June 1999

The Board's Work—April 30-May 1, 1999

by Sherrie Bennett
Bar News Editor
(published in the June 1999 Bar News)

Lawyer Discipline Progress Reviewed

The state of lawyer discipline topped the Board of Governors' agenda for the April 30-May 1 meeting in Spokane. Barrie Althoff (Chief Disciplinary Counsel), Charlie Wiggins (Disciplinary Board Chair) and Julie Shankland (Clerk/Counsel to the Disciplinary Board) gave reports to the Board covering the activities of the Disciplinary Board and in-house disciplinary counsel over the past year, and presented recommendations for current and future action to improve the process.

In 1998, there were 2,723 new investigations by disciplinary counsel, with 57 percent of all grievances filed by clients. The practice areas to garner the highest number of grievances included family law (22 percent), criminal law (21 percent), and torts (13 percent). Communication problems between lawyer and client and delay accounted for 32 percent of the grievances, with other problems including the unauthorized practice of law, criminal convictions, fraud and trust account violations. Althoff reported that an effort is being made to divert file disputes and communication problems out of the discipline system. Internal changes within the Office of Disciplinary Counsel (ODC) include the addition of an investigator, paralegal and support clerical staff, and the institution of "career paths" to motivate ODC staff. Althoff described a plan toward a more preventative discipline program, using as an example the 70 presentations given to various attorney groups by discipline staff over the past year.

Governor Moschetto, Board liaison to the Disciplinary Board for the past three years, asked the Board to consider a shift away from a disciplinary emphasis toward lawyer management issues, perhaps involving lawyers in ethics CLEs and professionalism programs, and beefing up law office management and lawyer assistance programs. She also suggested the Board continue implementing a discipline diversion program for appropriate cases as approved in 1997.

The Board authorized the appointment of 11 additional hearing officers. Althoff described the disciplinary rules as being rather like "a 1940s car...it will get you there, but the ride is uncomfortable and strange things happen along the way." He supported Wiggins' request that the Board appoint a rules task force to review the rules and make suggestions for improvement.

Storm clouds brewed over a request by Althoff for an official Board policy on the non-involvement of Board members in individual lawyer grievances. Althoff explained that Board members' "second-guessing" of substantive disciplinary decisions was an improper intrusion and was having an influence on the ODC. Governor Powell described the proposed policy as an effort to "remove the Board from a truth-finding role that entails a level of accountability that we are bound by duty to uphold," adding that it is impossible to "depoliticize" the Board.

Governor Powell went on to explain that when he hears about discipline issues from constituents, there is the perception that the "ODC is a big, bad monster out to make lawyers' lives miserable." He concluded that "gagging" elected leaders from making inquiries would be a "bass-ackwards" way of running an organization. Governor Manning pointed out that the Rules for Lawyer Discipline seem to already prohibit the Board from getting involved in individual discipline matters. Governor Thompson then asked Althoff why he thought it would be inappropriate for Board members to discuss individual disciplinary matters amongst themselves, without taking any action to influence the decision(s). After considerable heated discussion, the issue was referred to the Disciplinary Committee for further review.

Lawyers' Assistance Program Update

Barbara Harper and Elliott Johnson presented the Board with new statistics on lawyer usage of the Lawyers' Assistance Program, described as the first "broad-brush program" of its kind in the country. During the first three months of 1999, 37 lawyers either self-referred or were referred by third parties to the program. Of that number, 62 percent were given client treatment by LAP personnel, seven percent consulted with peer counselors (other attorneys trained to assist lawyers with specific problems), and 18 percent received professional consultations of various kinds. Harper praised lawyer peer counselors as the "backbone of the program," without whom much of the work done by LAP would go undone. The program is currently working on a "How to Help Lawyers Retire" process.

Long-Range Strategic Planning Reaches Across State

Town meetings set up to gather information for the Board's long-range strategic planning were set to end May 16th, at which time the process of collating and reviewing the acquired data will begin. A planning session has been set for May 27th. Several of the governors described town meetings in Kennewick, Bellingham and Seattle. A town meeting involving 80 lawyers was held in Spokane to coincide with the Board meeting.

Website Demonstration

The Board was treated to a demonstration of the many features of the WSBA's newly re-designed website. Interested viewers can read Bar News articles, look up addresses and phone numbers of attorneys, scan CLE offerings, peruse job listings, check on disciplinary action against lawyers, and more. Researchers will find links to RCWs, WACs, court rules and other resources. The website is located at www.wsba.org.

Appointments

Lindsay Thompson and Maria Diamond were appointed to the Washington State Jury Commission being formed by the Board for Judicial Administration, which is set to explore the low response to jury summonses and potential solutions.

Greg Dallaire and Joseph Delay (as alternate) were appointed to the Commission on Judicial Conduct.

John G. Shultz and John Strait were appointed to the Statute Law Committee.

Newly appointed members of the Alternative Dispute Resolution Standing Committee include Carmel Mackin, Donnelly Wilburn, Marc Christianson, Bill Rush, Dennis Burns, Erv Desmet, Ken Le Master, Alan Alhadeff, Phil Cutler, Linda Roubik, Nick Wagner, John Cooper, Fred Diamondstone, Stew Cogan, Carolyn Cairns, Kay Fields, Fran Forgette, John Erlick, Don Desoniere, Chris Goelz, Dennis Lane, Thomas J. Brewer and John C. Riseborough. The hope is that at least one of this large number has an ample meeting space, so that they will not literally become a standing committee.

Virginia Kirk was appointed to the Judicial Information System Committee.

Gonzaga Law School Update

Associate Dean Stephen Sepinuck spoke with the Board regarding some 25 new courses added to the Gonzaga Law School curriculum and the school's success in national moot court competitions. The new law school building will be completed under budget and ahead of schedule. Dean Sepinuck's appearance in front of the Board sparked a discussion of ways in which student loan burdens can be mitigated.

American Bar Association Report

Scott Miller briefed the Board on upcoming ABA activities. The group's legislative and governmental priorities for 1999 include alternative dispute resolution, application of state ethical codes to government attorneys, federal gun control, federal tort laws, government attorney participation in the organized bar, immigration issues, independence of the judiciary, indigent defense funding, legal remedies to eliminate discrimination, the Legal Services Corporation and the international rule of law.

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