WSR 16-07-110

RULES OF COURT

[March 16, 2016]

The Court previously entered Order No. 25700-A-1100 and Order No. 25700-A-1102, which directed that the following suggested amendments be published for comment in January 2016: GR 27—Family Law Courthouse Facilitators, CrR 8.10—Post-Trial Contact with Jurors, and CrRLJ 8.13—Post-Trial Contact with Jurors. The orders set a deadline for public comment of April 30, 2016. Due to a publication oversight, the suggested amendments were not published in the Washington Reports in January 2016, although they were published in the Washington Register and on the websites of the Washington State Bar Association and the Administrative Office of the Courts.

Now, therefore, it is hereby ORDERED:

(a) That Order No. 25700-A-1100 and Order No. 25700-A-1102 are amended to the extent indicated herein.

(b) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports in March 2016.

(c) That the deadline for the submission of public comment is extended to May 31, 2016.

(d) That the previous publication of the suggested amendments in the Washington Register and on the websites of the Washington State Bar Association and the Administrative Office of the Courts be revised (or the suggested amendments be republished) to reflect the new deadline for public comment.

(e) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 16th day of March, 2016.

 

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, responding 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 GR 27, there are holding places for the actual RCW citation that will result from the legislation.

(a) Generally. RCW 26.12.240 and RCW xx.xx.xxx provide a county may create a courthouse facilitator program to provide basic services to pro se litigants in family law and guardianship cases. This Rule applies only to courthouse facilitator programs created pursuant to RCW 26.12.240 or RCW xx.xx.xxx.

(b) The Washington State Supreme Court shall create a Family Courthouse Facilitator Advisory Committee supported by the Administrative Office of the Courts to establish minimum qualifications and develop and administer a curriculum of initial and ongoing training requirements for family law and guardianship courthouse facilitators. The Administrative Office of the Courts shall assist counties in administering family law courthouse facilitator programs.

(c) Definitions. For the purpose of this rule the following definitions apply:

(1) A Family Law Courthouse Facilitator is an individual or individuals who has or have met or exceeded the minimum qualifications and completed the curriculum developed by the Administrative Office of the Courts Courthouse Facilitator Advisory Committee and who is or are providing basic services in family law or guardianship cases in a Superior Court.

(2) Family Law Cases include, but are not limited to, dissolution of marriage, modification of dissolution matters such as child support, parenting plans, non-parental custody or visitation, and parentage by unmarried persons to establish paternity, child support, child custody and visitation.

(3) Guardianship cases include cases filed under RCW 11.88, RCW 11.90, RCW 11.92 and RCW 73.36.

(4) "Basic Service" includes but is not limited to:

a) referral to legal and social service resources, including lawyer referral and alternate dispute referral programs and resources on obtaining family law forms and instructions;

b) assistance in calculating child support using standardized computer based program based on financial information provided by the pro se litigant;

c) processing interpreter requests for facilitator assistance and court hearings;

d) assistance in selection as well as distribution of forms and standardized instructions that have been approved by the court, clerk's office, or the Administrative Office of the Courts;

e) assistance in completing forms that have been approved by the court, clerk's office, or the Administrative Office of the Courts;

f) explanation of legal terms;

g) information on basic court procedures and logistics including requirements for service, filing, scheduling hearings and complying with local procedures;

h) review of completed forms to determine whether forms have been completely filled out but not as to substantive content with respect to the parties' legal rights and obligations;

i) previewing pro se documents prior to hearings for matters such as dissolution of marriage, review hearings, and show cause and temporary relief motions calendars under the direction of the Clerk or Court to determine whether procedural requirements have been complied with;

j) attendance at pro se hearings to assist the Court with pro se matters;

k) assistance with preparation of court orders under the direction of the Court; and

l) preparation of pro se instruction packets under the direction of the Administrative Office of the Courts.

(d) Family Law Courthouse Facilitators shall, whenever reasonably practical, obtain a written and signed disclaimer of attorney-client relationship, attorney-client confidentiality and representation from each person utilizing the services of the Family Law Courthouse Facilitator. The prescribed disclaimer shall be in the format developed by the Administrative Office of the Courts.

(e) No attorney-client relationship or privilege is created, by implication or by inference, between a Family Law Courthouse Facilitator providing basic services under this rule and the users of Family Law Courthouse Facilitator Program services.

(f) Family law Courthouse facilitators providing basic services under this rule are not engaged in the unauthorized practice of law. Upon a courthouse facilitator's voluntary or involuntary termination from a courthouse facilitator program, that person is no longer a courthouse facilitator providing services pursuant to RCW 26.12.240 or RCW xx.xx.xx or this Rule.

