Februray 2004

The Board's Work

by Lindsay Thompson

Leavenworth, December 5-6, 2003
Call me slow. Call me a dimwit. After 16 years of traveling all over Washington to attend Board of Governors' meetings, this month it finally hit me: It's time to scale back the BOG road show.

Outreach to members would be a fine thing if any of them showed up when the BOG and their camp followers arrive. Almost no one ever does. This has been the case for years. The road show has gotten so big, with all the liaisons and staff who attend, that the number of towns the BOG can meet in has steadily dwindled. And if the WSBA actually enforced its policy against meeting in places that discriminate, there'd be fewer still.

All this notwithstanding, 40 or so people, nearly all of whom live in the Seattle area, decamped over the pass to Leavenworth in the midst of a gale that left 160,000 people without electricity. We gathered at Sleeping Lady, a winterized and gussied-up former summer camp so painfully earnest, even the pencils and their leads are recycled, and even ground under repair is signposted as "Natural Landscape in Therapy." There was one authentic touch to the place, though — a library filled with books people stopped reading 50 years ago (any Thomas B. Costain fans among ye?).

Of course it snowed, so we sloshed through the dark and dripping trees, on paths cleared by snowplow-golf carts, from meeting hall to rooms to dining hall and back again. Three lawyers were yarded out to this Rousseauvian wilderness to get their Hobbesian reprimands, then sent back whence they came (memo to self: write an article about why doing reprimands in person is a dumb, outdated, and gratuitously petty tradition long overdue for repeal).

After some preliminaries, the BOG took up a court rule to make lawyers report their business e-mail addresses. Some fretted that this appeared to require members who don't have e-mail to go out and get it (nah); others wondered if the WSBA would sell their e-mails to vendors, thus increasing already bountiful helpings of spam every day. After some to-ing and fro-ing and digressions into members' views of telephone solicitors, the BOG voted to allow the collection of members' business e-mail addresses, with the reminder that any member can opt out of any information about them being sold to third parties.

The Board also made some appointments, but as is generally the case this was an unedifying process dominated by some members' concern that a judge recommended for a seat on the Legal Foundation of Washington Board hadn't sent in a résumé and so, having not said "Simon Says" in the right order, shouldn't be considered. In the end they let the judge be considered, and even recommended the jurist for the job.

Five years after I called for it, the WSBA will set up websites for each member of the BOG to communicate with their constituents. The BOG was told it is an easy change to the WSBA website.

Poor David Swartling, chair of the Court Rules Committee, had to bring back proposed amendments to CrR 4.6 and 4.11, dealing with procedures for defense lawyers to interview witnesses in criminal cases. As I reported last summer, this is a cats versus dogs issue. Victim-rights groups and prosecutors have one view, defense attorneys another. They talk past each other for long periods of time and posture indignantly. The BOG, as an institution, dislikes this sort of issue. It requires taking sides.

So last summer the BOG sent this back to the committee to do something else with the amendments. Get the sides to agree; solve the Israeli-Palestinian question; decide if Iago acted out of choice or a bad upbringing — that sort of task.

So Swartling brought the BOG a revised draft, and, knowing almost nothing about the topic, they set about one of their favorite tasks — group editing. We had members moving to send the version the Supreme Court had already sent back, back to the Supreme Court; sending the Court a slightly different version the Rules Committee had rejected; and sending the rules back to the committee to add a sort of Miranda Warning, only to have another member move to reconsider the matter the next day.

Then came proposed General Rule 31, a sort of appellate dictat about how people's privacy interest in court data will be defined. The judge advancing this top-downish rule sent the BOG a memo, in advance of a personal appearance, more or less demanding that it be passed, instanter, and no group editing, either. But the court embassy didn't arrive till after the entire meeting broke up, and in the meantime members of the BOG, the Rules Committee, and liaisons found a raft of deficiencies in it, and sent it to the Rules Committee to make some sense of.

