Opinion
November 6, 2003
[By orders dated November 6, 2003, the Supreme Court amended the following Rules of Court, effective November 25, 2003: GR 7; DRJ 14(e); APR 8(g), 12.1, and 14; RAP 15.4; RALJ 9.3 and 10.2; CRLJ 63; and CrRLJ 3.3.
Additions and deletions are indicated by underlining and lining out respectively, except where the entire rule is new.]
GR 7 LOCAL RULES — FILING AND EFFECTIVE DATE
(a) Generally. Fifty copies of rules of court authorized by law to be adopted or amended by courts other than the Supreme Court must be filed with the state Administrator for the Courts. New proposed rules and amendments must be filed on or before July 1 for comment, to be effective September 1 of the same year. Promulgation or amendment of rules that describe only the structure, internal management and organization of the court but do not affect courtroom procedures are not governed by the time limitations above.
(b) Form. All local rules shall be consistent with rules adopted by the Supreme Court, and shall conform in numbering system and in format to these rules to facilitate their use. Each rule and amendment filed shall state its effective date in brackets following the rule. Prior to adopting a local rule, the court may informally submit a copy of its local rule to the Administrative Office of Administrator for the Courts for comments as to its conformity in number and format to the Official Rules of Court, and suggestions with reference thereto.
(c) Distribution. On or before September 1 of each year, the Administrator for the Courts shall distribute all local rules, and amendments thereto, to the state law library, the libraries of the three divisions of the Court of Appeals, all county law libraries, Washington law school libraries, and to such other places as are deemed appropriate by the Administrative Office of Administrator for the Courts.
(d) Availability of Local Rules ; Effect Upon Existing Local Rules. The clerk of the court adopting the rules shall maintain a complete set of current local rules, which shall be available for inspection and copying. In order for local rules which are currently in effect to remain in effect they must be refiled with the Office of the Administrator for the Courts by September 15, 1991. (e) Emergency Rules.
(1) In the event a court other than the Supreme Court deems that an emergency exists which requires a change in its rules, such court shall, in addition to filing the rules or amendments as provided in section (a), distribute them to all county law libraries.
(2) A rule or amendment adopted on an emergency basis shall become effective immediately on filing with the Administrator for the Courts. The rule or amendment shall remain effective for a period of 90 days after filing, unless readopted in accordance with section (e)(1) or submitted as a permanent rule or amendment under section (a) within the 90-day period.
(f) Filing Local Rules Electronically. The Administrator for the Courts shall establish the specifications necessary for a court to file its local court rules electronically.
DRJ 14 SUPPLEMENTAL PROVISIONS
(a)-(d) [No change.]
(e) Confidential and Privileged Communications. Confidential communication between a judicial officer and peer Counselors of the Judicial Assistance Committee of the Superior Court Judges' Association or the District and Municipal Court Judges' Association or the LAP (Lawyers Assistance Program of the Washington State Bar Association) shall be privileged against disclosure without the consent of the judicial officer to the same extent and subject to the same conditions as confidential communication between a client and psychologist.
APR 8 SPECIAL ADMISSIONS
(a) In General. [No change.]
(b) Exception for Particular Action or Proceeding. [No change.]
(c) Exception for Indigent Representation. [No change.]
(d) Exception for Educational Purposes. [No change.]
(e) Exception for Emeritus Membership. [No change.]
(f) Exception for House Counsel. [No change.]
(g) Exception for Military Lawyers. A lawyer admitted to the practice of law in a state or territory of the United States or of the District of Columbia, who is a full-time active duty military officer serving in the office of a Staff Judge Advocate of the United States Army, Air Force, Navy, Marines, or Coast Guard, a Naval Legal Service Office or a Trial Service Office, located in the State of Washington, may, upon application and approval, appear as a lawyer and practice law before the courts of this state in any matter, litigation, or administrative proceeding, subject to the following conditions and limitations set forth in this rule. The applicant must be of good moral character and shall apply by (i) filing an application in the form and manner that may be prescribed by the Board of Governors; (ii) presenting satisfactory proof of admission by examination to the practice of law and current good standing as a member of the bar in any state or territory of the United States or the District of Columbia; (iii) complying with training requirements as set forth below; and (iv) furnishing whatever additional information or proof that may be required in the course of processing the application.
(1) To qualify for admission to practice under this rule, an applicant must, prior to admission, complete at least 15 credit hours of approved continuing legal education on Washington practice, procedure, and professional responsibility.
