IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 4(c) AND APR 19(d)

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ORDER NO. 25700-A-741

     The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 4(c) and APR 19(d), and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

     (b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 90 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 2nd day of July 2002.

Gerry L. Alexander Chief Justice

     (2) Spokespersons:

     &lhlsqbul;     Dale L. Carlisle, President, Washington State Bar Association, 1201 Pacific Ave., Ste. 2200, Tacoma WA 98401-1157 (telephone 253-620-6401).

     &lhlsqbul;     Robert D. Welden, General Counsel, Washington State Bar Association, 2101 Fourth Avenue, 4th Fl., Seattle, WA 98121-2330 (telephone 206-727-8232).

     Purpose: The Board of Governors proposes amending the provision in rule 4(c) of the Admission to Practice Rules that imposes a restriction on repeating the bar examination. The Board concludes that the rule serves no useful purpose, and instead imposes an unnecessary restriction on some bar applicants.

     This rule has been in effect in Washington since 1974. Prior to that, an applicant could not repeat the examination after 3 failures except by special permission of the Board of Governors "based upon an affirmative showing by the applicant that it is reasonably likely that he will pass the next examination if permission is granted, including in such showing circumstances accounting for past failures."

     According to the National Conference of Bar Examiners (NCBE), 19 states have some form of restriction on repeating the bar exam without special permission after failing it, ranging from 2 to 5 times.¹ Some states, like Washington, only require waiting a period of time after successive failures of the exam before repeating it. Two states (Missouri and South Carolina) require proof of additional study before the applicant may repeat the exam. The NCBE states that the rationale for limits on repeating the bar examination is to avoid "mak[ing] our inferior schools possible and profitable." However, they also state that "the idea that attending better schools explains bar success rates is not supported by the research." More relevant to bar exam pass rates according to the NCBE, is the applicant's LSAT score.

     Frank Slak, chairperson of the Committee of Law Examiners conducted a survey of members of the Law Examiners Committee. He reported that "most of them agreed that it was an archaic rule that should be wiped off the books."

     For these reasons, the Board of Governors recommends that the restriction against repeating the bar examination in APR 4(c) be repealed.

     (4) Hearing. A hearing is not requested.

     (5) Expedited Consideration: This is not a substantive change in the Admission to Practice Rules, but merely removes a procedural restriction. Therefore, the Board of Governors requests that the Supreme Court give this suggested rule amendment expedited consideration pursuant to GR 9 (e)(2)(E).

     (6) Supporting Material:

     •     Suggested amendment to Admission to Practice Rule 4.

     •     Memorandum to the Board of Governors dated February 12, 2002.

¹ Iowa and New Hampshire limit after 2 failures; Arizona, Georgia, Idaho, Maryland, Mississippi, Missouri, Montana, South Dakota, Washington and Wisconsin after 3 failures; Delaware, Indiana, Kansas and West Virginia after 4 failures; and Rhode Island, Texas, and Virginia after 5 failures.

     (a) Bar Examination. [No change].

     (b) Certification of Results; Notice. [No change].

     (c) Repeating Bar Examination. Any applicant failing a bar examination may apply to take another bar examination, but after the third failure occurring over any period of time no applicant shall take any subsequent bar examination until 11 months have elapsed since the date upon which the immediately preceding bar examination was taken. The 11-month waiting period shall apply to each succeeding failure on the bar examination.

     A. Name of Proponent: The Washington State Bar Association.

     B. Spokespersons:

     &lhlsqbul;     Dale Carlisle, President, Washington State Bar Association, 1201 Pacific Ave., Ste. 2200, Tacoma, WA 98401-1157 (telephone 253-620-6401).

     &lhlsqbul;     Robert D. Welden, General Counsel, Washington State Bar Association, 2101 Fourth Avenue, Fourth Floor, Seattle, WA 98121-2330 (telephone 206-727-8232).

     &lhlsqbul;     Christopher Sutton, Professional Responsibility Counsel, Washington State Bar Association, 2101 Fourth Avenue, Fourth Floor, Seattle, WA 98121-2330, (telephone 206-727-8219).

     &lhlsqbul;     Samuel Elder, Chair of Law Office Management Assistance Committee, 411 108th Avenue NE, Suite. 550, Bellevue, WA 98004-5515 (telephone 425-990-8626).

     C. Purpose: The Lawyer Services Department was created by the Board of Governors in September 1998 as a unit of the WSBA so the WSBA programs assisting members would be grouped together in one organization. In this way, the Association's efforts to help practicing lawyers could be coordinated more closely and efficiently. The rule establishing the department and one of the department program's, the Lawyer Assistance Program, was adopted by order of June 12, 2001.

     Another program, the Law Office Management Assistance Program (LOMAP) was created June 1998 to further the WSBA's purposes of assisting members in the delivery of legal services of the highest quality.

     The goals of LOMAP are to enable members to expand professional competence, improve client services, increase management skills, implement efficient procedures, avoid or reduce errors, reduce stress and improve quality of life.

     Part (d)(1) of the rule authorizes the WSBA to create a law office management program to assist members in improvement of delivering legal services by helping lawyers with the business aspects of administering a law practice.

     Part (d)(2) of the rule encourages participation in the program by making confidential the information obtained from providing services in the program.

     Part (d)(3) exonerates Bar staff and agents administering the program from liability when acting within the scope of the rule.

     D. Hearing: A hearing is not recommended.

     (a) Purpose. [No change.]

     (b) Lawyers' Assistance Program (LAP). [No change.]

     (c) Fee Arbitration Program. [Reserved.] [No change.]

     (d) Law Office Management Program.

     (1) Authorization. The Washington State Bar Association is authorized to create a program to help improve the quality of legal services by assisting lawyers to manage better their offices and improve the professional delivery of legal services.

     (2) Confidentiality. Information obtained by staff or agents of the Law Office Management Assistance Program shall be confidential unless:

     (i) the assisted lawyer consents to disclosure;

     (ii) disclosure, based upon reasonable belief, is necessary to prevent the assisted lawyer from committing a crime; or

     (iii) pursuant to court order.

     (3) Exoneration From Liability.

     (i) Bar Association and its Agents. No cause of action shall accrue in favor of any person, arising from any action or proceeding pursuant to these rules, against the Bar Association, or its officers or agents (including but not limited to its staff, members of the Board of Governors, or any individual acting under authority of these rules) provided only that the Bar Association or individual shall have acted in good faith. The burden of proving bad faith in this context shall be upon the person asserting it. The Bar Association shall provide defense to any action brought against an officer or agent of the Bar Association for actions taken in good faith under these rules and shall bear the costs of that defense and shall indemnify the officer or agent against any judgement taken therein.

     (ii) Other persons. Communications to the Bar Association, Board of Governors, staff, or any other individual acting under the authority of these rules are subject to the provisions of APR 19 (d)(2) supra and the Rules of Professional Conduct.

     (e) Ethics Program. [Reserved.] [No change.]

     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.

     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..

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