Proposed Rules Archives

• Proposed Changes to APR 15 - Lawyers' Fund for Client Protection (in Word Format)
• No comments were submitted.

Purpose: The rules of the Supreme Court relating to admissions, discipline, and the Lawyers' Assistance Program provide that the Washington State Bar Association and its officers, employees and volunteers, acting as agents of the Supreme Court, are immune and exonerated from civil liability. The purpose of this rule amendment is to extend that same immunity and exoneration from liability to the Association and its officers and agents in carrying out their investigative and adjudicative duties under Supreme Court rules with regard to the Lawyers' Fund for Client Protection. It is modeled on the exoneration from liability provision of the Rules for Enforcement of Lawyer Conduct, ELC 2.12.

This is consistent with settled law which provides that judicial officers, whether acting in their judicial or legislative capacities, enjoy absolute immunity from civil rights damages actions. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed. 2d 641 (1980); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed. 2d 331 (1978). Case law in the Ninth Circuit holds that immunity extends to the WSBA in carrying out the functions of the Supreme Court pursuant to court rule. Clark v. State of Washington, 366 F.2d 678 (9th Cir., 1966); Hirsh v. Justices of the Supreme Court of California, 67 F. 3d 708 (1995).

When the WSBA conducts admissions, disciplinary or disability proceedings, it does so as the agent of the Supreme Court. Hahn v. Boeing Company, 95 Wn. 2d 28, 621 P.2d 1263 (1980); State ex rel. Schwab v. State Bar Association, 80 Wn. 2d 266, 493 P.2d 1237 (1972). The same is true for proceedings relating to applications to the Fund.

Although many of the applications to the Fund are also the subject of disciplinary investigations, in many instances the Fund and its staff, Committee members and Trustees have to conduct an independent investigation, for example where applications are submitted after a lawyer has been disbarred. The investigation is conducted in the same manner as a disciplinary investigation, and the Lawyers' Fund for Client Protection Committee and the Fund Trustees are charged with the duty to determine whether the applicant has been the victim of dishonest conduct by a lawyer. This is a comparable adjudicatory function to that conducted by the Disciplinary Board.

The American Bar Association Model Rules for Lawyers' Fund for Client Protection comment that "As a matter of public policy, immunity should attach to the Fund's activities and proceedings in the same way that absolute immunity attaches in lawyer disciplinary proceedings." The comment notes, "Immunity from civil liability encourages lawyers and nonlawyers to serve on the [Fund Committee], and protects their independent judgment in the evaluation of claims. Immunity also protects the fiscal integrity of the Fund, and encourages claimants and lawyers to participate in seeking reimbursement for eligible losses."

For these reasons, exoneration from liability provided for persons operating under the court rules relating to lawyer disciplinary proceedings should be extended to persons operating under court rules relating to the Fund.