WSR 17-08-056

RULES OF COURT

[March 29, 2017]

Ms. Ruth Laura Edlund, having recommended the suggested amendment to CR 11(b)—Signing, and Drafting of Pleadings, Motions, and Legal Memoranda: Sanctions, and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than July 28, 2017. 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 29th day of March, 2017.

Ruth Laura Edlund, WSBA # 17279

Wechsler Becker, LLP

701 Fifth Avenue, Ste 4550

Seattle, WA 98104

Phone: (206)624-4900

B. Spokesperson:

Ruth Laura Edlund

Wechsler Becker, LLP

701 Fifth Avenue, Ste 4550

Seattle, WA 98104

Phone: (206)624-4900

C. Purpose: The primary purpose for the suggested amendment to Civil Rule 11(b) is to clarify the ethical obligations, and the limits of those obligations, of a Limited License Legal Technician (LLLT) who is assisting an otherwise self-represented person by preparing documents for him or her. Civil Rule 11(b) currently applies by its terms only to lawyers providing such assistance. APR 28 G.(4) requires a LLLT to sign documents prepared for a client, but specifies no circumstances under which the LLLT must make inquiry into the facts represented by the client.

In addition, current CR 11(b) does not allow a court to impose sanctions on an LLLT for assisting an otherwise self-represented person in filing a frivolous pleading, when a lawyer can be sanctioned by a court in the same situation. LLLT RPC 3.1 (a)(1) forbids a LLLT from counseling a client to engage, or assist in a client in engaging, in conduct including taking positions that are frivolous or lacking a good-faith basis in fact or law. LLLT RPC 3.1 (a)(3) forbids a LLLT from counseling a client or assisting a client in submitting false statements of fact or evidence known to be false. However, disciplinary proceedings are slow and may actually be overkill. The courts should have the ability to impose an immediate sanction on behavior by a LLLT that would not merit the revocation of his or her license.

APR 28 K.(1) already holds a LLLT to the standard of care of a Washington lawyer. The suggested inclusion of LLLTs within the ambit of Civil Rule 11(b) will assist in implementing this standard of care, and protect the public, by allowing a court to impose immediate sanctions for LLLT misconduct when appropriate, particularly when license revocation would be too severe a consequence. The suggested revision to CR 11(b) also clarifies that a LLLT, like a lawyer, is entitled to rely on the otherwise self-represented person's representation of facts, unless the LLLT has reason to believe that the representations are false or materially insufficient. This therefore provides useful guidance to LLLTs as to the limits of their obligations.

Conclusion. The suggested amendment to Civil Rule 11(b) is a harmonizing change needed to clarify that the ethical obligations towards otherwise self-represented persons with regard to their assertions of fact when assisting in document drafting are the same—no higher but no lower—for LLLTs as they are for lawyers.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested rule amendment, blacklined and clean. WSBA Pro Bono and Public Service Committee Memorandum on Unbundling Legal Services [by lawyers] in Washington State, revised 8-25-2016.

(b) In helping to draft a pleading, motion or document filed by the otherwise self-represented person, the attorney or Limited License Legal Technician (LLLT) certifies that the attorney or LLLT has read the pleading, motion, or legal memorandum, and that to the best of the attorney's or LLLT's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is well grounded in fact;

(2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. The attorney or LLLT in providing such drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney or LLLT has reason to believe that such representations are false or materially insufficient, in which instance the attorney or LLLT shall make an independent reasonable inquiry into the facts.