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In re Proposed Amendments to Apr 28-Limited Practice Rule for Limited License Legal Technicians

Supreme Court of Washington

May 1, 2019

IN THE MATTER OF PROPOSED AMENDMENTS TO APR 28-LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS; APR 28 APPENDIX-REGULATION 2 PRACTICE AREAS-SCOPE OF PRACTICE AUTHORIZED BY LIMITED LICENSE LEGAL TECHNICIAN RULE; APR 28 APPENDIX REGULATION 3-EDUCATION REQUIREMENTS FOR LLLT APPLICANTS AND APPROVAL OF EDUCATIONAL PROGRAMS; RULES OF PROFESSIONAL CONDUCT (RPC) LOB-ADDITIONAL WASHINGTON TERMINOLOGY; RPC 1.17-SALE OF LAW PRACTICE; RPC 4.3-DEALING WITH A PERSON NOT REPRESENTED BY A LAWYER; RPC 5.8-MISCONDUCT INVOLVING LAWYERS AND LLLTs NOT ACTIVELY LICENSED TO PRACTICE LAW; RPC 8.1-BAR ADMISSION AND DISCIPLINARY MATTERS; AND LLLT RULES OF PROFESSIONAL CONDUCT (LLLT RPC) LLLT RPC 1 .OB-ADDITIONAL TERMINOLOGY; LLLT RPC 1.2-SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LLLT; LLLT RPC 1.5-FEES; LLLT RPC 1.17; LLLT RPC 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES; LLLT RPC 1.15A-SAFEGUARDING POLICY; LLLT RPC 1.16-DECLINING OR TERMINATING REPRESENTATION; LLLT RPC 1.7 SALE OF A LAW PRACTICE; LLLT RPC 2.1: LLLT RPC 2.3 [RESERVED]: LLLT RPC 3.1-ADVISING AND ASSISTING CLIENTS IN PROCEEDINGS BEFORE A TRIBUNAL; LLLT RPC 3.6-3.9 [RESERVED]; LLLT RPC 4.1 - TRUTHFULNESS PN STATEMENTS TO OTHERS: LLLT RPC 4.2-COMMUNICATION WITH PERSON REPRESENTED BY LAWYER; LLLT RPC 4.3-DEALING WITH PERSON NOT REPRESENTED BY LAWYER; LLLT RPC 5.4-PROFESSIONAL INDEPENDENCE OF A LLLT; LLLT RPC 5.5 UNAUTHORIZED PRACTICE OF LAW; LLLT RPC 8.1- LICENSING, ADMISSION, AND DISCIPLINARY MATTERS; LLLT RPC 8.4-MISCONDUCT

          ORDER

         The Washington State Supreme Court Limited License Legal Technician Board, having recommended the expeditious adoption of the proposed amendments to APR 28, APR 28 Appendix, RPCs and LLLT RPCs, and the Court having considered the amendments, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

         Now, therefore, it is hereby

         ORDERED:

         (a) That the proposed amendments as attached hereto are adopted.

         (b) That pursuant to the emergency provisions of GR 9(j)(1), the proposed amendments will be published expeditiously in the Washington Reports and will become effective upon publication.

          GonzAlez, J. (dissenting)-I cannot join the court's decision today. Any decision to expand the scope of the Limited License Legal Technician (LLLT) program requires careful evaluation of the program's sustainability, its potential benefits, and establishment of a methodology that will both ensure adherence to rules of professional conduct and ensure adequate client protection. We have the opportunity to do this as we are undertaking a comprehensive review of the structure of the Bar. Ironically, the majority fundamentally changes the LLLT program when, at the same time, we have required the Board of Governors to defer action on any proposed bylaw amendments concerning the role of LLLTs in the governance of the bar. Because the majority's ill-advised decision is a mistake and because it becomes effective on publication, I respectfully dissent.

         The LLLT program was conceived as an effort to address the unmet civil legal needs of low-income Washingtonians. We ultimately determined that the area that needed most attention was family law and that assistance with preparing orders and assisting individuals with filling out forms would make a significant difference. It did not take long to realize that the business model adopted by the LLLT program was incompatible with meeting the needs of low-income individuals and so the program shifted to becoming a moderate means effort. Without any evidence of success, the program has begun expanding the scope of legal services that LLLTs are allowed to provide.

         LLLTs were never meant to legally advocate on behalf of a client. The majority's hasty decision fundamentally alters the role of LLLTs, allowing LLLTs to immediately begin negotiating with opposing counsel, attending depositions, and appearing and responding to questions from the court without adequate legal training. Moreover, there is no training for judges or attorneys to accommodate this significant and immediate expansion of authority.

         Further, even with this expansion, I have serious doubts that the LLLT program is financially sustainable for the Bar or provides a sustainable practice area for LLLTs themselves. It is entirely possible that we could tweak the program into financial sustainability, but we have been presented with no business plan or other meaningful evidence of how that might be done in a way that protects the public. Until the evidence supports a conclusion that the program can be sustainable without harm to the public, I am opposed to expanding its scope. The significant financial burden of the LLLT program on the Washington State Bar Association is not justified without a showing that there exists a sustainable business plan allowing LLLTs to meet the population's unmet legal needs.

