Preproposal statement of inquiry was filed as WSR [98-09-123].

Title of Rule: Special assistant attorneys general.

Purpose: Governs the use of private attorneys for pursuing third party recoveries.

Statutory Authority for Adoption: RCW 34.05.310.

Statute Being Implemented: RCW 51.24.110, 51.12.102.

Summary: The rule would allow the Attorney General's Office to appoint out of state attorneys and remove an attorney for cause. The rule has also been rewritten to make it clearer.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Nylander, Tumwater, (360) 902-5118.

Name of Proponent: Department of Labor and Industries, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: We believe it will enhance efficiency in the special assistant attorneys general program.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The purposes for these proposed amendments to the rules are to:

(1) Allow the Attorney General's Office to appoint out-of-state attorneys as special assistant attorneys general for actions brought on behalf of the Department of Labor and Industries in other states.

(2) Remove an attorney, for cause, from the lists of attorneys eligible for appointment.

(3) Rewrite the rule to make it clearer.

Proposal Changes the Following Existing Rules: Currently, the rule would appear to limit use of private attorneys to Washington, but this is not practical in out-of-state cases. The amendment clarifies that out-of-state practitioners can be used. In addition, the existing rule provides for addition of attorneys to the list, but does not provide for removal when there are problems. This means an attorney who has not met basic performance expectations could continue to receive cases. The amendment allows for removal of an attorney, for cause, from the lists of attorneys eligible for appointment.

No small business economic impact statement has been prepared under chapter 19.85 RCW. An analysis was done. The department determined that there would not be a more than minor impact on business, but rather only affect those attorneys who violate terms of their contract or appointment, or flagrantly misrepresent the department. Thus, the department is exempt from preparing a formal small business economic impact statement.

RCW 34.05.328 applies to this rule adoption. An analysis of the probable costs and benefits has been completed and may be obtained by writing to Michael Ratko, Legislative Economist, Department of Labor and Industries, P.O. Box 44001, Olympia, WA 98504-4001, phone (360) 902-6805.

Hearing Location: Labor and Industries, Conference Room S126, 7273 Linderson Way S.W., Tumwater, on July 21, 1998, at 1:00 p.m.

Submit Written Comments to: Jim Nylander, P.O. Box 44288, Olympia, WA 98504, FAX (360) 902-5156, by July 31, 1998.

Date of Intended Adoption: September 2, 1998.

June 15, 1998

Gary Moore

Director

AMENDATORY SECTION (Amending WSR 93-23-060, filed 11/15/93, effective 1/1/94)

WAC 296-14-900  ((Purpose.)) Authority to use special assistant attorneys general. WAC 296-14-900 through 296-14-940 implement RCW 51.12.102 and 51.24.110, which authorize((s)) the department to use private attorneys as special assistant attorneys general.

[Statutory Authority: Chapters 51.04, 51.08, 51.12, 51.24 and 51.32 RCW and 117 Wn.2d 122 and 121 Wn.2d 304. 93-23-060, § 296-14-900, filed 11/15/93, effective 1/1/94. Statutory Authority: RCW 51.24.110. 88-08-026 (Order 88-03), § 296-14-900, filed 3/31/88.]

AMENDATORY SECTION (Amending WSR 93-23-060, filed 11/15/93, effective 1/1/94)

WAC 296-14-910  ((Definitions.)) Lists of special assistant attorneys general. ((In WAC 296-14-900 through 296-14-940:

"Department" means the department of labor and industries.)) (1) The department must determine from the application and other sources if an attorney qualifies to be placed on the lists of attorneys eligible to represent the department as special assistant attorneys general. The department may consult with the Washington State Bar Association and the office of the attorney general to make the determination.

(2) The office of the attorney general must appoint qualified attorneys as special assistant attorneys general. Once appointed, these attorneys become eligible to represent the department. Appointed attorneys serve at the pleasure of the office of the attorney general, and the appointments may be canceled without cause.

(3) The department must compile and maintain lists of attorneys eligible to represent the department as special assistant attorneys general. Referrals may be made from the lists and contracts entered into.

(4) Once a year, the department must provide a current copy of its lists of attorneys to the office of the attorney general and to the Washington State Bar Association.

[Statutory Authority: Chapters 51.04, 51.08, 51.12, 51.24 and 51.32 RCW and 117 Wn.2d 122 and 121 Wn.2d 304. 93-23-060, § 296-14-910, filed 11/15/93, effective 1/1/94. Statutory Authority: RCW 51.24.110. 88-08-026 (Order 88-03), § 296-14-910, filed 3/31/88.]

