WSR 08-13-021

RULES OF COURT

STATE SUPREME COURT


[ June 6, 2008 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RPC 1.8 -- CONFLICTS OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES AND COMMENTS 21-29, RPC 5.5 -- UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW AND NEW APR 27 -- PROVISION OF LEGAL SERVICES FOLLOWING DETERMINATION OF MAJOR DISASTER, APR 15 -- LAWYER'S FUND FOR CLIENT PROTECTION PROCEDURAL RULES 5 AND 6, ER 408 -- COMPROMISE AND OFFERS OF COMPROMISE, ER 410 -- INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS, AND RELATED STATEMENTS, ER 1101 -- APPLICABILITY OF RULES, RAP 2.2 -- DECISIONS OF SUPERIOR COURT THAT MAY BE APPEALED, CrR 8.3(c) -- DISMISSAL, RALJ 2.2 -- WHAT MAY BE APPEALED, CrRLJ 8.3(c) -- DISMISSAL, NEW JuCR 7.15 -- WAIVER OF RIGHT OF COUNSEL )

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ORDER

NO. 25700-A-897


The Washington State Bar Association having recommended the adoption of the proposed amendments to RPC 1.8 -- Conflicts of Interest: Current Clients: Specific Rules and Comments 21-29, RPC 5.5 -- Unauthorized Practice of Law; Multijurisdictional Practice of Law and NEW APR 27 -- Provision of Legal Services Following Determination of Major Disaster, APR 15 -- Lawyer's Fund for Client Protection Procedural Rules 5 and 6, ER 408 -- Compromise and Offers of Compromise, ER 410 -- Inadmissibility of Pleas, Offers of Pleas, and Related Statements, ER 1101 -- Applicability of Rules, RAP 2.2 -- Decisions of Superior Court That May Be Appealed, CrR 8.3(c) -- Dismissal, RALJ 2.2 -- What May Be Appealed, CrRLJ 8.3(c) -- Dismissal, NEW JuCR 7.15 -- Waiver of Right of Counsel, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

ORDERED:

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

(b) That the amendments will be published in the Washington Reports and will become effective September 1, 2008.

DATED at Olympia, Washington this 6th day of June, 2008.
Alexander, C. J.


C. Johnson, J.


Owens, J.


Madsen, J.


Fairhurst, J.


Sanders, J.


J.M. Johnson, J.


Chambers, J.


Stephens, J.



RULES OF PROFESSIONAL CONDUCT (RPC)


RULE 1.8: CONFLICT OF INTEREST:

CURRENT CLIENTS: SPECIFIC RULES



(a) - (l) [Unchanged.]

(m) A lawyer shall not:

(1) make or participate in making an agreement with a governmental entity for the delivery of indigent defense services if the terms of the agreement obligate the contacting lawyer or law firm:

(i) to bear the cost of providing conflict counsel; or

(ii) to bear the cost of providing investigation or expert services, unless a fair and reasonable amount for such costs is specifically designated in the agreement in a manner that does not adversely affect the income or compensation allocated to the lawyer, law firm, or law firm personnel; or

(2) knowingly accept compensation for the delivery of indigent defense services from a lawyer who has entered into a current agreement in violation of paragraph (m)(1).


Comment

[Unchanged.]


Additional Washington Comments (21-2429)


Financial Assistance

[21] [Unchanged.]


Client-Lawyer Sexual Relationships

[22] - [23] [Unchanged.]


Personal Relationships

[24] [Unchanged.]


Indigent Defense Contracts

[25] Model Rule 1.8 does not contain a provision equivalent to paragraph (m) of Washington's Rule. Paragraph (m) specifies that it is a conflict of interest for a lawyer to enter into or accept compensation under an indigent defense contract that does not provide for the payment of funds, outside of the contract, to compensate conflict counsel for fees and expenses.

[26] Where there is a right to a lawyer in court proceedings, the right extends to those who are financially unable to obtain one. This right is affected in some Washington counties and municipalities through indigent defense contracts, i.e., contracts entered into between lawyers or law firms willing to provide defense services to those financially unable to obtain them and the governmental entities obliged to pay for those services. When a lawyer or law firm providing indigent defense services determines that a disqualifying conflict of interest precludes representation of a particular client, the lawyer or law firm must withdraw and substitute counsel must be obtained for the client. See Rule 1.16. In these circumstances, substitute counsel is typically known as "conflict counsel."

