MINUTES
Public Session Washington State Bar Association BOARD OF GOVERNORS Walla Walla, WA April 5-6, 2002
The Public Session of the Board of Governors opened at 10:30 A.m. on Friday, April 5, 2002 and continued through 12:15 p.m., Saturday, April 6, 2002 at the Marcus Whitman Hotel, Walla Walla, Washington. Governors in attendance were: Robert M. Boggs Carl J. Carlson Kenneth H. Davidson Bryce H. Dille Jenny A. Durkan Stephen J. Henderson William D. Hyslop Lucy Isaki Paul R. Lehto Jon E. Ostlund David W. Savage S. Brooke Taylor Victoria L. Vreeland Also in attendance were President Dale Carlisle, President-elect Dick Manning, Executive Director and Meeting Secretary Jan Michels, and General Counsel Bob Welden.
Scott Smith John Gray Narda Pierce Denton Andrews The Honorable Judith Eiler Peter Karademos Judy Young Susan McIntosh Jeanne Dawes Steve Crossland The Honorable E. Thompson Reynolds Jim Kaufman Sherri Jefferson Cheri Cosper
WSBA Board of Governors Executive Session April 5-6, 2002
Access to Justice Board Administrative Law Section Attorney General’s Office Clarkston City Attorney District & Municipal Court Judges Association & South King County Bar Association Family Law Section Government Lawyers Bar Association King County Bar Association Legal Foundation of Washington Real Property, Probate & Trust Section Superior Court Judges Association Washington Association of Prosecuting Attorneys Washington Young Lawyers Division WA State Paralegal Association
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Barrie Althoff Joy McLean Allison Parker Gail Stone Lori Lee
WSBA Professionalism Counsel WSBA Chief Disciplinary Counsel WSBA Communications Department WSBA Director of Legislative Affairs WSBA Executive Assistant
REPORT ON EXECUTIVE SESSION President Carlisle reported on matters discussed in Executive Session: 1. Two reprimands were read. 2. Litigation Report. 3. Discipline Report - more detail to follow in the upcoming Annual Discipline Report. 4. Discussed Facility Options - Executive Session because of the discussion of the lease rate. 5. Reviewed the recommendations of the Judicial Recommendations Committee. 6. Discussed the process for amending the list of Practice of Law Board nominations. 7. Revised the executive director evaluation cycle to coincide with the end of the WSBA fiscal year.
INTRODUCTIONS
APPROVAL OF THE MINUTES FROM THE JANUARY BOARD MEETING Governor Hyslop made a motion to approve the January meeting minutes; Governor Dille seconded. The motion to approve the minutes passed by a vote of 10-0-3, Governors Durkan, Henderson and Boggs abstaining since they were not present.
CONSENT CALENDAR The following items from the consent calendar were approved by circulation of the written approval form. 1. Approved RPPT Section bylaw changes. 2. Approved additional committee appointments. 3. Appointed Walt Krueger and Bruce Gardiner to the Commission on Court Reports. 4. Affirmed the President’s appointment of two Rules Committee members to Chief Justice Alexander’s Speedy Trial Task Force.
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5. Authorized revision to banking resolution removing Barrie Althoff and adding Judith Berrett as check signer. 6. Approved the ATJ Board’s recommendations for nomination to the ATJ Board. 7. Approved rule change transferring administration of the Limited Practice Board to the WSBA effective July 1, 2002.
Governor Hyslop requested discussion of the revisions to APR 4 (c) and it was stricken from the consent calendar.
ANNUAL DISCIPLINE REPORT - BARRIE ALTHOFF AND JOY MCLEAN Mr. Althoff presented a report on discipline trends and challenges from the past year. 1. More attorneys are contesting disciplinary actions and are more and more often represented. These factors lead to more contentious proceedings; 2. The WSBA is challenged to find disciplinary counsel and hearing officers with substantial private practice experience (because most disciplinary actions are against private practitioners); 3. The ongoing major question for the WSBA is how much or how little resources to commit to the disciplinary functions. 4. The new “Enforcement of Lawyer Conduct” rules should clarify the discipline process and allow stronger enforcement of the WSBA judgments. 5. Though investigations are now current, the huge glut of public proceedings will challenge staff in 2002 and early 2003. 6. Following the glut of hearings will be the critical phase of a large number of appeals. Ms. McLean pointed out the importance of timely and vigorous pursuit of appeals since there was known misconduct and public risk while the appeal proceeded. High level of appeals will continue through 2003 and into 2004.