(2) Military lawyers admitted to practice pursuant to this rule are not, and shall not represent themselves to be members of the Washington State Bar Association.
(3) The applicant's right to practice under this rule: (i) may be terminated by the Supreme Court at any time with or without cause, or (ii) shall be terminated when the military lawyer ends active duty military service in this state. The lawyer admitted under this rule and his or her supervisory Staff Judge Advocate or his or her Commanding Officer are responsible to advise the Washington State Bar Association of any change in status of the lawyer that may affect his or her right to practice law under this rule.
(4) Military lawyers admitted pursuant to the rule may represent active duty military personnel in enlisted grades E-1 through E-4 and their dependents in noncriminal matters to the extent such representation is permitted by the supervisory Staff Judge Advocate or Commanding Officer, Naval Legal Service Office or Commanding Officer, Trial Service Office. Other active duty military personnel and their dependents may be represented if approved by the Service Judge Advocate General or his or her designee.
(5) Military lawyers admitted pursuant to this section may not demand or receive any compensation from clients in addition to the military pay to which they are already entitled.
(6) The practice of a lawyer admitted under this section shall be subject to the Rules of Professional Conduct, the Rules for Lawyer Discipline Enforcement of Lawyer Conduct, the Admission to Practice Rules, and to all other laws and rules governing lawyers admitted to the bar of this state. Jurisdiction shall continue whether or not the lawyer retains the right to practice in Washington and irrespective of the residence of the lawyer.
APR 12.1 PRESERVING IDENTITY OF FUNDS AND PROPERTY IN TRANSACTIONS CLOSED BY LIMITED PRACTICE OFFICERS
(a) [No change.]
(b) For all transactions in which a certified closing officer has prepared documents under the authorization set forth in rule 12(d), the certified closing officer shall insure that all funds received by the closing firm incidental to the closing of the transaction, including advances for costs and expenses, shall be deposited into one or more identifiable interest-bearing trust accounts maintained as set forth insection (d) rule 12.1(c), and no funds belonging to the certified closing officer or the closing firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein;
(2) Funds belonging in part to the parties to the real estate or personal property transaction that is being closed and in part presently or potentially to the certified closing officer or the closing firm must be deposited therein, but the portion belonging to the certified closing officer or the closing firm may be withdrawn when due unless the right of the certified closing officer or the closing firm to receive it is disputed by the parties to the real or personal property transaction, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(c) Each trust account referred to in section (b) shall be an interest-bearing trust account in any bank, credit union or savings and loan association, selected by a certified closing officer or the closing firm by which he or she is employed to perform closing services in the exercise of ordinary prudence, authorized by federal or state law to do business in Washington and insured by the Federal Deposit Insurance Corporation, the National Credit Union Share Insurance Fund, or the Washington Credit Union Share Guaranty Association, or which is a qualified public depository as defined in RCW 39.58.010(2), or which bank, credit union, savings and loan association or qualified public depository has filed an agreement with the Disciplinary Board pursuant to rule 15.4 of the Rules for Enforcement of Lawyer Conduct. Interest-bearing trust funds shall be placed in accounts in which withdrawals or transfers can be made without delay when such funds are required, subject only to any notice period which the depository institution is required to reserve by law or regulation. Such account, if established in the name of the closing firm, must reference the name(s) of the certified closing officer(s) whose services are engaged in connection with the real or personal property closing activities of the closing firm.
(1) A certified closing officer who receives or whose closing firm receives funds associated with a transaction being closed by that officer shall maintain a pooled interest-bearing trust account for deposit of funds that are nominal in amount or expected to be held for a short period of time. The interest accruing on this account, net of reasonable check and deposit processing charges which shall only include items deposited charge, monthly maintenance fee, per item check charge, and per deposit charge, shall be paid to The Legal Foundation of Washington, as established by the Supreme Court of Washington. All other fees and transaction costs shall be paid by the certified closing officer or the closing firm by which he or she is employed to perform closing services. A certified closing officer or closing firm may, but shall not be required to, notify the parties to the transaction of the intended use of such funds.
(2) All funds received from the parties to a transaction being closed by the certified closing officer, whether received by the certified closing officer or the closing firm, shall be deposited in the account specified in subsection (1) unless they are deposited in:
(i) a separate interest-bearing trust account containing funds pertaining to a specific real or personal property closing if directed by written agreement signed by the parties to the transaction and specifying the manner of distribution of accumulated interest to the parties to the transaction;
(ii) a separate interest-bearing trust account for a particular party to a real or personal property closing on which accumulated interest will be paid to that party; or
(iii) a pooled interest-bearing account with subaccounting that will provide for computation of interest earned by each party's funds and the payment thereof to the respective party.
