COLUMN > A Note From the WSBA Executive Director
BY TERRA NEVITT
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Should bias-mitigation CLEs be mandatory for legal professionals?11 On June 4, the Washington Supreme Court adopted the suggested amendment to APR 11 that will require licensed legal professionals to earn one MCLE ethics credit in the category of equity, inclusion, and the mitigation of bias. What about malpractice insurance? In this new day and age of technology, what are appropriate parameters for lawyer advertising? What should be done to lower the escalating cost of civil litigation? How do we shape a cohesive, effective discipline system for all legal license types?
These questions are not rhetorical. They represent just a small slice of the topics about which the Washington Supreme Court has actively solicited feedback recently as part of its rule-making process. They also illustrate the potential for court rule changes to significantly affect the way you practice law. For this reason, my appeal to you is simple: We invite you to actively engage in the rule-making process. The WSBA has made it a priority to notify members—in the “Need to Know” section of Bar News, through TakeNote e-newsletters that go out to all active members, and on our website—when a significant proposed rule or amendment to existing rule is published for comment. You can also sign up for direct notifications at http://www.courts.wa.gov/notifications/.
My colleagues and I often receive questions about the somewhat murky world of creating and changing the court rules, as well as the particular role the state Bar plays in the process. So let’s start with Rule-Making 101. General Rule (GR) 922 www.courts.wa.gov/court_rules/pdf/GR/GA_GR_09_00_00.pdf. is the primary source of law governing amendments to the Washington State Court Rules—which rules encompass governance and operation of appellate courts, courts of limited jurisdiction, and superior courts, as well as professional conduct and admission/practice for legal practitioners, among other areas. GR 9 itself states the purposes of the rule-making process, which is to ensure that:
- There is an orderly and uniform process;
- All interested persons and groups receive notice and an opportunity to comment;
- There is adequate notice of new and revised rules;
- Proposed rules are necessary statewide;
- The frequency of change is limited so there is minimal disruption to court practice;
- The rules of court are clear and definite.
(Note: an amendment is a “suggested rule” when submitted by a person/entity; it becomes a “proposed rule” when published for comment by the Supreme Court.)
WSBA as an Administrator
Perhaps the least well-known rule-making principle is that any person may initiate a rule change by submitting a suggested rule to the court. A common source of origin is when an entity with an ongoing interest in a particular rule set—such as a court-created commission or board, a specialty bar association, or a superior court clerk’s office—proactively monitors rules for needed updates. WSBA committees and boards often play this role. As an example, the Committee on Professional Ethics routinely screens the Rules of Professional Conduct (RPCs) and recommends amendments as laws and society change. Many times, the entity and/or the WSBA Board of Governors will include member feedback as part of the review process before sending a suggested rule to the court.
There is one entity, the WSBA Court Rules and Procedures Committee, with a primary responsibility to review designated rule sets on a four-year cycle.33 www.courts.wa.gov/court_rules/?fa=court_rules.gr9summary. In addition to the work of this committee, the WSBA, at least in theory, consults with the Supreme Court to develop the schedule for review. (It is worth noting that the specific rule sets included in the schedule have not been refreshed since the early 1980s, making it ripe, perhaps, for its own update.) The types of recommendations generated by the Court Rules and Procedures Committee on an annual basis are often tweaks and technical fixes as well as more substantive changes to maintain consistency among all court rules.
WSBA as a Rule Originator and Commenter
The WSBA, like anyone else, also has the ability both to directly draft rule amendments and to provide feedback on proposed amendments posted for public comment. WSBA-originated drafting generally occurs when the Board of Governors identifies a troublesome trend (e.g., escalating cost of civil litigation) that might be remedied by amending court rules, and then forms a task force to study the issue.
As an example of the many twists and turns a WSBA-originated rule can take, consider recent activity regarding the idea of mandatory malpractice insurance for lawyers. In 2017, the WSBA Board of Governors formed a multi-year task force chartered to comprehensively study the issue and present a recommendation. Ultimately, the Board of Governors was persuaded, in large part by hundreds of comments from members, that the task force’s concept—to require under the Admission and Practice Rules (APR) certification of malpractice insurance coverage for most private-practice lawyers—was not the right solution for the problem at hand. Instead, in September 2020, as an alternative, the Board of Governors submitted a suggested RPC amendment that would require most lawyers in private practice to affirmatively disclose to clients if they do not carry malpractice insurance. Meanwhile, an individual who had provided passionate comments to the task force in favor of mandatory malpractice insurance took the task force’s draft APR amendment—the one declined by the WSBA Board of Governors—and submitted it directly to the court, which published it for public comment under GR 9. At one point, both proposed rules were simultaneously open for public comment, with the WSBA serving as the proponent of one and a commenter on the other. (The WSBA submitted a comment in opposition to the APR amendment.) Over the course of a years-long process, WSBA members had the opportunity to weigh in with the task force, the Board of Governors, and directly to the court.
What happened? The Court in June adopted the amendment proposed by the Board of Governors, which amends RPC 1.4 to require disclosure of a lawyer’s malpractice insurance status to clients if the lawyer’s insurance does not meet minimum levels; and there is no doubt that voices of the WSBA members made a difference in the development of the amendment.
The Bottom Line: The Court’s Process Provides an Opportunity for Your Feedback
Last June, Washington Supreme Court Justice Mary Yu spoke with the Board of Governors on the topic of regulatory rule-making, and specifically on the development of disciplinary procedural rules.44 The June 2020 Board of Governors meeting is available at www.wsba.org/about-wsba/who-we-are/board-of-governors. Click “Watch Video of Past Meetings” and then click “Channels” and scroll down. It is her wisdom that I hope you take away from this column: When someone learns about a proposed rule amendment and expresses their views to the court in the form of public comment, the system is working exactly as it should. In many circumstances, the entity suggesting a rule change—including the WSBA—conducts its own outreach before drafting and submitting a rule change as its proponent, but in all instances the public comment process established by GR 9 and followed by the court is available to all interested individuals and organizations.
WSBA as a Notifier
Here, at last, is the most consistent and important role for the WSBA and its leaders in the court’s rule-making process: To broadly notify members when significant amendments are published for comment. In the case of the current discipline and incapacity rule amendments, the Board of Governors heard from several concerned members; rather than taking a position on the substance of the rules, Board members asked the court to extend the comment period deadline by 90 days. The court agreed, and it is now a top priority to notify members (you!) that input is due by July 29.55 www.courts.wa.gov/court_rules/?fa=court_rules.proposed.
So in this particular instance and in general, I want to reiterate: Please take the opportunity to engage with amendments to court rules because your voice matters, the rules affect your daily work, and the Washington Supreme Court is listening. It is easy to sign up for direct notifications, and it is worth your time and effort to monitor potential changes to the foundational rules that govern court administration and procedure and the regulation of the practice of law.
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Let Your Voice Be Heard
The Washington Supreme Court frequently publishes proposed amendments to the Washington State Court Rules for public comment. To receive direct notifications about these opportunities to provide feedback, visit www.courts.wa.gov/notifications/ and select “Court Rules Proposed for Public Comment” under the Other Notification Services menu.
1. On June 4, the Washington Supreme Court adopted the suggested amendment to APR 11 that will require licensed legal professionals to earn one MCLE ethics credit in the category of equity, inclusion, and the mitigation of bias.
4. The June 2020 Board of Governors meeting is available at www.wsba.org/about-wsba/who-we-are/board-of-governors. Click “Watch Video of Past Meetings” and then click “Channels” and scroll down.