AMENDATORY SECTION (Amending Order 88-03, filed 3/31/88)

WAC 296-14-920  Qualifications ((criteria)) of special assistant attorneys general. To ((qualify for the list of attorneys from which appointments may be made to represent the department as special assistant attorneys general, an attorney must meet the following minimum criteria.)) be eligible for placement on the department's lists of attorneys, an attorney must:

(1) Be an active member of the Washington State Bar Association;

(2) Meet bar association requirements of the state the action is in, if other than Washington;

(3) Maintain a trust account in compliance with the rules of professional conduct; and

(((3))) (4) Have and maintain in force professional liability insurance.

[Statutory Authority: RCW 51.24.110. 88-08-026 (Order 88-03), § 296-14-920, filed 3/31/88.]

AMENDATORY SECTION (Amending WSR 93-23-060, filed 11/15/93, effective 1/1/94)

WAC 296-14-930  ((Application by attorneys.)) Applying for special assistant attorney general. (1) ((An attorney who meets the qualification criteria may seek inclusion on the list of attorneys by filing an application with the department.)) Application forms may be obtained from the office of the attorney general, the Washington State Bar Association, or the department.

(2) The ((application form shall be prepared by the department in consultation with the office of the attorney general. The application shall require the applicant to declare under penalty of perjury that the information is true and shall require the applicant to inform)) applicant must:

(a) Complete the form and send it to the department; and

(b) Inform the department and the office of the attorney general immediately of any changes in his or her qualifications.

[Statutory Authority: Chapters 51.04, 51.08, 51.12, 51.24 and 51.32 RCW and 117 Wn.2d 122 and 121 Wn.2d 304. 93-23-060, § 296-14-930, filed 11/15/93, effective 1/1/94. Statutory Authority: RCW 51.24.110. 88-08-026 (Order 88-03), § 296-14-930, filed 3/31/88.]

AMENDATORY SECTION (Amending WSR 93-23-060, filed 11/15/93, effective 1/1/94)

WAC 296-14-940  ((List of attorneys.)) Removal of special assistant attorneys general. (1) ((The department shall determine from the application and from other sources whether an attorney meets the criteria of WAC 296-14-920. The department may consult with the Washington State Bar Association and the office of the attorney general if necessary to make the determination.

(2) The department shall compile and maintain the lists of attorneys from which the attorney general may select special assistant attorneys general to represent the department.

(3) The department shall, once every year, provide the attorney general and the Washington State Bar Association with a current copy of the lists of the attorneys.

(4) RCW 51.12.102, 51.24.110 and WAC 296-14-900 through 296-14-940 do not give the attorneys on the special assistant attorney general lists any right to any expectation of employment as a special assistant attorney general and/or assistant attorney general.

(5) The designation "special assistant attorney general" shall not be used by a private attorney on any correspondence or pleadings relating to services, nor shall they refer to themselves as such other than as necessary to show their authority in a specific case to represent the department.)) RCW 51.12.102 and 51.24.110 and WAC 296-14-900 through 296-14-940 do not give private attorneys on the special assistant attorneys general lists any right to expect employment.

(2) Private attorneys, unless representing the department in a specific case, must not:

(a) Refer to themselves as "special assistant attorney general"; or

(b) Include this designation on any correspondence or pleadings relating to services.

(3) The department, in conjunction with the office of the attorney general and the Washington State Bar Association, may remove an attorney for cause from the lists of attorneys eligible to represent the department. Cause includes, but is not limited to:

(a) Misuse of the designation "special assistant attorney general";

(b) Lapse of any qualification; or

(c) Failure to meet performance requirements of the department contract.

(4) After one year an attorney may write to the department and request to be placed on the lists of attorneys eligible to represent the department again. The department in its discretion may place the attorney on its lists again.

(5) If the department removes an attorney from the lists a second time, or if the department decides not to place a removed attorney on its lists again, the department must notify the office of the attorney general to cancel the appointment. The department may refer the attorney to the Washington State Bar Association for consideration of disciplinary action. The attorney must reapply for appointment.

[Statutory Authority: Chapters 51.04, 51.08, 51.12, 51.24 and 51.32 RCW and 117 Wn.2d 122 and 121 Wn.2d 304. 93-23-060, § 296-14-940, filed 11/15/93, effective 1/1/94. Statutory Authority: RCW 51.24.110. 88-08-026 (Order 88-03), § 296-14-940, filed 3/31/88.]