Various questions were raised and responded to by Mr. Althoff and Ms. McLean: 1) costs and recovery, 2) the impact of the Practice of Law Board on discipline proceedings, 3) is the WSBA spending enough at this time, 4) prosecutorial discretion, and 5) the need for more time from the Disciplinary Board for the next 18 months.
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ABA ETHICS 2000 MODEL RULES- BARRIE ALTHOFF Mr. Althoff reported that the core of the ABA Model Rules remained basically the same but there was continuing pressure for convergence among the states. Changes were made to the confidentiality, third party neutrals, and communication with represented persons (primarily in federal cases). Yet outstanding were the issues of MDP and MJP. Mr. Althoff suggested the WSBA form a review committee that would include the Supreme Court and other reciprocity states. There was discussion of including a nonlawyer on the committee as well. Mr. Altoff’s strong personal recommendation was that Washington and other states adopt the model rules as is. The Board began discussing the rules themselves. Governor Durkan made a motion to table the issue; there was no second. Governor Davidson requested a staff analysis and recommendation. He suggested including a process for major member input as well. PRESIDENT’S REPORT - PRESIDENT DALE CARLISLE President Carlisle reported on the following items: 1. Activities since last meeting. 2. Letter from the Supreme Court noting there was unanimous agreement not to adopt the new suggested oath. Judge Judy Eiler, DMCJA Liaison, asked if this included the rule modification to allow District Court judges to administer the oath of admission. PRESIDENT-ELECT’S REPORT - PRESIDENT-ELECT DICK MANNING President-elect Manning reported on the following: 1. The Court Funding Group has been formed but progress will be slow. Defining the scope and the specific problem is complex. 2. Manning proposed the 2002-2003 BOG Meeting Calendar. Governor Ostlund made a motion to accept the proposed calendar; Governor Henderson seconded. The calendar was accepted by a vote of 13-0-0. 3. In February 2003 the ABA Midyear Conference of over 3,000 lawyers will be in Seattle. The WSBA and King County Bar Association are expected to host a
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reception and offer stay-at-home visits for some of the dignitaries. Tom Fitzpatrick and Judge McKeown are co-chairs of this effort. 4. President-elect Manning encouraged Governors to attend the Bar Leaders Conference in conjunction with the ATJ Conference in Yakima on June 12, 2002. The Bar Leaders Conference has been moved so no schedule conflict exists. 5. The Supreme Court has requested an explanation about why the proposed ELC rules do not allow for costs to the respondent attorney if they are the prevailing party. The Discipline 2000 Committee has developed a response that will be sent to the Court in mid April. EXECUTIVE DIRECTOR’S REPORT – EXECUTIVE DIRECTOR JAN MICHELS Executive Director Michels referred the Board to her written report and highlighted the Limited Practice Board transfer to the WSBA effective July 1, 2002. This brought up questions about the lawsuit against the Board parallel to the IOLTA litigation working its way through the federal courts. Executive Director Michels was asked to report on the status and effect of this litigation. Executive Director Michels discussed the “Juvenile Justice Assessment Project” and asked the Board to name a Governor as liaison to this project. Governor Ostlund emphasized the need for Board participation since there were possible due process issues under review in this study. President Carlisle will ask one or two of the 2002 incoming Governors to participate in the Juvenile Justice Assessment Project on behalf of the BOG.
Executive Director Michels commented that with the resignation of Tom Russell, was the opportunity to review and consider the WSBA’s CLE policy and procedures. She asked the Board to form a short-term CLE review workgroup. This workgroup will review CLE pollicies and procedures as well as oversee the hiring process for the replacement CLE Director. Governors Hyslop, Ostlund and Isaki volunteered to be on this workgroup.
