RPC 5.5 - Unauthorized Practice of Law; Multijurisdictional Practice of Law
Comments for RPC 5.5 must be received no later than April 30, 2013.
ADMISSION TO PRACTICE RULES (APR)
(clarifying and simplifying admission to the practice of law in Washington and administration of authorized activities of the Washington State Bar Association)
Submitted by the Board of Governors of the Washington State Bar Association
The primary purpose for the suggested amendments to the Admission to Practice Rules (APR) is to develop an updated system of admissions to the practice of law that addresses significant changes occurring both nationwide and globally in the areas of admissions, limited or special licensing to practice, and other topics addressed in the APR. The suggested amendments would: (1) acknowledge increased mobility of lawyers and applicants; (2) increase diversity in WSBA membership as the practice of law becomes more cross-jurisdictional within the United States and across international borders; (3) protect the public by ensuring that admittees and licensees are competent, of good moral character, and fit to practice; (4) maintain confidentiality of applicant information to encourage full and complete disclosure of information that might affect determinations regarding applicants’ competency, moral character, and fitness to practice; (5) create a simplified and consistent approach to the admission to the practice of law in Washington; (6) promote access to justice; (7) insure consistency between the WSBA Bylaws and the APRs; and (8) maintain the integrity and professionalism of lawyers in Washington state. These purposes are discussed below.
The suggested amendments were developed by the Admission to Practice Rules Task Force, which was composed of members of the WSBA representing a variety of different interests – solo/small firm, large firm, government, and legal aid practitioners; the three Washington law schools; a former judge; a new lawyer; and a law student (who had to resign due to the demands of law school and other commitments). These members initially brought very different viewpoints and opinions to the topics discussed, and the discussions were wide-ranging and spirited, with consideration given to each viewpoint.
The Task Force reviewed current rules and studied proposals and trend occurring both nationwide and worldwide. The Task Force also invited stakeholders, interested speakers, and individuals affected by the APR to present to the Task Force on their topics of interest and concern, and received recommendation and reports from other WSBA or Supreme Court Boards and WSBA staff responsible for various programs under the APR. The Chair made presentations to the Board of Governors at three separate meetings in public session, with comments made and received by all in attendance at those meetings. Additionally, the WSBA published notice on its website regarding the suggested amendments, sent an email to all WSBA members regarding the Task Force’s initial July report and recommendations to the Board of Governors requesting feedback, and considered all of the comments received and made some changes based on this feedback.1
All told, the Chair estimates that the Task Force spent over 500 hours working on this project. In the final analysis, the Task Force was able to make decisions on almost every suggested amendment by consensus, with a formal vote being required on only a couple of issues out of all of the suggested amendments.
The suggested amendments acknowledge and allow for the mobility of the profession and provide for a diverse membership as globalization and cross-jurisdictional practice increasingly influence the practice of law.2 This is accomplished in several ways under the suggested amendments:
- Suggested APR 3(b) would broaden the qualifications for general admission to include foreign attorneys or graduates from foreign law schools who earn a specialized LL.M. degree in the practice of law from an ABA approved law school. Graduates from non-ABA approved law schools in the United States who earn the same type of specialized LL.M. degree in the practice of law from an ABA approved law school also qualify for admission by exam. In addition, the suggested amendments maintain the common law jurisdiction exception to the LL.M. requirement, but remove the requirement that admission in the other jurisdiction be by examination. After exploring this issue, the Task Force determined that many, if not most, foreign countries – including England, whose common law system was the foundational basis of the U.S. jurisprudence system – do not administer bar examinations for the purpose of determining qualification for admission to practice law. The suggested provisions allow lawyers and law school graduates from around the country and all countries from around the world the opportunity for admission to practice law in Washington without discriminating against those that are not common law jurisdictions. Likewise, Washington State, which is heavily engaged in international trade and business, receives the benefit of talented and diverse lawyers from across the globe.
