The Washington Supreme Court Order 25700-A-1005 and Paralegal Practice
In June 2012, the Washington Supreme Court adopted a rule, APR-28, establishing a framework for the licensing and regulation of non-attorneys to engage in discrete activities that currently fall with the definition of the “practice of law.” GR 24 defines practice of law, while GR 25 is the Supreme Court rule that establishes the practice of a Law Board.
While by itself, the rule adopted by the Washington Supreme Court does not authorize any one to practice law, it establishes the regulatory framework for the consideration of proposals to allow non-attorneys to practice. Specifically, the motion and the resultant order is targeted at allowing paralegals to openly and legally handle work that comes within the periphery of minor legal work and confined to help in documentation and related advise.
However, even more than the order allowing the adoption of such a rule that paves the way for non-attorneys to tread into traditional though insignificant regions of the ‘practice of law, the dissent to the order is mentionable. It is mentionable not only because it sums up the prejudices of those who are in the practice of law as an honored profession and against its ‘dilution, but it is mentionable because it raises significant questions that should be addressed by the system before professing to offer to paralegals, what is first-aid as cure.
The dissent is also mentionable because, as admitted by the dissenting judge, “During my years on the Washington Supreme Court, I have not once authored a dissent to an administrative order of this court. I depart from that custom today because I have very strong feelings that our courts decision to adopt the new Admission to Practice Rule, APR 28, is ill-considered, incorrect, and most of all extremely unfair to the members of the Washington State Bar Association.”
But before you jump to any conclusion about biased mumbo-jumbo, lets find out what the dissenting judge says in his dissent succinctly:
“I am not suggesting that the legal needs of all persons in this state are currently being met”
“We in the judiciary and the legal profession have an obligation to look for appropriate ways to expand the availability of legal assistance to the public”
“My opposition to the rule is based on the fact this rule and its attendant regulations impose an obligation on the members of the WSBA to underwrite the considerable cost of establishing and maintaining what can only be characterized as a mini bar association within the present WSBA”
“I do not believe that we possess the authority to tax the lawyers of this state to pay “all of the expenses reasonably and necessarily incurred” by the Non-Lawyer Practice Commission, a body which comes into being pursuant to the rules and regulations”
“Either way you look at it, this court is imposing a tax on lawyers”
“Although this court was earlier led to believe that initially there would be certification of legal technicians only in family law matters, the rule and regulations this court has approved provide the Practice of Law Board with unbridled discretion to recommend to the Supreme Court the areas, the full range of practice areas encompassed by the GR 24 definition of the practice of law, in which legal technicians can practice.”
“I wish to observe that an impartial observer might wonder why the Supreme Court does not assume responsibility for funding implementation of APR 28. After all, the fact that the legal needs of the public are not being met is a problem that affects the entire community, not just a segment of our states population like its attorneys at law.”
“Is it fair or equitable for this court to eschew assuming financial responsibility for the program I this time of economic distress, and instead impose the obligation on all of the states lawyers, many of whom are feeling adverse affects of the current downturn of the economy? I say no.”
What the dissenting judge points out is extremely important, because, if the costs of the APR-28 related activities were to be borne by the members of the Washington State Bar, then it would only amount to lip service to public needs. Effect and results of such activities would remain controlled by those who would be funding such activities, and in this case, only such funders have been chosen, to whom providing the desired funding would amount to hurting their own selves.
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However, as the dissenting judge points out, it would have been fair if the Supreme Court itself bore the costs of the program, instead of charging the bar association with it. As the dissent mentions, “Such a question would not be farfetched because in a number of states the expense associated with the admission and disciplining of lawyers is subsumed within the budget of the highest court in those states.”