[27] An indigent defense contract by which the contracting lawyer or law firm assumes the obligation to pay conflict counsel from the proceeds of the contract, without further payment from the governmental entity, creates an acute financial disincentive for the lawyer either to investigate or declare the existence of actual or potential conflicts of interest requiring the employment of conflict counsel. For this reason, such contracts involve an inherent conflict between the interests of the client and the personal interests of the lawyer. These dangers warrant a prohibition on making such an agreement or accepting compensation for the delivery of indigent defense services from a lawyer that has done so. See WSBA Informal Ethics Opinion No. 1647 (conflict of interest issues under RPC 1.7 and 1.9 exist in requiring public defender office to recognize a conflict and hire outside counsel out of its budget); ABA Standards for Criminal Justice, Std. 5-3.3 (b)(vii) (3d ed. 1992) (elements of a contract for defense services should include "a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses"); People v. Barboza, 29 Cal.3d 375, 173 Cal. Rptr. 458, 627 P.2d 188 (Cal. 1981) (structuring public defense contract so that more money is available for operation of office if fewer outside attorneys are engaged creates "inherent and irreconcilable conflicts of interest").

[28] Similar conflict-of-interest considerations apply when indigent defense contracts require the contracting lawyer or law firm to pay for the costs and expenses of investigation and expert services from the general proceeds of the contract. Paragraph (m)(1)(ii) prohibits agreements that do not provide that such services are to be funded separately from the amounts designated as compensation to the contracting lawyer or law firm.

[29] Because indigent defense contracts involve accepting compensation for legal services from a third-party payer, the lawyer must also conform to the requirements of paragraph (f). See also Comments [11]-[12].


SUGGESTED AMENDMENT

RULES OF PROFESSIONAL CONDUCT (RPC)


RPC 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW



[No change].


Comment

[1] - [13] [No change].

[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer's client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer's work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer's recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law. Lawyers desiring to provide pro bono legal services on a temporary basis in Washington following determination by the Supreme Court that an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred, who are not otherwise authorized to practice law in Washington, as well as lawyers from another affected jurisdiction who seek to practice law temporarily in Washington, but who are not otherwise authorized to practice law in Washington, should consult Admission to Practice Rule 27 on Provision of Legal Services Following Determination of Major Disaster.

[15] - [21] [No change].


SUGGESTED AMENDMENT

ADMISSION TO PRACTICE RULES (APR)


APR 27. PROVISION OF LEGAL SERVICES FOLLOWING

DETERMINATION OF MAJOR DISASTER

(NEW RULE)



(a) Determination of Existence of Major Disaster. Solely for purposes of this Rule, the Supreme Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred in:

(1) Washington and whether the emergency caused by the major disaster affects the entirety or only a part of the State of Washington, or

(2) another jurisdiction, but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction. The authority to engage in the temporary practice of law in Washington pursuant to paragraph (c) shall extend only to lawyers who principally practice in the area of such other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services.

(b) Temporary Practice in Washington Following Major Disaster in Washington. Following the determination of an emergency affecting the justice system in Washington pursuant to paragraph (a) of this Rule, or a determination that persons displaced by a major disaster in another jurisdiction and residing in Washington are in need of pro bono services and the assistance of lawyers from outside of Washington is required to help provide such assistance, a lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in Washington on a temporary basis. Such legal services must be provided on a pro bono basis without compensation, expectation of compensation or other direct or indirect pecuniary gain to the lawyer. Such legal services shall be supervised by a lawyer licensed to practice in Washington and assigned by a qualified legal services provider as defined in Rule 8(e) or as otherwise ordered by the Supreme Court. A qualified legal services provider shall be entitled to receive all court-awarded attorney's fees for any representation rendered by the assigned lawyer pursuant to this Rule. When a lawyer authorized to practice under this rule signs correspondence or pleadings, the lawyer's signature shall be followed by the title "active disaster relief lawyer."

(c) Temporary Practice in Washington Following Major Disaster in Another Jurisdiction. Following the determination of a major disaster in another United States jurisdiction, a lawyer who is authorized to practice law and who principally practices in that affected jurisdiction, and who is not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in Washington on a temporary basis. Those legal services must arise out of and be reasonably related to that lawyer's practice of law in the jurisdiction, or area of such other jurisdiction, where the major disaster occurred.