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SPONSORED LIABILILTY INSURANCE REPORT The underwriter of the WSBA’s sponsored liability insurance, Great American, has decided to leave the professional liability insurance market in Washington. The WSBA’s brokers for this insurance plan are shopping for a new underwriter and will report back in May or June. The transition for members should be seamless though there will be a rate increase which could be as high as 40% parallel to most other insurance cost increases in 2002.
SPONSORED MEDICAL GROUP PLAN The Member Benefits Task Force recommended that the WSBA sponsor a group medical insurance plan for members. Seabury and Smith would again be the plan’s brokers and would do the marketing of the plan in an arrangement very parallel to the liability insurance sponsorship. The plan will become effective June 1, 2002 with open enrollment starting immediately and continue through May of 2003. Following that, open enrollment would only be annually except for special provisions to new Bar members who will have a window of 90 days after becoming members in which to enroll. The BOG questioned some of the provisions and requirements of the plan and Seabury and Smith representatives explained that the plan might need fine-tuning following a year of experience. Governor Taylor made a motion to enter into the proposed agreement; Governor Durkan seconded. The motion passed by a vote of 130-0.
AFFINITY CARD The BOG discussed the Member Benefits Task Force proposal for offering the WSBA Affinity card to members. The Board discussed whether marketing the card could be an irritant to members, interest rates that were not that favorable, possible privacy concerns, whether this was really a benefit to members or just a way for the WSBA to develop more revenue. The Board asked for more information about the WSBA Credit Union and the WSBA’s oversight and responsibilities for it. Governor Henderson made a motion opposing the affinity card for the WSBA; Governor Lehto seconded. After further discussion, the motion to reject MBNA’s offer of a WSBA affinity credit card
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passed by a vote of 8-4-1, Governors Hyslop, Isaki, Vreeland and Taylor against and Governor Savage abstaining.
FILLING THE OPEN GOVERNOR POSITION FROM THE 7-E DISTRICT The Board discussed President Carlisle’s proposal on how to elect a new Governor from the 7TH–East district. Governor Ostlund made a motion to follow the proposal as outlined and send a mailing and broadcast e-mail to all 7th –East members; Governor Taylor seconded. After a discussion of the cost of the mailing, the Board severed the motion as to the mailing. The motion to follow the procedure as proposed passed by a vote of 13-0-0. As to whether to do a mailing, Governor Ostlund made a motion to send a letter to all 7th-East members; Governor Carlson seconded. After further discussion of the costs and availability of funds, the motion passed by a vote of 7-6-0. The Board decided to close applications on May 31, 2002 and elect the new Governor at their June 7, 2002 meeting.
APPOINTMENT TO THE BENCH-BAR-PRESS COMMITTEE After a brief discussion of her qualifications, Governor Lehto made a motion to appoint Sommer Baldwin Dykema to the Supreme Court’s Bench-Bar-Press Committee; Governor Vreeland seconded. The motion passed by a vote of 13-0-0. Governor Carlson made a motion to appoint Jean K. Mell to the Bench-Bar-Press Committee; Governor Isaki seconded. The motion passed by a vote of 13-0-0.
NON-LAWYER MEMBERS ON THE BOARD OF GOVERNORS - DISCUSSION ONLY The Board discussed the possibility of adding a lay member to the Board of Governors. They were unanimous in not wanting to open up the State Bar Act statute but General Counsel Welden felt that a Supreme Court rule amendment would allow additional members on the BOG. Some Governors felt that there was no problem to solve and nothing to recommend the change; others felt the BOG would gain credibility, diversity and broader perspective with citizen members. Eight of the Governors ventured their opinion of the prospect; three definitely favored it, three strongly opposed, and two Governors thought the idea had merit but not in the immediate future.
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TECHNOLOGY REPORT President Carlisle referred the Governors to the written report. He suggested that BOG action dates be included on the schedule.
