APR 28 and APR 28 Appendix - APR 28 and APR 28 Appendix Regs 2 and 3

• Proposed Changes to APR 28 and APR 28 Appendix - APR 28 and APR 28 Appendix Regs 2 and 3 (in Word Format)
• Comments Received for APR 28 and APR 28 Appendix - APR 28 and APR 28 Appendix Regs 2 and 3

GR 9 COVER SHEET

Suggested Amendments

ADMISSION AND PRACTICE RULES (APR) 28

Limited Practice Rule for Limited License Legal Technicians

Submitted by the Limited License Legal Technician Board

A. Name of Proponent:

Limited License Legal Technician (LLLT) Board

Staff Liaison/Contact:

Jean McElroy, Chief Regulatory Counsel

Washington State Bar Association (WSBA)

1325 Fourth Avenue, Suite 600

Seattle, WA 98101-2539 (Phone: 206-727-8277)

B. Spokesperson:

Stephen R. Crossland

Chair of LLLT Board

P.O. Box 566

Cashmere, WA 98815 (Phone: 509-782-4418)

C. Purpose:

The primary purpose of the suggested amendments is to enhance the scope of the Limited License Legal Technician (LLLT) domestic relations practice area in order to improve the LLLT’s ability to render efficient and effective legal services to pro se clients.

These suggested amendments will enable LLLTs to better serve their clients by allowing LLLTs to provide a wider range of services and more support in the courtroom. This more cohesive set of services will help LLLTs provide much needed access to legal services, guidance, and advice, to low and moderate income pro se clients. The suggested amendments have been discussed and reviewed at length and are designed to enhance the existing domestic relations practice area consistent with client needs and the intended role of LLLTs as legal practitioners.

The LLLT Board began discussing possible enhancements to the domestic relations practice area in late 2014 in response to questions and concerns from law school professors who were teaching the LLLT practice area classes. Students in the LLLT classes, practicing LLLTs, and lawyers who work with LLLTs also raised several issues and offered ideas for ways in which the domestic relations scope could be improved to allow LLLTs to provide a more cohesive set of services to their clients.

The Family Law Advisory Workgroup of the LLLT Board was charged with discussing these questions and offering recommendations to the LLLT Board regarding the possible ways in which the scope of practice could be adjusted. The Family Law Advisory Workgroup includes members of the Board (including family law lawyers), other family law practitioners, lawyers who practice in other legal areas, and a practicing LLLT. The Family Law Advisory Workgroup worked collaboratively with several of the law professors teaching the family law practice area classes as well as solicited further information from practicing LLLTs. Throughout 2016 and the beginning of 2017, the workgroup studied the issues and provided recommendations to the LLLT Board. The LLLT Board approved the suggested amendments in early 2017 and presented information generally describing the intended enhancements to the domestic relations scope of practice to the Supreme Court on March 8, 2017, and to the Board of Governors on May 19, 2017.

The LLLT Board posted the suggested amendments on the WSBA website and solicited comments between May and July 2017. Over 30 comments were received from lawyers, LLLTs, at least one client of a LLLT, a firm employing a LLLT, a member of the Board of Bar Examiners, the King County Bar Association Family Law Section, a member of the WSBA Family Law Section Executive Committee, the Northwest Justice Project, and members of the public. On August 16, 2017, the Family Law Advisory Workgroup reviewed the comments submitted, discussed all comments that posed specific drafting questions or suggestions in detail, and modified and refined the suggested amendments where it deemed necessary. The modifications were also responsive to the informal feedback received from the Access to Justice Board’s Rules Committee. At its August 17, 2017, meeting, the LLLT Board approved the suggested amendments as modified by the Family Law Advisory Workgroup.

The following describes each suggested amendment and the amendment’s purpose and intended effect:

APR 28(B)

The Board suggests an administrative amendment to APR 28(B)(1) to correct the reference to the “Admission to Practice Rules” to the “Admission and Practice Rules.”

