§2.1 State Admission to Practice

• Jurisdiction: Washington

I. STATE ADMISSION TO PRACTICE

The State Bar Act provides generally that: "No person shall practice law in this state ... unless he shall be an active member [of the state bar]."¹ The act further specifies in RCW 2.48.180 that anyone who does practice law without being a member of the bar shall be guilty of a misdemeanor. It also creates the Washington State Bar Association (WSBA) Board of Governors and gives the board authority to adopt qualifications and rules for admission to practice, subject to the approval of the state Supreme Court. In turn, the Supreme Court has adopted Admission to Practice Rules (APR) that (1) declare the court's exclusive power to prescribe the qualifications for the practice of law,² (2) authorize the WSBA to play specific roles in the admissions process,³ and (3) lay down a number of specific admissions requirements and opportunities.⁴

A. Overview

Subject to several exceptions, discussed below, the APR require that all applicants (1) be of good moral character; (2) be graduates of an approved law school or of the Washington state "law clerk" alternative, or have been admitted to practice in another "common law" jurisdiction⁵ and practiced there from three to five years as either a lawyer, law teacher, or judge; and (3) pass the state bar exam.⁶ Pursuant to the authority concurrently granted by both the State Bar Act and the APR, the WSBA administers the admissions process by (1) creating an application form and reviewing applicants' answers to that form (and conducting further investigation and even evidentiary hearings if necessary); (2) approving law schools; (3) administering the state law clerk program, which is an alternative to attending an approved law school; (4) creating and administering a bar examination twice annually; and (5) recommending admission (or denial) to the Supreme Court.⁷

The State Bar Act contains a long list of important exceptions to the general admissions requirements. First, there is the "pro se" exception, under which a person is generally entitled to represent himself or herself in any proceeding without having been admitted to practice law.⁸ Analogous to the pro se exception for "proceedings" is the legal principle under which "a party to a legal document may select, prepare or draft that document without fear of liability for unauthorized practice."⁹ Second, there are "special admissions" under APR 8; "limited practice rules" such as those for legal interns (APR 9), limited practice officers (LPOs) (APR 12), and foreign law consultants (APR 14), and the reciprocal admission rule for lawyers admitted in other states (APR 18). We will discuss the "pro se" exception and then move on to the special, limited, and reciprocal admissions rules after that.

B. Pro Se Exception

It is well recognized throughout the United States that no one is required to retain a lawyer to represent them.¹⁰ In Washington, the right of a person to proceed without a lawyer is recognized in the state constitution (for criminal proceedings),¹¹ in the State Bar Act,¹² and by judicial decision.¹³ In the case of criminal defendants, the right appears to be guaranteed by the Sixth Amendment to the United States Constitution, provided it is "knowingly and intelligently" exercised.¹⁴ The pro se exception applies not only in court proceedings but also to the preparation of legal documents that affect a person.¹⁵

The pro se exception is nonetheless a limited one. It does not generally permit a nonlawyer to assist another in representing himself or herself, at least in civil cases.¹⁶ The Washington Supreme Court has held that "[t]he receipt of compensation is conclusive evidence that the layperson is not merely acting for himself but has assumed the additional burden of acting for another."¹⁷ But the converse is not true. One does not avoid engaging in the unauthorized practice of law simply by declining compensation.¹⁸

Whether a corporation, partnership, or other business organization may represent itself pro se through a nonlawyer employee, agent, or representative in a legal "proceeding" appears to be an unresolved question in Washington. The almost universal rule in other jurisdictions is that they may not.¹⁹ Although our Supreme Court has suggested that the pro se exception permits corporations to draft their own legal documents, as long as they are acting solely on their own behalf, it has never squarely so held.²⁰ If the pro se exception does apply to entities, then nonlawyer corporate employees may be permitted to provide legal advice and draft legal documents for their employer, provided they are not doing so for their employer's customers. The Restatement of the Law Governing Lawyers takes the position that nonlawyer officers of corporations may "permissibly draft legal documents, negotiate complex transactions, and perform other tasks for the employing organization."²¹

