Report from the October 2007 Meeting

The BOG’s October 26, 2007, meeting in Winthrop had a considerably lighter agenda than that of the September meeting. The Board received a report from the Council on Public Legal Education on its efforts to improve the awareness of the public and school students on issues of the legal system and civics. The Board also decided, after reviewing the results of the September 2007 Bar News’s focus on marriage equality, that the BOG will hold public forums on marriage equality at its March and April 2008 meetings in Tacoma and Spokane, respectively. The Board also made a number of board and committee appointments. Finally, I spoke to the Board about concerns that I have been hearing regarding the use by some attorneys of threats to report opposing parties to Immigration and Customs Enforcement solely as a means of gaining an advantage in a civil proceeding. The WSBA once had a formal ethics opinion prohibiting this type of conduct, but the opinion was withdrawn some time ago. The BOG will likely be hearing more about this disturbing issue at its December meeting and may be taking action.

Report from the September 2007 Meeting

The meeting on September 20 and 21, 2007, coincided with the WSBA annual meeting and awards dinner. There were three very significant items on the agenda. The first was the report of the Trust Account Responsibilities and Retainers Task Force (“TARRTF”). This task force was charged with coming up with revisions to RPC 1.5 and 1.15A to clearly define an attorney’s responsibilities with respect to retainer fees, prepaid fees, and flat fees. One item of controversy was whether a flat fee should be considered earned, and thus the attorney’s property, upon receipt, or whether it must be deposited into a trust account and withdrawn only as the attorney completed representation tasks. The final proposed rule defines flat fees as fully earned upon receipt by the attorney. Another item of controversy was how to handle fee disputes under the rule and whether to require parties to submit to a formal fee dispute resolution program, like the one run by the WSBA. Instead, the final rule requires only that, within 30 days of the accrual of a fee dispute, the attorney deposit into a trust account the portion of the fee the attorney believes in dispute, where it remains until resolution of the dispute. The BOG passed the TARRTF proposed rules.

Next the BOG took up recommendations by the Committee on Public Defense. The most controversial of these came from the Standards Subcommittee. At issue were the public defender caseload standards; specifically, a dispute over how to set caseload standards for misdemeanors. One proposal was to set a maximum of 300 misdemeanor cases per year, but that any given defender entity could adjust the standard upward to 400 upon a showing of certain factors. The alternate proposal was to set the maximum at 400, but this could be adjusted downward to 300, again based on certain factors. The BOG debated these points at length and ultimately endorsed the 300-case standard with the ability to adjust up to 400.

The final significant issue was the passage of the 2007—2008 WSBA budget. A few items required extensive discussion, including whether to fund a Spokane bar exam and the Young Lawyer Division’s statewide GAAP proposal. Of these issues, the BOG decided to commission an implementation plan to hold a summer 2009 bar exam in Spokane. The Board reserved the issue on whether to actually fund such a venture until a later time. The BOG expressed a number of concerns with the GAAP proposal as stated, so I requested that the Board allow the GAAP subcommittee an opportunity to retool the proposal in light of the concerns expressed and present a new proposal by the March 2008 meeting for possible inclusion in the current year’s budget. The Board agreed with this proposal.

The BOG also undertook a number of more routine matters, including a variety of committee, board, and panel appointments, as well as selection of Michael Heatherly as the new WSBA Bar News editor. Finally, the BOG adopted changes recommended by the Long Range Planning Committee to the WSBA mission statement, guiding principles, and strategic goals.

Report from the July 2007 Meeting

The BOG met in Quincy, Washington from July 26 to 28, 2007, to conduct its annual retreat in conjunction with its regularly scheduled meeting. The retreat focused in part on the product of the WSBA Long-Range Planning Committee, on which sits WYLD President Mark O’Halloran. The committee presented its final report, including a restatement of the mission of the Bar Association and a greater degree of focus in its core missions. The BOG looks forward to a public discussion of the recommendations and Board action at its September meeting.

For this summertime meeting there was a great deal of administrative work to be handled by the Board. Predictably, these issues were generally straightforward and lacked controversy. For example, we approved a change to ELC 13.9 that increased fees and costs assessed upon lawyers subject to discipline in order to better recapture actual costs to the Bar Association. We also approved changes to APR 6, which governs the law clerk program, to add Indian Law as a required subject, to provide a mechanism for termination of a law clerk from the program, to add specific authorization to revise the program’s regulations, and to provide a means to refer applicants to the WSBA Character and Fitness Board when appropriate. Additionally, we conducted a great number of appointments to various boards. As is my general inclination, I made an effort to nominate qualified young lawyers for these positions. We selected members for the Washington State Bar Foundation’s Loan Repayment Program Advisory Committee, the Board for Court Education, Commission on Judicial Conduct, Judicial Recommendation Committee, and the MCLE Board.

