APR 20-25 - Admission and Practice Rules 20 to 25Comments for APR 20-25 must be received no later than April 30, 2016.
GR 9 COVER SHEET
A. Name of Proponent:
Suggested Amendments AMISSION AND PRACTICE RULES (APR)
Submitted by the Washington State Bar Association Board of Governors Washington State Bar Association
B. Spokesperson:
C. Purpose: The primary purposes for the suggested amendments to APR 20 – 25.6 are to bring Washington’s character and fitness procedures into alignment with recent interpretations of the Americans with Disability Act (ADA), as it relates to bar admissions, by the United States Department of Justice (DOJ), and to clarify Washington’s character and fitness procedures and make the process easier to understand. Background The approach being recommended derives from the approac h described by the DOJ in a settlement it reached in 2014 with the Louisiana State Bar, and from models used in other states around the country. That settlement provides guidance for determining whether, when and how inquiries into mental health and substance abuse issues should be conducted. See, Settlement Agreement Between the United States and the Louisiana Supreme Court Under the Americans with Disabilities Act, August 14, 2014. Under the terms of the settlement agreement, the DOJ agreed that it was permissible for the Louisiana Supreme Court to ask the mental health questions that are now being used by the National Conference of Bar Examiners (NCBE). The questions approved by the DOJ in the settlement agreement with Louisiana (1) involve some inquiry into a current condition that might impair the practice of law but not a past condition and(2) are inquiries about conduct that might call into question one’s ability to practice law or that might indicate an underlying issue requiring further questions. Further, the DOJ provided guidance about when and how to make inquiries in these areas. The Admissions Workgroup The WSBA formed an admissions workgroup to evaluate Washington’s procedures and applications for admission. The admissions workgroup was formed in the summer of 2014. Its members were:
Participants were selected for the workgroup in such a manner that there would be broad and diverse perspectives. Interests represented on the workgroup include individuals from the government, the private sector, disability rights advocates and regulatory bodies. The workgroup reviewed character and fitness rules, bar applications and procedures currently in use in Washington and from other states. The workgroup engaged in significant discussion about various practices currently being used in other jurisdictions, the purposes of the character and fitness review process, the desire to protect the public from applicants who truly might be unfit to practice law, and legal issues relating to individual rights and the rights of people with disabilities. The workgroup ultimately decided unanimously to recommend a conduct-based approach to character and fitness review, with the belief that disclosure of certain conduct would uncover or bring to light any issues that might affect an applicant’s ability to practice law, and presented to the Board of Governors suggested amendments to the APRs and to the Admissions application questions. Due to the need to implement these amendments as soon as possible for the benefit and protection of the applicants applying for the admission to practice law, the workgroup did not seek comment from the membership. However, as discussed above, the makeup of the workgroup brought together many different interests and opinions. In the end, all participants agreed on the suggested amendments. The Board of Governors reviewed the suggested amendments to the APR and the admissions application resulting from the workgroup’s study of the issues at two separate meetings, received some comments in support but no comments against the suggested amendments, and approved their submission to the Court. Major Changes Being Suggested Definition of Fitness to Practice Law and Essential Eligibility Requirements A fundamental change necessary for a conduct or behavior based approach to character and fitness is to have a definition of “fitness to practice law” that is based on the ability of the applicant to demonstrate that the applicant can meet essential eligibility requirements. The suggested amendments propose adopting “essential eligibility requirements,” which are modeled on essential eligibility requirements used in other states, to identify the abilities one needs in order to competently engage in the practice of law,. See, suggested APR 20(e). The proposed definition for fitness to practice law is a record of conduct that establishes that the applicant meets the essential eligibility requirements. See, suggested APR 20(d). Process for Inquiry into Mental Health Issues When an applicant does disclose, or the WSBA learns from a third party about, a mental health issue, then the suggested amendments require the WSBA to follow the DOJ’s approach of a “narrowly, reasonably and individually tailored” inquiry into any mental health matters. See suggested APR 22.1(e) and (f) (setting forth the Basis for, and Scope of, Inquiry into Health Diagnosis and Drug or Alcohol Dependence). This method of inquiry protects an applicant’s right to privacy while at the same time permitting the WSBA to investigate further to determine if the issue raised is one that would potentially disqualify an applicant from the practice of law. Any disqualification would be based on a failure to meet the Essential Eligibility Requirements, not on the existence of a mental health condition. Reorganization of APR 20 – 25.6 Finally, the introduction of the essential eligibility requirements and a conduct-based approach required a substantial rewrite to the APR relating to the character and fitness procedures. In addition, several sections of the rules were moved and other proposed amendments are suggested to clarify the procedures and make it easier to understand the process. D. Hearing: A hearing is not requested. E. Expedited Consideration: Expedited consideration is not requested. F. Supporting Materials: Due to the reorganization of the rules contemplated in the suggested amendments, the redline version of the suggested amendments to APR 20 – 25.6 includes comments indicating where the suggested rule is located in the current rules for ease in cross-referencing. In addition to the submission of the suggested amendments to APR 20 – 25.6 in a redline format, the WSBA submits for the Court’s information a clean version of APR 20 – 25.6 as the rules would read should the Court adopt the suggested amendments. The following supporting materials are attached:
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