Suggested

SUGGESTED CONFORMING AMENDMENTS TO OTHER COURT RULES RELATED TO SUGGESTED RULES FOR DISCIPLINE AND INCAPACITY (RDI)

ELC; ELPOC; ELLLTC; GR 1, 12.4. 12.5, and 24; RPC 1.0B, 1.6, 1.15A, 5.4, 5.6, 5.8, 8.1, 8.4, and 8.5; LLLT RPC 1.0B, 1.15A, 5.4, 5.8, and 8.4; LPORPC 1.0, 1.8, 1.10, and 1.12A; APR 1, 5, 8, 9, 12, 14, 15, 15 Procedural Regulation 6, 22.1, 23, 24.1, 24.2, 25.1, 25.5, and 28; and new APR 29 and 30

 

A.     Proponent

Terra Nevitt, Executive Director

Washington State Bar Association

B.      Spokespersons

Douglas J. Ende, Chief Disciplinary Counsel

Washington State Bar Association

 

Julie Shankland, General Counsel

Washington State Bar Association

 

C.      Purpose

The proponent suggests a series of conforming amendments to other court rules as necessary to implement the new suggested disciplinary procedural rules for Washington State’s discipline and incapacity system, the Rules for Discipline and Incapacity (RDI), should they be adopted.

If the suggested RDI are adopted, conforming amendments are necessary to other sets of rules that either cross-reference or give effect to the Rules for Enforcement of Lawyer Conduct (ELC), Rules for Enforcement of Limited Practice Officer Conduct (ELPOC), or Rules for Enforcement of Limited License Legal Technician Conduct (ELLLTC).  Most of the conforming amendments are technical amendments that change citations and cross-references from the current rules to the new suggested RDI.  In addition, the names of entities and other terminology is amended to reflect the new terminology used in the RDI.

In addition, the conforming amendments capture any other technical updates needed such as updating names of other rule sets or cross-references that might have been overlooked from prior amendments to various rules over the years.  A small number of substantive changes to rules other than the RDI have been suggested, as identified below.

ELC

If the Court elects to adopt these suggested rules, the ELC need to be rescinded in their entirety to be replaced by the RDI.

ELPOC

If the Court elects to adopt these suggested rules, the ELPOC need to be rescinded in their entirety to be replaced by the RDI.

ELLLTC

The ELLLTC were adopted by the Court not as published rules but as an interim provision until a set of disciplinary procedural rules was drafted to replace it.  See In re the Matter of—Enforcement of Limited License Legal Technician Conduct, Order No. 25700-A-1136 (Jan. 7, 2006).  If the Court elects to adopt these suggested rules, Order No. 25700-A-1136 needs to be rescinded.

RPC 1.0B(d), LPOROPC 1.0(f), LLLT RPC 1.0B(g)

The definition of LPO is amended due to prior amendments to the APR.  Under those prior amendments, the term “certification” was changed to “license” and the APR 12 regulations were rescinded.  The LPO definition is also added to the LLLT RPC because LPOs are now referenced in that set of rules also.

RPC 5.8, LLLT RPC 5.8, LPORPC 1.8

These rules prohibit licensed legal professionals from working with other licensed legal professionals who are disbarred or suspended or whose licenses have been revoked.  The suggested amendments contain a significant change, which would limit the prohibition for suspension to a disciplinary suspension, i.e., the suggested amendments make it permissible to work with a licensed legal professional who is under an administrative suspension (e.g., suspended for failing to pay the license fee).  The prohibition for LPOs remains limited to other LPOs.

LPORPC 1.12A(i)

This rule is amended so that the text of the rule more closely mirrors the text of the lawyer RPC 1.15A(i) and LLLT RPC 1.15A(i).

APR 1(d)(5)

This new section adds a confidentiality provision relating to incapacity inactive status under APR 30, which is a new rule being suggested as part of this submission (see below).

APR 23(f)

The RDI do not contain procedures for disqualification.  Instead, regulatory adjudicators look to the Code of Judicial Conduct (CJC).  Thus, Character and Fitness Board members likewise should look to the CJC regarding disqualification when a complaint is filed against a board member.

APR 24.1 – APR 25.5

Currently under the APR, when the Character and Fitness Board recommends against admission in a reinstatement from disbarment proceeding, the petitioner has a right to an intermediate appeal to the Disciplinary Board.  This intermediate appeal is unique to reinstatement after disbarment proceedings.  For all other character and fitness matters, the only appeal is to the Washington Supreme Court.  With the elimination of the Disciplinary Board under the RDI, and to make the reinstatement process more procedurally analogous to character and fitness matters generally, the intermediate appeal is removed from the APR in these suggested amendments.  In addition, these suggested amendments reflect other procedural changes necessitated by the removal of the appeal to the Disciplinary Board.  Some procedural amendments also reflect current practice in these proceedings.

APR 29 Lawyer Trust Account Declaration

This is a new rule.  Currently, the trust account declaration requirement for lawyers is in the ELC.  See ELC 15.5 (Declaration).  For LLLTs and LPOs, it is in the APR.  As an annual licensing requirement to practice law, this provision is best situated in the Admission and Practice Rules. 

APR 30 Voluntary Incapacity Inactive Status

This is a new rule for voluntarily requesting incapacity inactive status.  There are a few requests every year for incapacity inactive status (currently called disability inactive status).  Under the current rules, the only way to accomplish this status change is under ELC 8.5 (Stipulated Transfer to Disability Inactive Status), which is a discipline-system process.  This process is unnecessarily cumbersome and potentially stigmatizing for situations when a licensed legal professional seeks only to demonstrate incapacity to practice law.  Under this suggested rule, there would be a simple application process handled by the WSBA Regulatory Services Department.  To prevent abuse, the licensed legal professional must not have any pending discipline or incapacity matters in order to use this new provision.  In addition, the licensed legal professional must seek reinstatement in the same manner as any other licensed legal professional on incapacity inactive status.