Proposed Rules ArchivesLLLT RPCs - LLLT RPC 1.0B,1.15A,1.16,1.17,1.2,1.5,1.8,2.1,2.3,3.1,3.6-3.9,4.1-4.3,5.4,5.5,8.1 & 8.4
GR 9 COVER SHEET
Regarding Amendments to ADMISSION AND PRACTICE RULES (APR) 28, APR 28 APPENDIX REGULATIONS OF THE APR 28 LIMITED LICENSE LEGAL TECHNICIAN BOARD, RULES OF PROFESSIONAL CONDUCT (RPC), AND LIMITED LICENSE LEGAL TECHNICIAN RULES OF PROFESSIONAL CONDUCT (LLLT RPC)
APR 28(B)(4) The omitted last sentence “ APR 28(F) Corrected strike through and underlines to reflect correct proposed additions and deletions according to existing language. APR 28(F)(5) Corrected the word “side” to “party”. APR 28(G)(2) The unchanged language of subsection (2) is included because subsection (2)(a) is modified. APPENDIX APR 28(G)(3) Omitted subsection (G)(3) is included but unchanged. APPENDIX APR 28 REGULATION 2(B)(1)(c) The addition of “parentage or paternity” is underlined. APPENDIX APR 28 REGULATION 2(B)(2)(d) Qualified Domestic Relations Order replaces “QDRO” the first time the acronym is used. APPENDIX APR 28 REGULATION 2(B)(3) Corrected the errant strike through to APR(H) APPENDIX APR 28 REGULATION 2(B)(3)(b)(viii) Changed the replacement of RPC 1.0B Washington Comments Removed underline and incorporated existing language “(1-3)”. RPC 1.17 Comment Removed underline from the title “Comment”. RPC 1.17 Comment 19 Removed underline from the word “sale” as it is existing language. RPC 4.3 Comment Removed underline from the title “Comment”. Changed references to the section to reflect “Comment” and “Additional Washington Comment” sections. RPC 5.8 Comment Replaced underlined “Washington Comment” with “Comment” as existing language. RPC 8.1 Comment Removed underline from the title “Comment”. LLLT RPC PREAMBLE Added back the words “AND SCOPE” as existing language. LLLT RPC 1.16 Comment 1 Corrected strike through and underlines to reflect correct proposed additions and deletions according to existing language. LLLT RPC 1.17 The unchanged language prior to subsection (a) is included. GR 9 COVER SHEET Suggested Amendments to LIMITED LICENSE LEGAL TECHNICIAN RULES OF PROFESSIONAL CONDUCT (LLLT RPC) Submitted by the Limited License Legal Technician Board
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: These suggested amendments to the LLLT RPC are presented in conjunction with suggested amendments to Admission and Practice Rule (APR) 28 and related regulations and the Rules of Professional Conduct (Lawyer RPC). The suggested amendments to APR 28 and related regulations enhance the scope of the LLLT Family Law Practice Area. 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. Therefore, the primary purpose of these suggested amendments to the LLLT RPC is to make changes necessary to implement the suggested amendments to APR 28 and related regulations. Drafting Process The LLLT Board is composed of lawyers in private practice, practicing LLLTs, law school and paralegal educators, legal services providers, members of the public, and paralegal advocates. After developing the suggested amendments to APR 28 to enhance the family law practice area, the LLLT Board requested WSBA staff take the lead in drafting and recommending necessary amendments to the LLLT RPC in order to align the LLLT RPC with suggested amendments to APR 28 and related regulations. WSBA staff involved were Douglas Ende (Chief Disciplinary Counsel), Jean McElroy (Chief Regulatory Counsel), Jeanne Marie Clavere (Professional Responsibility Counsel), Robert Henry (Associate Director for Regulatory Services), Renata de Carvalho Garcia (Innovative Licensing Programs Manager), and Joe Terrenzio (Limited License Legal Technician Program Lead). The issues that caused the most discussion were the following: ● The scope of an LLLT’s enhanced role as an advocate and as a negotiator; ● The interactions between an LLLT’s role in advising a pro se client and the rules governing communications with represented and unrepresented parties; and ● The limitations on an LLLT’s communications with a tribunal under the enhanced scope of practice. As in the original drafting of the LLLT RPC, the LLLT RPC mirror the Lawyer RPC with only slight modification. When a Lawyer RPC does not apply in the LLLT context, the rule is reserved. The LLLT Board reviewed successive drafts of the suggested amendments to the LLLT RPC and offered critiques and feedback throughout the process before approving the final suggested amendments to the LLLT RPC at the December 14, 2017, LLLT Board meeting. The LLLT Board also presented these changes to the Board of Governors in January 2018. The following describes the LLLT Board’s suggested amendments to the LLLT RPC. Throughout In order to prevent ongoing or future changes to the LLLT RPCs, the suggested amendments would remove large blocks of text copied from APR 28 