Statement of Defendant on Plea of Guilty as provided for by CrRLJ 4.2 may be conducted by video conference only by agreement of the parties, either in writing or on the record, and upon the approval of the trial court judge pursuant to local court rule.

(3) Standards for Video Conference Proceedings. The judge, counsel, all parties, and the public must be able to see and hear each other during proceedings, and speak as permitted by the judge. Video conference facilities must provide for confidential communications between attorney and client and security sufficient to protect the safety of all participants and observers. In interpreted proceedings, the interpreter must be located next to the defendant and the proceeding must be conducted to assure that the interpreter can hear all participants.

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