         We must address the issue of unmet legal needs, but we must do it wisely and carefully. I respectfully dissent.

         SUGGESTED AMENDMENTS TO APR 28

         TITLE

         ADMISSION AND PRACTICE RULES (APR)

         RULE 28. LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS

         A. Purpose.

         [Unchanged.]

         B. Definitions.

         For purposes of this rule, the following definitions will apply:

         (1)-(3) [Unchanged.]

         (4) "Limited License Legal Technician" (LLLT) means a person qualified by education, training, and work experience who is authorized to engage in the limited practice of law in approved practice areas of law as specified by this rule and related regulations. The legal technician does not represent the client in court proceedings or negotiations, but provides limited legal assistance as set forth in this rule to a pro se client. (5)-(10) [Unchanged.]

         C. Limited License Legal Technician Board [Unchanged.]

         D. [Reserved.]

         E. [Reserved.]

         F. Scope of Practice Authorized by Limited Practice Rule. The Limited License Legal Technician shall ascertain whether the issue is within the defined practice area for which the LLLT is licensed, ft-if If it is not, the LLLT shall not render any legal assistance provide the services required on this issue and shall advise inform the client to that the client should seek the services of a lawyer. If the issue is within the defined practice area, the LLLT may render the following limited legal assistance to a pro se client undertake the following:

         (1)-(2) [Unchanged.]

         (3) Inform the client of and assist with applicable procedures for proper service of process and filing of legal documents;

         (4) [Unchanged.]

         (5)Review documents or exhibits that the client has received from the opposing party, and explain them to the client;

         (6)-(7) [Unchanged.]

         (8) Draft letters setting forth legal opinions that are intended to be read by persons other than the client:, -and

         (9) Ddraft documents beyond what is permitted in paragraph (6), if the work is reviewed and approved by a Washington lawyer;

         (109) Advise thea client as to other documents that may be necessary to the client's case, and explain how such additional documents or pleadings may affect the client's case; (HO) Assist the client in obtaining necessary documents or records, such as birth, death, or marriage certificates.

         (12) Communicate and negotiate with the opposing party or the party's representative regarding procedural matters, such as setting court hearings or other ministerial or civil procedure matters;

         (13) Negotiate the client's legal rights or responsibilities provided that the client has given written consent defining the parameters of the negotiation prior to the onset of the negotiation; and

         (14) Render other types of legal assistance when specifically authorized by the scope of practice regulations for the approved practice area in which the LLLT is licensed.

         G. Conditions Under Which A Limited License Legal Technician May Provide Services

         (1) [Unchanged.]

         (2) Prior to the performance of the services for a fee, the Limited License Legal Technician shall enter into a written contract with the client, signed by both the client and the Limited License Legal Technician, that includes the following provisions:

         (a) An explanation of the services to be performed, including a conspicuous statement that the Limited License Legal Technician may not appear or represent the client in court, formal administrative adjudicative proceedings, or other formal dispute resolution process or negotiate the client's legal rights or responsibilities, unless permitted under GR 24(b) or specifically authorized by the scope of practice regulations for the approved practice area in which the LLLT is licensed;

         (b)-(g) [Unchanged.]

         (3) [Unchanged.]

         (4) A document prepared by an LLLT shall include the LLLT's name, signature, and license • number beneath the signature of the client. LLLTs do not need to sign sworn statements or declarations of the client or a third party, and do not need to sign documents that do not require a signature by the client, such as information sheets.

         H. Prohibited Acts.

         In the course of dealing with clients or prospective clients, a Limited License Legal Technician shall not:

         (1)-(4) [Unchanged.]

         (5) Represent a client in court proceedings, formal administrative adjudicative proceedings, or other formal dispute resolution process, unless permitted by GR 24 or specifically authorized by the scope of practice regulations for the approved practice area in which the LLLT is licensed; (6) Negotiate the client's legal rights or responsibilities, or communicate with another person the client's position or convey to the client the position of another party, unless permitted by GR 24(b);

         (67) Provide services to a client in connection with a legal matter in another state, unless permitted by the laws of that state to perform such services for the client;

         (78) Represent or otherwise provide legal or law related services to a client, except as permitted by law, this rule, or associated rules and regulations;

         (8) Conduct or defend a deposition;

         (9) Initiate or respond to an appeal to an appellate court; and

         (109) Otherwise violate the Limited License Legal Technician Rules of Professional Conduct. I.-O. [Unchanged.]

         APPENDIX APR 28. REGULATIONS OF THE APR 28 LIMITED LICENSE LEGAL

         TECHNICIAN BOARD

         REGULATION 1. [Reserved.]

