IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO APR 1 - GENERAL; SUPREME COURT, PREREQUISITES TO THE PRACTICE OF LAW, IMMUNITY; APR 2-BOARD OF GOVERNORS; APR 4-BAR EXAMINATIONS, CERTIFICATION OF RESULTS; APR 6-LAW CLERK PROGRAM; APR 15-LAWYERS' FUND FOR CLIENT PROTECTION AND APR 15-LAWYERS' FUND FOR CLIENT PROTECTION PROCEDURAL RULES 3, 4, 5, 6, 7 8, 13, 14 AND 15

) ) ) ) ) ) ) ) ) ) ) ) )

ORDER NO. 25700-A-907

     The Washington State Bar Association having recommended the adoption of the proposed amendments to APR 1 -- General; Supreme court, Prerequisites to the Practice of Law, Immunity, APR 2-Board of Governors; APR 4-Bar Examinations, Certification of Results; APR 6-Law Clerk Program; APR 15-Lawyers' Fund for Client Protection and APR 15-Lawyers' Fund for Client Protection Procedural Rules 3, 4, 5, 6, 7, 8, 13, 14 and 15, 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 (j)(l), the amendments will be published expeditiously and become effective upon publication.

     DATED at Olympia, Washington this 4th day of December, 2008.

	Alexander, C.J.
C. Johnson, J.
Madsen, J.	Fairhurst, J.
Sanders, J.	J. M. Johnson, J.
	Stephens, J.

     (b) Prerequisites to the Practice of Law. [No change].

     (c) Communications to the Association. Communications to the Association, the Board of Governors, the Committee Board of Bar Examiners, the Character and Fitness Board, the Law Clerk Committee Board, mediators, mediation staff, or any other individual person, board, committee or other entity acting under authority of these rules, are absolutely privileged, and no lawsuit may be predicated thereon.

     (1) Appoint a Committee Board of Bar Examiners from among the active members of the Bar Association for the purposes of assisting the Board of Governors in conducting the bar examination;

     (2) Appoint a Law Clerk Committee Board from among the active members of the Bar Association for the purposes of assisting the Board of Governors in supervising the Law Clerk Program;

     (3) Appoint a Character and Fitness Board pursuant to rule 20;

     (4) Approve or deny applications for permission to take the bar examination, to enroll in the law clerk program, to be admitted to practice pursuant to rule 18, or to engage in the limited practice of law under pertinent provisions of rules 8, and 9, and 14;

     (5) Investigate all aspects of an applicants qualifications to take the bar examination, to be admitted to the practice of law, to engage in the limited practice of law under pertinent provisions of rules 8, and 9, and 14, or to enroll in the law clerk program;

     (6) Recommend to the Supreme Court the admission or rejection of each applicant who has passed the bar examination, or who is applying to be admitted to practice pursuant to rule 18, or who is applying to engage in the limited practice of law under pertinent provisions of rules 8, and 9, and 14;

     (7) Approve law schools for the purposes of these rules and maintain a list of such approved law schools on file with the Clerk of the Supreme Court;

     (8) Prescribe, with the approval of the Supreme Court, the amount of any fees required by these rules;

     (9) Prescribe the form and content of any application, certificate, or other document referred to in these rules; and

     (10) Perform any other functions and take any other actions provided for in these rules, or as may be delegated by the Supreme Court, or as may be necessary and proper to carry out its duties.

     (b) Written Request. [No change].

     (b) Certification of Results; Notice. As soon as practicable after the completion of the bar examination, the Committee Board of Bar Examiners shall certify to the Board of Governors the grades of all applicants who have taken the bar examination. The Board of Governors shall cause each applicant to be notified of the results of the bar examination. No information will be divulged concerning the applicants who failed the bar examination.

     (c) Repeating Bar Examination. [No change].

