September 2003

The Board's Work

by Lindsay Thompson

Bellingham, July 24-26

July's always a crowded month for the Board of Governors. It's their last meeting till the annual meeting in September, so there's a lot of clearing the decks going on.
 
The board holds a one-day retreat every July, the day before the regular meeting. It's partly an orientation for new governors, and partly a midcourse correction as the WSBA moves ahead on its long-range plan. So that's what happened Thursday.
 
Friday, Court of Appeals Judge Marlin Appelwick and WSBA Public Legal Education Manager Pam Inglesby proposed a charter and a set of bylaws for the Council on Public Legal Education. Established in 2000, the CPLE has tried to assemble a cadre of groups and individuals—including the WSBA, the UW, the Attorney General's Office, and the Administrative Office of the Courts—to do useful things. Chief among the useful things is a website, soon to be unveiled and chock-a-block with information for the public. The WSBA has mainly staffed the CPLE effort.
 
Appelwick wanted to formalize how the CPLE operates, and its relationship to its various parent bodies with the charter and bylaws. He wanted to keep it an unincorporated association for various administrative conveniences, but still kinda sorta under the WSBA's umbrella. The governors tend not to like kinda sorta relationships because they kinda sorta lead to potential liability claims. So they created a group composed of WSBA Exec Jan Michels, General Counsel Bob Welden, Governors Howard Graham and Paul Lehto, and Appelwick, to go away and sort something out. They'll report back in
December.
 
Spokane lawyer Jerry Boyd presented the annual report of the Court Rules Committee, which devotes itself to updating and improving the morass of court rules Washington has. This year he proposed creation of a new CrR and CrRLJ 4.11, and amendments to CrR and CrRLJ 4.6, to allow interviewing with a tape recorder potential witnesses in criminal cases. He also proposed amendments to ER 405, 407, 608, and 701, and technical corrections to some RAP, RALJ, and CRLJ rules. The board recommends rule changes from the committee to the Supreme Court, which adopts such of them as they see fit.
 
Most of the changes were easy. ER 405 and 608 were amended to conform to the federal rule allowing opinion testimony concerning character or a trait of character in addition to testimony as to reputation, since the former often gets in as the latter anyway. ER 407 would be amended to make evidence of subsequent measures inadmissible to show that a product or design was defective. This will codify Hyjek v. Anthony Industries, 133 Wn.2d 414 (1997).
 
All of these changes the board approved unanimously. They did the same for correction of errors and anomalies (like subsections that skip from "a" to "c") in RAP 15.4, RALJ 9.3 and 10.2, and CRLJ 6.3.
 
More troublesome was the tape-recording rule change. As is, people interviewing potential witnesses in criminal cases have to take notes. The proposed rules would allow tape recording  in certain circumstances.
The discussion quickly turned into what I call a Cat v. Dog dispute: everyone arrives with an opinion, they all take sides, and then talk past each other for a long time, changing no one's mind in the process. Victim advocates and defense lawyers had one point of view, prosecutors another. After a while the board sent the matter back to the Rules Committee and told them to talk with the cats and dogs to see if they can sort something out. They'll report back in December.
 
Well behind schedule, the board recessed to lunch with the Whatcom County Bar Association. WSBA President Dick Manning gave Local Hero Awards to husband-and-wife lawyers Breean Beggs and Laurie Powers for a remarkable array of volunteer services they provide in their community, in addition to doing their day jobs and raising three kids.
 
After lunch, Brooke Taylor of Port Angeles updated the board on efforts to see if there will be suitable office space for the WSBA to consider when its current lease ends in 2006. The work goes apace. Several buildings are interested and are in discussions about what the WSBA's needs will be if it decides to move.
 
Presidents, presidents! The ground is thick with them this time of year. There's President Dick Manning and President-elect David Savage, and now President-elect-elect Ron Ward (the heir and the spare). The surfeit will wane in September when Manning leaves office, Savage ascends, and Ward becomes ascendant-in-waiting. But because Ward is a sitting governor, he has to give up his seat in September, and someone has to serve the remaining two years of his term for the 8th District.
 
Three lawyers threw their hats into the ring: Richard Holt from Issaquah, and Bellevue attorneys Randy Gordon and Zachary Mosner. Each made a pitch to the board, and all did well by their cases; Gordon got the appointment. Governors Fawn Sharp and Zulema Hinojos-Fall took part in the interviews by telephone, but were otherwise absent on other business.
 
Until 1989 or so, you could bring resolutions on anything to the WSBA's annual meeting, but after a fight nearly broke out over one to condemn the mining of Nicaraguan harbors, GR 12 was adopted by the Supreme Court to suggest that as a mandatory membership group, the WSBA stick to legal issues. After Alva Long's death in the mid-90s, members of the Resolutions Committee have been as lonely as the Maytag repairman. But lo—along came a resolution for this year, asking the WSBA to condemn U.S. government actions that the resolution says detains citizens without access to counsel or meaningful judicial review. WSBA General Counsel Bob Welden said the resolution raised issues within the scope of GR 12 and so could be certified to the Resolutions Committee for a hearing and action at the annual meeting. So the board certified it.
 
Along came another Cat v. Dog issue. Governor Ken Davidson has been active in King County Bar Association efforts to reform drug-sentencing laws, and proposed a resolution under which the board would urge Washington's congressional delegation to support legislation to make state medical-marijuana laws enforceable, and thereby benefit chronically ill patients who find physician-prescribed marijuana eases pain.
 
After introductory comments, Davidson turned the discussion over to defense attorney Doug Hiatt; a past client of Hiatt's in a medical-marijuana case involving this state's law allowing medical use; and Jeff Sullivan, who heads the criminal division of the U.S. Attorney's Office in Seattle. They talked past each other for an hour or so. After some efforts to table the whole business, the board voted 7-5 to support Davidson's resolution.
 
Saturday morning, Peter Ehrlichman and Ellen Dial, who work on the WSBA's task force updating the ethics rules, arrived bearing an "interim formal opinion" on how Securities and Exchange Commission regulations enforcing the Sarbanes-Oxley ("no more Enrons") law affect Washington lawyers' ethical obligations under our court rules. This item wasn't so much a Dog v. Cat discussion as it was a Silent Dog Whistle discussion, intelligible to lawyers who represent publicly traded companies or practice before the SEC. The rest of us will live our lives cheerfully oblivious to whether we have to make a "noisy withdrawal." The opinion gets its "interim" tag because the SEC rules may change some more, but as they were set to go into effect in August, the task force wanted to give affected lawyers some guidance.
 
The board gnawed on the text for a while and then adopted it as presented. You can read it on the WSBA website at www.wsba.org/formalopinion.doc.
 
Dwight Williams presented the report of his task force on the law-student loan crisis. For those out of law school a while, the cost of law school is generally so high now you can't get through without borrowing sacksful of money, and then when you get out you have a monthly loan repayment the size of a mortgage. So lots of lawyers are opting out of public-service work because they can't afford the low salaries such work pays.
 
Williams said a number of states are looking at or have created funds to help public-service lawyers with grants from a loan-repayment fund. Trouble is, such funds need huge sums of cash to make a real dent in their beneficiaries' loan payments. The board thanked Williams for the report and asked his committee to come back with ideas on how such a program might be set up, run, and funded in Washington.
 
Governor Davidson, who is also WSBA treasurer, presented the 2003-04 budget. It's a steady-as-you-go affair, bearing no big increases in things, so the board approved it.
 
Board meeting dates and locations are listed on the WSBA website (www.wsba.org). You can attend and see the sausage being made for you. As always, this report is not the official minutes of the meeting, just what I saw.

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