Category Archives: Admission to Practice

Important changes to the APRs and RPCs Adopted Effective Sept. 1, 2016

In November 2015, the Washington State Supreme Court published for comment proposed rule changes to the APRs and to the RPCs.   Comments were to be filed by April 30, 2016.    The changes were adopted by the Court, effective September 1, 2016.  WRPC Court Order (June 2 2016)

RPC Changes:

The proposed changes to the RPCs were intended to update the Washington RPCs to reflect changes made by the ABA in response to the so-called “Ethics 20-20” Commission.   The proposed changes were adopted by the Court in an order dated June 2, 2016, effective September 1, 2016.

The only anomalies in bringing the Washington RPCs into conformity with the ABA 20-20 changes are that: (a) Washington’s adoption of the  Ethics 20-20 changes had to be reconciled with the recent RPC changes made to accommodate LLLTs; (b) Washington has changed MR 5.5(d)(1) relating to in-house counsel and so some of the ABA changes there did not fit; and (c) Washington would make a slight change relating to the solicitation rules.

APR Changes:

A proposed change to APR 11 was intended to enable judges returning to the private sector to convert judicial education credits to CLE.   It has not been adopted.

On the other hand, proposed changes to APR 20-25 were adopted, effective September 1, 2016.  These changes are quite important.  Here is how the Rule 9 Statement describes their purpose and background:

The primary purposes for the suggested amendments to APR 20 – 25.6 are to bring Washington’s character and fitness procedures into alignment with recent interpretations of the Americans with Disability Act (ADA), as it relates to bar admissions, by the United States Department of Justice (DOJ), and to clarify Washington’s character and fitness procedures and make the process easier to understand.

Background

The approach being recommended derives from the approach described by the DOJ in a settlement it reached in 2014 with the Louisiana State Bar, and from models used in other states around the country. That settlement provides guidance for determining whether, when and how inquiries into mental health and substance abuse issues should be conducted. See, Settlement Agreement Between the United States and the Louisiana Supreme Court Under the Americans with Disabilities Act, August 14, 2014.

Under the terms of the settlement agreement, the DOJ agreed that it was permissible for the Louisiana Supreme Court to ask the mental health questions that are now being used by the National Conference of Bar Examiners (NCBE). The questions approved by the DOJ in the settlement agreement with Louisiana (1) involve some inquiry into a current condition that might impair the practice of law but not a past condition and(2) are inquiries about conduct that might call into question one’s ability to practice law or that might indicate an underlying issue requiring further questions. Further, the DOJ provided guidance about when and how to make inquiries in these areas

Links to the proposals follow.

Admission and Practice Rules(APR)

Rules of Professional Conduct(RPC)

U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996)

The oath that Washington attorneys take to get licensed is archaic to say the least.  One of the things that Washington attorneys must do is swear to “abstain from all offensive personalities.”  APR 5(d), Item 7.

I recently came across a ninth circuit case that found the prohibition of “offensive personalities” as found in a California statute to be unconstitutionally vague.  U.S. v. Wunsch, 84 F.3d 1110, 1119-20 (9th Cir. 1996).  While the case dealt with a California statute, not the Washington oath, the California statute is equivalent to our oath and the reasoning of the court would seem to apply to the Washington oath.

In that case, a lawyer named Swan had been disqualified by the federal district court –based on a conflict of interest — from representing both parents and their daughter in a criminal tax prosecution.   Swan was sufficiently unhappy that the AUSA had gotten him and his partner disqualified that he sent her a letter expressing his belief that “Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.”   More to the point, he “[a]ppended to the letter …a single sheet of paper with the following photocopied words, all enlarged and in capital letters:  `MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER.'”  The federal district court found that this letter violated several local rules, including one that incorporated by reference a California statute,  (then) Section 6068(f) of California’s Business and Professions Code, which read, in relevant part: “It is the duty of an attorney … [t]o abstain from all offensive personality[.]”  The court ordered Swan to apologize to the AUSA and referred the matter to disciplinary authorities. Swan appealed the trial court’s order and the ninth circuit reversed.    It upheld Swan’s facial challenge to the “offensive personalities” statute (which has since been amended by deleting the offending offensive personalities).   According to the court:

Clearly, “offensive personality” is an unconstitutionally vague term in the context of this statute. … As “offensive personality” could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients’ interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute. For the same reason, the statute is “so imprecise that discriminatory enforcement is a real possibility[,]” …., and is likely to have the effect of chilling some speech that is constitutionally protected, for fear of violating the statute.

Id. at 1119 (citations omitted).   Judge Farris dissented from this conclusion, believing that “offensive personalities” could be saved by giving it a limiting interpretation to “conduct that affects the administration of justice.”