(3) In determining whether to use the account specified in subsection (1) or an account specified in subsection (2), a certified closing officer shall consider only whether the funds to be invested could be utilized to provide a positive net return to the client, as determined by taking into account the following factors:
(i) the amount of interest that the funds would earn during the period they are expected to be deposited;
(ii) the cost of establishing and administering the account, including the cost of the certified closing officer's services and the cost of preparing any tax reports required for interest accruing to the party(ies)' benefit; and
(iii) the capability of financial institutions to calculate and pay interest to individual parties in the manner contemplated by subsection (2).
(4) As to accounts created under section (d) rule 12.1(c), certified closing officers or the closing firms on whose behalf they are engaged in performing closing services shall direct the depository institution:
(i) to remit interest or dividends, net of reasonable check and deposit processing charges which shall only include items deposited charge, monthly maintenance fee, per item check charge, and per deposit charge, on the average monthly balance in the account, or as otherwise computed in accordance with an institution's standard accounting practice, at least quarterly, to The Legal Foundation of Washington. Other fees and transaction costs will be directed to the certified closing officer of the closing firm by which he or she is employed to perform closing services;
(ii) to transmit with each remittance to the Foundation a statement showing the name of the certified closing officer(s) for whom the remittance is sent, the rate of interest applied, and the amount of service charges deducted, if any, and the account balance(s) of the period in which the report is made, with a copy of such statement to be transmitted to the depositing certified closing officer or closing firm.
(d) [No change.]
APR 14 LIMITED PRACTICE RULE FOR FOREIGN LAW CONSULTANTS
(a) Purpose. [No change.]
(b) Qualifications.
(1) To qualify as a Foreign Law Consultant applicant for admission to the limited practice of law in the State of Washington as provided in these rules, a person must:
(i) Present satisfactory proof of both admission to the practice of law, together with current good standing, in a foreign jurisdiction, and active legal experience as a lawyer or counselor at law or the equivalent in a foreign jurisdiction for at least 5 of the 7 years immediately preceding the application; and
(ii) Possess the good moral character and fitness requisite for a member of the Bar of the State of Washington; and
(iii) Execute under oath and file with the Bar Association two copies of an application, one of which shall be in the applicant's own handwriting, in such form as may be required by the Board of Governors; and
(iv) File with the application a certificate from the authority in such foreign country having final jurisdiction over professional discipline, certifying as to the applicants admission to practice, and the date thereof, and as to the good standing of such lawyer or counselor at law or the equivalent, together with a duly authenticated English translation of such certificate, if it is not in English; and
(v) File with the application a letter of recommendation from one of the members of the executive body of such authority or from one of the judges of the highest law court or courts of original jurisdiction of such foreign country, together with a duly authenticated English translation of such letter, if it is not in English; and
(vi) Provide with the application such other evidence of the applicant's educational and professional qualifications, good moral character and fitness and compliance with the requirements of this rule as the Board of Governors may require; and
(vii) Pay upon the filing of the application a fee equal to that required pursuant to rule 3(d)(2) to be paid by an attorney applicant to take the bar examination.
(2) Upon a showing that strict compliance with the provisions of subsections (b)(1)(iv) or (b)(1)(v) would cause the applicant unnecessary hardship, the Board of Governors may at its discretion waive or vary the application of such provisions and permit the applicant to furnish other evidence in lieu thereof.
(c) Procedure. (1) The Board of Governors shall approve or disapprove applications for admission of Foreign Law Consultants. Additional proof of any facts stated in the application may be required by the Board. In the event of the failure or refusal of the applicant to furnish any information or proof, or to answer any inquiry of the Board pertinent to the pending application, the Board may deny the application. Upon approval of the application by the Board of Governors, the Board shall recommend to the Supreme Court the admission of the applicant for the purposes herein stated. The Supreme Court may enter an order admitting to practice those applicants it deems qualified, conditioned upon such applicant's:
(i) (1) Taking and filing with the Clerk of the Supreme Court the Oath of Attorney pursuant to rule 5; and
(ii) (2) Paying to the Bar Association its membership fee for the current year in the maximum amount required of active members; and
(iii) (3) Filing with the Bar Association in writing his or her address in the State of Washington, or the name and address of his or her registered agent as provided in APR 5(e), together with a statement that the applicant has read the Rules of Professional Conduct and Rules for Enforcement of Lawyer Conduct, is familiar with their contents and agrees to abide by them.