The Board’s suggested amendment to APR 28(B)(4) strikes a phrase relating to the current prohibition on LLLTs attending court proceedings, which would be modified by these suggested amendments. The nature of an LLLT’s client being “pro se” is preserved in APR 28(F), Scope of Practice Authorized by Limited Practice Rule, rather than including it in the definition of an LLLT.

APR 28(F)

The Board has suggested several administrative amendments to the first paragraph of APR 28(F). The amendments are designed to unify the terminology used in the introduction to APR 28, repeating phrases such as “render legal assistance” and reinforcing that the LLLT is providing limited legal assistance to a pro se client. The amendments would also clarify that LLLTs have an affirmative duty to inform clients to seek the services of a lawyer when an issue outside of their scope of practice has been identified. In APR 28(F)(3), a further clarification of the LLLT’s duties to clients with respect to filing and service of documents was added, stating specifically that the LLLT may both advise and assist clients in correctly filing and serving documents.

The suggested amendments would delete the words “from the opposing side” from APR 28(F)(5) in order to delineate that LLLTs may review documents or exhibits provided to the client from any source, not only from the opposing side. The suggested amendment to what will be APR 28(F)(10) is grammatical, changing “a client” to “the client” in order to create consistency with the other paragraphs in the subsection. The suggested change to what will be APR 28(F)(11) is semantic, changing “documents” to “records” in order to better describe the list of records that follows.

APR 28(F)(12) and (13) are new suggested subsections that relate to the enhancements to the LLLT scope of practice. New APR 28(F)(12) suggests that LLLTs be permitted to communicate or negotiate with the opposing party or the party’s representative regarding procedural matters. New APR 28(F)(13) suggests that LLLTs be permitted to negotiate the client’s legal rights or responsibilities provided that the client has given written consent defining the parameters of the negotiation. LLLTs and lawyers for the opposing party have reported that significant barriers to efficient case administration are imposed by the current restriction that LLLTs must not communicate with anyone other than the client regarding the subject matter of the representation. LLLTs have encountered difficulties instructing their clients about how to independently accomplish various ministerial activities such as rescheduling hearing dates, confirming service addresses, and informing opposing parties when an issue with their pleadings has been identified. The LLLT Board believes that communication regarding procedural matters should be allowed in order to increase efficiency of the services LLLTs provide to their clients.

The new subsection APR 28(F)(14) would provide that additional types of legal assistance not otherwise prohibited generally by APR 28 could be authorized by regulations relating to the scope of practice permitted within a specific practice area. This would allow LLLTs to provide certain legal assistance necessary for a particular approved practice area but that may not be needed, justified, or wise to include within the scope of all approved practice areas.

APR 28(G)

Three amendments to APR 28(G) have been suggested. The first would delete the words “appear or” from APR 28(G)(2)(a) in order to coordinate this section with suggested amendments to the domestic relations scope of practice in Regulation 2(B). The second suggested amendment in the same paragraph would reinforce that LLLTs must look to the specific regulation regarding their practice area to fully comprehend their scope of practice.

The third suggested amendment in APR 28(G)(4) would preserve the LLLT’s obligation to sign documents and pleadings they prepare while allowing an exception for LLLTs assisting a client or a third party in preparing a declaration or sworn statement. Requiring LLLTs to sign the sworn statement of another person deviates from common practice among lawyers when preparing declarations for signature by a client or third party.

APR 28(H)

The suggested amendments to APR 28(H) would unify the amendments to the domestic relations scope in Regulation 2 with the permitted actions under the LLLT license. The suggested amendment to APR 28(H)(5) would reinforce that to understand the entirety of the scope of practice for a licensed LLLT, one must look to the specific practice area regulation.

