September 2004

The State of the Bar

by David Savage, WSBA President

It is time to take account of a year which has passed more quickly than I could have imagined. In my first column, I promised to make diversity and inclusivity the centerpieces of my term. I also told you I would make a conscientious effort to enhance member benefits, all with a view to enhancing the Bar's relevance to its members and the public it serves. Below I report our work on these commitments and the state of the Bar.

Diversity
Together with this Board of Governors and President-elect Ron Ward, we have moved forward to bring diversity to the leadership of the WSBA, its membership, committees, sections, and activities. Notable achievements include:

• Annual WSBA Diversity Listening Session. In February of this year, the Board of Governors met with bar leaders from the minority, ethnic, and specialty bar associations to learn by listening how we might better serve these important voluntary bar associations and their diverse memberships. Their advice will help chart our future course. We remain mindful of the challenge issued by Judge Richard Jones, who closed the event, saying:

Please don't rest upon the mere fact that you listened. The challenge is to act upon what you heard.

The WSBA has to be committed to diversity to make it work. The mission of the WSBA must be to build a legal community where the interests of all are included. This includes the Bar serving as the role model of diversity and inclusivity at all levels.

And last, have you as the leaders of the WSBA put yourselves on the line, risked your reputation, risked comment and criticism because you have stood up for making diversity and the interests of the minority members of the Bar a priority in the decisions of the Bar?

President-elect Ron Ward has scheduled the next Diversity Listening Session for March of 2005, and incoming President-elect Brooke Taylor is already looking forward to scheduling the 2006 session.

• Diversity Advocate. The Board of Governors has authorized adding a new staff position, diversity advocate, which I have championed. We are securing advice from the diversity and specialty bar associations as to how this position might best serve the needs of their leadership and their members, and assist in achieving WSBA Strategic Goal No. 9, which calls upon the WSBA to "promote diversity, equality and cultural competence in the courts, legal profession and the bar." I am pleased that this high-level position will become a reality in the near future.

• WSBA Leadership Institute. President-elect Ron Ward is the originator and passion behind this new undertaking. The program is designed to annually provide a nurtured leadership experience for five to eight Institute "Fellows," who will be selected for their recognized leadership potential, accomplishments, and/or interests. Though intended for the benefit of all, this program will have a special place in encouraging the growth of leaders of diverse backgrounds.

• Initiative for Diversity. The WSBA has endorsed this ambitious initiative brought to life by an independent consortium of lawyers and judges who seek to emphasize diversity and retention in the workplace. We know that women and persons of diverse backgrounds are not moving into the ranks of firm ownership and management at a pace consistent with their numbers.

The WSBA's endorsement of the Initiative for Diversity is responsive to Judge Jones's challenge: "I'm asking — no, let me rephrase that — I'm challenging the WSBA and its leadership to be the moral conscience of the private firms and corporations for whom you work."

While these are significant and positive first steps in our effort to achieve diversity, it will take a determined resolve over time to truly make this a bar that reflects the public it serves. This Board is committed to this goal.

Member Benefits
Now, on to member benefits. I promised to enhance member benefits, and I believe this Board and I have added significantly to them as described below.

• Casemaker. At its July meeting, the Board of Governors approved the recommendation of a task force led by Charlie Wiggins to make Casemaker, an electronic legal-research service, available to all Bar members at no charge.

Casemaker is a consortium of 17 state bar associations, soon to grow to 22 and more, that contract for electronic legal research services with Lawriter LLC. Our neighbor states of Oregon and Idaho are already members. The service will provide access to all Washington appellate decisions, the appellate decisions of the 16 other member states (and any future state subscribers), U.S. Supreme Court decisions from 1935 forward, and Ninth Circuit decisions from 1990 to date. It will also include some other federal circuit court and district court decisions, as well as the RCW and the United States Code.

This electronic research service will bring a modern and useful tool to our entire membership. Importantly, it will level the playing field a bit for solo and small-firm practitioners, who compose the majority of this Bar. The WSBA hopes to have this service up and running in six to nine months. In addition to Chair Charlie Wiggins, Governor Katie O'Sullivan and attorneys Robert Rembert, Gail Gorud, Deborah Kelly, and Doug Ende served on the task force.

• Health, Life, Long-term Disability, and Automobile Insurance. The WSBA continues to offer sponsored healthcare insurance with Group Health and continues its work to improve this offering. Importantly, this plan permits a "group" to consist of a solo practitioner. You can review this insurance, as well as secure a rate quote, at www.wsba.
org (click on "For Lawyers"; then scroll down the right to "Health Insurance"). Incidentally, the new group-medical-insurance program includes a dental-insurance option.

