Report on the Western States Bar Conference (March 17-20, 2004)

Broad Outline of the Conference. Just returned from three days in Scottsdale, meeting with bar leaders from the Western States, including registrants from Western states including Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Texas, Utah, Washington and Wyoming, and representatives of the American Bar Association (ABA). Of the broad impressions reached: Washington, with about 25,000 active practitioners, is one of the "large" state bars in the Western States Bar Conference; Washington is one of the best run state bar associations; many of the issues we are facing in Washington are being faced elsewhere; Washington is looked to by other bar associations in the Western States a an exemplar in addressing these issues.

What follows is not intended to be an exhaustive—or exhausting—summary. It does set out some of the themes which emerged over the course of the conference and my reflections. Your feedback, as always, will be instructive and appreciated.

Financial Crises—But NOT here at home! A number of the state bar associations face financial crises—not only in terms of court funding, which is felt nearly universally—but in terms of their own organizations. North Dakota, for instance, faces a shrinking bar due to an exodus of lawyers and a generally depressed economy and declining population. By contrast, the Washington State Bar Association is healthy indeed. Our Executive Director, Jan Michels, who headed up the Western States Bar Executives Retreat as Chair, is widely regarded as first among equals among the directors of the various bar associations.  Competent, efficient, and progressive bar governance, however, cannot insulate us from the tribulations facing our profession. We feel, along with our colleagues elsewhere, the ongoing attacks on the justice system, funding for that system, and on our profession.

Professionalism Initiatives. Thomas A. Zlaket, Former Arizona Supreme Court Chief Justice, offered some incisive comments respects ongoing efforts across the country to reinvigorate traditional notions of professionalism. Justice Zlaket defined "ethics" as what you must do and "professionalism" as what you should do. Across the country—and in Washington State—State Bars are developing approaches to attempt to add new vitality and enthusiasm to our profession: through "creeds" of professionalism, courses in professionalism both at law schools and for young lawyers, through redefinition of the rules of professional conduct so as to eliminate or define "zealous advocacy" so it does not became a justification for unprofessional conduct.

Justice Michael Wilkins of the Utah Supreme Court emphasized the "generational" nature of the shift in professional values. New lawyers must, he said, be "inoculated" against the contagion of abusive practices which have taken hold in areas such as "discovery abuse." Some judges require lawyers to "sign off" on the Creed's principles of professionalism at pretrial conferences; others have the principles posted in the courtroom. It is widely agreed that the judiciary—sometime fearful of offending lawyers appearing before them—must be part of enforcing the standards of conduct before the court.  I have participated personally in the King County Bench-Bar Conference and advocated strongly for judges to enforce the discovery rules and to employ discovery masters, if necessary. As the judges reported there, resolution of discovery disputes is not enjoyable for them, nor are they particularly good at it. Nonetheless, I stated then—and again here—lawyers who follow the rules deserve the protection of the court and lawyers who break the rules do not deserve to benefit through their misconduct.

Later in the conference (discussed below), discovery abuse was singled out as a one of the causes for the "vanishing" jury trial. The Utah initiative to create a "discovery commissioner" failed for lack of funding. The proposal of having special discovery masters in appropriate cases which I put forward was well-received at the Conference. For more on this concept, you might want to look over Gordon, Randolph, The Riddle of Fisons: When is Discovery Not Discovery? (Hint: When it's part of the adversary process.), Washington State Bar News, p. 22, August 1996.

WSBA, like its counterparts across the country, has ongoing projects calculated to support law students and young lawyers in sustaining the high ideals of our profession. This ties in with many programs which WSBA is developing even as I write (some of which I am involved in directly) including: debt relief for law student loans and incentivizing public service; support for legal services; education at Washington law schools emphasizing a culture of professionalism; pre-licensure and post-licensure educational programs for incoming and new lawyers; an enhanced legislative presence. Our justice system is under attack and is, in my view, our profession is rendered vulnerable to attacks by the unscrupulous and self-interested by the fact that generations of Americans are losing touch with essential elements of citizenship. Addressing this is a multi-generational issue. Across the country, bar associations have discovered the need to create permanent commissions or committees to counter the corrosive effects of an often hostile media.

Client Protection Funds.  Former WSBA President and current Western States Bar Conference Vice President, Dale Carlisle, headed up the panel discussion sharing the experience of the Law Society of British Columbia, New Mexico Bar Association, and others respecting payouts to clients for defalcations, frauds, and outright theft of client funds by their respective organizations. Washington State, like other Bar Associations, provides some measure of compensation to clients injured by Association members. The basic principle of such funds, here in Washington and everywhere else, is that such funds are NOT a substitute for malpractice insurance. The funds are only available in cases of intentional "conversion" of client funds. Ohio, New Hampshire and South Dakota require disclose on letterhead of malpractice insurance. Virginia reported 25,000 "hits" on its website inquiring as to whether lawyer-members were "insured." Be prepared for this to be an issue facing Washington lawyers!