The suggested amendments to APR 28(H)(6) would allow LLLTs to negotiate with the opposing party or their representative when the client has defined the scope of the negotiation prior to its onset. The current prohibition against LLLTs negotiating for their clients has frequently resulted in situations where the LLLT must schedule hearings regarding issues that could likely be negotiated, thereby using substantially more of the parties’ and the court’s time and unnecessarily increasing the cost of the representation. Additionally, LLLT clients who are in the midst of a difficult dissolution, custody battle, or domestic violence dispute may find themselves in the position of being contacted by their spouse or abuser when it would be in their best interest to have a third party act as the mediator or contact person. Also significantly, a number of lawyers for opposing parties have reported that they would prefer to negotiate with a legal professional rather than a pro se layperson who is emotionally involved in the outcome of the issue. For LLLTs who are multilingual, being able to negotiate with opposing parties would also allow them to maximize essential services to clients who may not speak English but do speak the same language(s) as the LLLT.

The suggested additions of what would be APR 28(H)(8) and (9) would move prohibitions that previously existed in the LLLT domestic relations scope regulation to this subsection because these restrictions should apply to all LLLTs, regardless of approved practice area.

APR 28 Regulation 2(A)

In APR 28 Regulation 2(A), the suggested amendments are purely administrative and would align the style with other portions of APR 28.

APR 28 Regulation 2(B)

APR 28 Regulation 2(B) provides a detailed treatment of the scope of the LLLT domestic relations practice. The suggested amendments to APR 28 Regulation 2(B)(1) would modify the permitted scope of practice by including all parenting plan modifications and nonparental custody actions. For protection orders, the LLLT family law scope of practice is currently limited to domestic violence actions only. The suggested amendments would add other protection or restraining orders arising from a domestic relations case in addition to the current domestic violence protection orders. Additionally, the suggested amendments reorganized the listing of the permitted actions to be roughly sequential from primary actions through modifications and other related actions.

Currently, LLLTs are permitted to help clients with uncontested parenting plan modifications but may not advise or assist clients regarding contested major parenting plan modifications unless the terms have been agreed to by the parties before the onset of the representation. Because of the existing prohibition in APR 28 Regulation 2(B), clients have not been able to obtain advice from the LLLT on the relevant issues that will be before the court for determination at an adequate cause hearing. Under the current provisions, therefore, the client must attempt to negotiate the terms of major parenting plan modifications without receiving advice from the LLLT as the client prepares to argue the issues. The LLLT Board recommends that LLLTs be permitted to assist with all major modification cases up to the point of the adequate cause hearing and, thus, suggests removing the phrase “when the terms are agreed to by the parties.”

The LLLT Board also suggests that LLLTs be permitted to assist with nonparental custody cases up to the point of the adequate cause hearing. Tens of thousands of children in Washington live with a guardian other than a parent. Very few of these guardians have legal custody, which causes complex problems with access to medical, educational, and housing services. Child in need of services cases and dependencies are commonly resolved through nonparental custody with relatives and family friends, who often cannot afford to hire an attorney. Additionally, nonparental custody matters are accomplished through the use of pattern forms which LLLTs can be trained to use competently. Permitting LLLTs to assist with these matters would promote judicial efficiency by helping pro se parties navigate this aspect of the legal system.

The first paragraph of APR 28 Regulation 2(B)(2) contains suggested stylistic amendments. It also would clarify that a domestic relations LLLT may provide legal services specified by the Regulation. The suggested amendments to APR 28 Regulation 2(B)(2)(a) are grammatical.

In APR 28 Regulation 2(B)(2)(b), the suggested substantive amendments would permit an LLLT to provide services related to the division of real property. In the current text of APR 28, there is an absolute prohibition in Regulation 2(B)(3)(i) against dividing real property. This restriction was originally called into question by the professors and students participating in the LLLT family law practice area classes. Practicing LLLTs reported that clients experienced significant barriers because of the LLLTs’ inability to divide the family home as part of the legal process.

