GR 9 COVER SHEET

Suggested New General Rule

Submitted by the Washington State Association of County Clerks

A.   Name of Proponent:  Washington State Association of County Clerks

Spokesperson:  Ruth Gordon, Jefferson County Clerk, PO Box 1220, Port Townsend, WA 98368-6951, 360-385-9128, rgordon@co.jefferson.wa.us ; Dave Peterson, Kitsap County Clerk, 614 Division Street, MS-34, Port Orchard, WA  98366-4692,360-337-7001, dpeterson@co.kitsap.wa.us ;Barbara Miner, King County Clerk, 516 Third Avenue, RM E609, Seattle, WA  98104, 206-477-0777 barbara.miner@kingcounty.gov 

B.   Purpose: “The mission of Washington courts is to protect the liberties guaranteed by the constitution and laws of the state of Washington and the United States; impartially uphold and interpret the law; and provide open, just and timely resolution of all matters,”  states Chief Justice Barbara A. Madsen in her welcome to the courts’ web site.  A widely held view is that courts and legal processes were developed by lawyers, for lawyers.  But to meet today’s demands for access to justice, courts must tailor their mission for not only lawyers and their clients, but for the unrepresented as well. 

“Low-income people face more than 85 percent of their legal problems without help from an attorney. Attorney assistance is most successfully secured in family-related matters, but even here only 30 percent of legal problems reported are addressed with the assistance of an attorney. Removing family-related problems, low-income people receive help from an attorney with respect to less than 10 percent of all civil legal problems.”  The Washington State Civil Legal Needs Study, 2003, p.8. Guardianships were included in the list of legal problems that need to be addressed. Additionally, in 2004 The Practice of Law Board’s Courthouse Facilitator Expansion Committee issued a report in which it recommended guardianships as an area of law ripe for courthouse facilitator services.

The number of very elderly people in Washington State is rising steadily and will continue to do so for several decades.  Superior Courts and Clerks must position themselves now to meet the needs of unrepresented parties who struggle to comply with the legal requirements of guardianship administration.  With a growing aged population, courts can expect guardianship filings to increase.  Indeed, for the last four years, guardianship filings have seen a modest but steady increase.  Filings for the first half of 2014 are on track to exceed those in 2013 by a significant margin.  Anecdotal reports from Clerks’ Offices across the state indicate that unrepresented guardians frequently request advice from clerks’ staff on procedures and processes associated with a guardianship and how to meet reporting and other requirements.

The history of the family law courthouse facilitator program offers a model the courts could choose to follow to assist citizens who find themselves assisting an incapacitated family member but without the funds to hire counsel. In 1993, responsing to the ever-growing number of self-represented litigants in family law, Washington State launched the family law courthouse facilitator program, with enabling legislation following a pilot project in seven counties.  The family law courthouse facilitator program is largely considered a resounding success.  See Washington’s Courthouse Facilitator Programs for Self-Represented Litigants in Family Law Cases, Washington State Center for Court Research, 2008.  Since 2002, GR 27 has served to guide facilitator program staff and managers.  The court benefits from a more-prepared self-represented litigant:  hearings are more likely to be timely and appropriately noted and confirmed; pleadings are more likely to be complete and accurate; unrepresented litigants will better understand hearing procedures and processes. Clerks benefit by not having their front counter staff spend significant time responding to questions that are beyond the scope of their duties and knowledge and that frequently lead them toward the unauthorized practice of law.  The pro se guardian benefits by having trained, knowledgeable facilitators available to assist with complex and often confusing legal requirements.   

The same consumer-protection safeguards in the original GR 27 are still provided for in the new general rule.  Exemption from the unauthorized practice of law is allowed only for facilitators operating under the new rule.  Continuing oversight is provided by the Guardianship Courthouse Facilitator Advisory Committee.  Initial and ongoing training is required.  The rule will give structure, authority, and protection for those few courts already providing facilitator-like services in guardianship cases and for those that would like to expand facilitation services. 

WSACC is supporting legislation complimentary to this rule in the 2015 legislative session that will sanction facilitators in guardianship cases.  In the proposed rule changes to GR27, there are holding places for the actual RCW citation that will result from the legislation.

C.   Hearing.  A hearing is not requested.

D.   Expedited Consideration:  Expedited consideration is not requested.

E.   Supporting Material:  Letter of Support from Elder Law Section of WSBA (attached); Practice of Law Board Courthouse Facilitator Expansion Committee Report; Washington’s Courthouse Facilitator Programs for Self-Represented Litigants in Family Law Cases; Washington State Civil Legal Needs Study