Author's
Commentary The prohibition on business organizations appearing through agents other Commentary than attorneys seems to owe more to history than to reason. Apparently, it dates at least back to the time of Sir Edward Coke, who ended an illustrious career by writing commentaries on the laws of England in the early seventeenth century. According to Coke, the rule that a corporation may appear only through an "atturney" was well established even then.²² Because corporations are only artificial persons—fictions or creations of the law—it is obviously necessary that anything they do must be done by human agents. Many courts simply seem to reason from this truism that because a corporation cannot act on its own, but must always act through a representative, it can only act in legal affairs through a licensed attorney. But the conclusion does not follow. Why limit a corporation in this way? The one rationale that seems to command the widest following is that nonlawyer corporate representatives are not subject to the disciplinary power of the court. But this argument overlooks two related points. First, anyone appearing in a court or other tribunal is fully subject to the tribunal's contempt and supervisory powers, whether lawyer or not.²³ Second, natural persons appearing in courts pro se are no more (or less) subject to the disciplinary powers of the court. Another reason sometimes offered is that nonlawyers may not be sufficiently knowledgeable about legal affairs and thus might burden the courts with frivolous or unnecessarily time-consuming proceedings. But here again, this is no more true with business organizations than with pro se "natural" litigants, and indeed is probably less true. A business can usually be counted on to designate someone within the organization who has expertise in the matter at hand, whereas a natural person has no such luxury. Indeed, it may often be the case that a nonlawyer inside an organization may be much more knowledgeable about the matter than would a lawyer from outside. The discussion, then, shades into questions about the unauthorized practice of law. Can we justify allowing nonlawyer corporate agents to appear in a representative capacity for a corporation if we do not allow nonlawyers to appear for natural persons? No doubt there are serious problems of consistency here. Perhaps we should be reluctant to give corporations any more advantages over natural persons than they already possess. There is also a possibility of confused roles that arguably is less likely to arise when a corporation is represented by a lawyer. One of the intractable problems with business entity representation is that a lawyer representing the entity owes loyalty to the entity but must regularly deal with an agent of the entity in the form of an officer or other "constituent."²⁴ The interests of such agents may come into conflict with those of the entity. A lawyer representing the entity is supposed to be able to distinguish between the interests of the agent and those of the entity and remain loyal to the entity. But if the nonlawyer agent is entitled to appear personally in a representative capacity, the ethical "distance" provided by a lawyer is absent and there is a greater likelihood that the nonlawyer representative will be advocating for a position that is self-interested rather than entity-interested. At least so goes the argument. But the argument fails to take account of the fact that if a lawyer is only dealing with the nonlawyer agent for the entity in the first place, there is nothing to prevent that agent from espousing a self-interested position that is against the interest of entity, and the lawyer may not be able to discern that this is going on. In short, it is something of a fiction that a lawyer can achieve the requisite ethical distance from what he or she is being told by the corporate agent.

The only point that we wish to make here is that there do not seem to be any reasons inherent in the nature of corporations (or other types of business organization) that demand that they be denied the right to appear through nonlawyer representatives. The better question is when, if ever, we should allow nonlawyers to represent others (whether corporations or natural persons) in legal matters. To this question we will return below when we discuss the unauthorized practice of law.

C. Special Admissions, Limited Practice Rules, and Reciprocal Admission

As noted in Section I.A., above, there are rules governing special admissions, limited practice, and reciprocal admission that need to be taken into account.

1. Special Admissions Rules

"Special admissions" are covered by APR 8. This rule authorizes admission for specific cases ("pro hac vice").²⁵ It gives a short opportunity to practice in this state without having taken the bar exam (not to exceed one year) to an attorney admitted in another jurisdiction who is representing indigents in a public defender's office or a bar association or...