Report from the January 2007 Meeting

The Washington State Bar Association Board of Governors (“the BOG”) met January 11 and 12, 2007, in Tumwater and Olympia. It was a very interesting meeting, covering a diverse range of subjects. Below are some of the highlights.

First, I requested – and received – a unanimous statement of support from the BOG for the Young Lawyers Division’s effort to secure a 2008 ABA Young Lawyers Division conference in Seattle. This effort is being headed by WYLD President-elect Mark O’Halloran. The statement of support from the BOG was included in the initial application materials sent to the ABA. Stay tuned to future issues of De Novo for opportunities to get involved in this project.

The BOG then turned to several pressing issues. The first concerned RPC 1.15A, the rule covering the safeguarding of client property. In 2006 the Washington Supreme Court approved this rule that, among other things, requires attorneys holding monetary and non-monetary property belonging to a client, including original legal documents, to provide that client with an accounting of such on at least an annual basis. As it was explained to the BOG by the WSBA Professional Responsibility Counsel and Chief Disciplinary Counsel, the primary motivation behind an annual accounting for legal documents was to address the problem of “orphaned wills”: original wills that turn up when a lawyer dies or abandons his or her practice. We were advised that is a routine issue for WSBA, as these wills frequently later turn up on the Bar Association’s doorstep, requiring some form of disposition that will protect the will makers’ rights. By requiring an annual accounting from attorneys holding wills to be sent their clients, it was believed this approach would help solve the orphaned will problem because clients would be reminded of the will location and could take steps to obtain it if necessary.

We then heard from representatives from the Real Property, Probate, and Trust (“RPPT”) Section. These attorneys strenuously objected to the annual accounting requirement, claiming it would be costly and cumbersome, especially for attorneys already holding numerous wills for clients. The RPPT Section urged us to submit a revised version of RPC 1.15A to the Supreme Court that would, while retaining annual accounting for client funds, remove the reporting requirement for non-monetary client property like wills.

Though I was sympathetic to the RPPT Section’s concerns about the burden on practicing attorneys, I objected to its proposal on two grounds. First, I was persuaded that orphaned wills were a problem requiring resolution, though I was not particularly convinced that RPC 1.15A as formulated was an effective means to accomplish this. Second, I was troubled by the fact that this issue was being raised now, long after the formal rulemaking and public comment period had closed. I did not want our actions perceived as an attempt to accommodate an “end run” around the established rulemaking process. Though the BOG ultimately approved the RPPT Section’s recommendations, I understand that my concerns (shared by others on the Board) will be communicated to the Supreme Court along with the proposed amendment.

The next issue taken up was no less contentious. At our prior December meeting we decided to sponsor state legislation this year that would increase the amount under Washington’s Homestead Exemption statute, RCW 6.13.030, from $40,000 to $125,000. The recommendation from the Creditor-Debtor Section had been to sponsor an increase to $100,000, but following some discussion we decided to go further and reached a figure of $125,000. Consequently we heard from a number of members of the Creditor-Debtor Section, as well as several bankruptcy court trustees, who objected to our actions.

I am quite familiar with the application of the Homestead Exemption from my own practice and I did some research on the issue prior to the meeting. It was very apparent to me that the current exemption of $40,000 in today’s housing market was wholly insufficient to meet the basic, historical purposes of such an exemption, and I was unpersuaded by the arguments in opposition to an increase in the exemption amount. However, I was bothered by accusations made regarding the internal process undertaken within the Section when reaching its recommendation to the BOG. I was concerned that such dissention might be exacerbated by the BOG’s independent action to go beyond the Section’s recommendation (especially in light of questions whether the original recommendation accurately reflected the Section’s position), thereby possibly undermining the bill and affecting its success in the legislature. I proposed that we change course and sponsor only the amount that was originally put to us in an effort to quell some of the procedural concerns, but this view was not shared by a majority on the Board. Ultimately it was determined that the bill will move forward with the $125,000 figure.

These two issues alone consumed much of our meeting time. We also handled a number of other matters, and these are reflected in the BOG meeting minutes on the WSBA website. We also had the opportunity to meet with several members of the Washington Supreme Court in the Temple of Justice to have a dialogue on matters currently facing both the Bar and the Court. This meeting is held annually, and it was a fascinating discussion. I will look forward to doing it again next year.

As always, I welcome your input and ideas for upcoming BOG meetings. Please be in touch.