The Law Society of British Columbia provided for 100% coverage of loss from dishonesty ("theft" as opposed to malpractice which is a species of negligence) and levies $150 Canadian per trust account to cover such losses. An extraordinary event involving a fraudulent conspiracy resulting in millions of dollars of losses and necessarily involved a special assessment on every lawyer. The New Mexico fund essentially ran out for a time due to a few unfortunate actions generating liability. New Mexico had assessed $15 per lawyer, reduced it to $10, then could not get approval to raise the funds they needed. Now, New Mexico has a $2,500 limit on claims and is reinitiating the program. Idaho changed the "client protection fund" to the "client assistance fund" to make clear that it was not guaranteeing full compensation in the event of a covered loss. The benefit of learning from the experiences of other associations is helping in avoiding pitfalls before they occur. Washington State has a $50,000 per claimant limitation (not a 100% guarantee)—whew!—but in light of this experience, I am going to make sure that our limitation in terms of claims and claimants and total payout effectively insulates our membership from being responsible for catastrophic losses such as those faced by the Law Society of British Columbia.

The Texas Experience. The full extent of damage done to the justice system in Texas is unclear. It appears that Texas lawyers now pay a tax on legal services and that significant damage was sustained by the tort system and the traditional rights of Texas citizens established under the Common Law. Again, the experience elsewhere is both minatory and worrying. Texas is another state where its bar association required financial attention to its infrastructure—once again, we in Washington appear to be in sound financial strength. A number of states, including Texas, have expanded teleconference capacity in order to reduce expenses. This is another matter which I will follow to see if such services would be beneficial to Washington attorneys, particularly those removed from the WSBA offices in Seattle. One could envision a number of teleconferencing and videoconferencing for the benefit of WSBA members.

Report of Chief Judge Mary Schroeder. There are currently two vacancies on the Ninth Circuit Court of Appeals, but little action is expected during this election year. Judge Schroeder, the first woman chief judge of the Ninth Circuit, is one of a handful of female jurists serving as chief judge. Judge Schroeder described efforts to divide the Ninth Circuit over the years as motivated by Congressional criticism of controversial decisions including that concerning Indian fishing rights, protection of the spotted owl, and the recent decision respecting the Pledge of Allegiance's overtly religious reference.   This last decision is set for argument before the United States Supreme Court within weeks—although it has been lost in the media furor surrounding the Massachusetts court's gay rights decision. The Ninth Circuit has been making special efforts, including improved press relations and appropriate coverage of proceedings of public interest, to help educate the public as to its work. In addition, mental health programs have been initiated to assist judges—as human beings—cope better with the stresses of their positions.

The Vanishing Trial Project of the ABA Section of Litigation. This report is available in full from the ABA website, but suffice it to say, what we have all subjectively felt to be the case is true. There are fewer trials. The trials that do occur are longer. In the federal courts over the forty year period from 1962 to 2002, there was a reduction in trials from 5802 in 1962 to 4569 in 2002 despite a five-fold increase in filings! This means that although 11.5% of cases filed were tried in 1962, only 1.8% of cases filed in federal courts were tried in 2002. This applied to both jury and court tried cases, with an even greater reduction in cases tried to the court. This was correlated with a greater use of pretrial dispositive motions such as summary judgment motions. Concern was expressed about a judiciary judged by disposing of cases more than by giving the parties a chance to do justice on the merits.  

On the state court level, a study of 22 states from 1976 to 2001 showed a similar trend. Dispositions by trial as a percentage of cases filed dropped (for jury trials) from 2% of cases filed in 1976, to 1% of cases filed in 2001. In 1976, 18,000 cases were tried to a jury; in 2001, 25,000 cases were tried to a jury. Cases tried to the court saw a similar decline from 32% of cases filed in 1976, to 17% in 2001—an absolute reduction from 500,000 cases to 470,000 cases.

In my view, a basic disdain for the justice system, for judges, for litigation, for litigants has infused the public with the notion that any trial is a bad thing and that the fewer the better. In fact, it is my sense that we are privatizing justice and often receiving a degraded species of case resolution. A moral relativism may be afflicting us and leading us to accept the notion that all cases can be compromised and losing traditional notions of honor, justice, and truth.

Trials are feared because of their length, cost, and intrusiveness of discovery. The trend to privatizing justice through ADR is not an unalloyed blessing: private judges are often less diverse, less a picture of our society. Private justice is expensive, less subject to public oversight (good and bad), and encourages the sense of moral relativism—every case can be settled, anyone who doesn't settle is bad and wrong. In fact, some cases need to be tried and held up to community values of right and wrong.

