By Samson Habte
Jan. 28 — The current Washington Rules of Professional Conduct fail to provide “clear guidance” on how attorneys may ethically interact with the influx of nonlawyer “Limited License Legal Technicians” expected to join the marketplace this spring, the Washington State Bar Association's Board of Governors argues in a recent petition requesting amendments to the lawyer ethics rules.
The petition—which seeks expedited consideration from the Washington Supreme Court—was filed shortly before the court's Jan. 8 adoption of an ethics code for Limited License Legal Technicians (“LLLTs”), a new breed of nonlawyer practitioner who soon will be providing certain types of legal services in civil matters without lawyer supervision.
“During the process of drafting the LLLT [Rules of Professional Conduct], it became apparent [that] the LLLT RPC had direct implications on the Lawyer RPC and that lawyers would need specific guidance regarding how to interact with this new practitioner and his or her clients,” the petition states. “Additionally, some of the proposed LLLT RPC provisions would require complementary rule changes in the Lawyer RPC in order to be effective.”
Although other states are studying similar schemes, in June 2012 the Washington Supreme Court made that state the first to embrace nonlawyer practitioners by adopting a “Limited Practice Rule for Limited License Legal Technicians.” See 28 Law. Man. Prof. Conduct 416.
The new rule was part of a “narrowly tailored strategy designed to expand the provision of legal and law related services to members of the public in need of individualized legal assistance with non-complex legal problems,” the court said.
The court approved the LLLT Rules of Professional Conduct in January, and a board set up to regulate nonlawyers' practice is expected to begin licensing LLLTs this spring. In anticipation of that process, the state bar's board of governors asked the supreme court to approve several amendments to the Washington Rules of Professional Conduct “to bring the Lawyer RPC into alignment with the LLLT RPC.”
“In large part the suggested revisions to the Lawyer RPC seek to recognize, encourage, and legitimize the association and interplay of LLLTs and lawyers together in the marketplace and in the profession,” the board said in a summary of the proposed amendments.
The proposed changes include amendments to the preamble of the lawyer conduct rules that would “clarify the limited role of LLLTs in the profession while seeking to reinforce the role of LLLTs with respect to increasing access to justice in Washington,” according to the board.
The board also proposed adding two new terms to the “Terminology” section of the lawyer rules: “(1) ‘legal practitioner,' which envisions a legal profession with licensed practitioners that include both lawyers and LLLTs, and (2) ‘represent' or ‘representation,' to clarify for lawyers that the term ‘represent' when used in the connection with an LLLT has a more limited meaning than in the lawyer context.”
The board has also suggested changes to Rules 1.8(a) and (h), which provide that a lawyer may not enter into a business transaction with a client, or negotiate settlements of a client's potential malpractice claim, without advising the client to “seek the advice of independent legal counsel.”
“As LLLTs cannot advise individuals about entering into business transactions with a lawyer and cannot assist in negotiation, suggested amendments to RPC 1.8(a)(2) and 1.8(h) and their associated comments seek to clarify that the term ‘counsel' in these contexts means a lawyer,” the board said.
The board said Rule 1.10—which addresses imputed conflicts among lawyers within a firm or law office—was “not designed to account for other types of licensed legal practitioners associated within a law firm.” Accordingly, some of the board's suggested amendments to the lawyer conduct rules would “clarify how imputation works in the context of lawyers and LLLTs working together in the same firm.”
The board recommended the adoption of a new Rule 1.10(f), which would provide that an LLLT's conflict would be imputed to a lawyer in a firm in the same way that conflicts between lawyers are imputed.
Another proposed amendment would make clear that when an attorney and LLLT are associated in a law practice, the LLLT can't be a signatory on the firm's trust account unless the attorney's signature is also required for any withdrawals, transfers or deposits on the account.
The amendment would “ensure that lawyers maintain ultimate responsibility for trust account funds belonging to the lawyers’ clients,” the board said.
The board also suggested changes to Rules 4.2 and 4.3, which deal with a lawyer's duties when communicating with persons represented by counsel and with unrepresented persons.
The limited practice rule for LLLTs characterizes an LLLT's client as a person who is acting “pro se.” In light of that characterization, Rules 4.2 and 4.3 should be amended “to clarify that the client of an LLLT is not represented by a lawyer,” the board said.
Another suggestion from the board is the adoption of a new Rule 5.9, which would codify “specific restrictions against an LLLT (1) directing a lawyer’s professional judgment, (2) having direct supervisory authority over a lawyer, and (3) possessing a majority interest or exercising controlling managerial authority.”
Other proposed amendments deal with attorneys' supervisory duties over LLLTs and liability for assisting an LLLT in violating ethics standards.
To contact the reporter on this story: Samson Habte in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Kirk Swanson at email@example.com
For more on the LLLT program, including the proposed changes to the attorney conduct rules, see http://www.wsba.org/licensing-and-lawyer-conduct/limited-licenses/legal-technicians.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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