November 2000

Board's Work

by Judith Berrett

The final board meeting of Bar Year 1999-2000 took place in Spokane on September 13 in conjunction with Celebration 2000. The board effectively and efficiently moved through a very full agenda in an effort to complete the many issues that marked the year. It was the last board meeting for President Dick Eymann and Governors Walt Krueger, Dick Manning and John Powers. Two items, completion of work on the definition of the practice of law and confirmation of the appointment of a new Bar News editor, were acted upon in a conference call on October 6.

Six exceptionally well-qualified candidates for the position of sixth-district governor appeared before the board. (The position had been made vacant with the election of Dale Carlisle as president-elect.) The governors' job was not to be envied, as each candidate had outstanding credentials and was extremely impressive. Congratulations to S. Brooke Taylor of Port Angeles, who was elected new governor (see page 56).

Governor Jim Deno led the board through a thought-provoking discussion about adding a position of diversity to the board. This issue has been under consideration for nearly a year, and several groups, including the minority bar associations and the Committee for Diversity, have weighed in in favor of a new position. Governor Deno began by telling the board that he was asking them "to make a very difficult decision – to change our form of governance." He remarked that the Board of Governors is very concerned about diversity and ensuring that the Association's governance include and represent all members.

Seattle attorney Lem Howell, member of the Board of Governors from 1989-1992, and the only person of color ever to have served on the board, spoke persuasively and movingly about the need for representation. "A need is perceived, and if you perceive there is a need, you must do something." He stated that "there will be more sensitivity" with a minority board member. He concluded by asking: "What harm can it do?"

Mark Shepherd, representing the King County Bar Association, relayed that the KCBA had discussed this issue at length and felt that it was the right thing for the WSBA to do — to "move forward with inclusiveness." Jim Macpherson, of the Washington Defense Trial Lawyers, said: "The issue is representation. We must think of ways to get diverse voices here."

Former WSBA President Wayne Blair also spoke powerfully in favor of the proposal. "We need to make a change. It may be controversial, but the time has come." Scott Smith, of the Access to Justice Board, voiced his opinion that it was "an easy way to make a step in the right direction."

Committee for Diversity Co-chair Bonnie Terada told how, through numerous discussions, the committee struggled with the proposal. The committee initially thought it "smacked of tokenism," but later changed its position.

All governors spoke sincerely and thoughtfully, some recounting their own personal struggles over this issue. Governor Vicky Vreeland told how her first reaction was that it amounted to tokenism, and she wondered about representation for all minorities, not just racial minorities; she concluded that it should be a racial minority seat. She stated that the board needs the "perspective and sensitivity" a racial minority would bring.

Governor Daryl Graves said he was "pleased and proud" the board took the time and energy to consider the issue in such depth, concluding by stating: "I'm convinced this is the right thing to do." Governor Jenny Durkan, participating via phone from London, also voiced her strong support. Governor Dick Manning observed: "There's no right or wrong answer to this very, very difficult issue." He further stated that he didn't think the problem would be answered by a new position. "We need to reach out and spend time with people who have interest in leadership and help them get elected."

Governor Walt Krueger characterized this topic as "probably the most difficult issue the board has dealt with in the past three years." He said: "We are all in favor of increasing the diversity … but it would have so much more credibility, and I would feel so much better about it, if he or she were elected through the normal process." He was also concerned about the selection method. "Part of our responsibility is to deal with the details." Governor Steve Henderson agreed with Governor Krueger, believing that the board should instead "focus our efforts on how we identify and elect minority persons in the traditional way."

"I wasn't on the fence — I wasn't even near the fence," is how Governor Stephen Osborne characterized his initial position. He said he found many good reasons why the motion shouldn't be passed, feeling that it was tokenism, and that the system wasn't broken. However, after "listening to the collective wisdom of the governors," he changed his mind. "I don't know if it's right or if it's wrong, but we have to be a little daring … it's an important enough issue that we ought to try it."