In response to these issues, the LLLT Board suggests that LLLTs be allowed to assist with gathering information on the value and potential encumbrances on a home, as clients are often unable to independently find the information necessary for the court to evaluate the value of their real property assets. The LLLT Board also suggests that LLLTs be allowed to advise and assist with division of single family residential real property in which the parties have equity of up to twice the homestead exemption (currently $125,000; see RCW 6.13.030). This would allow two parties who own a home together to potentially divide the equity in the home and preserve their maximum exemption if either party files for bankruptcy at a later date. The homestead exemption is set by the legislature and adjusted periodically according to economic factors.

Real property division was prohibited by the LLLT Board when initially contemplated because there were concerns about being able to adequately address the topic in the practice area curriculum. The family law professors and the Family Law Advisory Workgroup of the LLLT Board worked together to address this issue. The professors and workgroup believe that it would be possible to teach LLLTs how to divide single family residential real property using the current family law forms because the mandatory forms were designed, in large part, to be able to be completed by pro se litigants. The LLLT Board has developed a checklist for LLLTs to use when dividing property; a sample is enclosed. The checklist collects important information about the disposition of the property, liens, encumbrances, and remedies in the case of default. The family law professors plan to revise the existing LLLT family law education curriculum to allow LLLTs to capably perform this limited scope of real estate division.

APR 28 Regulation 2(B)(3)(c)(i) currently prohibits LLLTs from advising clients about or dividing retirement assets using a supplemental order, including all defined benefit plans and defined contribution plans. The family law professors and the Family Law Advisory Workgroup believe this prohibition is too restrictive. Under suggested APR 28 Regulation B(2)(c) and (d), LLLTs would be permitted to advise as to retirement asset allocation for specified retirement plans and include language in a decree describing how QDROs (qualified domestic relations orders) or supplemental orders are to be prepared. LLLTs would continue to be prohibited from preparing the actual QDRO or supplemental order dividing retirement assets.

Suggested APR 28 Regulation 2(B)(2)(e) addresses LLLT participation in alternative dispute resolution proceedings, and suggested section 2(B)(2)(f) would specifically allow LLLTs to accompany, assist, and confer with their pro se clients at depositions. Alternative dispute resolution (such as mediation, arbitration, or settlement conferences) is mandated in contested family law cases in Washington State; it would be a significant help to clients and to the court system to permit LLLTs to assist with mediations in family law cases. Professors and practitioners on the Family Law Advisory Workgroup noted that sending a client into the mediation without support—when that person may or may not understand the nature of the process or the finer details of the case—would likely set up the client for failure. The current prohibition was initially designed to align with the prohibition on negotiation. If the suggested amendment removing the prohibition against negotiation in APR 28(H)(6) is adopted, the Board believes there would be no reason to restrict LLLT participation in alternative dispute resolution proceedings.

Similarly, suggested section 2(B)(2)(f) would allow an LLLT to accompany the pro se client at a deposition. The LLLT would not take or defend the deposition and would not make objections. The LLLT could provide advice and explain questions and their impact to the client during breaks.

Suggested section 2(B)(2)(g) would allow LLLTs to present agreed orders, uncontested orders, default orders, and accompanying documents. Today, paralegals and legal assistants without a license to practice law are permitted to appear at ex parte calendars to present orders for entry in most counties in Washington. When a court denies entry of ex parte orders there is no record (transcript, clerk’s notes, or recording) for an LLLT to rely on to determine why the orders were not entered if the client does not understand or cannot properly convey a court’s reasoning. The LLLT risks sending a client back to court without fully resolving the issue(s) that caused the initial denial. Permitting an LLLT to present orders for ex parte entry on behalf of the client would ensure that the client’s case will be properly finalized and provides assurance for the LLLT that documents bearing their signature have been properly handled.