The Board also handled a number of rule changes during this meeting. We passed the proposed APR 27 (including an amendment to RPC 5.5, comment 14) that will allow for admission of out-of-state lawyers to be admitted to Washington for the limited purpose of providing pro bono services following a major disaster in this state. The rule follows the ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster. We also approved a number of rule changes recommended by the WSBA Court Rules and Procedures Committee. These included amendments to ER 408 and 410 to clarify the admissibility of offers to compromise and compromises themselves in criminal proceedings, and amendments to CrR/CrRLJ 8.3, RAP 2.2, and RALJ 2.2(c)(1) to codify the “Knapstad motion” into the court rules.

There were two controversial items that arose during the meeting. The first was a new proposed general rule, GR 34, that will create a uniform procedure for indigent litigants in civil cases to receive an in forma pauperis waiver of court costs and fees. The rule, proposed by the WSBA Pro Bono and Legal Aid Committee, is intended to address the complications faced by pro se litigants arising from the lack of uniformity as well as simplifying the process utilized by pro bono and legal aid attorneys to get filing fee waivers for their clients. The rule, which I have actively worked on for two years, should greatly improve access to the courts by the poor while making pro bono service by volunteer attorneys more appealing. However, representatives from the Washington State Association of County Clerks appeared at the meeting to express their opposition to the rule. I was pleased by the support for the rule expressed by the BOG and gratified by its passage. It will now go to the Washington Supreme Court for its rulemaking, and I have continued my involvement to ensure that it gets shepherded through the process as well as possible.

The other controversial rule was proposed by the Non-Legislative Fixes for Enforcement of Standards Subcommittee of the WSBA Committee on Public Defense. The committee proposed changes to CrRLJ 4.1 and 4.2. A dispute was raised by the District and Municipal Court Judges Association to the proposed rule’s requirement that prosecutors be available for in-custody arraignments in courts of limited jurisdiction. The BOG considered the arguments on both sides of the question of whether such presence is necessary and should be mandated. Some governors wished to go beyond the recommendations of the committee and moved for adoption of a rule that required prosecutorial presence at all arraignments, not just in-custody arraignments. I believed that going beyond what I believed to be a prudent recommendation by the committee would make the rule less likely to successfully pass the Washington Supreme Court’s rulemaking process, and thus I moved to strike the language proposed by the governors. This was successful and the BOG passed the rule as recommended by the committee. The BOG further passed far less controversial proposals by the committee, including a proposal to recommend a two-track system for contempt of court proceedings and further study of mental illness and sex offender civil commitments.

As always, please contact me if you have any questions or have ideas about things you would like to see the BOG take up in future meetings.

Report from the June 2007 Meeting

The last WSBA Board of Governors (“BOG”) meeting was held on June 1, 2007, in Wenatchee. As in years past, the meeting occurred in conjunction with the annual Access to Justice Conference and WSBA Bar Leaders Conference. As a staff attorney with Northwest Justice Project—a member of Washington’s Alliance for Equal Justice—I particularly enjoyed the opportunity to reconnect with many of my old friends and colleagues in the access to justice community, now as a governor of the state bar. I was especially pleased to have the chance to serve as a panelist at the conference’s opening session.

The bulk of our work at this meeting involved a number of elections and appointments. First and foremost, the BOG elected Mark Johnson, a Seattle lawyer, as WSBA’s next President-elect. Mr. Johnson was unopposed in the election, so the process went very smoothly. It is important for me to note that Mr. Johnson is very concerned about issues relating to young lawyers and made a specific effort to reach out to the WLYD’s Board of Trustees to seek its input and support in the election. I know Mr. Johnson personally and I am very excited about the work he will do as the next bar president on behalf of young lawyers.

The BOG also elected a new governor to fill one of the board’s at-large seats currently occupied by Marcine Anderson, whose term expires this fall. This seat is intended to serve as a means of enhancing the diversity of the board, and we had four very diverse candidates to choose from. Ultimately the board elected Brenda Williams, a Seattle public defender, to fill the seat.

Several appointments were made at this meeting as well. The board appointed three new members to WSBA’s ABA delegation. One of these seats is required to be filled by an attorney under 35, and the board selected Michael Pellicciotti to serve in this role. It should be noted that Mr. Pellicciotti is also the newest King County trustee on the WYLD Board of Trustees (as well as a fellow Gonzaga Law School alum). The board also appointed Katie O’Sullivan to the Commission on Judicial Conduct. Ms. O’Sullivan previously represented the WYLD on the Board of Governors as my immediate predecessor on the board.

In addition to elections and appointments, the BOG conducted several important items of business. Following a presentation by the Juvenile Defense/Representation subcommittee of the WSBA Committee on Public Defense, the board approved the proposed JuCR 7.15. This rule mandates appointment of counsel in juvenile proceedings for the purpose of advising juveniles regarding waiver of counsel. The board also approved the subcommittee’s proposed Resolution in Support of Diversion Programs and a Resolution Regarding Right to Counsel at initial court proceedings, including arraignments and probation hearings. The BOG also heard a presentation by the MCLE Board, which recommended changes to Admission to Practice Rule (APR) 11. The rule had most recently been changed to place a cap on the number of CLE credits an attorney could claim from “in-house” CLE programs. This rule turned out to be fairly controversial, and in response the MCLE Board took a great deal of public comment and decided to remove the caps, along with making a number of other changes in response to feedback. The text of the rule can be found at www.wsba.org/lawyers/groups/mcle/apr11review07.htm. Both this rule and JuCR 7.15 have been forwarded to the Washington Supreme Court for its rulemaking process.