MCLE CREDIT FOR HEARING OFFICERS The Board of Governors in its efforts to create incentives for members volunteering as hearing officers had requested that the MCLE Board consider assigning MCLE credits for hearing officer related work. The MCLE Board responded that rarely is activity not directly presented as training or volunteers' work given credits. The MCLE Board tabled the question for further study at their June 7, 2002 meeting. The BOG requested feedback at their June meeting.
LIAISON REPORTS President Carlisle directed the Governors to the Written reports from the DMCJA, SCJA and BJA meetings. He noted that the WSBA’s representatives on the BJA are the immediate past president and current president. The President-elect was the assigned alternate.
ADMISSION TO PRACTICE LAW RULE 4 (C) Governor Hyslop questioned why the change was being proposed. General Counsel Welden explained Governor Hinojos-Fall’s reaction to the rule restricting multi-taking of the Bar Exam as possible culturally biased. Governor Henderson made a motion to propose the rule change to the Supreme Court; Governor Dille seconded. The motion passed by a vote of 12-1-0, Governor Ostlund against.
REPORT ON THE WESTERN STATES BAR CONFERENCE Those in attendance at the Western States Bar Conference reported on the various panels and discussions at the conference. Overall the WSBA seemed to be on the leading of many issues (practice of law, multi-jurisdictional practice, law school debt, Ethics 2000 review, future of the profession and practice, and the increasing use of
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dispute resolution as a healing process). The conference was reported to be very worthwhile and directly relevant to the WSBA issues.
ANIMAL LAW SECTION - ADAM KARP (BY PHONE) Mr. Karp presented the petition that a new “Animal Law” Section be created. He cited the developing substantive area of the law relevant to animals and the many law schools and bar associations that currently recognized this area of the law. There seemed to be strong interest in an animal law CLE scheduled for March of 2003.
Adam presented two versions of the proposed bylaws, one allowing for associate members, the other not. After a discussion of the financial impact of creating a new section, whether there are other sections which allow associate members – many do and whether the section would be dominated by animal rights activists with assurance that was not the intent and non-lawyers would be non-voting members. Governor Ostlund made a motion to approve the formation of an Animal Law Section with the bylaws that allowed associate members; Governor Lehto seconded. The motion passed by a vote of 12-1-0, Governor Durkan against. Governor Ostlund was asked to be the BOG liaison to the new section.
NOMINATIONS TO THE SUPREME COURT FOR APPOINTMENT TO THE PRACTICE OF LAW BOARD The Practice of Law Board (POLB) Implementation Committee appointed, with BOG approval, by then President Peterson in September 2001, presented a recommended list of 13 persons to the BOG for nomination to the Supreme Court for appointment to the first POLB. President Carlisle reiterated the assumptions and process the BOG agreed to follow in considering this list of nominees. 1. The BOG would recommend 13 names and set terms for the nominees. The Court should designate a chair. 2. The BOG would first see if there was consensus on any adds. 3. The BOG would then see if there were persons on the list that the Governors would agree to remove.
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President Carlisle, who chaired the Implementation Committee, reviewed the history of the definition of the practice of law and the formation of the POLB. General Counsel Bob Welden, reading from the language of the GR 25 sited the dual nature of the POLB as both public protection from unauthorized practice and enhancing access to justice. Members of the Implementation Committee reviewed their process in developing the list of nominees and emphasized that the proposed list had geographic, ethnic, gender, practice area and firm size balances with many proposed nominees fulfilling more then one type of representation. The Board discussion focused on four main areas: adequacy of family law representation, ethnic diversity of lawyer nominees, adequacy of representation from small, “in the trenches” lawyers, and the BOG’s interest in redoing the work of the Implementation Committee. Other points made included that the POLB could always reach out to other groups for input or for specific tasks or assignments, that the POLB was not intended to be a board of vested interests, and that appointment cycles would allow adjustment of POLB membership each year. The President ruled Governor Hyslop’s motion to adopt the list as proposed out of order since it did not follow the agreed process. After further discussion the following motions were made.