(2) Upon the entry of an order of admission, the filing of the required materials and payment of the membership fee, the applicant shall be enrolled as a Foreign Law Consultant and shall be entitled to the limited practice of law as specified by this rule. (d) Scope of Practice. [No change.]
(e) Disciplinary Provisions. [No change.]
(f) Continuing Requirements. [No change.]
(g) Termination of License. [No change.]
(h) Reciprocity. [No change.]
RAP 15.4
CLAIM FOR PAYMENT OF EXPENSE FOR INDIGENT PARTY (a) Unchanged.
(b) [Reserved.] (c)-(e) Unchanged.
RALJ 9.3 COSTS
(a)-(e) Unchanged.
(f) Judgment for Costs. The costs claimed by a party shall be deemed awarded unless another party files and serves written objections within the time provided by section (d). The clerk of the superior court shall transmit a copy of the cost bill and any superior court decision allowing costs to the court of limited jurisdiction and a copy of the decision to each party. The costs awarded to a party shall become a part of any judgment entered under rule 9.2(b) 9.2(c). (g) Unchanged.
RALJ 10.2 DISMISSAL OF APPEAL
(a) Involuntary Dismissal. The superior court will, on motion of a party or on its own motion after 14 days' notice to the parties, dismiss an appeal of the case (1) except as provided in section (b) of this rule 10.3(c)(1), for failure to timely file a notice of appeal, or (2) for want of prosecution if the party appealing has abandoned the appeal. Unless good cause is shown, an appeal will be deemed abandoned if there has been no action of record for 90 days.
(b)-(c) Unchanged.
CRLJ 63 JUDGES — DISABILITY
If by reason of death, sickness or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed entered, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he or she cannot perform those duties because he the judge did not preside at the trial or for any other reason, he the judge may in his the exercise of discretion grant a new trial.
CrRLJ 3.3 TIME FOR TRIAL
(a) [No change.]
(b) Time for Trial.
(1) Defendant Detained in Jail. A defendant who is detained in jail shall be brought to trial within the longer of
(i) 60 days after the commencement date specified in this rule, or
(ii) the time specified in subsection (b)(5).
(2) Defendant Not Detained in Jail. A defendant who is not detained in jail shall be brought to trial within the longer of
(i) 90 days after the commencement date specified in this rule, or
(ii) the time specified in subsection (b)(5).
(3) Release of Defendant. If a defendant is released from jail before the 60-day time limit has expired, the limit shall be extended to 90 days.
(4) Return to Custody Following Release. If a defendant not detained in jail at the time the trial date was set is subsequently returned to custody on the same or related charge, the 90-day limit shall continue to apply. If the defendant is detained in jail when trial is reset following a new commencement date, the 60-day limit shall apply.
(5) Allowable Time after Excluded Period. If any period of time is excluded pursuant to section (f) (e), the allowable time for trial shall not expire earlier than 30 days after the end of that excluded period.
(c) [No change.]
(d) Trial Settings and Notice — Objections — Loss of Right to Object.
(1) Initial Setting of Trial Date. The court shall, within 15 days of the defendant's actual arraignment in the trial court or at the omnibus pre-trial hearing, set a date for trial which is within the time limits prescribed by this rule and notify counsel for each party of the date set. If a defendant is not represented by counsel, the notice shall be given to the defendant and may be mailed to the defendant's last known address. The notice shall set forth the proper date of the defendant's arraignment and the date set for trial.
(2) Resetting of Trial Date. When the court determines that the trial date should be reset for any reason, including but not limited to the applicability of a new commencement date pursuant to subsection (c)(2) or a period of exclusion pursuant to section (e), the court shall set a new date for trial which is within the time limits prescribed and notify each party of the date set.
(3) Objection to Trial Setting. A party who objects to the date set on the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial date within those time limits. Such motion shall be promptly noted for hearing by the moving party in accordance with local procedures. A party who fails, for any reason, to make such a motion shall lose the right to object that a trial commenced on such a date is not within the time limits prescribed by this rule.
(4) Loss of Right to Object. If a trial date is set outside the time allowed by this rule, but the defendant lost the right to object to that date pursuant to subsection (d)(3), that date shall be treated as the last allowable date for trial, subject to section (g). A later trial date shall be timely only if the commencement date is reset pursuant to subsection (c)(2) or there is a subsequent excluded period pursuant to section (e) and subsection (b)(5).
(e)-(h) [No change.]