October 1999

The Board's Work
September 9-10, 1999

In an historic move, the Board of Governors, in its September 9-10 meeting in Seattle, unanimously approved the Final Report of the Committee to Define the Practice of Law. The Board will be recommending the following definition of the "practice of law" to the state Supreme Court:

(a) General Definition:

The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law. This includes but is not limited to:

(1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration.

(2) Selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s).

(3) Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.

(4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).

(b) Exceptions and Exclusions:

Whether or not they constitute the practice of law, the following are permitted:

(1) Practicing law authorized by a limited license to practice pursuant to Admission to Practice Rule 8 (special admission for: a particular purpose or action; indigent representation; educational purposes; emeritus membership; house counsel), 9 (legal interns), 12 (limited practice for closing officers), or 14 (limited practice for foreign law consultants).

(2) Serving as a courthouse facilitator pursuant to court rule.

(3) Acting as a law representative authorized by administrative agencies or tribunals.

(4) Serving in a neutral capacity as a mediator, arbitrator, conciliator or facilitator.

(5) Participation in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements.

(6) Providing assistance to another to complete a form provided by a court for protection under RCW chapters 10.14 (harassment) or 26.50 (domestic violence prevention) when no fee is charged to do so.

(7) Acting as a legislative lobbyist.

(8) Sale of legal forms in any format.

(9) Activities which are preempted by Federal law.

(10) Such other activities that the Supreme Court has determined by published opinion do not constitute the unlicensed or unauthorized practice of law.

Nothing in this rule shall affect the ability of nonlawyer assistants to act under the supervision of a lawyer in compliance with Rule 5.3 of the Rules of Professional Conduct.

(d) General Information:

Nothing in this rule shall affect the ability of a person or entity to provide information of a general nature about the law and legal procedures to members of the public.

(e) Governmental Agencies:

Nothing in this rule shall affect the ability of a governmental agency to carry out responsibilities provided by law.

(f) Professional Standards:

Nothing in this rule shall be taken to define or affect standards for civil liability or professional responsibility.

Culminating a year-long process of gathering information from members and strategizing over the Bar Association's future, the Board approved a Long-Range Strategic Plan, including goals (which can be accessed on page 58 of the September issue of Bar News) and potential outcomes associated with each goal. The Long-Range Strategic Planning Committee will present a proposed implementation plan at the Board's October 22-23 meeting. The Committee will be reconstituted, with Governor Krueger serving as chair and Governor Deno as vice-chair. The Board emphasized the importance of a continuous planning process in the years to come.

The Board adopted general guidelines regarding MCLE changes that will be required if the state Supreme Court adopts recommended amendments to APR 11. These guidelines include:

1. The MCLE mandatory regulatory functions should be revenue neutral.

2. Attorneys should not have to pay extra to the WSBA for regulatory services.

3. Fees and fines should be intended to cover the additional time and expense by the WSBA. It is better to charge more for the things that will cost the WSBA more to implement.

4. Providers may need to pass on the additional costs if the reporting fee is based per-attorney, per-credit hour. Several other states charge per attorney rather than per-attorney, per-credit hour.

5. The sponsor reporting fee should be stepped according to how much effort it takes the WSBA to implement.

6. Accreditation fees may need to be adjusted since, once accredited, an entity can sponsor unlimited courses. There should be an annual renewal fee for accreditation.

7. No accreditation or reporting fees will be charged for courses offered without charge, except programs approved pursuant to Regulation 103(g) (pro bono legal services, private law firm education), and Regulation 104 (f) (governmental agencies).

The Board also approved the Accreditation Subcommittee's recommendations, as follows: Accredited sponsors should have sponsored CLE programs for a minimum of three years with an average of nine programs per year, and should renew their accreditation annually. The MCLE Board should establish quality control and audit procedures. There should be a program of sponsor orientation and education presented by the WSBA MCLE staff.

The Board also approved a written statement clarifying the relationship between the CLE Board and the WSBA Board of Governors regarding the CLE Board's budget and personnel issues.

The Board of Governors is now recommending that any CLE offered by the WSBA should include an ethics component.

After much discussion and with apparent reluctance, the Board authorized Kirke Van Orsdel, a division of Seabury & Smith (with whom the WSBA has an exclusive insurance brokerage contract into 2001), to pursue concrete negotiations with Tamarack American, a division of Great American Insurance Company, to underwrite the WSBA-sponsored insurance program.

New Legislative Committee appointees include Elizabeth Castilleja, Nicholas Corning, Peter Karademos, Marta Lowry, Todd Nichols, Dave Rubens, Gail Smith and Edward Wolfe.

After a record revenue year in 1998, the Legal Foundation of Washington is expecting a drop in income for the coming year, due to lower interest rates. The Board received the Foundation's annual report, presented by Barbara Clark, Jerry Doss, Judge Cynthia Imbrogno, David Tang, Judge Gregg Tripp and Dwight Williams.

Barbara Selberg presented the annual report of the Lawyers' Fund for Client Protection, which received 95 applications during the past year and paid $132,856 to applicants who had been financially damaged by lawyers in Washington state.

Governor Manning discussed the ongoing operations of BARPAC, a political action committee dedicated to attorney issues. Large law firms and previous contributors have been targeted as potential donors, and $25,000 has been raised to date. The money will be used primarily for contributions to prospective legislative candidates.

Based upon calculations provided by General Counsel Robert Welden, the Board approved the following Keller (political activities) deduction schedule for the Fiscal Year 2000, prorated by the amount of license fees paid by various categories of WSBA membership:

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