WSR 14-19-044
[September 3, 2014]
NO. 25700-A-1075
The Limited License Legal Technician (LLLT) Board having recommended the adoption of the proposed amendments to APR 28, and the Court having considered the amendments and comments submitted thereto;
Now, therefore, it is hereby
(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below 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(e), 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 60 days from the published date. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Comments submitted by e-mail message must be limited to 1500 words.
DATED at Olympia, Washington this 3rd day of September, 2014.
For the Court
Madsen, C.J.
Suggested Amendments
APR 28.
Submitted by the Limited License Legal Technician Board
Purpose: The primary purpose for the suggested amendments to APR 28 is to provide for the efficient administration of the LLLT program and clarify one issue related to the LLLT's scope of practice. Washington State Bar Association staff prepared the initial drafts of these proposed amendments and presented them to the LLLT Board for discussion at two meetings. Except with respect to the scope issue, the initial drafts were modeled after either the corresponding lawyer rule or the corresponding LPO rule. Decisions as to which rule to use as a model depended on (1) the need to protect the public given the LLLT's scope of practice, (2) the preference of the LLLT Board and (3) the best way to administer the program. The Board discussed and then unanimously approved these proposed amendments as proposed by staff with only slight modification where necessary.
In addition to some technical amendments, the proposed amendments to APR 28 relate to the administration and expenses of the Board, clarifying an ambiguity regarding whether LLLTs may conduct legal research without the supervision of a lawyer, and confidentiality and public records.
Administration and Expenses of LLLT Board (APR 28C(4))
Suggested new subpart C(4) to APR 28 delineates that anticipated expenses and anticipated revenues of the LLLT Board shall be submitted on a proposed budget for approval by the Washington State Bar Association's Board of Governors, which is consistent with how the budgets of other Supreme Court boards are administered by the WSBA.
Scope of Practice and Legal Research (APR 28F (7) & (8))
In APR 28F relating to the scope of practice for LLLTs, the Board suggests splitting subpart (7) into two subparts to distinguish legal research from the drafting of legal documents that require review by a Washington lawyer, as it is anticipated that LLLTs will perform legal research without the oversight of an attorney. Subpart (7) as it is currently drafted creates ambiguity in that respect. The Board believes that to effectively represent clients, an important part of an LLLT's duties will be to conduct relevant research and analysis. The Board does not believe it was the intent of the rule to require LLLTs to conduct legal research under the supervision of an attorney.
Confidentiality and Public Records (APR 28L)
Suggested new APR 28L is intended to bring LLLT Board policies related to confidentiality and public records into alignment with General Rule 12.4 and the WSBA's confidentiality and public records policies.
The LLLT Board believes that it is important that these proposed amendments be adopted and effective as soon as possible to provide for the efficient administration of the program and to clarify the legal research scope of practice issue prior to the initial licensing of LLLTs in 2015.
A. Purpose.
B. Definitions. For purposes of this rule, the following definitions will apply:
(1) "APR" means the Supreme Court's Admission and Practice Rules.
(2) "Board" when used alone means the Limited License Legal Technician Board.
(3) "Lawyer" means a person licensed and eligible to practice law in any United States jurisdiction.
(4) "Limited License Legal Technician" (LLLT) means a person qualified by education, training and work experience who is authorized to engage in the limited practice of law in approved practice areas of law as specified by this rule and related regulations. The legal technician does not represent the client in court proceedings or negotiations, but provides limited legal assistance as set forth in this rule to a pro se client.
(5) "Paralegal/legal assistant" means a person qualified by education, training, or work experience; who is employed or retained by a lawyer, law office, corporation, governmental agency, or other entity; and who performs specifically delegated substantive law-related work for which a lawyer is responsible.
(6) "Reviewed and approved by a Washington lawyer" means that a Washington lawyer has personally supervised the legal work and documented that supervision by the Washington lawyer's signature and bar number.
(7) "Substantive law-related work" means work that requires knowledge of legal concepts and is customarily, but not necessarily, performed by a lawyer.
(8) "Supervised" means a lawyer personally directs, approves; and has responsibility for work performed by the Limited License Legal Technician.
(9) "Washington lawyer" means a person licensed and eligible to practice law in Washington and who is an active or emeritus pro bono member of the Washington State Bar Association.