(d) Duration of Authority for Temporary Practice. The authority to practice law in Washington granted by paragraph (b) of this Rule shall end when the Supreme Court determines that the emergency affecting the justice system caused by the major disaster in Washington has ended except that a lawyer then representing clients in Washington pursuant to paragraph (b) is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the lawyer shall not thereafter accept new clients. The authority to practice law in Washington granted by paragraph (c) of this Rule shall end 60 days after the Supreme Court declares that the emergency affecting the justice system caused by the major disaster in the affected jurisdiction has ended.

(e) Court Appearances. The authority granted by this Rule does not include appearances in court except:

(1) pursuant to Rule 8(b) and, if such authority is granted, any fees for such admission shall be waived; or

(2) if the Supreme Court, in any determination made under paragraph (a) of this Rule, grants blanket permission to appear in all or designated courts of Washington to lawyers providing legal services pursuant to paragraph (b) of this Rule. If such an authorization is included, any admission fees shall be waived.

(f) Disciplinary Authority and Registration Requirement and Approval. Lawyers providing legal services in Washington pursuant to paragraphs (b) or (c) are subject to the disciplinary authority of Washington and the Washington Rules of Professional Conduct as provided in Rule 8.5 of the Rules of Professional Conduct. Lawyers providing legal services in Washington under paragraphs (b) or (c) must file a registration statement with the Washington State Bar Association. The registration statement shall be in a form prescribed by the Bar Association. Any lawyer seeking to provide legal services pursuant to this rule must be approved by the Supreme Court before being authorized to provide such legal services. Any lawyer who provides legal services pursuant to this Rule shall not be considered to be engaged in the unlawful practice of law in Washington.

(g) Notification to Clients. Lawyers licensed to practice law in another United States jurisdiction who provide legal services pursuant to this Rule shall inform clients in Washington of the jurisdiction in which they are licensed to practice law, any limits on that license, and that they are not authorized to practice law in Washington except as permitted by this Rule. They shall not state or imply to any person that they are otherwise licensed to practice law in Washington.


SUGGESTED AMENDMENT

LAWYERS' FUND FOR CLIENT PROTECTION

(APR 15)


PROCEDURAL RULES

Rule 5. ELIGIBLE CLAIMS



Rule 5. Eligible Claims.

A - C. [No change].

D. Excluded Losses. Except as provided by Section E of this Rule, the following losses shall not be reimbursable:

(1) Losses incurred by partners and associates of the lawyer causing the loss;

(2) Losses covered by any bond, surety agreement, or insurance contract to the extent covered thereby, including any loss to which any bonding agent, surety, or insurer is subrogated, to the extent of that subrogated interest;

(3) Losses incurred by any financial institution which are recoverable under a "banker's blanket bond" or similar commonly available insurance or surety contract;

(4) Losses incurred by any business entity controlled by the lawyer or any person or entity described in Rule 5 D (1), (2) or (3);

(5) Losses incurred by an assignee, lienholder, or creditor of the applicant or lawyer, unless application has been made by the client or beneficiary or the client or beneficiary has authorized such reimbursement;

(56) Losses incurred by any governmental entity or agency; or (67)

Consequential damages, such as lost interest, or attorney's fees or other costs incurred in seeking recovery of a loss.

E - G. [No change].


SUGGESTED AMENDMENT

LAWYERS' FUND FOR CLIENT PROTECTION

(APR 15)


PROCEDURAL RULES

Rule 6. PROCEDURES



A - C. [No change].

D. Withdrawal of Application/Restitution. If, during the investigation of an application, the Applicant withdraws the Application or the Applicant receives full restitution of the amount stated in the Application, the Applicant and the lawyer shall be advised that the file will be closed without further action.

D E. Testimony. The Committee may request that testimony be presented to complete the record. Upon request, the lawyer or applicant, or their representatives, may be given an opportunity to be heard at the discretion of the Committee.

E F. Finding of Dishonest Conduct. The Committee may make a finding of dishonest conduct for purposes of considering an application. Such a determination is not a finding of dishonest conduct for purposes of professional discipline.

F G. Evidence and Burden of Proof. Consideration of an application need not be conducted according to technical rules relating to evidence, procedure and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence commonly accepted by reasonably prudent persons in the conduct of their affairs. The applicant shall have the burden of establishing eligibility for reimbursement by a clear preponderance of the evidence.

G H. Pending Disciplinary Proceedings. Unless the Committee or Trustees otherwise direct, no application shall be acted upon during the pendency of a disciplinary proceeding or investigation involving the same act or conduct that is alleged in the claim.

H I. Public Participation. Public participation at Committee meetings shall be permitted only by prior permission granted by the Committee chairperson.