     (b) Tutors. A lawyer or judge may act as a tutor for only one law clerk at a time. To be eligible to act as a tutor in the law clerk program, a lawyer or judge shall:

     (1) Be an active member in good standing of the Bar Association, or be a judicial member who is currently elected or appointed to an elected position, provided that if a disciplinary sanction has been imposed upon the lawyer or judge within the 5 years immediately preceding approval of the law clerks clerk's application for enrollment, the Board of Governors shall have the discretion to accept or reject the lawyer or judge as tutor;

     (2) Have been actively and continuously engaged in the practice of law or have held the required judicial position for at least 10 years immediately preceding the filing of the law clerks application for enrollment; this may be a combination of active practice and judicial experience; and

     (3) Provide a tutors statement certifying to the law clerks clerk's employment and to the tutors eligibility, and agreeing to instruct and examine the law clerk in the curriculum prescribed by the Law Clerk Committee Board with the approval of the Board of Governors.

     (c) Length of Study. [No change].

     (d) Course of Study. The subjects to be studied, the sequence in which they are to be studied, and any other matters pertaining thereto shall be as prescribed by the Law Clerk Committee Board with the approval of the Board of Governors.

     (e) Examinations. All law clerks shall:

     (1) Each month, complete a written examination prepared, administered, and graded by the tutor. The examination shall be answered without research, assistance, or reference to source materials during the examination;

     (2) Annually, or at such other intervals as may be established by the Law Clerk Committee Board, appear with the tutor before the Law Clerk Committee Board for an oral evaluation of the law clerks progress.

     (f) Certificates. [No change].

     (g) Termination. The Board of Governors may direct a law clerk to change tutors, and may terminate the enrollment of law clerks or remove tutors from the program. The Law Clerk Committee Board may recommend to the Board of Governors that the enrollment of the law clerk in the program be terminated for:

     (1) Failure to complete the prescribed length and course of study within 6 years from the date the law clerks clerk's application for admission was accepted;

     (2) Failure of the tutor to submit the monthly examinations and certificates at the end of each month in which they are due;

     (3) Failure to comply with any of the requirements of the law clerk program; and

     (4) Any other grounds deemed pertinent by the Law Clerk Committee Board.

     (h) Advanced Standing. [No change].

     (i) Effective Date. [No change].

     (b) Establishment. [No change].

     (c) Funding. [No change].

     (d) Enforcement. [No change].

     (e) Restitution. [No change].

     (f) Administration. The Fund shall be maintained and administered by the Board of Governors acting as trustees for the Fund. The Board shall appoint the Lawyers' Fund for Client Protection Committee Board (Committee Client Protection Board) to administer the Fund pursuant to rules adopted by the Board of Governors and approved by the Supreme Court. The Committee Client Protection Board shall consist of 11 lawyers and 2 nonlawyers, who will be appointed to serve staggered 3-year terms.

     (g) Subpoenas. A lawyer member of the Committee Client Protection Board, or counsel for the Washington State Bar Association assigned to the Committee, shall have the power to issue subpoenas to compel the attendance of the lawyer being investigated or of a witness, or the production of books, or documents, or other evidence, at the taking of a deposition. A subpoena issued pursuant to this rule shall indicate on its face that the subpoena is issued in connection with an investigation under this rule. Subpoenas shall be served in the same manner as in civil cases in the superior court.

     (h) Reports. The Board of Governors, in consultation with the Committee Client Protection Board, shall file with the Supreme Court a full report on the activities and finances of the Fund at least annually and may make other reports to the court as necessary.

     (i) Communications to the Association: Communications to the Association, Board of Governors (Trustees), Committee Client Protection Board, Association staff, or any other individual acting under the authority of these rules, are absolutely privileged, and no lawsuit predicated thereon may be instituted against any applicant or other person providing information.

RULE 2. ESTABLISHMENT OF THE FUND [No change].

RULE 3. LAWYERS' FUND FOR CLIENT PROTECTION COMMITTEE BOARD

     A. Membership. The Lawyers' Fund for Client Protection Committee Board shall consist of 11 lawyers and 2 nonlawyers appointed by the Trustees for terms not exceeding 3 years each.