(10) Words of authority:
(a) "May" means "has discretion to," "has a right to," or "is permitted to."
(b) "Must" or "shall" means "is required to."
(c) "Should" means "recommended but not required."
C. Limited License Legal Technician Board.
(1) Establishment. There is hereby established a Limited License Legal Technician Board. The Board shall consist of 13 members appointed by the Supreme Court of the State of Washington, nine of whom shall be active Washington lawyers, and four of whom shall be nonlawyer Washington residents. At least one member shall be a legal educator. The members shall initially be appointed to staggered terms of one to three years.
Thereafter, appointments shall be for three year terms. No member may serve more than two consecutive full three year terms.
(2) Board Responsibilities. The Board shall be responsible for the following:
(a) Recommending practice areas of law for LLLTs, subject to approval by the Supreme Court;
(b) Processing applications and fees, and screening applicants;
(c) Administering the examinations required under this rule which shall, at a minimum, cover the rules of professional conduct applicable to Limited License Legal Technicians, rules relating to the attorney-client privilege, procedural rules, and substantive law issues related to one or more approved practice areas;
(d) Determining LLLT Continuing Legal Education (LLLT CLE) requirements and approval of LLLT CLE programs;
(e) Approving education and experience requirements for licensure in approved practice areas;
(f) Establishing and overseeing committees and tenure of members;
(g) Establishing and collecting examination fees, LLLT CLE fees, annual license fees, and other fees in such amounts approved by the Supreme Court as are necessary to carry out the duties and responsibilities of the Board; and
(h) Such other activities and functions as are expressly provided for in this rule.
(3) Rules and Regulations. The Board shall propose rules and regulations for adoption by the Supreme Court that:
(a) Establish procedures for grievances and disciplinary proceedings;
(b) Establish trust account requirements and procedures;
(c) Establish rules of professional and ethical conduct; and
(d) Implement the other provisions of this rule.
(4) Administration and Expenses of the Board. The Washington State Bar Association shall provide reasonably necessary administrative support for the Board. Members of the Board shall not be compensated for their services but shall be reimbursed for actual and necessary expenses incurred in the performance of their duties according to the Washington State Bar Association's expense policies. Funds accumulated from examination fees, annual fees, and other revenues shall be used to defray the expenses of the Board. All anticipated expenses and anticipated revenues shall be submitted on a proposed budget for approval by the Washington State Bar Association's Board of Governors.
D. Requirements for Applicants. An applicant for licensure as a Limited License Legal Technician shall:
(1) Age. Be at least 18 years of age.
(2) Moral Character and Fitness to Practice. Be of good moral character and demonstrate fitness to practice as a Limited License Legal Technician.
(3) Education. Have the following education, unless waived by the Board through regulation:
(a) An associate level degree or higher;
(b) 45 credit hours of core curriculum instruction in paralegal studies as approved by the Board with instruction to occur at an ABA approved law school or ABA approved paralegal education program; and
(c) In each practice area in which an applicant seeks licensure, instruction in the approved practice area, which must be based on a curriculum developed by or in conjunction with an ABA approved law school. For each approved practice area, the Board shall determine the key concepts or topics to be covered in the curriculum and the number of credit hours of instruction required for admission in that practice area.
(d) For the purposes of satisfying APR 28 (D)(3), one credit hour shall be equivalent to 450 minutes of Instruction.
(4) Application. Execute under oath and file with the Board his/her an application, in such form as the Board requires. An applicant's failure to furnish information requested by the Board or pertinent to the pending application may be grounds for denial of the application.
(5) Examination Fee. Pay, upon the filing of the application, the examination fee and any other required application fees as established by the Board and approved by the Supreme Court.