I J. Committee Action.

(1) Actions of the Committee Which Are Final Decisions: A decision by the Committee on an application for payment of $25,000 or less - whether such decision be to make payment, to deny payment, to defer consideration, or for any action other than payment of more than $25,000 - shall be final and without right of appeal to the Trustees.

(2) Actions of the Committee Which Are Recommendations to the Trustees: A decision by the Committee (a) on an application for more than $25,000, or (b) involving a payment of more than $25,000 (regardless of the amount stated in the application), is not final and is a recommendation to the Trustees which shall have sole authority for final decisions in such cases.

Rules 7 - 14. [No change].


RULES OF EVIDENCE (ER)

RULE 408. COMPROMISE AND OFFERS TO COMPROMISE



In a civil case, Eevidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.


RULES OF EVIDENCE (ER)

RULE 410. INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS, AND RELATED STATEMENTS



(a) General. Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath and in the presence of counsel. This rule does not govern the admissibility of evidence of a deferred sentence imposed under RCW 3.66.067 or RCW 9.95.200-.240.

(b) Statutory Offers of Compromise. Evidence of payment or an offer or agreement to pay (i) to compromise a misdemeanor pursuant to RCW Chapter 10.22, or (ii) for a liability described in RCW 4.24.230, shall not be admissible in any civil or criminal proceeding.


EVIDENCE RULE 1101

APPLICABILITY OF RULES



(a) Courts Generally. Except as otherwise provided in section (c), these rules apply to all actions and proceedings in the courts of the state of Washington. The terms "judge" and "court" in these rules refer to any judge of any court to which these rules apply or any other officer who is authorized by law to hold any hearing to which these rules apply.

(b) Law With Respect to Privilege. The law with respect to privileges applies at all stages of all actions, cases, and proceedings.

(c) When Rules Need Not Be Applied. The rules (other than with respect to privileges, the rape shield statute and ER 412)) need not be applied in the following situations:

(1) Preliminary Questions of Fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104(a).

(2) Grand Jury. Proceedings before grand juries and special inquiry judges.

(3) Miscellaneous Proceedings. Proceedings for extradition or rendition; detainer proceedings under RCW 9.100; preliminary determinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to release on bail or otherwise; contempt proceedings in which the court may act summarily; habeas corpus proceedings; small claims court; supplemental proceedings under RCW 6.32; coroners' inquests; preliminary determinations in juvenile court proceedings under RCW Title 13; juvenile court hearings on declining jurisdiction under RCW 13.40.110; disposition hearings in juvenile court; review hearings in juvenile court under RCW 13.32A.190 and RCW 13.34.130(4); dispositional determinations related to treatment for alcoholism, intoxication, or drug addiction under RCW 70.96A; and dispositional determinations under the Civil Commitment Act, RCW 71.05.

(4) Applications for Protection Orders. Protection order proceedings under RCW 7.90, 10.14, and 26.50 and 74.34. Provided when a judge proposes to consider information from a criminal or civil database, the judge shall disclose the information to each party present at the hearing; on timely request, provide each party with an opportunity to be heard; and, take appropriate measures to alleviate litigants' safety concerns. The judge has discretion not to disclose information that he or she does not propose to consider.

(d) Arbitration Hearings. In a mandatory arbitration hearing under RCW 7.06, the admissibility of evidence is governed by MAR 5.3.


RULES OF APPELLATE PROCEDURE (RAP)


RULE 2.2 DECISIONS OF THE SUPERIOR

COURT THAT MAY BE APPEALED



(a) [Unchanged.]

(b) Appeal by State or a Local Government in Criminal Case. Except as provided in section (c), the State or a local government may appeal in a criminal case only from the following superior court decisions and only if the appeal will not place the defendant in double jeopardy:

(1) Final Decision, Except Not Guilty. A decision that in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty, including but not limited to a decision setting aside, quashing, or dismissing an indictment or information, or a decision granting a motion to dismiss under CrR 8.3(c).

(2) - (6) [Unchanged.]

(c) - (d) [Unchanged.]


CRIMINAL RULES (CrR)


RULE 8.3 DISMISSAL



(a)-(b) [Unchanged.]

(c) On Motion of Defendant for Pretrial Dismissal. The defendant may, prior to trial, move to dismiss a criminal charge due to insufficient evidence establishing a prima facie case of the crime charged.