     B. Vacancies. Vacancies on the Committee Board shall be filled by appointment of the Trustees.

     C. Officers. The Trustees shall appoint a chairperson of the Committee Board for a term of one-year or until a successor is appointed. The secretary of the Committee Board shall be a staff member of the WSBA assigned to the Committee Board by the Executive Director of the WSBA.

     D. Meetings. The Committee Board shall meet not less than once per year upon call of the chairperson, or at the request of the staff member of the WSBA, who shall not be entitled to vote on Committee Board matters.

     E. Quorum. A majority of the Committee Board members, excluding the secretary, shall constitute a quorum.

     F. Record of Meetings. The secretary shall maintain minutes of the Committee Board deliberations and recommendations.

     G. Authority and Duties of Committee Board. The Committee Board shall have the power and authority to:

     (1) Consider claims for reimbursement of pecuniary loss and make a report and recommendation regarding payment or nonpayment on any claim to the Trustees.

     (2) Provide a full report of its activities annually to the Supreme Court and the Trustees and to make other reports and to publicize its activities as the Court or Trustees may deem advisable.

     H. Conflict of Interest.

     (1) A Committee Board member who has or has had a lawyer/client relationship or financial relationship with an applicant or lawyer who is the subject of an application shall not participate in the investigation or deliberation of an application involving that applicant or lawyer.

     (2) A Committee Board member with a past or present relationship, other than that as provided in section (1), with an applicant or lawyer who is the subject of an application, shall disclose such relationship to the Committee Board and, if the Committee Board deems it appropriate, that member shall not participate in any action relating to that application.

RULE 4. APPLICATIONS FOR PAYMENT

     A. Application Form. All applications for payment through the Lawyers Fund for Client Protection shall be made by submitting an application on a form approved by the Committee Board, and shall include all information requested on the form.

     B. Disciplinary Grievances. Before an application for payment from the Fund will be considered, the applicant must also file a disciplinary grievance with the Office of Disciplinary Counsel, unless the lawyer is disbarred or deceased, or unless the Committee Board in its discretion finds that no disciplinary grievance is required.

     C. Notice by Office of Disciplinary Counsel. Any person who has filed a disciplinary grievance with the WSBA alleging a loss occasioned by the dishonest conduct of a lawyer should be provided with a Lawyers Fund for Client Protection application form and given information about the Fund.

RULE 5. ELIGIBLE CLAIMS

     A. Eligibility. To be eligible for payment from the Fund, the loss must be caused by the dishonest conduct of a lawyer or the failure to account for money or property entrusted to a lawyer in connection with the lawyer's practice of law, or while acting as a fiduciary in a matter related to the lawyer's practice of law.

     B. Time Limitations. Any application must be made within three years from the date on which discovery of the loss was made or reasonably should have been made by the applicant, and in no event more than three years from the date the lawyer dies, is disbarred, is disciplined for misappropriation of funds, or is criminally convicted for matters relating to the applicant's loss, provided that the Committee Board or Trustees in their discretion may waive any limitations period for excusable neglect or other good cause.

     C. Dishonest Conduct. As used in these rules, "dishonest conduct" or "dishonesty" means wrongful acts committed by a lawyer in the nature of theft or embezzlement of money or the wrongful taking or conversion of money, property or other thing of value, including but not limited to refusal to refund unearned fees or expenses as required the Rules of Professional Conduct.

     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 any governmental entity or agency.

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

     E. Special and Unusual Circumstances. In cases of special and unusual circumstances, the Committee Board may, in its discretion, consider an application which would otherwise be excluded by reason of the procedural requirements of these rules.

     F. Unjust Enrichment. In cases where it appears that there will be unjust enrichment, or that the applicant contributed to the loss, the Committee Board may, in its discretion, recommend the denial of the application.