E. Licensing Requirements.
F. Scope of Practice Authorized by Limited Practice Rule. The Limited License Legal Technician shall ascertain whether the issue is within the defined practice area for which the LLLT is licensed. If it is not, the LLLT shall not provide the services required on this issue and shall inform the client that the client should seek the services of a lawyer. If the issue is within the defined practice area, the LLLT may undertake the following:
(1) Obtain relevant facts, and explain the relevancy of such information to the client;
(2) Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;
(3) Inform the client of applicable procedures for proper service of process and filing of legal documents;
(4) Provide the client with self-help materials prepared by a Washington lawyer or approved by the Board, which that contain information about relevant legal requirements, case law basis for the client's claim, and venue and jurisdiction requirements;
(5) Review documents or exhibits that the client has received from the opposing side party, and explain them to the client;
(6) Select, complete, file, and effect service of forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a Washington lawyer; or forms approved by the Board; and advise the client of the significance of the selected forms to the client's case;
(7) Perform legal research; and
(8) Ddraft legal letters and documents beyond what is permitted in the previous paragraph (6), if the work is reviewed and approved by a Washington lawyer;
(8) Advise a client as to other documents that may be necessary to the client's case, and explain how such additional documents or pleadings may affect the client's case;
(9) Assist the client in obtaining necessary documents or records, such as birth, death, or marriage certificates.
G. Conditions Under Which A Limited License Legal Technician May Provide Services.
H. Prohibited Acts.
In the course of dealing with clients or prospective clients, a Limited License Legal Technician shall not:
(1) Make any statement that the Limited License Legal Technician can or will obtain special favors from or has special influence with any court or governmental agency;
(2) Retain any fees or costs for services not performed;
(3) Refuse to return documents supplied by, prepared by, or paid for by the client, upon the request of the client. These documents must be returned upon request even if there is a fee dispute between the Limited License Legal Technician and the client;
(4) Represent or advertise, in connection with the provision of services, other legal titles or credentials that could cause a client to believe that the Limited License Legal Technician possesses professional legal skills beyond those authorized by the license held by the Limited License Legal Technician;
(5) Represent a client in court proceedings, formal administrative adjudicative proceedings, or other formal dispute resolution process, unless permitted by GR 24;
(6) Negotiate the client's legal rights or responsibilities, or communicate with another person the client's position or convey to the client the position of another party, unless permitted by GR 24(b);
(7) Provide services to a client in connection with a legal matter in another state, unless permitted by the laws of that state to perform such services for the client;
(8) Represent or otherwise provide legal or law related services to a client, except as permitted by law, this rule or associated rules and regulations;
(9) Otherwise violate the Limited License Legal Technicians' Rules of Professional Conduct.
I. Continuing Licensing Requirements.
J. Existing Law Unchanged.
K. Professional Responsibility and Limited License Legal Technician-Client Relationship.
(1) Limited License Legal Technicians acting within the scope of authority set forth in this rule shall be held to the standard of care of a Washington lawyer.
(2) Limited License Legal Technicians shall be held to the ethical standards of the Limited License Legal Technicians' Rules of Professional Conduct, which shall create an LLLT IOLTA program for the proper handling of funds coming into the possession of the Limited License Legal Technician.
(3) The Washington law of attorney-client privilege and law of a lawyer's fiduciary responsibility to the client shall apply to the Limited License Legal Technician-client relationship to the same extent as it would apply to an attorney-client relationship.
L. Confidentiality and Public Records
(1) GR 12.4 shall apply to access to Board records.
(2) Unless expressly authorized by the Supreme Court or by the applicant, all application records, including related investigation files, documents and proceedings, for the limited admission to the practice of law as an LLLT are confidential and shall be privileged against disclosure, except as necessary to conduct an investigation, hearing, appeal, or review pursuant to these rules.
(3) Unless expressly authorized by the Supreme Court, all examination questions, scoring keys and other examination data used by the Board to administer the LLLT licensing examinations are not subject to public disclosure.
(4) Unless expressly authorized by the Supreme Court or the LLLT, the following Board and Bar records are exempt from public access: personal information in Board and Bar records for LLLTs and Board members to the extent that disclosure would violate their right of privacy, including home contact information (unless such information is their address of record), Social Security numbers, driver's license numbers, identification or security photographs held in Board and Bar records, and personal data including ethnicity, race, disability status, gender, and sexual orientation. LLLT license status, license number, dates of admission or licensing, addresses of record, and business telephone numbers, facsimile numbers, and electronic mail addresses (unless there has been a request that electronic mail addresses not be made public) shall not be exempt, provided that any such information shall be exempt if the Chair of the Board approves the confidentiality of that information for reasons of personal security or other compelling reason, which approval must be reviewed annually.
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.