July 2000

Board's Work - May 2000

by Sherrie Bennett

With increasing intensity, the Board of Governors is seeking ways to add diversity of several types to WSBA leadership. Heeding the call of Governor Jenny Durkan to "diversify or die," the Board actively sought direction from a variety of resources at its May 19-20 meeting in Yakima. Grappling with the problem of how to inject more diversity into WSBA representation, Governor Dale Carlisle suggested that the Board take a long-range approach to the issue by basing any decisions on a broader base in the future.

The Board zeroed in on the process for selecting its own, with Governor Durkan pointing out that, because the bulk of demographic diversity is centered in the Seattle area, women and minorities are effectively statistically excluded from running for WSBA president two out of three times. She pointed out that in emphasizing geographic diversity, the Board has inadvertently downplayed other types of diversity when engineering the governor and officer selection process. ABA Representative Kathleen Hopkins echoed these sentiments, insisting that board representation by congressional district doesn't work. Hopkins also pondered aloud the difficulties of defining diversity: Do you include disabilities and sexual orientation along with what most would consider more standard diversity groups?

Governor Vicky Vreeland saw change as coming from within the Board itself, pointing out that the women members of the Board were sought out and encouraged to run for a Board position by those already in WSBA leadership roles. Lisa Castilleja, president of the Young Lawyers Division, suggested that recruitment should be broader, and done by the whole group rather than just a few members. Governor Dick Manning directed the Board's attention to the fact that in the past 15 years, minority WSBA members have run for Board positions only twice, and offered the possibility of a leadership skills conference as a recruitment outreach tool. Kevin Diaz suggested that everyday mentoring is much more powerful than one-time training. Sherri Jefferson, president of the Loren Miller Bar Association, emphasized that many minority lawyers are already tapped out with commitments to their communities and do not have the time that is necessary to actively participate in Bar activities.

President-elect Jan Eric Peterson described the makeup of the WSBA membership at large to be approximately eight percent ethnic minorities and 30 percent women. He was hopeful that "diversity is doable," but told the Board that there must be a commitment in order for real change to happen. Executive Director Jan Michels stressed that a commitment to diversity would mean that minority Board members would have full legitimacy as equal members of the Board.

Governor Walt Krueger acknowledged that he was initially ambivalent about the possibility of a minority slot on the Board of Governors, because he thought that if a minority member wanted to be on the Board, he could simply run for the position like anyone else. But he subsequently realized that historically that hadn't happened, so perhaps it was time to engineer it into the process. He went on to suggest that, as "the devil is in the details," the Board should take care in determining how a minority member would be elected and consider including a sunset provision after a specific length of time had passed.

Tom Quinlan, president-elect of the Young Lawyers Division, cited several reasons to include a young lawyer slot on the Board: 1) It would enhance the relationship between the YLD and the Board of Governors; 2) It would decrease the perception that the Bar at large is not connected with its younger members; and 3) It would increase the likelihood that more women and minorities would sit on the Board (since the YLD is more diverse than the Board). He suggested that, because of the time commitment required and the necessity of being familiar with YLD programs and staffing issues, any Board of Governors' YLD slot should be filled for a one-year term with the immediate past-president of YLD.

In answer to Governor Steve Henderson's question on how to continue to maintain geographic diversity, Quinlan suggested that the YLD choose a president by the same process as the Board of Governors. Quinlan said young lawyers sometimes haven't run for Board seats because they feel they can't compete with the name familiarity of those who are more established, and that, if elected, they would have to devote their time to all their lawyer constituents rather than just young lawyers. Quinlan stressed that the practice of law has changed tremendously in the past few years, and young lawyers face staggering student loans and the issues of balancing family life with the practice of law. Kathleen Hopkins pointed out that 30 states already have young lawyer seats on their governing boards, and it would increase the Board's visibility with young lawyers.

Governor Jim Deno and Yvonne Terrell Powell, a diversity facilitator who conducted diversity town meetings for the WSBA, reported back to the Board on the town meetings. Powell encouraged the Board to continue to look at diversity as a broad concept that includes more than just ethnicity and gender. She urged the Board to ask, "Where do we want to go from here?" and come up with specific recommendations to put into action.

Governor Durkan echoed the sentiment that it is important to come up with concrete actions that the Board can take at this time.

The Board will continue to discuss this unwieldy but progressive issue in future meetings.

Former governor Steve Crossland reported that the state Supreme Court has forwarded comments received in response to the WSBA's proposed rule defining the practice of law, to see if the proposed rule should be revised based on the comments. It appears that the Supreme Court does not want to be a regulator for enforcing unauthorized practice of law violations, which would leave the task up to the WSBA or a group specifically set up for that purpose. WSBA representatives met with members of the Washington Association of Prosecuting Attorneys (WAPA) to discuss WAPA's potential support in the form of prosecutorial resources.

Scott Smith reported that the Access to Justice (ATJ) Board met with the Supreme Court in March to discuss the criteria for determining whether specific practices are unauthorized. From an ATJ viewpoint, the concern is that, if you are too restrictive in trying to prevent harm, you may also prevent some access to justice for those who need it. Jan Eric Peterson pointed out that the underlying construct of the rule is one of protecting the public, while pondering where that leaves the unauthorized practice of law that is in fact positive and ATJ-oriented. He suggested that this realm of activities could possibly be licensed and regulated.

General Counsel Bob Welden reported on the possibility of including rules providing immunity for WSBA officers, staff and volunteers carrying out enforcement functions that the Supreme Court might adopt by court rule in the regulation of the practice of law.

