September 1999

Miscellaneous Subjects and Onward!

by M. Wayne Blair
WSBA President

For my last Bar News article as your President, I have selected several topics for discussion.

Since February 1998, a blue-ribbon committee appointed by the Board of Governors has been working diligently to draft a working definition of the practice of law. The Committee, chaired by former Governor Steve Crossland, and which includes several former members of the Board of Governors, two retired Supreme Court justices, a retired superior court judge, and a number of practicing lawyers, has just issued its final report. The Committee went about its work very deliberately and with careful attention to process. In that process, many of you commented on a preliminary draft of the definition, and revisions were made based on these comments. The definition, which includes exclusions, is published on page 47 of this issue of Bar News.

As with all efforts addressing this subject, the proposed definition is controversial. The Committee adopted a practical approach and did not simply draft a definition to protect lawyers.

The Governors are currently discussing the proposed definition and are considering potential action. The Committee has recommended to the Board of Governors that the proposed definition be sent to the Supreme Court with a recommendation that it be adopted as a court rule.

What happens next? If the Board recommends the proposed rule to the Supreme Court, will the Court act on it? Should a rule, if adopted, then be used as a basis to seek legislation that would provide that the practice of law by persons who are unlicensed or unauthorized under this rule constitutes a per se violation of the Consumer Protection Act? As a part of the long-range planning process, I believe we need to adopt an overarching strategy — one that protects the public, and at the same time is in the best interests of consumers. Lawyers are educated in the law, undergo continual training, operate under a code of ethics, and are subject to discipline for their transgressions. If nonlawyers are authorized to practice law in some circumstances, how would they be regulated?

As you know, Washington Rule of Professional Conduct 5.4(a) provides that (subject to very narrow exceptions) a lawyer or law firm cannot share legal fees with a nonlawyer.

The ABA initially drafted the Model Rules of Professional Responsibility, including 5.4(a) which Washington incorporated into its rules. A special commission of the ABA studying the concept of multidisciplinary practice for a year recently issued its final report. Among other recommendations, the report proposed that a lawyer be permitted to share legal fees with a nonlawyer, subject to certain safeguards which prevent erosion of the core values of the legal profession. The commission cited independence of professional judgment, protection of confidential client information, and avoidance of conflicts of interest as core values that exist to protect the public and are essential to preserving lawyer-client relationships.

At its July 30 meeting, the Board of Governors received an oral report from Tom Fitzpatrick, a Washington lawyer and a member of the ABA Board of Governors. Tom advised the WSBA Board that, in his view, this issue of multi-disciplinary practice is the most significant issue to come before the ABA in the last 50 years. If approved by the ABA and by each of the rule-making authorities in each of the states, i.e., by the WSBA Board of Governors and by the Washington State Supreme Court, the practice of law will undergo significant changes. For example, one might see lawyers and accountants practicing together, a firm selling both estate-planning services and life insurance, or a plaintiff's personal injury lawyer and a chiropractor practicing together.

As I write this article, the final report is before the ABA House of Delegates for debate, discussion and possible action at its meeting on August 9 and 10. I anticipate that the issue will be debated, but a vote will likely be deferred until the ABA's February 2000 Mid-year Meeting in Dallas. The WSBA Board voted to instruct its ABA delegation to vote, after debate on the issue, to defer any action on the proposal until the February meeting. We will keep you advised as this issue develops further. The WSBA will convene a forum for local discussion.

Proposed RPC 8.4 (g) and (h)

Setting Minimum Standards Relating to Certain Discriminatory Acts, Including Sexual Orientation, and Prohibiting Conduct Manifesting Bias in Representing a Client

Proposed rule 8.4 (g) was recommended to the Supreme Court by the Board in 1995, only to have the Supreme Court take no action. A slightly revised form of RPC 8.4 (g) and new section RPC 8.4 (h), recommended by the RPC Committee to address problems faced by women and minorities in the legal profession, were sent to the Court in November 1998.