Washington vs. North Dakota (and Nevada). I suppose it is a bit unfair, but the facts are the facts. North Dakota has 1812 lawyers and the number is declining. Their one law school will contribute 38 graduates this year. There has been no dues increase in 13 years. The governor has consistently picked judges on the bottom of the Bar-recommended list. The good news: 95% of North Dakota lawyers found one another to be honest. Washington State has 25000 active members, 65-70% of which practice in firms of four and fewer. Our Bar Association has enjoyed positive relationships with the legislature and executive and has a highly-regarded judicial evaluation committee whose work has recently been endorsed by the Board of Governors.

Nevada is one of the fastest growing bars (perhaps luring the North Dakotans to warmer climes?) and has adopted multijurisdictional practice fees of $500 per firm, $150 per out-of-state lawyer, $250 for various specialty certifications (bankruptcy, civil trial, etc.), and hefty penalties for late filing of bar fees. Caps on tort damages have been put into place—and Nevada is now facing caps on attorney fees. [Again, a minatory and worrying trend.]

The Court Funding Crisis: Justice in Jeopardy.  Of all the reports from all of the western state bar associations, all instructive, that of Washington State clearly showed the most promise.

Oregon is short $13 million in funding its courts; its tax surcharge was reversed by referendum. There are no jury trials on Friday anymore. The Oregon Bar is facing proposals to mandate pro bono criminal defense (a terrible idea in my view).

Montana faces a funding shortfall of $1 million and its Chief Justice has vowed not to let the courts close down—although it is unclear how this can happen.

In Utah a judicial salary commission is addressing a "brain drain" into mediation and ADR services promising judges $500 to $1000 per hour. New associates are now starting at salaries comparable or in excess of those of experienced jurists ($100,000 and more).

Arizona legislators appear to be punishing the courts for rulings insisting on funding mental health program mandates and non-real estate tax financing for education by withholding funds vital to judicial operations.

Colorado is limited to a shrinking budget. Judges' salaries are constitutionally protected, but they have been stripped of all staff—they are answering their own phones, retrieving their own files, escort juries. The Colorado Bar was driven to the extremity of considering having students and seniors volunteer. Legislators are calling the justice system a "tort tax." The Bar has made some headway with a Law School 101 program for legislators, educating legislators in court functions. One legislator who had a divorce that needed to be moved through a system paralyzed by funding cuts pushed for a doubling of the filing fee—which helped close the gap. The Colorado Bar has had to comfort the question of "what is the end of your rope." Talk abounds of selling future tobacco settlement cash. In the end, Colorado lawyers concluded that the "end of the rope" was the Constitutional guarantee of a justice system and are considering a suit against the legislature.

Washington, by contrast, has undertaken a long-term evaluation of the funding needs of the courts in its Court Funding Task Force—a 30 member panel consisting of representatives of the executive, legislative, and judicial branches. Five work groups have been established: defining the size and nature of the problem; funding alternatives; the stratagem by which these alternatives can be put into effect; addressing special issues relating to courts of limited jurisdiction (independence of judiciary); and public information. At present, the cost of the justice system is $420 million, with 90% coming from local funding. There is a $70 million shortfall plus the costs of indigent defense. This inclusive panel has already established basic principles: that trial courts are a general governmental function; that courts are not revenue generators; that there must be equitable state and local sharing. Business and occupation (B & O), sales, and property taxes are all on the table. A computer model has been created which enables different assumptions to be tested in terms of taxing scenarios. President elect Ron Ward heads up the work group on courts of limited jurisdiction which face critical shortfalls resulting in closure, consolidation, and decline in services. A new contract between King County and municipalities has forestalled imminent disaster, but municipal courts are still challenged by threats to judicial independence where judges are not reappointed for failure to take actions calculated to maximize municipal revenues (through fines, etc.). The work group has recommended election of judges as the best method for insuring municipal court judicial independence. (This, in a limited way, appears to buck a growing trend away from elections towards merit-based retention/selection in many states.)

The Challenges Facing Our Profession. ABA President-elect Robert Grey of Richmond, Virginia, expressed his commitment to the high ideals of our profession and his recognition of the efforts needed to help the public understand the important of lawyers in our society. The Seventh Amendment right to trial by jury needs an advocate; we (lawyers) are its natural defender, he said. Soft-spoken and modest in bearing, he spoke with a clarity, confidence, and commitment, which revealed personal integrity and intensity which was—to be quite honest—quite inspiring. I am not given to eulogizing the living, but I am confident that the ABA, our nation's largest association of attorneys, is in good hands with Mr. Grey. I know that our President–elect, Ron Ward, has already established a good rapport with Mr. Grey and I am confident that Washington State will have an out-sized influence on national policy. It is important that those of us with relationships with United States Representatives and Senators become part of the lobbying team to make sure that attorneys are heard on the ABA Lobby Day and other efforts to insure the timely, effective, and appropriate participation of lawyers in such matters as judicial appointments and federal legislation.