APR 28 Regs - Regulations of the APR 28 Limited License Legal Technician Board

• Proposed Changes to APR 28 Regs - Regulations of the APR 28 Limited License Legal Technician Board (in Word Format)
• Comments Received for APR 28 Regs - Regulations of the APR 28 Limited License Legal Technician Board

Purpose: The primary purpose for the suggested amendments and new regulations to Appendix APR 28 is to complete the basic regulatory framework for licensing LLLTs. Washington State Bar Association staff prepared the initial drafts of these proposed amendments and new regulations and presented them to the LLLT Board for discussion at two meetings. 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 the amendments and new regulations as proposed by staff with only slight modification where necessary.

In addition to some technical amendments, the suggested amendments and new regulations will provide for the efficient administration of the LLLT program. The suggested amendments and new regulations to Appendix APR 28 set forth procedures for the administration of the program and licensing of LLLTs, including procedures for character and fitness review; completing the core and professional responsibility examination; filing trust account declarations, reporting continuing education; administrative suspensions; inactive status; voluntary cancellation of the LLLT license; and reapplication for licensure after disciplinary revocation. The following describes each regulation and whether the proposed amendments to it are technical in nature, administrative, or substantive, or whether it is a new regulation:

Regulation 1: In General

The Board suggests a technical amendment to change the term “WSBA” to “Association” to make the regulations consistent with other court rules.

Regulation 2: Practice Areas—Scope of Practice Authorized by Limited License Legal Technician Rule

In subpart A to Regulation 2, the Board suggests an administrative amendment to delete the second to last sentence. After a client consults with an attorney for a matter beyond the LLLT’s scope of practice and returns to the LLLT with written instructions from the attorney, the Board believes it was not the intent of the rules to imply LLLTs may follow those instructions for “final court orders” only. It is anticipated that LLLTs will perform other services not limited to final court orders and, thus, this provision is unnecessarily limiting. The Board believes that the paragraph accomplishes the same purpose without the sentence and without limiting the types of work the LLLT can do after written instructions are obtained from a lawyer. Additionally, in subpart B(3)(c)(v), the Board suggests changing the term “pseudo-community property” to “jointly acquired committed intimate relationship property” to reflect current case law.

Regulation 3: Education Requirements for Applicants

The Board suggests technical amendments to change the term “WSBA” to “Association” to make the regulations consistent with other court rules.

Regulation 4: Limited Time Waivers

In addition to technical amendments related to changing the term “WSBA” to “Association,” the Board suggests an administrative amendment to allow the Board to set policies regarding approved national paralegal certification examinations that qualify for the limited time waiver, as an additional paralegal examination has been identified that qualifies for the waiver: the NALS Professional Paralegal Examination, an examination that is substantially equivalent to the other two qualifying examinations.

Regulation 5: Applications

In addition to technical amendments related to changing the term “WSBA” to “Association,” the Board suggests the following administrative amendment to require applications and proof of education be provided “in a form and manner as prescribed by the Board.” This will allow the Board to set policies on such matters consistent with technological and administrative resources available at the WSBA. Additionally, the Board suggests requiring applicants to provide proof of passage of the core examination prior to applying for the licensure consistent with the Board’s recommendation that the core examination be a national paralegal certifying exam as described below under Regulation 8.

Regulation 6: Approval or Denial of Application on Administrative Grounds

The Board suggests technical amendments to change the term “WSBA” to “Association” to make the regulations consistent with other court rules.

NEW Regulation 7: Character and Fitness

The Board recommends that new Regulation 7 regarding character and fitness procedures mirror the lawyer system. However, a Character and Fitness Committee of the Board would preside over hearings and the Board would hear appeals. This is different from the lawyer system in which there is a Character and Fitness Board separate from and appointed by the Board of Governors.

Regulation 8: Examinations; Notification of Results

The Board recommends a substantive amendment to require that the core examination be satisfied by passing a national certifying paralegal examination approved by the Board. After thorough vetting, the LLLT Board believes that the National Federation of Paralegal Associations’ (NFPA) Paralegal Core Competency (PCC) Exam will sufficiently test LLLT applicants on knowledge of the core subjects. The PCC Exam was developed in partnership with not-for-profit Professional Examination Services (PES), a testing organization that assists in the development and administration of licensing and certification exams. The NFPA and PES used job studies, statistics, scientific data, and psychometrics to develop the exam. For the PCC Exam, NFPA surveyed subject matter experts, including judges, Registered Paralegals, paralegal educators, and paralegal employers, to create the categories of core competencies to test for early career or entry level paralegals. The exam tests coursework in various paralegal programs, basic knowledge entry-level paralegals should possess, and skills essential to basic paralegal competency.

In addition, APR 28C(2)(c) requires the LLLT examination to cover LLLT ethical obligations. To ensure applicants demonstrate minimum competency in ethics prior to initial licensure, the Board recommends a substantive amendment that the professional responsibility portion of the exam be a one-time, multiple choice exam graded separately from the practice area examination. The professional responsibility exam will test on LLLT ethical duties as set forth in APR 28, the LLLT Rules of Professional Conduct, and LLLT scope of practice as set forth in APR 28F and H. Having a separate, multiple choice ethics exam is consistent with the lawyer professional responsibility exam, the Multistate Professional Responsibility Exam.

