APR 8 - Nonmember Lawyer Licenses to Practice Law

Comments for APR 8 must be received no later than April 30, 2018.


APR 8 COVER SHEET

Suggested Amendment to

WASHINGTON STATE COURT RULES:

ADMISSION FOR PRACTICE RULES

Amend APR 8: Limited Admissions

Submitted by Kristy Healing

A. Name of Proponent: Kristy Healing, Commissioner, Washington State Supreme Court Commission on Children in Foster Care

B. Spokesperson: Kristy Healing

C. Purpose: APR 8 governs when lawyers admitted to practice law in other states or United States territories may engage in the limited practice of law in Washington State. While the current law addresses various exceptions for indigent representation, military lawyers, and others, it fails to address the unique circumstance of a tribal attorney appearing as a matter of right under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, under federal law.

ICWA sets minimum standards for the treatment of Indian children in state child custody proceedings and gives an Indian tribe the right to intervene and participate in any state child custody proceeding involving an Indian child from that tribe. Washington State adopted the Washington Indian Child Welfare Act in 2011 to ensure state law provides the same rights of participation and intervention as the federal law. Ch. 13.38 RCW. Because tribes intervene in cases wherever the tribal children are, tribal attorneys are forced to appear in states where they are not licensed. While APR 8 is offered as a solution, it has significant limitations, including the right of the state to deny the application. In addition, the high cost and requirements of local cocounsel can make appearing in a timely manner for a child welfare case nearly impossible. In child welfare matters, time is of the essence. To protect Indian children's tribal interests, tribes and their attorneys must be able to intervene as a matter of right and be protected from unauthorized practice of law charges.

Although many tribes receive federal grants for child and family services, those funds cannot be used for legal representation or for legal fees for litigation. See, e.g., 25 U.S.C. § 1931(a)(8); 25 C.F.R. §§

89.40-89.41. Other federal moneys for social services are similarly restricted and cannot be used to pay for legal services for litigation. 25 U.S.C. §§ 450 to 458ddd-2. This court rule amendment provides a solution to these funding restrictions. The Washington court rules ensure that those who appear in court, including Indian children, receive due process and equal treatment under the law. Accordingly, this amendment improves the welfare of Indian children in ICWA custody proceedings by ensuring that tribes can meaningfully participate in Washington child custody proceedings related to their children.

In addition, it is important to note that this amendment to the Washington court rules is not unprecedented. Both Oregon and Michigan recently adopted waivers for pro hac vice requirements for attorneys participating in ICWA cases. Michigan’s amended civil rule, MICH. CIV. R. 8.126, goes into effect September 1, 2017. Oregon’s amended civil rule, OR. UNIFORM TRIAL CT. R. 3.170, goes into effect January 1, 2018. The state of Nebraska has codified this in their state law at Neb. Rev. Stat. § 43-1504(3) (“The Indian child's tribe or tribes and their counsel are not required to associate with local counsel or pay a fee to appear pro hac vice in a child custody proceeding under the Nebraska Indian Child Welfare Act.”).

Furthermore, many courts addressing the issue have held that a requirement that an Indian tribe be represented by an attorney licensed in the state court is preempted by ICWA. See, e.g., J.P.H. v. Fla. Dep't of Children & Families, 39 So. 3d 560 (Fla. Dist. Ct. App. 2010) (per curiam); In re Interest of Elias L., 767 N.W.2d 98, 104 (Neb. 2009); In re Interest of N.N.E., 752 N.W.2d 1, 12 (Iowa 2008); In re Shuey,

119 Or. App. 185, 850 P.2d 378 (1993). The Nebraska Supreme Court noted that the tribe’s representative, while not a licensed attorney in Nebraska, was familiar with ICWA’s procedural and substantive requirements, which mitigated the State’s concern in having parties represented by counsel, and that the tribe had authorized her to speak for it. The holding says:

We conclude that tribal participation in state custody proceedings involving Indian children is essential to achieving the goals of ICWA. The tribal interests represented by ICWA and the Tribe’s right to intervene under [25 U.S.C.] § 1911(c) and [Neb. Rev. Stat.] § 43-1504(3) outweigh the State interests represented by [Neb. Rev. Stat.] § 7-101. Thus, we determine that federal law preempts the requirement of § 7-101 that the Tribe be represented by a Nebraska licensed attorney in these ICWA proceedings.

Elias L., 767 N.W.2d at 104. The state of Nebraska has since codified this provision. Neb. Rev. Stat. § 43-1504(3). In order to prevent Washington courts and parties in ICWA cases from having to expend time and resources litigating on a case-by-case basis whether an out-of-state Indian tribe may send its tribal attorney as a representative, the proposed amendment would resolve the issue and preserve the due process rights of the parties in the ICWA case.

This proposed amendment is necessary because under ICWA, Indian tribes have a right to participate in proceedings, and the rule as written presents significant barriers to out-of-state tribes seeking to timely intervene in an ICWA case. The Washington State Supreme Court Commission on Children in Foster Care is in support of the proposed amendment.

 

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