The discussion was tabled until the Definition of the Practice of Law Committee can sift through the comments received by the Supreme Court.

WSBA Chief Disciplinary Counsel Barrie Althoff gave the annual disciplinary report, beginning with the joyous announcement that the "wicked witch" of backlogged disciplinary cases is dead or, at the very least, on her deathbed, with only 671 pending cases. Althoff reported on a reorganization of the Office of Disciplinary Counsel (ODC), focusing on intake, investigation and prosecution as three distinct functions. He also mentioned that the ODC is recruiting more lawyers as volunteer prosecutors. Althoff received a standing ovation for the ODC's determination and hard work over the past year.

Jan Eric Peterson dreamed aloud of the possibility of getting more positive media coverage for the Bar's disciplinary system.

The Board reviewed the status report on death penalty cases in Washington state written by Chief Justice Richard Guy, which outlined how death penalty laws have worked over the past 19 years, how much they have cost, and how much time they take to resolve. The WSBA Civil Rights Committee has asked the Board to recommend that Governor Locke implement the ABA's moratorium on the death penalty. Governor Walt Krueger noted that his research on this matter has convinced him that competent representation in potential death penalty cases must be put in place before a crime is charged, as competent early representation saves appellate costs later on. He believes that there is not a sufficient quantity of qualified counsel to represent all those charged in death penalty cases, as the pay is low and there is a heavy toll on one's practice because of the time that must be devoted to such a case. This issue will be discussed further at the Board's August 4-5 meeting in Port Angeles.

The Greater Access and Assistance Program (GAAP) steering committee is implementing two regional "modest means" panels that will take referrals from the CLEAR hotline to assist persons of modest means in obtaining legal assistance. The program infrastructure is being developed and will be tailored to each pilot.

The Board authorized President Dick Eymann and President-elect Jan Eric Peterson to appoint a committee to study multidisciplinary practice issues, after Tim Carlson of the Business Law Section assured the Board that business lawyers are already struggling with this issue, especially in the accounting area. Governor Krueger urged the Board not to be "ostriches with our heads in the sand" when dealing with the issue, as it was not going to go away. This issue may be addressed by the ABA as early as this summer, and Governor Vreeland encouraged the ABA delegates to vote as individuals, rather than follow any specific WSBA directive.

Celebration 2000 Update

Dick Eymann reported that Celebration 2000 is gaining momentum. Martindale Hubbell has made a generous contribution and the program continues to expand, with up to 17.5 CLE credits available. Celebration 2000 will be held September 13-16 in Spokane.

In an effort to make implementation of long-range planning efforts more concrete, the Board has put together a 2000-2001 operational plan that includes some of the following goals:

• Make services more directly helpful and accessible to members;

• Support the work of the Council on Public Legal Education;

• Improve the WSBA's message to the public about the good lawyers do;

• Work in collaboration with YLD and law schools to develop programs that provide education in professionalism, client service and business management to prepare students for successful legal careers before they are admitted to the WSBA;

• Explore options for modifying the bar exam to address professionalism and practical skills;

• Develop programs specifically designed to fulfill the educational and support needs of new lawyers once they have become WSBA members;

• Create civility and professionalism "best practices," and implement a program to promote civility in the legal profession;

• Follow adopted board process and direction on actions relating to multi-disciplinary practice and the unlicensed practice of law;

• Maintain a forum for monitoring future trends regarding external influences and market pressures that impact the delivery of legal services;

• Improve license renewal and MCLE reporting processes;

• Assure that all regulatory services are efficient;

• Secure adequate funding for civil legal services;

• Facilitate electronic interchanges with members for communicating, meeting participation, core functions and e-commerce;

• Become a "hub" of legal Internet resources;

• Actively work for court improvements and funding;

• Encourage meaningful participation of minorities in WSBA leadership;

• Maximize efficiency, effectiveness, accuracy, and customer satisfaction related to all accounting processes with particular emphasis on improvements in license revenue tracking;

• Research options for increasing non-license revenue.

The Board appointed Keith G. Baldwin as chair of the 2000-2001 Legislative Committee. Michele Radosevich will serve as vice-chair, and Committee members will include Roy Atwood, J. Patrick Aylward, Daniel Peter Brink, Nicholas Corning, Kathleen Kim Coghlan, William Eller, Harold Federow, Peter David Francis, Michael Hanbey, Vernon Harkins, Peter Harris, Herman H. Hayner, Scott Holte, Don Law, Douglas C. Lawrence, Erika Lim, Paula Littlewood, Marta Lowy, John Matthews, Richard E. Mitchell, Arthur Colby Parks, Geoffrey Revelle, John Riley, Terry Colin Schmalz, Mychal Schwartz, Klaus Otto Snyder and R. Brent Walton. Incumbents Kathleen Hopkins and Scott Miller were reappointed as ABA delegates, with Rosemary Daszkiewicz remaining as an alternate delegate. Incumbent Margo T. Keller was reappointed to the Commission on Judicial Conduct, with Lorraine Lee remaining as an alternate appointee.

The Board adopted the following policy: Reimbursement of travel expenses to out-of-state, funded committee members to attend committee meetings is limited to the approximate costs of in-state travel. Participation in meetings by telephone conference call is encouraged because it saves significant travel time and expense.

In a beginning effort to understand the complex intricacies of court funding, the Board examined the Office of the Administrator for the Court's May 2000 overview of Washington's state operating budget and court revenue distribution. Governor Krueger reported that brown-bag lunches with discussions on court funding will continue.

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