- Suggested APR 3(c) would replace reciprocity under current APR 18 with admission by motion. The new admission by motion rule permits lawyers admitted in another U.S. jurisdiction to seek admission without taking the bar exam in Washington if they have at least three years of active practice experience within the previous five years. This suggestion specifically acknowledges that lawyers are increasingly more mobile and that the practice of law frequently crosses state lines, and that lawyers need to be able to move to or practice in other U.S. jurisdictions without the burden and expense of another bar exam. As U.S. jurisdictions increasingly use multiple parts of multi-state exams and move toward the Uniform Bar Exam, which Washington has adopted, requiring lawyers to take a bar exam in each state becomes redundant and unnecessary.
Additionally, this timeline is important for providing “wrap-around” rules governing when and how lawyers can obtain admission in Washington. In the first three years after taking the Uniform Bar Exam in another state, a lawyer from another state would be able to obtain admission in Washington based on a UBE score that meets Washington’s requirements, just like any examinee who has recently passed the bar exam, and regardless of whether the lawyer has active practice experience. From three years on, a lawyer from another state would be able to obtain admission based on admission in that other state, good standing, and three years of active practice within the previous five years. So there would be no period of time when there is no rule that governs the admission of lawyers from other states.
- Suggested APR 8(b) (the pro hac vice rule) would allow lawyers who are admitted in other U.S. jurisdictions but live or work in Washington to qualify to practice on a limited basis. This will remove barriers currently presented to lawyers who live in Washington but are licensed and maintain practices in our bordering states.
- Suggested APR 8(f) would allow in-house counsel to seek admission as house counsel and work for Washington companies on a long term basis, whether they are licensed in foreign jurisdictions or other U.S. jurisdictions. The suggested amendment also would remove the requirement that a foreign-licensed lawyer be admitted by exam in the foreign jurisdiction, which has presented significant issues for many foreign-licensed lawyers seeking in-house counsel licensing in Washington. The suggested amendment to RPC 5.5(d) would allow house counsel to temporarily practice for their employer while seeking and waiting for admission under APR 8(f), or APR 3(b) or (c). This change benefits the many multi-national corporations that are headquartered and do business in Washington.
The suggested amendments to the Admission to Practice Rules would continue to protect the public and maintain the confidentiality of personal applicant information. Protecting the public is accomplished by the suggested amendments in several ways.
- First, a specific LL.M. degree for the practice of law, from an ABA accredited law school, would be required for individuals with foreign law degrees and for graduates from a non-ABA accredited law school under suggested APR 3(b). The LL.M. degree must be earned at an ABA accredited law school and meet minimum requirements. The required elements of the LL.M. degree would insure instruction on basic principles of United States law, history, legal analysis, and practice. Thus, these applicants would have 3 major steps to complete before admission to insure minimum competency to practice law: completion of their first degree in law, an LL.M. degree, and the Uniform Bar Exam.
- Second, the requirement for admission by motion for lawyers admitted in another U.S. jurisdiction under proposed APR 3(c) would require at least three years of practice out of the last five years prior to application. This standard was recently adopted by the American Bar Association in the ABA Model Rule for Admission by Motion. See Supporting Material #5. The practice requirement insures that lawyers coming into Washington are experienced and current in the law.
- Third, all applicants, either by exam or by motion, would be required to take and pass the Washington Law Component, which is being developed to accompany use of the Uniform Bar Exam. This online test will be based on study materials available online that educate the applicant about areas of law that are unique to Washington or are substantially different from the general law tested on the Uniform Bar Exam. This would insure that all lawyers entering practice in Washington are familiar with Washington specific law, something that currently does not happen with those admitted by reciprocity under APR 18. All applicant also would be required to pass a character and fitness review and take the APR 5(b) four hour preadmission course.
- Fourth, the provisions in APR 8(f) for house counsel admission would restrict practice to providing advice to the corporate client only, as is the case currently. (One exception to this rule is that house counsel would also be permitted to represent pro bono clients, consistent with the current provisions of RPC 5.5(e).) Individuals admitted as house counsel under APR 8(f) would not be permitted to appear in court. Because the client is the employer corporation there is little, if any, risk to the public.
- Fifth, all lawyers who are requesting reinstatement to active membership would be subject to character and fitness reviews under proposed amendments to APR 20-24.