         REGULATION 2. Approved Practice Areas-Scope of Practice Authorized by Limited

         License Legal Technician Rule In each practice area in which an LLLT is licensed, the LLLT shall comply with the provisions defining the scope of practice as found in APR 28 and as described herein.

         A. Issues Beyond the Scope of Authorized Practice.

         [Unchanged.]

         1.- 4. [Unchanged.]

         After an issue beyond the LLLT's scope of practice has been identified, if the client engages a lawyer with respect to the issue, then an LLLT may prepare a document related to the issue only if a lawyer acting on behalf of the client has provided appropriate documents and written instructions for the LLLT as to whether and how to proceed with respect to the issue. If the client does not engage a lawyer with respect to the issue, then the LLLT may prepare documents that relate to the issue if./

         1. tThe client informs the LLLT how the issue is to be determined and instructs the LLLT how to complete the relevant portions of the document, and

         2. aAbove the LLLT's signature at the end of the document, the LLLT inserts a statement to the effect that the LLLT did not advise the client with respect to any issue outside of the LLLT's scope of practice and completed any portions of the document with respect to any such issues at the direction of the client.

         The LLLT may proceed in the manner described above only if no other defined prohibitions apply, B. Domestic Relations.

         1. Domestic Relations, Defined. For the purposes of these regulations, domestic relations shall include only the following actions: (a) divorce and dissolution child support modification actions, (b) parenting and supportdissolution actions, (c) parentage or paternity domestic violence actions, except as prohibited by Regulation 2(B)(3), (d) child support modification committed intimate relationship actions only as they pertain to parenting and support issues, (e) parenting plan modification legal separation actions, (Ff) domestic violence protection order smajor parenting plan modifications when the terms are agreed to by the parties before the onset of the representation by the LLLT, (g) committed intimate relationships only as they pertain to parenting and support issues minor parenting plan modifications, (h) legal separation parenting and support actions, (i) nonparental and third party custody paternity actions, and (j) other protection or restraining orders arising from a domestic relations case, and (k) relocation actions, except as prohibited by Regulation 2(B)(3).

         2. Scope of Practice for LLLTs-Domestic Relations. LLLTs licensed in domestic relations may render provide legal services to clients as provided in APR 28(F) and this regulation, except as prohibited by APR 28(H) and Regulation 2(B)(3).

         (a) Unless an issue beyond the scope arises or a prohibited act would be required, LLLTs may advise and assist clients with (1) to initiatinge and responding to actions and related(2) regarding motions, discovery, trial preparation, temporary and final orders, and modifications of orders.

         (b) LLLT legal services regarding the division of real property shall be limited to matters where the real property is a single family residential dwelling with owner equity less than or equal to twice the homestead exemption (see RCW 6.13.030). LLLTs shall use the form for real property division as approved by the LLLT Board.

          (c) LLLTs may advise as to the allocation of retirement assets for defined contribution plans with a value less than the homestead exemption, and as provided in United States Internal Revenue Code CIRC) sections 401a, 401k, 403b, and 457; and Individual Retirement Accounts as set forth in IRC section 408.

         (d) LLLTs may include language in a decree of dissolution awarding retirement assets as described in APR 28 Regulation 2fB)f2")("c) when the respondent defaults, when the parties agree on the award or when the court awards the assets following trial. The award language in the decree shall identify (1) the party responsible for having the qualified domestic relations order ("QDRO) or supplemental order prepared and by whom, (2) how the cost of the QDRO or supplemental order preparation is to be paid, (3) by what date the QDRO or supplemental order must be prepared, and C4) the remedy for failure to follow through with preparation of the QDRO or supplemental order.

         (e) LLLTs may prepare paperwork and accompany and assist clients in dispute resolution proceedings including mediation, arbitration, and settlement conferences where not prohibited by the rules and procedures of the forum.

         (f) LLLTs, when accompanying their clients, may assist and confer with their pro se clients at depositions.

         (g) LLLTs may present to a court agreed orders, uncontested orders, default orders, and accompanying documents.

         (h) LLLTs, when accompanying their clients, may assist and confer with their pro se clients and respond to direct questions from the court or tribunal regarding factual and procedural issues at the hearings listed below:

i. domestic violence protection orders and other protection or restraining orders arising from a domestic relations case;
ii. motions for temporary orders, including but not limited to temporary parenting plans, child support, maintenance, and orders to show cause;
iii. enforcement of domestic relations orders; iv. administrative child support;
v. modification of child support; vi. adequate cause hearings for nonparental custody or parenting plan modifications;
vii. reconsiderations or revisions;
viii. trial setting calendar proceedings with or without the client when the LLLT has confirmed the available dates of the client in writing in advance of the proceeding.

         3. Prohibited Acts. In addition to the prohibitions set forth in APR 28(H), in the course of rendering legal services to dealing with clients or prospective clients, LLLTs licensed to practice in domestic relations:

a. shall not render legal services to represent more than one party in any domestic relations matter;

         b. shall not renderprovide ...


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