About two weeks before the end of the comment period (June 30, 1999), the Supreme Court received an anonymous letter from the Washington Advocates for Constitutional Legal Expression, also known as "WACLE," strenuously opposing the proposed changes to RPC 8.4 (g) and the addition of RPC 8.4 (h). The letter criticized the rule changes as vague, overly broad and politically correct. The letter was sent to most lawyers in the state, urging them to express their opposition to these proposed rule changes to the Supreme Court. Within a few days, 975 of you responded to the Court. Substantially all your comments were in opposition to the proposed rule changes.

The group has since voluntarily identified itself. According to Poulsbo lawyer Jim Johnson, a leader of the group, the anonymity of the letter was due more to miscommunication than an effort to hide identity.

Upon my receipt of the letter, I requested Justice Charles Johnson, Chair of the Supreme Court Rules Committee, not to act on the proposed changes until the Board of Governors had an opportunity to respond to this letter. Justice Johnson advised me that the Rules Committee would not act before its meeting on September 2.

At the Board of Governors' Meeting on July 29, the issue before the Board was how to respond to the WACLE letter. Representatives of WACLE (Jim Johnson of Poulsbo and others) were present. At the meeting, the Board was asked to reconsider its recommendation to the Supreme Court to adopt such rules. The discussion that followed, with approximately 30 people observing, was both heartening and gut-wrenching.

The discussion was heartening because it reminded me of what is great about our profession: lawyers being their most articulate in strenuous debate over difficult issues about which they feel strongly. The discussion was gut-wrenching as members of the Board, listening to the debate and debating among themselves, tried to determine the proper course of action.

It is important for lawyers to understand that the Board of Governors is a diverse group. Most of the Board members these days come from small firms throughout the state. Although not ethnically diverse, the Board otherwise reflects lawyers of different genders, ages, practice experiences and political persuasions. The Board is an able group of lawyers working hard to represent their constituents, and at the same time acting in the public interest. The Board did not lightly consider its initial recommendation to the Supreme Court in October. The Board also recognizes that the proposal is controversial, and that there are well-meaning people on all sides of the issue who feel quite strongly. After debate, the Board declined on a vote of eight to one to reconsider its proposal to the Supreme Court. The Board is preparing its response to the Court in support of the rule.

I pass this along to you to emphasize that the kind of information WACLE submitted at the last minute should have been made available much earlier in the process for adequate debate and discussion. The debate at this meeting, from the standpoint of the Governors, was difficult because of the issues raised at the last minute, and because of the strongly held views on all sides of the issue.

Communication with Members

The discussion regarding RPC 8.4 raised a broader issue — and that is communication between the Board of Governors and WSBA members. The Board would have preferred to have this kind of discussion months ago, when it was initially considering the matter. How do we, as a Board, better communicate with members, so that we assure the proper kind of debate as the Board formulates a position on a contentious issue?

Our primary means of communicating with the membership is through Bar News and the WSBA website (www. wsba.org). Both of these issues were timely raised in Bar News and on the website, and the response, up until now, has been mostly silence. Both the Board of Governors and the membership need to work together to improve communication on these contentious issues.

Best Wishes to President-elect Richard Eymann

I am highly honored to have served as the 108th President of the Washington State Bar Association. It has been an incredibly rewarding personal experience. I have thoroughly enjoyed my year. Thank you.

I know that Dick Eymann of Spokane is ready, able and eager to assume the position as the 109th WSBA President. Dick has served this past year as President-elect, and brings to the position of President vast experience as a highly successful trial lawyer and active community volunteer. Best wishes, Dick!

Many thanks to retiring Governors Terry Lee of Vancouver, Marijean Moschetto of Bellevue, Don Powell of Tacoma, and Mary Alice Theiler of Seattle. Your experience and insight will be missed.

Welcome to the incoming Governors, Dale Carlisle of Tacoma, Jenny Durkan of Seattle, Stephen Henderson of Olympia, and Vicky Vreeland of Seattle and the Eastside. While the decisions you must make may not always be easy or clear-cut, you will find serving on the Board challenging and professionally rewarding.

Finally, I want to express my appreciation to Executive Director Jan Michels for her support, advice and friendship over the years, to her assistant, Lori Lee, as well as to the WSBA directors and the entire WSBA staff for their assistance during this past year. Onward! 

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