- Sixth, amendments to the Lawyers’ Fund for Client Protection (LFCP) rules under APR 15, would insure restitution to the fund and require claims against lawyers on inactive disability status to be paid to injured clients. In addition, lawyers admitted pro hac vice under APR 8(b) would be required to pay the LFCP assessment.
- Seventh, amendments to APR 17 would protect the public by insuring that lawyers who are not current with licensing requirements are suspended from the practice of law.
- Eighth, APR 9, Licensed Legal Interns, would be completely reorganized and contain additional provisions to protect the public. These would include enhanced requirements for the good moral character of the intern, enhanced qualifications for the supervising lawyer, and specifically enumerated additional obligations of the supervising lawyer regarding supervision of, and responsibility to, the intern.
- Finally, several confidentiality provisions are proposed that would better protect the personal information of those applying for admission to the practice of law, which would help to ensure full and accurate disclosures by applicants in the admission process. In particular, proposed APR 1(d) would provide broad confidentiality to all applications related to the admission process. In addition, there would be enhanced provisions relating to claims against the Lawyers’ Fund for Client Protection (APR 15, Rule 13), character and fitness provisions in APR 22 and 24.3, and the APR 6 Law Clerk Program.
Another purpose of this review and amendment process was to simplify and make consistent the application and admission process.
- The suggested amendments to APR 3(b), would require applicants who do not obtain a J.D. from an ABA accredited law school or complete the APR 6 Law Clerk Program to earn the LL.M. degree for the practice of law. This would be consistent with the requirements for foreign licensed lawyers. (The one exception, a carryover from current APR 3, would permit lawyers from a common law jurisdiction with three years of practice to take the exam without having to first obtain an LL.M.)
- The suggested amendments to APR 3(c) for admission by motion would significantly simplify and standardize the process for admission of lawyers from other US jurisdictions, compared to the current rule that imposes different requirements depending on the jurisdiction in which the incoming lawyer is licensed. In addition, the three-out-of-the-last-five-years standard for the practice requirement is the same for the common law jurisdiction exception in APR 3(b) and is consistent with the ABA recommended requirement. Although there would continue to be several limited admissions or licenses available, fewer people would need to take advantage of those because of the simplification of admission by motion.
Access to justice is another important purpose of the APRs. The APRs currently contain several provisions that promote access to justice. The suggested amendments would maintain most existing provisions, while enhancing some of those provisions. Under APR 8(c), Indigent Representation, the suggested amendment would permit those who have applied for admission by motion to seek this limited admission (for the purpose of representing indigent clients) while waiting to complete the admissions process.
A final purpose of the amendments is to insure consistency with the WSBA Bylaws. In particular, APR 17, relating to administrative suspensions, would specifically enumerate the reasons and procedures for administrative suspensions, which have been contained in the WSBA Bylaws for some time. In addition, including members in the character and fitness rules (APR 20-24) is also something that currently exists in the WSBA Bylaws.
Taken as a whole, the suggested amendments to the APR and the purposes for the amendments maintain the integrity and professionalism of lawyers in Washington. These amendments were developed and presented as a package, and many of the suggested amendments rely on other suggested amendments within this package to be effective and workable. This package works together to provide and accommodate diversity, mobility, consistency, access to justice, and protection of the public, while moving the legal profession in Washington forward within a quickly changing and dynamic landscape for the legal profession.
1 59 comments were received from a total of 66 people, and 35 of those people commented on a proposal for a mandatory malpractice insurance, which has been withdrawn from the package. Many people who commented made comments about more than one rule. On the attached chart of comments received, such comments were divided up so that pieces of the comments were grouped with other comments about a particular rule or set of rules. This makes it appear as though more comments were received than is actually the case, but made it easier for the Task Force to consider the comments received.
2 Note, however, that the Board of Governors recently adopted admission requirements in connection with the transition to the Uniform Bar Exam that will require all lawyers seeking admission or licensing in Washington to take the Washington Law Component, an online education and testing exercise that will ensure that all admittees to the practice of law in Washington have some familiarity with aspects of Washington law that are unique or uncommon – something that is not currently required of many hundreds of lawyers who get admitted to practice in Washington currently without taking the Washington Bar exam.