The additional administrative amendments to Regulation 8 clarify the requirements of the practice area examination.

Regulation 9: Substantive Law-related Work Experience Requirement

The Board suggests administrative amendments to Regulation 9 that reflect that the Board will issue results for practice area and professional responsibility examinations only, based on its recommendation that the core exam be administered by a national paralegal organization.

Regulation 10: Certification of Results to Supreme Court; Oath

In addition to one technical amendment to put in lower case the term “state” in the Oath, the Board suggests administrative amendments to Regulation 10 that reflect that the Board will issue results for practice area and professional responsibility examinations only, based on its recommendation that the core exam be administered by a national paralegal organization. Additionally, based on suggested changes to Regulation 11 regarding annual fees as described below, the Board recommends a technical amendment to subpart C that reflects the recommendation of a fee schedule.

Regulation 11: Annual License Fees

In order to simplify the fee structure for annual license fees, the Board recommends administrative amendments that would provide for a fee schedule¹ that would be approved by the Board and the Court rather than identifying unique practice area fees.

Further, consistent with the timing of the limited practice officer continuing licensing period, the Board recommends that the LLLT annual licensing period be from July 1 to June 30. The deadlines for payment and showing proof of continuing licensing requirements would be August 1, as is reflected in the proposed new regulations related to continuing licensing.

Regulation 12: Financial Responsibility

The Board believes there is a strong likelihood LLLTs will be employed by governmental entities in the future and, as such, recommends an administrative amendment to Regulation 12 that would allow LLLTs to show proof of indemnification by their government employer in lieu of professional liability insurance. The Board further recommends an administrative amendment that reflects the proposed annual licensing period for LLLTs.

NEW Regulation 13: Trust Account Declarations

The Board suggests new Regulation 13 that would require the filing of annual trust account declarations, which is meant to ensure LLLTs comply with their trust account obligations under LLLT Rules of Professional Conduct 1.15A and 1.15B. The new regulation further reflects the proposed annual licensing period for LLLTs.

NEW Regulation 14: Continuing Education

The Board recommends suggested new Regulation 14 regarding continuing education requirements, which would require a minimum of ten hours of coursework similar to the requirements of limited practice officers. Under the proposed regulation, LLLTs would be required to complete a minimum two hours of legal ethics, and their courses must relate to their scope and area of practice or the core curriculum as set forth in Regulation 3. The Board further recommends that it be allowed to set its own continuing education policies that would not require Supreme Court approval for implementation. This would include LLLT reporting and sponsor application policies.

NEW Regulation 15: Administrative Suspension from Limited Practice

The Board recommends suggested new Regulation 15 relating to administrative suspensions. Like lawyers (see APR 17), the proposed regulation would subject LLLTs to suspension for failure to comply with their licensing requirements and for notification that the LLLT is six months delinquent on court-ordered child support obligations. Additionally, similarly to lawyers, under the proposed regulation, the Court could enter an order at any time changing the administratively suspended LLLT to active status on a showing that the LLLT meets all other requirements for limited practice.

NEW Regulation 16: Inactive Status

The Board recommends suggested new Regulation 16 regarding LLLT transfers to inactive status. Like with limited practice officers, under the proposed regulation, LLLTs would be able to return to active status by filing an application with the Board after meeting all other licensing requirements.

NEW Regulation 17: Voluntary Cancellation of License

The Board recommends new Regulation 17, which would set forth procedures for voluntarily cancelling the LLLT license similar to procedures for limited practice officers; however, unique to the LLLT license, LLLTs would have the option of cancelling a single practice area license if the LLLT is licensed in more than one practice area.

NEW Regulation 18: Reapplication for Licensure after Disciplinary Revocation

The Board recommends new Regulation 18 that would allow reapplications for licensure after disciplinary revocation. Similar to lawyers, applicants for LLLT licensure would be required to wait five years after revocation to reapply. The Board chose to recommend a longer period for reapplication than the two years for limited practice officers given the broader scope of services LLLTs provide and the need to make the threat of disciplinary revocation a clear deterrent for misconduct by LLLTs.

NEW Regulation 19: Notice and Filing

Similar to instructions provided to limited practice officers in their relevant regulations, the Board recommends new Regulation 19 that would provide clear direction to applicants for limited licensure and LLLTs regarding where to direct notices and filings required by the Regulations.

NEW Regulation 20: Amendment and Board Policies

The Board recommends new Regulation 20, which would empower the Board to make changes to Appendix APR 28 with Supreme Court approval and implement policies for the administration of the program.

Conclusion

The LLLT Board believes that it is important that these proposed amendments be adopted and effective as soon as possible. Notably, if adopted, proof of passing the PCC exam will be required prior to sitting for the LLLT licensing exam in March 2015; as such, applicants will need sufficient lead time to prepare for, take the exam, and obtain their results from NFPA.

¹ A proposed fee schedule will be submitted to the Court at a later date.