1. Governor Henderson made a motion to add Howard Marshack with a one-year term; Governor Ostlund seconded. The motion passed by a vote of 9-3-1, Governors Hyslop, Lehto and Boggs against, Governor Vreeland abstaining. 2. Governor Vreeland made a motion to add Stephanie Delaney; Governor Lehto seconded. The motion passed by a vote of 8-3-1 Governors Hyslop, Boggs, Davidson against and Governor Savage abstaining. 3. Governor Vreeland made a motion to remove Julian Dewell since his experience was not “in the trenches”; Governor Ostlund seconded. The motion passed by a vote of 9-3-1, Governors Lehto, Boggs and Hyslop against and Governor Savage abstaining. 4. Governor Vreeland made a motion to remove Pam Loginski; Governor Isaki seconded. After a discussion about the need for prosecutorial representation, the motion was defeated by a vote of 2-11-0, Governors Vreeland and Isaki in favor.
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5. Governor Durkan made a motion to move Steve Crossland to ex officio status or to liaison status; Governor Ostlund seconded. General Counsel Welden pointed out that the rules make no provision for ex officio membership. The motion was defeated by a vote of 5-8-0, Governors Vreeland, Savage, Ostlund, Lehto and Durkan in favor. 6. Governor Davidson made a motion to remove Douglas Cruikshank and to add a CPA representative in the next appointment cycle; Governor Vreeland seconded. Implementation Committee members emphasized the need to have a CPA on the committee and felt that because Cruikshank was also a lawyer, he fulfilled two roles. The motion was defeated by a vote of 4-8-1, Governors Vreeland, Lehto, Davidson, and Durkan in favor and Governor Ostlund abstaining. 7. Governor Ostlund made a motion to remove Barbara Clark; Governor Henderson seconded. The motion passed by a vote of 7-6-0, Governors Davidson, Vreeland, Henderson, Durkan, Lehto, Ostlund and Dille in favor. 8. At this point there were two adds and two removals. Governor Davidson made a motion to assign a one-year terms to Stephanie Delaney and Howard Marshack; Governor Vreeland seconded. The motion passed by a vote of 11-1-1, Governor Hyslop against and Governor Boggs abstaining.
There was a unanimous motion to send the modified list of nominees to the Supreme Court (see attached list).
FISCAL MATTERS - TREASURER BROOKE TAYLOR Governor Taylor referred the Board to the auditor’s management letter and to the WSBA’s staff response. He noted the special letter the auditors were asked to write after their conference with the committee. He noted that he was surprised to have been billed for this second letter and had asked staff to negotiate with the auditors on possible elimination or reduction of cost for the letter.
Governor Taylor then recounted for the Board the license fee thinking for the cycle of 2004 and 2005. The committee looked at scenarios ranging from 0% to 8% license fee
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increases with attendant WSBA obligations and plans. He commented that a two-year scenario at 3% increases coupled with spending growth restraints seemed reasonable in these economic times. Staff supported this possibility.
Governor Taylor asked the Board to consider making a direct commitment from a combination of contingency, section contributions, and ATJ budget savings to the Supreme Court’s Special Task Force on Civil Needs Funding. The Budget and Audit Committee recommended a $20,000 total commitment. Governor Hyslop made a motion to commit up to $20,000 to the needs assessment study from the identified sources; Governor Dille seconded. The motion passed by a vote of 13-0-0.
LEGISLATIVE REPORT- GAIL STONE Ms. Stone reported that the session ended, sine die, at midnight on March14, 2002. She referred the Board to her written report concerning final action on all the bills that WSBA sponsored, supported, or opposed. She was congratulated on her extremely successful efforts on the WSBA’s behalf. The biggest achievement for the WSBA was preserving Legal services funding. Although $900,000 was still in question, the restoration of $1.4 million after a total cut was an astounding achievement. Ms. Stone noted that the success was largely due to the massive grass roots effort.
For the 2003 session Stone stressed that taxes were likely to be high on the legislative agenda as they faced another year of spending cuts.
There being no other business to come before the Board, the meeting was adjourned at 12:15 p.m., Saturday, April 6, 2002.
Respectfully submitted,
_______________________________ M. Janice Michels
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