February 2006

The Board’s Work

by Lindsay Thompson

Bremerton, December 9-10, 2005

With what seem to be streamlined agendas this year, the BOG moved a good bit of work in a day and a bit at the Kitsap Conference Center right off the ferry terminal. They made appointments to the Lawyers’ Fund for Client Protection Committee; representatives to the Northwest Justice Project Board; to the Rules of Professional Conduct Committee; and the Committee for Diversity. They named a new chair for the Electronic Communications Committee.

Treasurer Mark Johnson told the Board its Budget and Audit Committee was reviewing a possible change to WSBA investment policies so the Bar can make more money. More to come.

President-elect Ellen Conedera Dial, who chairs the Facilities Committee, updated the Board on its work with staff, an architect, and a project manager to complete designs of tenant improvements to the Puget Sound Plaza space WSBA will move to at year-end. There’ll be an Art Committee, too, to avoid the Institutional Office Art Plague, with selections representative of the various parts of Washington.

Jon Ostlund, a former gov who co-chairs the Committee on Public Defense, briefed Board members on the Committee’s work plan for this year and its budget requests to the Legislature. He also updated members on the pending settlement of litigation against Grant County over its public defender program troubles.

A draft opinion on retainers and advance payments was offered by Discipline Director Joy McLean, intended to replace Ethics Opinion 186.

McLean explained the old opinion has proved vague and almost misleading in places as it has aged. The issue is what to do when a client gives a lawyer money to do work and whether the lawyer can spend any of the money before doing the work. There’s case law that inclines to a “no” answer, requiring all funds to be deposited in trust accounts until earned.

A variety of liaisons made presentations. Some were concerned about the need to protect the public interest vs. lawyers’ ability to meet their overhead; whether the most effective guidance on this issue would be in the form of an ethics opinion, a court rule, or a law; definitional issues about defining advance payments (such as the long-standing “non-refundable retainer”; whether a different rule should govern criminal vs. civil work; and hourly vs. flat fee considerations.

Governor Eron Berg moved to create a task force to address these things, but also to withdraw current opinion 186. Governor Mark Johnson moved to sever the two issues; that passed.

The motion to withdraw Ethics Opinion 186 passed, 7-5-1. The task force motion passed 13-0. Governor Johnson will chair the task force, and a public-interest member will also be appointed.

Governor Lonnie Davis liked the new proposed opinion well enough to move that the Board go ahead and adopt it. That one failed, 3-10.

An interesting issue first raised at the previous meeting came back in the form of a discussion on whether WSBA should offer an amicus brief in State vs. Athan. At issue is whether the police can pretend to be a law firm and send a letter to a suspect telling him he could be a party in a class-action suit if he returned an opt-in card. From the return envelope the police got some DNA and arrested the guy.

The Amicus Brief Committee’s Lisa Stone told the Board that sort of plot, however, effective in a law-enforcement way, worked to the detriment of the integrity of the legal profession and the administration of justice. The Committee felt an amicus brief should stress that the law firm ruse should not be permitted, but not address what sort of remedy might be appropriate. John Muenster, a defense lawyer, agreed with that scope. On the other hand, King County Prosecuting Attorney Norm Maleng told the Board the case really didn’t touch the issues the Amicus Committee was concerned about, and that the Practice of Law Board could deal with the attorney-client concerns. He felt the amicus brief would be read as one advocating a position favoring the defendant.

After further animated discussion, a motion by Governor Sal Mungia to file an amicus but take no position on remedies passed, 12-1.

Roger Wynne and Douglas Ende briefed the BOG on proposed changes to CrR 4.11 and a related rule, 4.6. These deal with whether victim and witness depositions should be allowed and accessible to defendants, out of fear for the safety of victims and the protection of witnesses.

This issue has been bouncing back and forth between the Court Rules Committee and the Board of Governors for a couple of years. It’s what I’ve dubbed a Cat vs. Dog Issue: one where the differences between opposing sides are so fundamental they almost seem genetic. Criminal lawyers say ease up, victims’ groups say never. The Committee reps argued the latest iterations struck a reasonable balance between protection vs. disclosure of the facts. A vigorous discussion followed. Governor Mungia moved to approve the rules for recommendation to the Supreme Court. It passed, 11-2.

Diversity Committee Co-chair Joaquin Hernandez updated the Board on the Committee’s work over the last year, noting a number of successful efforts. He covered plans for 2006 and the value of the discussion held with BOG members at a diversity retreat in October.

In other appointment matters, Michele Radosevich and Judge Michael Schwab were appointed to the Legal Foundation of Washington’s board. Chariese Adams and Robert Stevens were nominated for appointment by the Supreme Court to second terms on the Limited Practice Officers Board.

Jean McElroy, who leads WSBA Regulatory Services, gave the Board a report on improvements and projects relating to admissions, licensing, CLE, and member data maintenance.
Gail Stone, WSBA’s legislative director, and Pete Karademos, who chairs the Legislative Committee, told the Board what WSBA had on its agenda for the 60-day legislative session starting in January. It includes cleanup amendments to probate law; harmonizing and conforming the state’s two corporation acts; a uniform securities law bill that includes Washington law; and a bill to further the incorporation of civics education in the public schools. All were approved unanimously. After reports by the president, president-elect, and executive director on their work since the last meeting, the Board rose at 9:15 a.m. Saturday, December 10.