September 1999

Board's Work - July 30-31, 1999

by Sherrie Bennett
published in September 1999 Bar News

The July 30-31 meeting of the Board of Governors in Port Ludlow found the governors wrestling with ways to soften the blow of an inevitable fee increase for the members. Having previously digested the news that an increase was necessary, the Board stepped up to bat and designed a phase-in process to increase license fees over the next three years. This incremental program will also be accompanied by an investigation into potential alternative payment arrangements (such as paying by credit card).

Prodded by the necessity of keeping the WSBA reserve fund at the optimal eight percent, the Board approved increases over the next three years.

The Board also approved an increase of $3 per year to the Lawyers’ Fund for Client Protection assessment, raising the annual fee from $10 to $13 for each WSBA member.

The Board approved the final version of the 1999-2000 fiscal year budget.

After struggling with the definition of what it means to "practice law" for at least 60 years (according to records kept by the Bar Association), the Committee to Define the Practice of Law presented a working definition to the Board. Committee members Steve Crossland, Zanetta Fontes, Peter Ehrlichman, Jim Andersen and Peter Harris unveiled the following definitive proposal to the Board:

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).

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 lay representative authorized by administrative agencies or tribunals.

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

5) Participating 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 chapters 10.14 (harassment) or 26.50 (domestic violence) RCW 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.

(c) Nonlawyer Assistants: 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."

Peter Ehrlichman explained to the Board that the Committee was most concerned with striking a balance between protecting those doing a good job of servicing the public versus those doing an abysmal job of servicing the public. Steve Crossland told the Board that the Committee’s focus was not one of protectionism, but of consumerism, looking toward the goal of protecting the public in setting a bright line standard. He also emphasized that the Committee envisioned a continuing ad hoc committee to advise as specific issues arise, as the definition is a "living and breathing rule," designed to be adaptable to change as needed.

After much discussion, the Board decided to table the matter until the September 9th meeting in Seattle. The Committee invites comments prior to that meeting, which can be addressed to Steve Crossland by e-mail, srcrozz@aol.com, or phone, 509-782-4418.

Judge Marlin Appelwick and Judith Billings presented the Public Legal Education Workgroup report to the Board. The Board approved the report in concept and approved the addition of one full-time-equivalent employee position at the WSBA. Governors Theiler and Powers emphasized the special importance of educating children as to the "underpinnings of democracy," and underlined the necessity of looking toward long-term benefits.

Legislative Committee Appointments

The Board appointed Klaus Snyder, Kathleen Coghlan, Vernon Harkins, Daniel Glenn, Harold Federow, Paula Littlewood, Todd Ungerecht and Laurie Connelly to the Legislative Committee. Remaining appointments to the committee will be made by President-elect Richard Eymann, to reflect a mix of practice areas, diversity, geographic locations, age, experience and other factors.

The Board adopted a new change to CR40(f) regarding disqualification of pre-assigned judges, to be forwarded to the state Supreme Court for consideration. The new proposal reads:

"Any right under RCW 4.12.050 to seek disqualification of a preassigned judge will be deemed waived unless, in addition to the limitations in the statute, the motion and affidavit are filed with the court no later than thirty days prior to trial before a preassigned judge. For purposes of this rule, ‘trial’ includes any review of or appeal from an administrative body. If a case is reassigned to a different judge less than forty days prior to trial, a party may then move for a change of judge within ten days of such reassignment, unless the moving party has previously made such a motion." The Board also considered proposed new Guardian Ad Litem Rules. The Board is expected to take action on these proposed rules at the September 9th meeting. Please let the governor of your district know what you think.

Regional counsel for Allstate Insurance met with the Board regarding a complaint from the Consumer Protection Committee that Allstate was providing a "Quality Service Pledge" and a "Do I Need an Attorney" brochure to claim victims that may violate the Consumer Protection Act. Committee chair Peter Harris urged the Board to write to Insurance Commissioner Deborah Senn advising of a possible consumer protection violation as well as an unauthorized practice of law violation. The Board referred the matter back to the Consumer Protection Committee to meet with Allstate representatives and anyone else who wants to be heard on the issue.

Tom Fitzpatrick presented an ABA proposal to change the rules regarding sharing fees with and being in business with nonlawyers. The proposed rules stress that there must still be undivided loyalty to clients, absolute confidentiality and independent judgment of the involved lawyer. The Board instructed Washington ABA delegates to seek a continuance of the ABA vote until the mid-year ABA meeting.

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