The WSBA now sponsors a long-term care insurance program for members, and this year added long-term disability and automobile insurance to the array.

Professionalism
We have also worked hard to better the profession of which we are all so proud. Consistent with Strategic Goal No. 3, with which the WSBA has committed itself to "promote civility and professionalism in the practice of law and the professional development of new lawyers," we have taken the following important steps:

• Professional Development. At its July meeting, the Board received the report and recommendation of the Professional Development Implementation Task Force chaired by Past-president J. Richard Manning, author of the initiative. It calls for four hours of pre-admission CLE skills training for new lawyers, the commencement of the 15-hour CLE requirement in the first year of practice with an emphasis on skills training, and the creation of a task force to increase the opportunities for new lawyers to experience mentored client representation.

• Character and Fitness Standards. I chartered a task force chaired by Governor Mark Johnson, a past chair of the WSBA Character and Fitness Committee, to create clear written standards for the committee to follow in resolving the issues arising from the applications of new attorney applicants and attorneys seeking readmission who are the subject of character and/or fitness concerns. This task force will deliver its proposed standards to the Board at its September 2004 meeting, which is expected to recommend them to the Supreme Court.

Equal Access to Justice
As required by Strategic Goals Nos. 7 and 8, which call for the WSBA to "be a leader in assuring civil equal access to justice" and an "advocate for effective criminal and juvenile access to justice," this Bar has been a major contributor to the following critical civic missions:

• Civil Access to Justice. Together with many others committed to the same goal, the WSBA played an important role this year in securing $1.9 million in legislative funding for the civil justice providers in Washington. While this is a significant accomplishment, it should be remembered that this money simply stems a bit the tide of red ink that has prevented us as a state and a nation from making a reality of our pledge of equal "justice for all."

That there is a crisis cannot be denied; the magnitude of it is startling. It was revealed by the Civil Equal Justice Task Force chartered by the Washington State Supreme Court and co-chaired by Justice Charles W. Johnson and Judge Mary Kay Becker. The task force found that Washington's low-income and vulnerable residents, principally women and children, face over one million significant civil legal problems annually and that less than 15 percent of those persons receive any legal assistance.

The WSBA will continue to play an important role in seeking the restoration of adequate civil funding, measured at an annual shortfall of $26 million, in order to ensure that "justice for all" is more than just a proud phrase.

• Blue Ribbon Panel on Criminal Defense. Led by retired Justice Robert F. Utter and Marc A. Boman, this panel reported to the Board at its May meeting, recommending that:

1.  A WSBA standing Committee on Criminal Defense be established.

2.  The WSBA should actively support an expanded role for the Washington State Office of Public Defense in providing meaningful oversight, monitoring, reporting, and training to ensure that legislatively mandated defense standards are adopted and implemented, and, if state funding is available, to disburse such funding contingent on adherence to statutorily mandated defense standards.

3.  The WSBA should support efforts by other organizations and associations, including the Court Funding Task Force and the Washington State Office of Public Defense, to obtain adequate state funding for indigent criminal-defense services and parents' representation in dependency cases.

Embracing these recommendations, the Board authorized the creation of an implementation committee to be led by Governor Jon Ostlund, whose term, like mine, comes to a close in September. This is fitting, as Governor Ostlund was the driving force behind this initiative, and, as the Whatcom County public defender, knows well the hardships and shortcomings of the indigent criminal-defense system.

• Court Funding Task Force. The WSBA has distinguished itself by providing much of the leadership for the Supreme Court's Court Funding Task Force. The task force is led by Past-president Wayne Blair. President-elect Ron Ward and Executive Director Jan Michels, among other Bar leaders, have been key contributors to the work of the task force, which seeks to secure stable and adequate long-term funding for our courts, a goal intimately related to the civil and criminal justice initiatives described above.

Among the task force's findings is the embarrassing fact that Washington ranks dead last in the 50 states of the Union in support of its trial courts, with less than 0.3 percent of the state's general fund going to support the courts. The report of the task force is expected shortly, and I expect it to reveal that our courts are in need of $54 million annually in additional funding, indigent criminal defense requires an additional $118 million annually in order to provide constitutionally adequate representation, and an additional $12 million annually is required to properly provide for indigent parental representation in dependency cases.

The WSBA is committed to continuing to serve in a leadership role in this effort. It is a critical and unavoidable commitment, as our courts, the "third branch," are little able to advocate their cause, a cause which is also ours and that of the public we serve.

Practice of Law
Though busy with all of the critical and lofty matters described above, we have not neglected the conventional side of the practice of law.