and replace them with specific or general references to APR 28 and related regulations. Preamble and Scope In paragraph 2, the suggested amendments would remove language stating that an LLLT is not authorized to act as advocate or negotiator. A new clause would be added, stating that to the extent an LLLT is allowed to act as an advocate or as a negotiator under APR 28, an LLLT acts in the best interest of the client. LLLT RPC 1.0B Additional Terminology In (c), the suggested amendments clarify the definition of a lawyer. The former definition stated only that a lawyer was a person who held a license to practice law in any United States jurisdiction. In Washington, LLLTs, limited practice officers, and lawyers hold licenses to practice law, therefore requiring further clarification in the definition of the term “lawyer” in the Washington LLLT RPC. The amended definition matches the definition of lawyer in the suggested amendments to APR 28. The suggested amendments to subsection (e) would remove the phrase “licensed under APR 28” from the definition of legal practitioner because the reference to APR 28 already exists in the definition of an LLLT. The suggested amendments to subsection (f) would remove the final sentence stating that an LLLT does not represent a client in court proceedings or negotiations to match the definition in the suggested amendments to APR 28. The sentence that would be removed relates to scope rather than a definition of an LLLT. The suggested amendments to subsection (g) would correct the name and acronym for the Rules for Enforcement of Limited License Legal Technician Conduct. LLLT RPC 1.2 Scope of Representation and Allocation of Authority between Client and LLLT The suggested amendments to 1.2(a) would add an additional sentence stating that a LLLT shall abide by a client’s decision whether to settle a matter. This addition helps clarify that the client, not the LLLT, has decision making authority in a settlement negotiation. In comment 2, the suggested amendments would remove the first sentence stating that negotiation is prohibited. The second sentence would be rephrased to align with the suggested amendments to APR 28. In comment 4, the suggested amendments would clarify an LLLT’s obligations when an issue is outside of the authorized scope of practice. In comment 5, a reference to APR 28(G)(2) would be corrected to APR 28(G)(1). In comment 6, a reference to APR 28(G)(5) would be corrected to APR 28(G)(3). The suggested amendments to comment 7 would remove and reserve it because the comment is inaccurate and duplicative of the APR 28(G)(4) signature requirement without discussing any professional responsibility matters. LLLT RPC 1.5 Fees In comment 4, a reference to APR 28(G)(3) would be corrected to APR28(G)(2). The final sentence referencing comment 2 to Rule 1.2 would be removed because it is unnecessary. In comment 5, a reference to APR 28(G)(3) would be corrected to APR28(G)(2). LLLT RPC 1.8 Conflict of Interest: Current Clients: Specific Rules The suggested amendments to comment 3 would remove the first sentence stating that LLLTs may not advocate for or appear in court on behalf of a client because LLLTs will be permitted to accompany and assist clients at certain hearings if the suggested amendments to APR 28 are adopted. The suggested amendments to comment 4 would clarify that an LLLT’s scope of practice does not include aggregate settlements. LLLT RPC 1.15A Safeguarding Property Suggested amendments to subsection (i) would correct references to the ELLLTC or refer to the ELC when the referenced provision does not exist in the ELLLTC. LLLT RPC 1.16 Declining or Termination Representation Suggested amendments to comment 1 would match the suggested amendments to APR 28 allowing LLLTs to accompany and assist clients before tribunals. It also would clarify that LLLTs represent pro se clients and accordingly, LLLTs would not file a notice of appearance. LLLT RPC 1.17 Sale of a Law Practice In subsection (d), the suggested amendments would change “legal and LLLT fees” to “fees.” Suggested amendments to comment 2 would explain that a firm of only LLLTs cannot purchase a law practice that would require they provide services beyond their authorized scope of practice. LLLT RPC 2.3 [Reserved] Suggested amendments to comment 1 would match the suggested amendments to APR 28 allowing LLLTs to communicate a client’s position to a third party. They would also clarify that an LLLT should refer to the Lawyer RPC for guidance if a third party evaluation comes up in the LLLT’s scope of practice. LLLT RPC 3.1 Advising and Assisting Clients in Proceedings Before a Tribunal The suggested amendments in subsection (a) would add the word “engage” to clarify that the rule applies to the LLLT’s own behavior before a tribunal because