(1) The defendant's motion shall be in writing and supported by an affidavit or declaration alleging that there are no material disputed facts and setting out the agreed facts, or by a stipulation to facts by both parties. The stipulation, affidavit or declaration may attach and incorporate police reports, witness statements or other material to be considered by the court when deciding the motion to dismiss. Any attached reports shall be redacted if required under the relevant court rules and statutes.

(2) The prosecuting attorney may submit affidavits or declarations in opposition to defendant's supporting affidavits or declarations. The affidavits or declarations may attach and incorporate police reports, witness statements or other material to be considered by the court when deciding defendant's motion to dismiss. Any attached reports shall be redacted if required under the relevant court rules and statutes.

(3) The court shall grant the motion if there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. In determining defendant's motion, the court shall view all evidence in the light most favorable to the prosecuting attorney and the court shall make all reasonable inferences in the light most favorable to the prosecuting attorney. The court may not weigh conflicting statements and base its decision on the statement it finds the most credible. The court shall not dismiss a sentence enhancement or aggravating circumstance unless the underlying charge is subject to dismissal under this section. A decision denying a motion to dismiss under this rule is not subject to appeal under RAP 2.2. A defendant may renew the motion to dismiss if the trial court subsequently rules that some or all of the prosecuting attorney's evidence is inadmissible.

(4) If the defendant's motion to dismiss is granted, the court shall enter a written order setting forth the evidence relied upon and conclusions of law. The granting of defendant's motion to dismiss shall be without prejudice.


RULES FOR APPEAL OF DECISIONS

OF COURTS OF LIMITED JURISDICTION (RALJ)


RULE 2.2 WHAT MAY BE APPEALED



(a)-(b) [Unchanged.]

(c) Appeal by State or a Local Government in Criminal Case. The State or local government may appeal in a criminal case only from the following decisions of a court of limited jurisdiction and only if the appeal will not place the defendant in double jeopardy:

(1) Final Decision, Except Not Guilty. A decision which in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty, including but not limited to a decision setting aside, quashing, or dismissing a complaint or citation and notice to appear, or a decision granting a motion to dismiss under CrRLJ 8.3(c).

(2)-(4) [Unchanged.]


CRIMINAL RULES FOR COURTS OF

LIMITED JURISDICTION (CrRLJ)


RULE 8.3 DISMISSAL



(a)-(b) [Unchanged.]

(c) On Motion of Defendant for Pretrial Dismissal. The defendant may, prior to trial, move to dismiss a criminal charge due to insufficient evidence establishing a prima facie case of the crime charged.

(1) The defendant's motion shall be in writing and supported by an affidavit or declaration alleging that there are no material disputed facts and setting out the agreed facts, or by a stipulation to facts by both parties. The stipulation, affidavit or declaration may attach and incorporate police reports, witness statements or other material to be considered by the court when deciding the motion to dismiss. Any attached reports shall be redacted if required under the relevant court rules and statutes.

(2) The prosecuting authority may submit affidavits or declarations in opposition to defendant's supporting affidavits or declarations. The affidavits or declarations may attach and incorporate police reports, witness statements or other material to be considered by the court when deciding defendant's motion to dismiss. Any attached reports shall be redacted if required under the relevant court rules and statutes.

(3) The court shall grant the motion if there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. In determining defendant's motion, the court shall view all evidence in the light most favorable to the prosecuting authority and the court shall make all reasonable inferences in the light most favorable to the prosecuting authority. The court may not weigh conflicting statements and base its decision on the statement it finds the most credible. The court shall not dismiss a sentence enhancement or aggravating circumstance unless the underlying charge is subject to dismissal under this section. A decision denying a motion to dismiss under this rule is not subject to appeal under RALJ 2.2. A defendant may renew the motion to dismiss if the trial court subsequently rules that some or all of the prosecuting authority's evidence is inadmissible.

(4) If the defendant's motion to dismiss is granted, the court shall enter a written order setting forth the evidence relied upon and conclusions of law. The granting of defendant's motion to dismiss shall be without prejudice.


Suggested Juvenile Court Rule (JUCR)


RULE 7.15 WAIVER OF RIGHT TO COUNSEL



(a) A juvenile who is entitled to representation of counsel in a juvenile court proceeding may waive his or her right to counsel in the proceeding only after:

(1) the juvenile has been advised regarding the right to counsel by a lawyer who has been appointed by the court or retained;

(2) a written waiver in the form prescribed in section (c), signed by both the juvenile and the juvenile's lawyer, is filed with the court; and

(3) a hearing is held on the record where the advising lawyer appears and the court, after engaging the juvenile in a colloquy, finds the waiver was knowingly, intelligently, and voluntarily made and not unduly influenced by the interests of others, including the parent(s) or guardian(s) of the juvenile.