Suggested section 2(B)(2)(h) would allow LLLTs to accompany and assist their pro se clients at certain hearings and respond to direct questions from the court or tribunal regarding factual and procedural issues only. The LLLT could not represent the client like a lawyer would. The permitted hearings would be primarily motion hearings, as well as administrative child support hearings. Section (h)(i) would allow LLLTs to accompany and assist clients at hearings related to domestic violence protection orders and other protection or restraining orders arising from a domestic relations case. The current prohibition against participating in court proceedings has presented significant barriers to the LLLTs’ ability to provide efficient services to clients. LLLTs report that mistakes made by clients at hearings, such as incorrectly answering questions from the judge due to a lack of understanding of legal terminology, handing the court the wrong suggested order, and not understanding orders from the court or court procedures, are negatively impacting the cases by causing unnecessary confusion, repetition, and delays.

The amendments to the main paragraph of APR 28 Regulation 2(B)(3) and sections (a), (b)(i), and (b)(ii) are grammatical. Substantive amendments regarding the division of real estate and retirement assets can be found in (b)(iii). This amendment would clarify that division or conveyance of formal business entities, commercial property, or residential property would be prohibited except as permitted in Regulation 2(B)(2)(b).

Regulation 2(B)(3)(b)(iv) is a new section containing the current prohibition on LLLTs preparing QDROs and supplemental orders dividing retirement assets.

The LLLT Board suggests removing what is currently Regulation 2(B)(3)(b)(iv) because criminal no contact orders are entered by prosecutors and therefore LLLTs would not be able to enter them even if permitted to do so. Other protection orders currently prohibited in Regulation 2(B)(3)(b)(iv) would also be removed by this amendment because other amendments would permit LLLTs to render these forms of legal assistance if they arise from a domestic relations case.

The new suggested section (ix) would permit LLLTs to render legal assistance with nonparental custody matters and major parenting plan modifications through the adequate cause hearing, unless the terms are agreed to by the parties or one party defaults, in which case there is no prohibition.

The new suggested section (b)(xi) would prohibit LLLTs from providing legal assistance with objections or responses in contested relocation actions.

The suggested deletions of sections (d) and (e) relating to the taking of a deposition and responding to or initiating an appeal have been moved to general prohibitions under APR 28(H).

APR 28 Regulation 3(C)

If the suggested amendments are adopted, changes to the domestic relations scope of practice will require currently licensed LLLTs receive additional training about the enhancements outlined in the suggested amendments. The LLLT Board intends to create and offer mandatory continuing legal education to accomplish this. The LLLT Board will provide notice of the supplemental education requirement and the deadline for completion of the requirement to LLLT candidates and currently licensed LLLTs.

Conclusion

The Court adopted the LLLT license in order to provide greater public access to trained and licensed legal professionals within an approved area of law and proscribed scope of practice. This new and innovative model has drawn notice throughout the country and the world. Educators, Board members, and newly practicing LLLTs have had the opportunity to critically examine the LLLT service model and to observe how the initial formulation of the domestic relations scope of practice impacted clients. Based on those observations and an examination of the license to date, the LLLT Board believes these suggested amendments will serve to enhance public access to the legal system in Washington and will allow LLLTs to provide more comprehensive services to pro se clients in need of legal assistance in family law. These suggested amendments are presented along with corresponding suggested amendments to the LLLT Rules of Professional Conduct and the Rules of Professional Conduct for lawyers that are necessary to implement the suggested amendments to APR 28. The LLLT Board requests the Court adopt all the suggested amendments together.

D. Hearing: Because of the outreach conducted and input previously received by the LLLT Board, a hearing is not requested.

E. Expedited Consideration: Expedited consideration is requested in order to promote the effective practice of licensed LLLTs and align the curriculum of the next cohort of LLLT students.

F. Supporting Material: In addition to the submission of the suggested amendments to APR 28, a copy of the suggested amendments to the LLLT RPC and the Lawyer RPC are included. The LLLT Board is also providing a sample of a Real Property Disposition Form and the April 3, 2017 letter from the Court to the LLLT Board, which stated, “A majority of the Court voted yes to expanding the family law area.”