September 2001

The Board's Work

by Mark A. Panitch, Bar News Editor

Your Board of Governors heard major reports from the Discipline 2000 Task Force, Court Rules Committee, Future of the Legal Profession Study Group, Death Penalty Study Group, and the Professionalism Committee.

The Discipline 2000 Task Force, co-chaired by Supreme Court Justice Charles W. Johnson and President-elect-elect J. Richard Manning, presented a report calling for important changes to the WSBA discipline system. Manning made the presentation with support from attorney Kurt Bulmer, and WSBA Office of Disciplinary Counsel Associate Director Joy McLean and Senior Disciplinary Counsel Randy Beitel.

Among the task force’s major recommendations are:

•  creating a small cadre of trained and compensated hearing officers organized and managed by a chief hearing officer. Hearing officers would have some previous judicial or similar experience, would receive additional training for their roles, and would be compensated based on the assumption that they would be able to spend 20-30 days a year in hearing-officer work without suffering serious economic hardship.

•  reversing the current presumption to require Discipline Board members to leave the board while disputing a grievance.

• creating a diversion program similar to those used by many prosecutors’ offices. Upon admitting and describing the misconduct under oath or penalty of perjury, an attorney accused of "less serious misconduct" could be referred to some combination of monitoring, education and treatment. Successful completion of the program would bar future discipline for a particular grievance. "Less serious misconduct" generally means an accusation which, if true, would not result in the restriction of a respondent lawyer’s license to practice law.

• increasing efforts to make the discipline system more self-sustaining. For example, costs would be filed as judgments.

• allowing hearing officers to approve agreements for discipline.

• allowing members the option of permanent resignation instead of discipline.

• combining censure and reprimand in a single form of discipline, which would be delivered in writing rather than orally by the BOG.

Former WSBA Governor Walt Krueger spoke to the BOG about the inability to obtain a study of the death penalty in Washington, as previously authorized by the BOG. Although $30,000 for the study had been in the Office of the Administrator for the Courts’ (OAC) budget, that money was returned to the general fund by the OAC and the study was not done. Several governors argued that the death penalty was so heavily supported by the population that there was no point in discussing it.

However, other governors argued that whether the penalty was carried out fairly, and whether a convict was really guilty were matters that many people were very concerned about. Governor Victoria Vreeland moved that the WSBA sponsor a study; the motion was defeated 3-7. After it was clarified that no WSBA direct funding would be used for the study, the motion for a study was renewed, and passed 9-1. Governor Vreeland urged the BOG to support a death-penalty moratorium while the study was underway. Her motion was defeated 3-7. The BOG then asked President Jan Eric Peterson and the study group to report back on the issue in six to eight months.

Pro Hac Vice Admissions

The governors noted that the WSBA has no record of attorneys admitted pro hac vice in various courts around the state, and the BOG agreed to ask the Supreme Court to create a rule requiring payment of a $200 fee to the WSBA and registration as a pro hac vice.

Attorney Harry McCarthy presented an aspirational statement of professionalism that starts with the words: "As a proud member of the legal profession practicing in the state of Washington, I endorse the following principles of civil professional conduct, intended to inspire and guide lawyers in the practice of law."

Governors spent more than an hour debating the meaning of a statement which is aspirational only, and which carries no weight in any forum. Several governors suggested that judges might post the creed on courtroom doors and impose the standards on attorneys practicing in their courts. This raised a response from other governors who responded that the creed was aspirational and voluntary.

Finally, the BOG adopted a slightly amended version of the creed with the addition at the bottom of the page of a statement in small print that: "This creed is a statement of professional aspiration adopted by the Washington State Bar Assocation on July 27, 2001, and does not supplant or modify the Washington Rules of Professional Conduct." See the WSBA Web site at www.wsba.org/creed for the full text of the creed.

Governors hotly debated a report from the Future of the Legal Profession Study Group. The study group was divided on the issue of multidisciplinary practice (MDP) and was unable to reach a consensus on any recommendation to the BOG, either to change or not change the Rules of Professional Conduct prohibiting sharing of legal fees and control of law firms. Some governors argued that shared practice is the wave of the future and is inevitably coming regardless of what the BOG does; however, other governors argued that shared practice would result in a loss of professional and economic independence for attorneys. Following a tie vote, and therefore no action, President Peterson noted his personal opposition to MDP.

In regard to multijurisdictional practice (MJP), the BOG — after spirited argument — agreed to send both the previously passed pro hac vice recommendation and a rule relating to MDP with Idaho and Oregon to the Rules of Professional Conduct Committee.

The next BOG meeting will be September 13-15 at the WSBA office in Seattle. The Annual Awards Dinner and Business Meeting will be September 13 at the W Seattle Hotel. To reserve your space at the dinner, please complete the reservation form below. 

Oath of Attorney: The Board of Governors approved a revised version of the Oath of Attorney to be submitted to the Supreme Court for adoption. The oath is prescribed by Admission to Practice Rule 5(b). Pursuant to General Rule 9, if the Supreme Court determines to consider the change, it will be published for comment at that time. As proposed by the Board of Governors, the oath would read:

Do you accept the invitation of the Supreme Court of Washington to practice before the courts of this State, and solemnly promise:

1. that you will uphold the laws and Constitutions of the United States and of the State of Washington and support the principles of constitutional government;

2. that you will support the independence of the judiciary and help sustain its independence by assuring that adequate provision is made for its support;

3. that you will sustain the rule of law and help realize the promise of liberty for all by assuring equal access to justice for all;

4. that you will undertake representation of the oppressed, the defenseless, the disempowered, and the just cause, without regard for considerations personal to yourself, to the end that you make justice manifest and society just;

5. that, as an Officer of the Court, you will maintain the respect due the Court, its officers, staff and all persons appearing before it;

6. that, as a member of this honorable profession, you will abide by the Rules of Professional Conduct, both in letter and spirit, always tell the truth, and never intentionally mislead by act or omission;

7. that you will faithfully represent your clients, maintain their confidences, and preserve as inviolate their communications, pursuing their just causes by only such means as are consistent with truth and honor;

8. that you will strive at all times to adhere to the highest standards of professional and personal conduct, to advance and improve the justice system, to act in all ways in service to your clients and your community, and by so doing, be proud to be a lawyer and become a source of pride to the profession?

The individual(s) taking the oath will respond: Yes. I will. [Should be repeated after each statement above.]

Do you now, without equivocation, affirm your sincere and solemn commitment to the fulfillment of all of these promises, knowing that by so doing you bring honor to yourself, the greater community, and your profession?

The individual(s) taking the oath will respond: Yes. I do.

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