• Ethics 2003. At its July meeting, the Board of Governors accepted the final component of the two-volume, 850-page report of the WSBA Ethics 2003 Committee, led by Ellen Conedera Dial. The committee consisted of a diverse group of 21 attorneys. It was ably "reported" by Doug Ende, WSBA professional responsibility counsel.

With the modifications to the Washington Rules of Professional Conduct recommended by the committee and adopted by the Board, Washington joins the nine states that have conformed their rules to the Model Rules of Professional Conduct adopted by the ABA House of Delegates in 2000. Idaho has already adopted most parts of the Model Rules, and changes to Oregon's rules are before the Oregon Supreme Court.

• Court Rules and Procedures Committee. The 24-person Court Rules and Procedures Committee, led by David Swartling, not only responded to a variety of "hot-topic rules issues" at the Board's request over the last year, but completed its scheduled review of the civil rules, recommending changes to CR 1, 5, 11, 15, 26, 27, 28, 30, 35, 50, 52, 59, and 62; CRLJ 1, 5, 11, 15, 50, and 59; CrR 4.7; and CrRLJ 4.7. The Board will recommend many of the suggested changes to the Supreme Court.

We also broke significant new ground in a number of areas:

• LRAP. In July 2002, the Board established the Student Loan Crisis Task Force, which was charged with developing recommendations to lessen the adverse impact of student-loan burdens on new lawyers, a burden which also adversely impacts pro bono services, professional development, and the ability of civil-equal-justice providers to attract lawyer employees. The task force reported its findings to the Board in July 2003.

One year later, I am pleased to advise that the Board has authorized the creation of a Loan Repayment Assistance Program (LRAP), due in no small part to the vision and energy of Dwight Williams, who chaired not only the implementation phase of this work but the original task force as well. The program will make "forgivable" loans to participants, who must be active WSBA members employed at least 32 hours a week in qualifying public-service employment.

• Legislative Strategy Task Force. The WSBA is charged with promoting an effective legal system (General Rule (GR) 12(a)(2)) and is specifically authorized to maintain a legislative presence (GR 12(b)(17)).

While the WSBA's Legislative Committee and staff have done an admirable job of advancing the legislative proposals of this organization and reacting to legislative measures authored by others which impact the practice of law or the administration of justice, I am convinced that we need to develop an overall strategy for our legislative affairs in order to benefit our legislative interests and those of the public we serve.

The mission of this task force will be to enhance the WSBA's role as a resource to the Legislature and to strengthen the WSBA's work as an advocate for its members and the public on legislation that comes within the scope of the WSBA's purposes and responsibilities as described in GR 12.

While this task force is in the process of defining its work and will begin it by securing a "report card" on our past efforts, its actions may include developing a networking system that will enable members of the Bar to interact with legislators; developing and/or enhancing an ongoing educational enterprise which aids legislators in achieving a comprehensive understanding of the Washington and American system of jurisprudence; supporting and enhancing the WSBA's legislative lobbying effort to the end that the interests of the public and the WSBA's members are clearly identified and well represented in the legislative process; and ensuring that the WSBA's legislative lobbying effort reflects as nearly as practicable the majority position of its membership.

Fiscal Management
Finally, no "State of the Bar" report would be complete without an assessment of the Bar's economic circumstance. While our membership has grown to more than 28,000, we have remained mindful that dues monies are a precious commodity. To that end, we have:

• Limited dues increases to two percent.

• Maintained a budget reserve of eight percent of our general fund.

• Conducted the first-ever comprehensive salary and benefits study in order to ensure that our staff are fairly compensated in accord with market conditions.

•   Secured new quarters for the Bar. When the WSBA moves into its new offices in January 2007 at the Puget Sound Plaza, 1325 Fourth Avenue, Seattle, the Bar's rent will be less than presently paid, and it will average no more than the current rate over the 10-year term of this renewable lease.

I am proud of this Board's conscientious commitment to sound fiscal management; it is a keystone to a good fiduciary relationship with members.
 
Thank You!
In closing, it is my firm conviction that the Washington State Bar Association is in very good condition. It is sound fiscally, forward-looking, a good civic "citizen," and committed to its members and the public it serves. It may become one of the nation's great bar associations. Whether it does so will depend largely upon whether it meets the challenge of the 21st century to fully reflect the diversity of its membership and the public it serves.

It has been a great deal of fun (and work) to lead the WSBA. It has been my privilege to do so and one for which I thank each of you.

While I have said it before, I say again that each of you should consider some experience in Bar leadership, whether it be as a WSBA officer, with the Board of Governors, with a WSBA committee or section, or with one of the other local or voluntary bar associations. Having done so, you will, I am confident, concur with my assessment that the contribution repays more than it costs.

Thanks again.

Dave Savage can be reached at savage2@imsblaw.com or 509-332-3502.