December 2005
Special Admission Rule for Military Lawyers
by Hon. Gerry L. Alexander, Chief Justice, Washington State Supreme Court
This article originally appeared in Bar Examiner, Volume 74, No. 3, August 2005. Reprinted with permission.
In recent years, the Washington State Supreme Court has adopted rules that permit some lawyers who have been admitted to the practice of law in another state or a territory of the United States to obtain special admission to the practice of law in Washington. Lawyers who obtain this limited license to practice law do not have to meet the requirement of passing the state’s bar examination. The umbrella rule is Admission to Practice Rule (APR) 8. Under this rule, special admissions are authorized for lawyers who provide legal services to indigent persons under the auspices of a government- or bar association-sponsored legal services organization or public defender’s office. APR 8(c). The rule also authorizes “emeritus membership” for lawyers who are fully retired from the practice of law but who wish to provide legal services under the auspices of a qualified legal services provider. APR 8(e). In addition, special admissions are authorized for lawyers enrolled in good standing in postgraduate studies or who serve as faculty members of law schools so that they may participate in the clinical work of the course of study in which they are enrolled or teaching. APR 8(d). This rule also authorizes special admissions for lawyers who are employed with and serve as house counsel for profit or nonprofit corporations and who agree to limit their practices exclusively to work for their corporate employers. APR 8(f).
Our court’s recognition of the above categories of special admissions has been well received by the bar and by the general public. In my view, this is because they realize that it is entirely appropriate for the court to relax bar admission requirements for lawyers admitted to the practice of law in other states or in territories of the United States who are willing to provide legal services for a single corporate employer or for indigent persons.
No special admissions category has, however, been as acclaimed or provided as much satisfaction to the Washington State Supreme Court as has APR 8(g), the most recently recognized category of special admissions. That rule applies to military lawyers who are on full-time active duty in the state of Washington and who serve in a trial service office of a staff judge advocate. It allows these military lawyers to obtain special admission to practice in order to provide in-court representation in civil matters for active-duty military personnel in grades E-1 through E-4, and their dependents, to the extent that such representation is authorized by their military superiors.
This rule was proposed to our court in 2001 by the Board of Governors of the Washington State Bar Association. The proposal had first been presented to the Board of Governors by the WSBA Legal Services to the Armed Forces Committee. That committee pointed out that since World War II, U.S. military legal assistance programs had provided no-cost legal services to military members and their families regarding their personal legal problems.
This had been done, we were told, in order to enhance military readiness, morale, and discipline.
Historically, legal assistance to military personnel has taken the form of drafting and execution of wills, powers of attorney, and other legal documents. Assistance has also been provided to military clients on divorce, adoption, and name-change proceedings, as well as paternity laws, landlord-tenant disputes, consumer-protection issues, and garnishments and other debt-related problems. Most of the legal assistance, though, was provided within the confines of military bases or on naval or coast guard vessels. Occasionally, military lawyers might enter appearances in state courts on behalf of military members, but only in cases where the military lawyer was a member of the bar of the state in which the court was located. However, because military lawyers, like other service members, are frequently reassigned from one military facility to another during their careers, they generally do not apply for bar admission in the states in which their military facilities are located. Some states, notably Florida and Illinois, recognized this lack of bar admission as a problem and have authorized representation of military members in their courts by military lawyers who are admitted to the practice of law in another state or a U.S. territory. We were asked to do the same by adopting the proposed special admissions rule.
Our court was immediately attracted to this rule for two important reasons. First, we recognized that a large number of military personnel are stationed in Washington; our state is the home of one of the nation’s largest army forts, Fort Lewis, as well as two large air force bases, McChord AFB and Fairchild AFB. The Navy also has a huge presence in Washington, with facilities in Bremerton, Bangor, Everett, and Whidbey Island. On top of that, the U.S. Coast Guard has several facilities in Washington. We also knew that military personnel of the lower ranks and their dependents generally do not have sufficient funds to hire civilian lawyers, should in-court representation become necessary to protect their interests.