Governor Lindsay Thompson said: "I consider this to be a first step." Former Governor Marijean Moschetto applauded "the courage of the board in facing the issue head-on."

Thus, with a vote of 9-2-0, the Board of Governors adopted the proposal to add a minority seat to the board. The process of selecting the new governor has yet to be determined. A joint meeting of the Committee on Diversity and the officers of the Loren Miller Bar, Asian Bar and Hispanic Bar will be held to develop recommendations.

Characterizing the subject as being "as old as the Bar Association itself," Committee Chair Steve Crossland reviewed the history and work of the committee. With its overriding goal of determining how to best serve and protect the public, the committee has been working with dedication and diligence for the past two and a half years. The committee's work (a monumental undertaking) includes three parts: (1) a proposed rule (GR 22), which defines the practice of law; (2) a proposed rule to establish a Practice of Law Board; and (3) recommendation of criteria for possible licensing of nonlawyers in limited areas of practice.

To broaden its perspective, the committee held meetings with representatives from the Access to Justice Board, several former citizen members of the Disciplinary Board, representatives from the Washington Association of County Clerks, and a judge from the Superior Court Judges' Association. This expanded group agreed on the following premise: "All members of society should be able to obtain essential legal assistance from individuals who have the requisite skills and competencies and who are subject to a regulatory system that seeks to ensure that those whose important rights are at stake can reasonably rely on the quality, skill and ability of those who provide legal representation." When the motion to adopt the work of the committee for forwarding to the Supreme Court got bogged down in "group editing," the board set a telephone meeting for October 6 to review the final committee product.

At the October 6 telephone meeting, after much debate and amending, the board voted unanimously to forward rules on the definition of the practice of law and a Practice of Law Board to the Supreme Court.

The rule on the definition had previously been adopted by the board; only a small change had been made in response to public comments. The proposed rule establishing a Practice of Law Board provides a mechanism for the following: providing advisory opinions, investigating complaints, making referrals to appropriate enforcement agencies, and making recommendations to the Supreme Court on possible amendments to GR 22 (the definition of the practice of law). Governor Ken Davidson expressed concerns that the proposed Practice of Law Board rule seemed vague about whether it created an enforcement action, or whether it was a regulatory system to allow nonlaywers to practice law for access purposes. WSBA General Counsel and Committee Liaison Bob Welden acknowledged the concerns as valid, but stated that defining the practice of law and determining how to implement such a definition is a step-by-step process, and that there would be other opportunities for input and modification.

Steve Crossland characterized both rules as "groundbreaking" and noted that they have the support of many diverse groups. Access to Justice Board Member Jim Bamberger praised the committee for their work. The board thanked Steve Crossland for his years of work on this landmark action.

The WSBA-recommended modification to RPC 8.4 will be on the Supreme Court en banc agenda in October. A resolution was passed that the president and president-elect write to the Court, emphasizing that the WSBA feels strongly about the need to adopt the proposed rule as written in order to guarantee equal treatment, and that the King County Bar Association's report In Pursuit of Equality: The Final Report of the KCBA Task Force on Lesbian and Gay Issues in the Legal Profession accompany the letter.

Professionalism Committee Chair Stella Rabaut and incoming Chair Harry McCarthy presented a proposed Code of Civility and Creed of Professionalism. The draft Code of Civility will be published (see page 45) for member comment and input, and will also be presented at meetings around the state.

Seabury and Smith made a presentation to the board, requesting that the WSBA renew its sponsored insurance program. After discussion, the board voted in favor of renewing its contract for four years.

The board unanimously confirmed the appointment of Seattle attorney Mark Panitch, as nominated by the Editorial Advisory Board, as new editor of Bar News. Governor Lindsay Thompson spoke on the candidate's behalf, noting that the WSBA is fortunate to have a Pulitzer Prize winner as Bar News editor.

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