Steve Crossland, a rarity in that he lives near Leavenworth, came over to update the BOG on the work of the Practice of Law Board. He chairs it. Don Horowitz and Scott Smith presented the Access to Justice Technology Principles (formerly called the Technology Bill of Rights) court rule that is intended to guide courts and counties to best practices in making the courts more accessible, not less, through websites and other gizmos. After some debate about whether this rule would impose an unfunded mandate on counties already strangling the court system to spit out more revenue rather than doing justice, it was sent on to the Supreme Court for the glacial ministrations of its rules committee.

Judge Mary Kay Becker of the Court of Appeals briefed the BOG on the newly published civil needs assessment conducted by a Supreme Court commission. Available online at www.courts.wa.gov/newsinfo/CivilLegalNeeds%20093003.pdf, it quantifies how many poor people there are in Washington who don't have access to adequate legal services. I call on critics of legal services funding to read it and then write to Bar News about how they propose to solve the problem consistent with conservative principles, as I did last May (writing in, as one reader did, to say, "let's pretend it's 1967 again and there's no legal services program at all," doesn't count, unless you explain how local bars can meet the vastly increased need gratis, and in their spare time).

The BOG also voted to recommend that the next Legislature increase the court-filing fee to help fund legal services. It died in the last session, but in the meantime funding for legal services has been so reduced that it can be said to serve the poor in Washington about as well as the lifeboats on Titanic served the 1,495 of 2,200 who were unable to get in one.

Speaking of legislation, Michael Olver brought the BOG a bill to allow creation of a confidential court repository for original wills, to prevent the problem of where wills end up when lawyers holding them retire. This is a wholly sensible bill and the BOG unanimously voted to support it.

Another lawyer brought forth what were described as technical amendments to the cooperative association laws, but as his presentation proceeded, via telephone, it became increasingly apparent the proposals were essentially a private-interest bill for a client of his, and a big one at that. The only thing that would have made the presentation any brassier would have been making it in person. The BOG tabled the matter until January.

There was a bill to clean up some technical points (real ones) in the probate filings laws; that got the BOG's OK, as did a bill to clean up and make uniform state law on receiverships. Marc Barecca and Jim Austin did a masterful job explaining why this is needed, and how it will work. The BOG voted to support it.

A bill to amend state law to deal with the double taxation of damage awards was also approved.

Michael Carrico is a lawyer whose word you can go to the bank on, and I say that having listened to his presentations to the BOG since the days when we both had dark hair. He brought the BOG a bill to fix a federal tax issue where inheritances of widows and family would be taxed absent legislation. The BOG wisely went with his recommendation and voted to support the bill.

Tort reform is back. This subject would be a lot more interesting if both sides — defense and plaintiff lawyers — just announced at the top of the billing their financial interests and stopped trying to dress up their arguments in grand policy terms. The BOG decided it wasn't time to act yet and put the matter over to January.

Steve Rovig, another Seattle lawyer, drove to Leavenworth to present a proposal for inviting law firms to subscribe to some commitments to make the legal profession more diverse. No action required yet, although having been peripherally involved with the matter, I can advise readers it will be a good start on retiring the WSBA's unofficial name, the "White, Straight Bar Association."

A reader whom I respect very much wrote me recently, suggesting I was hard on the BOG in my account of the September 2003 meeting. I take her points seriously. At the same time, this report is the only member-wide, critical voice the BOG gets, or the members of our association read. Having been a longtime observer of BOG action, then a member of the BOG myself, I try to be fair when they get things right, and no more critical than necessary when I think they get things wrong. I should note that another reader wrote the president recently that all of Bar News is just a mouthpiece for bar leadership. One evaluation more or less cancels out the other, but I welcome all comments and have been wrong enough times in my life that changing my mind is easy when a good case is made for doing so.

The road show moves to Olympia for January and a visit with the Supreme Court. I'm outta here.
The Board's Work is an unofficial report on meetings and actions of the WSBA's elected governing body. Official minutes, containing matters not covered here, are kept by the WSBA executive director. WSBA members are welcome to attend and speak at all board meetings.

Back to table of contents >>