LLLTs will be permitted to accompany and assist clients at certain court hearings if the suggested amendments to APR 28 are adopted. The suggested amendments to subsection (a)(6) would add the valid exception for disobeying an obligation under the rules of a tribunal to be consistent with the Lawyer RPC. The suggested amendments to comment 1 are meant to address an LLLT’s role as an advocate under the enhanced scope of practice in the suggested amendments to APR 28. Comment 2 would be deleted because it will no longer apply under the enhanced scope of practice if the suggested amendments to APR 28 are adopted. Comment 3 would be renumbered as comment 2, and the reference for Title 3 of the Lawyer RPC would be rephrased for clarity. LLLT RPC 3.6-3.9 [Reserved] The numbers in the comments would reflect the changes to the suggested amendments to the comments in LLLT RPC 3.1. LLLT RPC 4.1 Truthfulness in Statements to Others Comment 2 would be deleted because the comment repeating the signature requirement in APR 28(G) is unnecessary. LLLT RPC 4.2 Communication with Person Represented by Lawyer The suggested amendments to comment 1 would delete sentences 6 and 7 and the final clause of sentence 5 because they would no longer be accurate under the enhanced scope of practice in the suggested amendments to APR 28. LLLT RPC 4.3 Dealing with Person Not Represented by Lawyer Subsection (b) would be deleted because it would no longer be accurate under the enhanced scope of practice in the suggested amendments to APR 28. Because (b) would be deleted, comment 2, which had discussed (b), would be deleted and reserved. In comment 3, the final sentence would be deleted because it would no longer be accurate under the suggested amendments to APR 28. In comment 4, the first sentence would be deleted because it would no longer be accurate under the suggested amendments to APR 28. LLLT RPC 5.4 Professional Independence of an LLLT In several places, “non-LLLT” would be rewritten to eliminate use of the exclusionary and awkward term “non-LLLT”. Comment 2 would be rephrased to make it more active language. LLLT RPC 5.5 Unauthorized Practice of Law In comment 1, the reference to APR 28(H)(7) would be corrected to APR28(H)(6). In comment 2, the word “programs” would be deleted for consistency with other language referring to limited licenses. “[N]onlawyers” would be replaced with “limited license practitioners” to eliminate use of the exclusionary and awkward term “nonlawyers.” LLLT RPC 8.1 Licensing, Admission, and Disciplinary Matters The rule’s name would be changed from “Limited Licensure and Disciplinary Matters” to “Licensing, Admission, and Disciplinary Matters” to reflect the unified licensing, admissions, and disciplinary processes for all licenses to practice law in Washington. The rule would be rewritten because LLLTs are now members of the WSBA. In comment 1, the language highlighting that LLLTs are not admitted to the Bar would be removed because it is no longer accurate. LLLTs are admitted to the practice of law and are members of the WSBA. See APR 5(l) and WSBA Bylaws Art. III sec. (1)(b). LLLT RPC 8.4 Misconduct In (l), the references to the LLLT Rules for Enforcement of Conduct would be corrected to the ELLLTC. Conclusion The LLLT Board voted unanimously to approve the suggested amendments to the LLLT RPC for submission to the Washington Supreme Court at its December 14, 2017 meeting. The LLLT Board believes it is important that these suggested amendments to the LLLT RPC be adopted and effective together with the suggested amendments to APR 28 and the Lawyer RPC as soon as possible. If adopted, the suggested amendments to the LLLT RPC and suggested amendments to APR 28 will be incorporated into the LLLT Family Law Practice Area Curriculum and will be tested on the LLLT Family Law Practice Area and Professional Responsibility Exams. A mandatory continuing legal education program will be developed to educate LLLT candidates and currently licensed LLLTs about these changes and the impact on their practices. The first LLLT Practice Area and Professional Responsibility Exams to test on these amendments could be held in July 2019. 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 prevent delaying implementation of the necessary changes to LLLT education, continuing legal education, and examinations. The LLLT program’s goal is to provide much needed access to justice. Therefore, delay of this program also causes continued delay in providing relief to those in need of LLLT services. F. Supporting Materials: In addition to the submission of the suggested amendments to the LLLT RPC, a copy of the suggested amendments to APR 28 and the Lawyer RPC are also 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.” |
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