Consequently, in February 2002, our court entered an order providing for adoption of proposed rule APR 8(g). Soon thereafter, we conducted a swearing-in ceremony for the first batch of military lawyers who qualified for admission under the new rule. This ceremony, which was held in our courtroom in Olympia and was televised live by our state’s public-affairs television network, TVW, was, to say the least, very moving. Standing before the court that day for the administration of the attorney’s oath were nine military lawyers, each looking very sharp in the uniform of his or her service. Three of the admittees that day were Navy JAG officers, one was an Air Force JAG officer, and five were from the Army JAG office at nearby Fort Lewis.
Opening remarks were presented by our court’s senior justice, Charles W. Johnson, as well as by Kenyon Luce, the then-chair of the WSBA Legal Services to the Armed Forces Committee. Following their remarks, the admittees were presented to the court by high-ranking military lawyers from the three represented branches of the armed services. Following my administering of the attorney’s oath, a reception for the admittees and their families and friends was held in our court’s reception room. Since that memorable occasion, we have conducted periodic swearing-in ceremonies for other JAG officers who have qualified for this special admission.
We have been pleased to learn that the rule is working very well and is accomplishing the goals that our court had in mind when we adopted it, providing much-needed legal services to men and women of the armed services who serve our nation in the lower pay grades. Captain Moira D. Modzelewski, a Navy JAG officer, is a big fan of the rule. In communicating with her recently, I learned that her practice as a legal assistance officer has benefited tremendously from the rule. Although she indicated that counsel in her office have not yet actually gone to court under Rule 8(g), “the power to personally appear on behalf of a client in Washington courts, even if rarely exercised, removes the usual ‘so what?’ attitude of opposing parties (primarily landlords and local car dealers),” and prevents them from ignoring the letters and phone calls that military lawyers make on behalf of the enlisted personnel they represent. She cited one example of a case with “golden facts” and a significant legal issue that would have been a “perfect” Rule 8(g) case. The case involved a Navy E-3 and his wife who signed a month-to-month rental agreement that imposed a $900 fee if they vacated the rental premises sooner than six months. It was Captain Modzelewski’s view that the right of a tenant (or the landlord) to terminate a month-to-month rental agreement with proper notice is an unqualified right. In her view, a provision in a rental agreement that imposed a fee if a month-to-month tenancy was terminated by the tenant impermissibly burdened that statutory right and was contrary to public policy and unenforceable under Washington law. A Seattle city ordinance, she observed, outlaws this practice, but it is widely done in the county where her client was stationed. She said that this would have been a great case in which to seek a declaratory judgment stating that the fee was unenforceable.
Captain Modzelewski said: “Our ability to go into court was critical in reaching a settlement, because the potential defendant (a major nationwide real estate management company) would not return my counsel’s calls or respond to letters until right after he called their corporate registered agent to confirm they were the current agent for service of process. We were happy to settle the case, because we obtained a complete victory for our client, but regretted losing the opportunity to take the case to court and get a ruling that perhaps would benefit other sailors.”
As Americans, we have always relied on the members of our military services to defend the blessings of liberty we enjoy. Those who serve in the lower ranks of those services should not be denied the protections that the law provides them in civil matters. While the rule we adopted is not a panacea, it is, in our judgment, a positive step toward leveling the playing field in the courts of Washington for the men and women of our military who are providing such a valuable service to us all. We will continue to monitor the rule and improve it as we deem necessary. We urge the highest courts in other states and in our nation’s territories to consider the value of such a rule for their jurisdictions.
Hon. Gerry L. Alexander was elected to the Washington State Supreme Court in 1994 after more than two decades of trial and appellate court experience, having served on the superior court and court of appeals bench. He is the longest-serving chief justice in the state’s history, having been elected by his colleagues in 2000 and again in 2004. Chief Justice Alexander is an emeritus member of the Board of Visitors of Seattle University School of Law. He has also served as a member of the Washington State Commission on Law Reports, and as an alternate member of the Judicial Conduct Commission. He received both an undergraduate degree in history and a J.D. from the University of Washington, and practiced law in Olympia for nine years. Chief Justice Alexander was recently awarded a Doctor of Laws by Gonzaga University.
