IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO ELC 1.2-JURISDICTION AND RPC 8.5-DISCIPLINARY AUTHORITY; CHOICE OF LAW; RAP 5.2-TIME ALLOWED TO FILE NOTICE; RAP 12.5-MANDATE; NEW ER 502-ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT: LIMITATION ON WAIVER AND ER 1101-APPLICABILITY OF RULES; AND CR 43-TAKING OF TESTIMONY

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ORDER NO. 25700-A-951

     The Washington State Bar Association having recommended the adoption of the proposed amendments to ELC 1.2-Jurisdiction and RPC 8.5-Disciplinary Authority; Choice of Law; RAP 5.2-Time Allowed to File Notice; RAP 12.5-Mandate; New ER 502-Attorney-Client Privilege and Work Product: Limitation on Waiver and ER 1101-Applicability of Rules; and CR 43-Taking of Testimony 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 shown below are adopted.

     (b) That the amendments will be published in the Washington Reports and will become effective September 1, 2010.

     DATED at Olympia, Washington this 3rd day of June, 2010.

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

     (c) Disciplinary Authority Over Judges. Notwithstanding the provisions of Rule 8.4(m), a lawyer, while serving as a judge or justice as defined in RCW 2.64.010, shall not be subject to the disciplinary authority provided for in these Rules or the Rules for Enforcement of Lawyer Conduct for acts performed in his or her judicial capacity or as a candidate for judicial office unless judicial discipline is imposed for that conduct by the Commission on Judicial Conduct or the Supreme Court. Disciplinary authority should not be exercised for the identical conduct if the violation of the Code of Judicial Conduct pertains to the role of the judiciary and does not relate to the judge's or justice's fitness to practice law.

     [1] - [7] [Unchanged.]

     Additional Washington Comments (8-12)

     [8] The Commission on Judicial Conduct is an independent agency of the judicial branch of state government. Wash. Const. Art. IV, § 31; RCW 2.64.120. The Commission has authority to receive and investigate complaints of, and conduct proceedings as to, alleged violations of rules of judicial conduct by a "judge or justice". Wash. Const. Art. IV, § 31; RCW 2.64.057. The terms "judge" and "justice" are defined to include justices of the supreme court, judges of the court of appeals, judges of the superior courts, judges of any court organized under RCW Titles 3 or 35, judges pro tempore, court commissioners, and magistrates, and the Commission's authority applies regardless of whether the judge or justice serves full time or part time. RCW 2.64.010(4).

     [9] Whether an act is performed in the judge's "judicial capacity" depends on the facts and circumstances of the conduct. In general, acts are performed in the judicial capacity if they involve the making of judicial decisions, the performance of judicial duties, or the discharge of administrative responsibilities in connection with judicial office. Other factors include whether the act was performed or purported to be performed in the individual's official capacity as a judge and whether the conduct is expressly governed by the Code of Judicial Conduct. With the exception of conduct committed during a judicial campaign, see Comment [12], paragraph (c) does not apply to conduct occurring prior to service as a judge, nor does it apply to conduct wholly outside of the judicial capacity.

     [10] Paragraph (c) does not prevent the exercise of disciplinary authority over (1) a judge or justice after he or she has been disciplined for judicial misconduct by the Commission on Judicial Conduct or the Supreme Court, (2) a former judge or justice, or (3) a lawyer who serves as a pro tem or part time judge for acts performed by him or her as a lawyer and otherwise outside of his or her judicial capacity.

     [11] In situations where a judge or justice has been disciplined for judicial misconduct by the Commission on Judicial Conduct or the Supreme Court, disciplinary authority should not be exercised for the identical conduct if the violation of the Code of Judicial Conduct pertains to the role of the judiciary and does not relate to the judge's or justice's fitness to practice law. For example, disciplinary authority should not ordinarily extend to a violation of the requirement in Canon 3 (A)(2) that "Judges should maintain order and decorum in proceedings before them." [Reserved.]

     [12] Acts performed as a candidate for judicial office are governed by paragraph (c) if performed by a judge or a justice or a successful lawyer candidate for judicial office. This rule has no application to acts performed by an unsuccessful lawyer candidate for judicial office.

     [13] Paragraph (c) applies to judges and justices defined to be within the jurisdiction of the Commission on Judicial Conduct under Wash. Const. Art. IV, § 31 and RCW Title 2.64 and is not intended to apply to other lawyers in this state designated as judges, including but not limited to federal judges, administrative law judges, and tribal judges.

     (b) Notice for Discretionary Review. Except as provided in rules 3.2(e) and 5.2 (d) and (f), a notice for discretionary review must be filed in the trial court within the longer of (1) 30 days after the act of the trial court which that the party filing the notice wants reviewed, or (2) 30 days after entry of an order deciding a timely motion for reconsideration of that act under CR 59.

     [(c) - (g) unchanged.]

     (b) When Mandate Issued by Court of Appeals. The clerk of the Court of Appeals will issue the mandate for a Court of Appeals decision terminating review upon stipulation of the parties that no motion for reconsideration or petition for review will be filed. In the absence of that stipulation, and except to the extent the mandate is stayed as provided in rule 12.6, the clerk will issue the mandate:

     (1) Thirty (30) days after the decision is filed, unless (i) a motion for reconsideration of the decision or a motion to publish has been earlier filed, (ii) a petition for review to the Supreme Court has been earlier filed, or (iii) the decision is a ruling of the commissioner or clerk and a motion to modify the ruling has been earlier filed.

     (2) If a motion for reconsideration or motion to publish is timely filed and denied, 30 days after expiration of the time for filing a petition for review under rule 13.4(a) filing the order denying the motion for reconsideration, unless a petition for review to the Supreme Court has been earlier filed.

     (3) If a petition for review has been timely filed and denied by the Supreme Court, upon denial of the petition for review.

     [(c) - (e) unchanged]

     (a) Disclosure Made in a Washington Proceeding or to a Washington Office or Agency; Scope of a Waiver. When the disclosure is made in a Washington proceeding or to a Washington office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if:

     (1) the waiver is intentional;

     (2) the disclosed and undisclosed communications or information concern the same subject matter; and

     (3) they ought in fairness to be considered together.

     (b) Inadvertent Disclosure. When made in a Washington proceeding or to a Washington office or agency, the disclosure does not operate as a waiver in any proceeding if:

     (1) the disclosure is inadvertent;

     (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

     (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following CR 26 (b)(6).[¹]

     (c) Disclosure Made in a Non-Washington Proceeding. When the disclosure is made in a non-Washington proceeding and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Washington proceeding if the disclosure:

     (1) would not be a waiver under this rule if it had been made in a Washington proceeding; or

     (2) is not a waiver under the law of the jurisdiction where the disclosure occurred.

     (d) Controlling Effect of a Court Order. A Washington court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court -- in which event the disclosure is also not a waiver in any other proceeding.

     (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Washington proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

     (f) Definitions. In this rule:

     (1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and

     (2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

     ¹The Court has published for comment a suggested amendment to add a new CR 26 (b)(6). The text of this suggested amendment assumes adoption of the new CR 26 (b)(6). If the Court does not adopt that new subsection, the phrase ", including (if applicable) following CR 26 (b)(6)" should be removed from this suggested new rule.

     (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. [unchanged]

     (2) Grand Jury. [unchanged]

     (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, and permanency planning 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. [unchanged]

     [(d) unchanged]

     (a) Testimony.

     (1) Generally. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

     (2) Multiple Examinations. [unchanged]

     [(b) - (k) unchanged]

     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 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.

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