August 2009

The Board’s Work

WSBA Board of Governors Meeting
May 29, 2009 — Yakima

by Michael Heatherly

At its May 29, 2009, meeting in Yakima, the Board of Governors voted to contribute $1.5 million of WSBA funds to support financially strapped civil legal aid programs, but to do so without imposing a surcharge on member license fees. The vote came after lengthy testimony and debate at the April and May BOG meetings. Meanwhile, the BOG elected Bellevue attorney Steven Toole to serve as the next WSBA president-elect and take over as president for the 2010-2011 fiscal year.

The BOG took up the topic of civil legal aid funding after WSBA President Mark Johnson reported in the April Bar News that civil legal aid programs across the state were in jeopardy, largely because of a severe downturn in IOLTA (Interest on Lawyers’ Trust Accounts) revenues. He proposed adding a mandatory $70 surcharge to the license fee for all active WSBA members, a measure he acknowledged would be unpopular. In response to Johnson’s recommendation, BOG members crafted proposals of their own, most involving alternatives to a mandatory fee surcharge.

At its April and May meetings, the BOG took testimony from numerous stakeholders in the issue, reflecting widely differing interests. Members of pro bono civil legal aid organizations testified as to the great need for their services and the loss of resources they face under the funding shortfall (IOLTA revenues in 2008 were $4.69 million, down from $9.18 million in 2007). Some brought former clients, who described for the BOG how their rights had been protected by the programs at a time when they could not have afforded to pay for legal services.

Meanwhile, some Bar members and others expressed opposition to the WSBA supporting such programs, given that WSBA membership is mandatory and members have no control over how such funds are used. Some questioned whether all pro bono clients are truly in need of such services. For example, Dan Fazio, director of employer services for the Washington Farm Bureau, said members of his organization find themselves in litigation against individuals — farm employees, for instance — who are represented pro bono by civil legal aid organizations. Those individuals are sometimes better able to afford legal representation than the farm owners, who do not qualify for the legal aid programs, he claimed. Fazio also complained that some legal aid organizations use a portion of their funds for political lobbying and that their positions on issues may be contrary to the views of some Bar members.

BOG members themselves expressed concern about increasing membership fees through a mandatory assessment during an economic recession and about using mandatorily collected funds to support external programs. During debate on the issue at the May 29 meeting, Governor David Heller argued that it is the duty of society as a whole, not just of the Bar, to support civil legal aid and other access to justice programs. However, Governor Brian Comstock pointed out that General Rule 12.1, the court rule of general application that sets out the purposes of WSBA, requires that the Bar promote an effective legal system accessible to all and that it support programs providing legal services for those in need.

The proposal that ultimately went to a vote at the May meeting, promoted largely by Governors Carla Lee and Catherine Moore, had four parts.

First was a one-time transfer of $1.5 million of WSBA money to LAW Fund (the Legal Aid for Washington Fund, which — along with the affiliated Legal Foundation of Washington — distributes the IOLTA funds to legal aid programs statewide). The WSBA funds could be used at any time during the 2009–2010 fiscal year as a “lifeline” for civil legal aid programs. The Budget and Audit Committee would oversee disbursement of the funds from the WSBA budget.

Proponents of the proposal anticipated that a large portion of the funds would come from the WSBA facilities reserve fund. The fund, which is meant to provide for such things as expected future relocation or remodeling of WSBA headquarters, would be re-capitalized in coming years under budget measures already in place. However, some BOG members and others questioned whether it is realistic to expect the recapitalization to take place and for current WSBA programs to remain intact, given the poor economic climate.

Doug Lawrence, who was a BOG member and WSBA treasurer when the current budget reserve system was set up, warned that while the proposal would avoid the proposed special fee surcharge for 2010, the BOG might still be forced to increase membership fees in future years to recoup the funds being allocated to LAW Fund. The planned replenishment of the funds rests partly on increased revenues from a previously proposed membership fee increase of $35 per year for active members, awaiting approval by the Washington State Supreme Court. Governor Heller and others expressed concern that the $35 increase, while approved by the BOG before the BOG began addressing the legal aid crisis, might now be seen as a de facto legal aid surcharge on members. Although proponents of the measure said they believed the funds could be allocated as proposed without painful measures such as program and staff reductions, others questioned whether that is possible. Ultimately, a motion to approve the $1.5 million transfer was approved on a 7–6 vote.

A second part of the proposal was to include the option for members to voluntarily contribute $70 to the Campaign for Equal Justice on the annual WSBA membership licensing form beginning in 2010. The contribution would be charged to members unless they checked a box to opt out. At the suggestion of Governor Anthony Gipe, a motion to enact the proposal was amended to delete the reference to $70 and instead direct that the amount of the contribution be recommended by leadership of the LAW Fund, so as to maximize donation efforts and not impair existing fundraising. The motion passed 12–1.

The BOG unanimously passed a third related motion, which directs the Budget and Audit Committee, in cooperation with the Access to Justice/Washington Young Lawyers Division GAAP (Greater Access and Assistance Project) Committee, to create a proposal for a WSBA-sponsored pilot project to provide statewide “low-bono” (low-cost) legal services. The proposed project is to be considered by the BOG for the 2010 budget.

In the fourth related motion, the BOG unanimously approved a plan for WSBA and LAW Fund to work jointly on a project to increase voluntary financial contributions to legal aid programs by WSBA members. A committee is to be formed, consisting of the executive directors of WSBA, Legal Foundation of Washington, and LAW Fund, as well as a representative of the LAW Fund Board of Directors, three WSBA BOG members, and the WSBA general counsel. The committee is to present a proposal to the BOG by the end of July.

In other business, the BOG elected Steven Toole to serve as WSBA president-elect for the October 2009 to September 2010 fiscal year and as president for the following year. In a secret ballot, the Board selected Toole over another candidate, Randolph Gordon of Bellevue. Toole, who practices mainly in plaintiffs’ personal injury work, was admitted to WSBA in 1976. Beginning 15 years ago, when he was elected to the BOG, he has been involved in numerous WSBA projects. He was president of the Washington State Trial Lawyers Association (now the Washington State Association for Justice) in 2002–2003 and has participated in several other professional and community activities.

Also at the May 29 meeting, the Board re-elected Carla Lee as the governor-at-large representing the Washington Young Lawyers Division for the October 2009 to September 2012 term. For the past year, Governor Lee had been serving out the unexpired term of a predecessor. 

Michael Heatherly is the Bar News editor and can be reached at barnewseditor@wsba.org or 360-312-5156. For more information on the Board of Governors and Board meetings, see www.wsba.org/info/bog. For more information on issues addressed by the Board, visit the WSBA website at www.wsba.org and click on “News Flash” under “WSBA News and Information.”