[Adopted effective September 1, 2002.]

A. Name of Proponent. The Washington Association of Criminal Defense Lawyers (WACDL) requests this rule change.

B. Spokesperson. Joseph A. Campagna, on behalf of WACDL, will serve as spokesperson for the proposed rule.

1. Post-trial disclosure of excluded evidence creates a high risk of prejudice to the jury system.

Post-trial disclosure to jurors of excluded evidence undermines confidence in the fairness of our trial system and prejudices the administration of justice. It suggests to jurors in the present case that they were deprived of important information in reaching their verdict. It implies that if they had received fuller information, they might have reached a different verdict. As a result it may cause jurors to question in future trials whether they are being similarly deprived, and may decrease the willingness to limit consideration of evidence as the juror's oath requires. There are no legitimate countervailing reasons for the disclosures. There are also presently no clear rules governing this sort of contact. As a result, the proposed rule is necessary.

The attached declarations demonstrate several recent examples of prejudicial post-trial disclosures. The declarations provided represent only a small sample of reported disclosures of which WACDL is aware. They are intended to illustrate, not to exhaustively document, the problem. As the supporting materials demonstrate, disclosures harmful to the trial process have occurred in municipal, district, and superior courts throughout Washington. The perceived effects of these disclosures included leaving the jurors visibly upset, and causing them to resent the defense for withholding information, to feel that they are never told the full truth, to wonder whether they can trust the system, and even to question their decision to acquit. These sort of retains, from jurors who may be called again in future service, are significantly damaging to a fair trial process.3

2. Prior attempts to address the problem have met with limited success.

Prior attempts to address this problem have not been adequate. The Rules of Professional Conduct currently prohibit post-discharge contact with jurors that "involves misrepresentation, coercion, duress or harassment." RPC 3.5 (c)(3). The Rules also prohibit "conduct that is prejudicial to the administration of justice." RPC 8.4(d). Informal Ethics Opinion 1030 (1986) concluded that under RPC 8.4(d), "it is improper for a lawyer to disclose information to the jurors which is inadmissible because it is prejudicial," where the juror was subject to call on another jury in the same period off jury service. Information Ethics Opinion 2133 (2006) extended this reasoning to disclosures post-jury service. The committee reasoned that:

In 2006, relying on Information Opinion 2133, the Seattle City Attorney's Office and several public defender agencies directed their attorneys to refrain from commenting on or disclosing matters that are not part of the evidentiary record. The directive adopted Opinion 2133's conclusion that the disclosure of excluded evidence tended to undermine a jury's confidence in their verdict, and consequently prejudicial to the administration of justice.

Opinion 2133 was short lived. In 2010, Advisory Opinion 2204 withdrew Opinions 1030 and 2133, concluding that, because jurors are presumed to follow the court's instructions, post-trial disclosure of exclude evidence should not constitute a per se violation of RPC 8.4(d). The Committee noted, however, that "[a]though there are arguments in favor of a policy of strict non-disclosure, such a rule seems more appropriate addressed by way of a court rule." Presently, lacking any guiding rule, trial courts have been reluctant to grant motions in limine limiting post-trial disclosures.

3. The proposed rule addresses the risk of prejudice with minimally restrictive limits on post-trial contact.

The proposed rule places appropriate and reasonable limits on post-trial disclosures. First, as shown by the attached supporting documents, and as discussed in Opinion 2133, the potential prejudice is high. Second, there are not legitimate countervailing interests to balance against the potential prejudice. There are generally two legitimate reasons to have post-trial contact with jurors – to determine whether the verdict may be subject to legal challenge and to obtain informal feedback and evaluation on the lawyer's performance. See, e.g., ABA Standards for Criminal Justice, Prosecution Function and Defense Function, (3d Ed. 1993), Prosecution Function Standard 3-5.4(c) and Defense function Standard 4-7.3(c). Post-trial disclosures of excluded information serve neither of these purposes. Finally, the restrictions on disclosures are minimal. The proposed rules does not limit post-trial contact entirely, as many federal courts do. For instance, Western District of Washington Local Civil Rule 47(d) and Local Criminal Rule 31(f) both prohibit any post-trial contact with jurors without prior leave of the court, except in criminal cases with a hung jury. The proposed rule does not limit contact to this degree, but rather continues to permit contact with former jurors for all appropriate reasons and without first obtaining judicial approval.

D. Hearing. The proponents request a public hearing on this matter. Changes to rules affecting the jury trial process implicate fundamental constitutional rights and are the appropriate subject of public hearing and comment.

E. Expedited consideration. WACDL does not request expedited consideration of the proposed rule.