     G. Exhaustion of Remedies. The Committee Board may consider whether an applicant has made reasonable attempts to seek reimbursement of a loss before taking action on an application. This may include, but is not limited to, the following:

     (1) Filing a claim with an appropriate insurance carrier;

     (2) Filing a claim on a bond, when appropriate;

     (3) Filing a claim with any and all banks which honored a financial instrument with a forged endorsement;

     (4) As a prelude to possible suit under part (5) below, demanding payment from any business associate or employer who may be liable for the actions of the dishonest lawyer; or

     (5) Commencing appropriate legal action against the lawyer or against any other party or entity who may be liable for the applicant's loss.

RULE 6. PROCEDURES

     A. Ineligibility. Whenever it appears that an application is not eligible for reimbursement pursuant to Rule 5, the applicant shall be advised of the reasons why the application may not be eligible for reimbursement.

     B. Investigation and Report. The WSBA staff member assigned to the Committee Board shall conduct an investigation regarding any application. The investigation may be coordinated with any disciplinary investigation regarding the lawyer. The staff member shall report to the Committee Board and make a recommendation to the Committee Board.

     C. Notification of Lawyer. The lawyer, or his or her representative, regarding whom an application is made shall be notified of the application and provided a copy of it, and shall be requested to respond within 20 days. If the lawyer's address of record on file with the WSBA is not current, then a copy of the application should be sent to the lawyer at any other address on file with the WSBA. A copy of these Rules shall be provided to the lawyer or representative.

     D. Testimony. The Committee Board 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 Board.

     E. Finding of Dishonest Conduct. The Committee Board 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. 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. Pending Disciplinary Proceedings. Unless the Committee Board 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. Public Participation. Public participation at Committee Board meetings shall be permitted only by prior permission granted by the Committee Board chairperson.

     I. Committee Board Action. (1) Actions of the Committee Board Which Are Final Decisions: A decision by the Committee Board 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 Board Which Are Recommendations to the Trustees: A decision by the Committee Board (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.

RULE 7. ADJUDICATION BY TRUSTEES

     A. A recommendation by the Committee Board (a) concerning applications for more than $25,000, or (b) that payments of more than $25,000 be made to applicants regarding any one lawyer, shall be reported to the Trustees which may, in its discretion, adopt, modify, disapprove or take any other appropriate action on the Committee's Board's recommendation.

     B. A decision of the Trustees shall be final and there shall be no right of appeal from that decision.

RULE 8. NOTIFICATION OF APPLICANT AND LAWYER

     Both the applicant and the lawyer who is the subject of an application shall be advised of any decision of the Committee Board or the Trustees.

RULE 9. LIMITATIONS ON AMOUNT OF REIMBURSEMENT [No change].

RULE 10. NO LEGAL RIGHT TO PAYMENT [No change].

RULE 11. RESTITUTION AND SUBROGATION [No change].

RULE 12. COMPENSATION FOR REPRESENTING APPLICANTS [No change].

RULE 13. CONFIDENTIALITY

     A. Matters Which Are Public. The facts and circumstances which generated the loss, the Committee's Board's findings of fact and recommendations to the Trustees with respect to payment of a claim, the amount of claim, the amount of loss as determined by the Committee Board, and the amount of payment authorized and made, shall be public. After payment is authorized, the name of the lawyer causing the loss shall be public.

     B. Matters Which Are Not Public. The Committee's Board's investigation and deliberations of any application; the name of the applicant, unless the applicant consents; or the name of the lawyer unless the lawyer consents or unless the lawyer's name is made public pursuant to these rules, shall not be public.

RULE 14. NOTICE OF ACTION

     Notice of approval of an application to the Fund may be published in the Washington State Bar News and elsewhere at the direction of the Committee Board or Trustees. Notice may also be posted electronically on any web site maintained by the WSBA. If the lawyer has made full restitution to the Fund, any notice posted electronically by the WSBA may, at the request of the lawyer, be removed.

RULE 15. AMENDMENTS

     These Rules may be amended, altered or repealed on the recommendation of the Committee Board by a vote of the Trustees, with the approval of the Supreme Court.

     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.

© Washington State Code Reviser's Office