In all, it was a very productive meeting and the governors had an opportunity to learn more about the efforts being made to expand access to justice in Washington State for those unable to afford legal counsel. As always, if you have comments or thoughts, I am always happy to hear from you.

Report from the April 2007 Meeting

The Board of Governors meeting in Kelso on April 13, 2007 was predictably interesting. The Board approved an extremely modest increase in the per-member charge for WSBA’s sections, recognizing the importance of the work of sections to the Bar and with the intent to develop a long-term policy regarding WSBA’s financial support for the sections. The Board also appointed WSBA immediate past-president S. Brooke Taylor to serve as a WSBA representative in the ABA House of Delegates.

The BOG then returned to the final report of the Death Penalty Subcommittee, held over from the March meeting. After a lengthy and thorough discussion of the report and consideration of the various submissions of interested parties, the Board voted unanimously to approve and adopt the report and its recommendations. The report in its entirety can be found at www.wsba.org/websitepostingfinal32707.pdf.

Finally, the Board received a preview of the report by the MCLE Board on its review of rules regarding Admission to Practice (“APR”) Regulation 104(e). Among other things, this regulation, made effective by the Washington Supreme Court and due to begin enforcement on June 1, 2006, places a limit on the number of CLE credits that attorneys and earn from in-house seminars. This credit limit has caused a great deal of concern among law firms that routinely host in-house CLEs for their attorneys. The MCLE Board has been looking at the matter and the BOG expects to receive a full report and recommendations at the June meeting in order to take action on the issues that have been raised regarding the rule.

I welcome your input and thoughts on this or any issues that come before the Board of Governors. Also, the full minutes of these meetings can be found online at www.wsba.org/info/bog/minutes+2006-2007.htm. Please be in touch.

Report from the March 2007 Meeting

The BOG met in Bellevue on March 2, 2007. A great deal of the meeting time, both in public and executive sessions, was consumed with the selection of the next executive director of the Bar Association. The Board created an Executive Search Committee last year following the announcement of then-executive director Jan Michels of her intent to retire. The committee conducted an exhaustive nationwide search, reviewed numerous résumés, conducted a series of interviews, and finally narrowed the field of potential candidates for interview by the WSBA staff, various stakeholders, and the BOG itself. After carefully considering the input of all parties and the recommendation of the committee, the Board selected Paula Littlewood, who accepted and commenced her duties as executive director on May 1. Having participated in this process, I am confident that Paula will do an excellent job and will be particularly attentive to the needs of the young lawyers of Washington.

Another issue arising at the Bellevue meeting was a proposal by the Washington State Department of Revenue (“DOR”) to extend Business and Occupation (“B&O”) tax liability to attorneys who advance litigation and other costs to clients. This tax would directly affect those attorneys who advance these costs under contingency fee agreements. The actions of DOR in this regard were prompted by the recent change in RPC 1.8(e) that no longer requires attorneys to make clients ultimately liable for these costs under a contingency fee agreement. Following a presentation by former WSBA Governor Mark Johnson on the matter, the Board voted to recommend to the Washington Supreme Court that the rule be changed back to its former state in order to avoid this wholly unanticipated tax consequence for attorneys. As of this writing, it appears the court has adopted the Bar’s recommendation and the rule change will be made.

The BOG also received a lengthy presentation by on the final report of the Committee for Public Defense and its seven subcommittees. These committees reported and made recommendations on the death penalty, education, juvenile defense and representation, mental illness and sex offender civil commitments, non-legislative fixes for enforcement of standards, and system efficiencies and legislative changes. In particular, the Death Penalty Subcommittee sought approval and adoption of its report and recommendations, as well as extension of its charter. After discussion by the Board, we determined that we should take the time to seek input from our constituents on this important topic before taking a final vote on the matter.

Finally, the Board received a report from the newly-forming Local Rules Task Force. This group is seeking to review the proliferation of local rules in Washington and make recommendations for improvement that might simplify and streamline the increasingly complex and disparate local rules among Washington’s county courts.

Death Penalty Subcommittee Report

I want to call your attention to one item that will be before the Board at its April 13–14 meeting in Kelso. The Death Penalty Subcommittee of the WSBA Committee on Public Defense has issued a final report after its extensive study and analysis of the use of the death penalty in Washington State. This report reaches a number of conclusions and makes several recommendations for further study and action, and the subcommittee is seeking endorsement by the Board of these conclusions and recommendations. I believe the report is generally uncontroversial; it does not, for example, make any judgments about the merits of the death penalty system itself one way or another. Thus, I intend to vote to endorse the report and the continuing work of the subcommittee. However, I am interested in hearing your views on this important report. You can read all of the materials at www.wsba.org/lawyers/groups/committeeonpublicdefense.htm, and you can reach me at wyld_governor@mac.com. I want to hear what you think.