(b) This rule does not apply to diversion proceedings. See JuCR 6.2 and 6.3

(c) Before a waiver can be accepted by the court, an attorney or the juvenile shall file a written waiver of the right to counsel in substantially the following form:


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SUPERIOR COURT OF WASHINGTON

COUNTY OF

JUVENILE COURT
STATE OF WASHINGTON v. NO:
Respondent. WAIVER OF

RIGHT TO COUNSEL

D.O.B.:
1. My true name is:

.
I am also known as:

.
2. My age is . Date of birth: .
3. I have completed the grade in school
4 I understand that I am accused of:
Count I, the offense of: .
Count II, the offense of: .
Count III, the offense of: .
Additional counts: .
The Standard Disposition Ranges for the offenses are as follows:

[ ] Local Sanctions:


COUNT SUPERVISION COMMUNITY

RESTITUTION

FINE DETENTION CVC RESTITUTION
[ ] 1 0 to 12 months 0 to 150 hours $0 to $500 0 to 30 Days $75/$100 [ ] As required [ ] _____
[ ] 2 0 to 12 months 0 to 150 hours $0 to $500 0 to 30 Days $75/$100 [ ] As required [ ] _____
[ ] 3 0 to 12 months 0 to 150 hours $0 to $500 0 to 30 Days $75/$100 [ ] As required [ ] _____

[ ] Juvenile Rehabilitation Administration (JRA) Commitment:


COUNT WEEKS AT JUVENILE REHABILITATION ADMINISTRATION (JRA) FACILITY CVC RESTITUTION
[ ] 1 [ ] 15 to 36 [ ] 30 to 40 [ ] 52 to 65 [ ] 80 to 100 [ ] 103 to 129 [ ] 180 to Age 21 $75/$100 [ ] As required [ ] _____
[ ] 2 [ ] 15 to 36 [ ] 30 to 40 [ ] 52 to 65 [ ] 80 to 100 [ ] 103 to 129 [ ] 180 to Age 21 $75/$100 [ ] As required [ ] _____
[ ] 3 [ ] 15 to 36 [ ] 30 to 40 [ ] 52 to 65 [ ] 80 to 100 [ ] 103 to 129 [ ] 180 to Age 21 $75/$100 [ ] As required [ ] _____
The maximum possible punishment that can be imposed by Juvenile Court is _____ years or commitment to JRA to age 21, whichever is less. I also understand that there may be lasting consequences even after I turn eighteen, if I am found guilty, including: employment disqualification, loss of my right to possess a firearm, suspension of ability to keep or obtain a driver's license, and school notification.

5. I understand that I have the right to be represented by a lawyer. If I cannot afford to pay for a lawyer, the court will appoint one to represent me at no cost to me

6. I understand that an attorney would:

Represent me and speak on my behalf in court.
Advise me about my legal rights and options.
Explain and assist me with legal and court procedures.
Investigate and explore possible defenses that I may not know about.
Prepare and conduct my defense at any court hearing or trial.
7. I understand that if I represent myself:

The judge cannot be my attorney and cannot give me any legal advice.
The prosecuting attorney cannot be my attorney and cannot give me any legal advice.
The judge, prosecuting attorney and court personnel are not required to explain court procedures or the law.
I will be required to follow all legal rules and procedures, including the rules of evidence.
It may be difficult for me to do as good a job as an attorney.
If I represent myself, the judge is not required to provide me with an attorney as a legal advisor or standby counsel.
If I later change my mind and decide that I want an attorney to represent me, the judge may require me to continue to represent myself without a lawyer.
8. I am making this decision to represent myself knowingly, intelligently, and voluntarily. No one has made any promises or threats to me, and no one has used any influence, pressure or force of any kind to get me to waive my right to an attorney.

9.. I have read, or have had read to me, this entire document. I want to give up my right to an attorney. I want to represent myself in this case.


Dated:
RESPONDENT

ATTORNEY FOR RESPONDENT

Type or Print Name/Bar Number

COURT'S CERTIFICATE
After engaging the respondent in a colloquy in open court, I find that the respondent has knowingly, intelligently, and voluntarily waived his or her right to counsel.
DATED:
JUDGE/COURT COMMISSIONER/PRO TEM

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

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.

Washington State Code Reviser's Office